<PAGE> 1
As filed with the Securities and Exchange Commission on October 17, 1997
Registration No. 333-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
----------------------
401(K) SAVING PLAN FOR BARGAINING UNIT EMPLOYEES
(Full title of the plan)
Copy to:
<TABLE>
<CAPTION>
<S> <C>
Robert D. Vilsack, Esq. William A. Papenbrock, Esq.
General Counsel and Corporate Secretary Calfee, Halter & Griswold
Figgie International Inc. 1400 McDonald Investment Center
4420 Sherwin Road 800 Superior Avenue
Willoughby, Ohio 44094 Cleveland, Ohio 44114
(216) 953-2700 (216) 622-8200
</TABLE>
(Name, address and telephone number, including area code, of agent for
service)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered (1) registered per share(2) price(2) fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C>
Class A Common 250,000 Shares $14.875 $3,718,750 $1,127
Stock, par value
$.10 per share
Class B Common 250,000 Shares $14.4375 $3,609,375 $1,094
Stock, par value
$.10 per share
- ----------------------------------------------------------------------------------------------------------------
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based on the average of the high and
low prices quoted on the Nasdaq National Market System on October 13,
1997, for the Class A Common Stock, and October 14, 1997, for the Class B
Common Stock.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents of Figgie International Inc. (the "Company"),
previously filed with the Securities and Exchange Commission (the "Commission"),
are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
2. Amendment No. 1 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996;
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1987.
5. The Company's Registration Statement on Form 8-A filed
November 27, 1985;
6. The Company's Amendment No. 1 to its Registration Statement
on Form 8-A filed December 17, 1985;
7. The Company's Amendment No. 2 to its Registration Statement
on Form 8-A filed February 4, 1986;
8. 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 this Registration Statement and to be a part hereof from the date
of filing of such documents other than the portions of such documents, which by
statute, by designation in such document or otherwise, are not deemed to be
filed with the Commission or are not required to be incorporated herein by
reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document that also is, or is deemed to be, incorporated by
reference in this Registration Statement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article VI of the Company's Bylaws, as amended and restated effective
November 26, 1996 (the "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.
II-1
<PAGE> 3
Article VI of the 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 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 Company 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
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
II-2
<PAGE> 4
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and
(A)(1)(ii) do not apply if the Registration Statement is
on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant
pursuant to Sections 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned registrant undertakes that, for 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-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Willoughby, State of Ohio, this 17th of
October, 1997.
FIGGIE INTERNATIONAL INC.
By: /s/ Steven L. Siemborski
------------------------
Steven L. Siemborski, Chief Financial
Officer and Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on October 17, 1997.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ John P. Reilly
- ----------------------------------- Chairman of the Board and Director (Principal Executive
John P. Reilly Officer)
/s/ Steven L. Siemborski
- ----------------------------------- Chief Financial Officer and Senior Vice
Steven L. Siemborski President and Director (Principal Financial Officer and
Principal Accounting Officer)
/s/ Fred J. Brinkman
- ----------------------------------- Director
Fred J. Brinkman
- -----------------------------------
John S. Lanahan Director
/s/ F. Rush McKnight
- -----------------------------------
F. Rush McKnight Director
/s/ Harrison Nesbit, II
- -----------------------------------
Harrison Nesbit, II Director
/s/ A.A. Sommer, Jr.
- -----------------------------------
A.A. Sommer, Jr. Director
/s/ Walter M. Vannoy
- -----------------------------------
Walter M. Vannoy Director
</TABLE>
II-4
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, the
trustees have duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Wilmington, State
of Delaware, on August 28, 1997.
401(K) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
By: Wilmington Trust Company,
Trustee
By: /s/ Moire E. Walker
-----------------------------
By: Moire E. Walker
Senior Financial Services Officer
II-5
<PAGE> 7
FIGGIE INTERNATIONAL INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Sequential Page
- -------------- ----------- ---------------
<S> <C>
3.1 Restated Certificate of Incorporation of the Corporation, as amended (1)
3.2 Bylaws of the Corporation (2)
4.3 Specimen Certificate Class A Common Stock, $.10 par value (3)
4.4 Specimen Certificate Class B Common Stock, $.10 par value (3)
4.5 Figgie International Inc. 401(k) Savings Plan for
Bargaining Unit Employees
4.6 Indenture, dated as of October 1, 1989, between Figgie (4)
International Inc. and Continental Bank, National Association
(n/k/a State Street Trust), as Trustee, with respect to the 9.875%
Senior Notes due October 1, 1999.
5.1 Opinion of Calfee, Halter & Griswold regarding the validity of the
equity shares being registered (see Page II-7 of this Registration
Statement)
23.1 Consent of Arthur Andersen LLP (see Page II-8 of this
Registration Statement)
23.2 Consent of Calfee, Halter & Griswold (see Page II-7 of this
Registration Statement)
24.1 Power of Attorney and related Certified Resolution (see Pages
II-10 and II-11 of this Registration Statement)
- ---------------
<FN>
(1) Incorporated herein by reference to Exhibit 19 to the Company's Quarterly Report on Form 10-Q for the
quarter ending June 30, 1987 (File No. 1-8591).
(2) Incorporated herein by reference to Exhibit 3(ii) of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 (File No. 1-8591).
(3) Contained in the Restated Certificate of Incorporation of the Corporation, as amended, incorporated
herein by reference as Exhibit 3.1 above. EXHIBIT 5.1
(4) Incorporated herein by reference to Exhibit 4 to the Company's Annual Report on Form 10-K for the
year ending December 31, 1989 (File No. 1-8591).
</TABLE>
II-6
<PAGE> 1
Exhibit 4.5
FIGGIE INTERNATIONAL INC.
-------------------------
401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
-------------------------------------------------
Effective: July 1, 1997
<PAGE> 2
TABLE OF CONTENTS
ARTICLE NO.
-----------
NAME AND PURPOSE I
DEFINITIONS II
ELIGIBILITY AND PARTICIPATION III
SALARY DEFERRAL CONTRIBUTIONS IV
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT V
ACCOUNTS VI
WITHDRAWALS FROM ACCOUNTS VII
HARDSHIP DISTRIBUTIONS VIII
LOANS IX
TERMINATION OF EMPLOYMENT X
RETIREMENT BENEFITS XI
DEATH BENEFITS XII
DISTRIBUTIONS XIII
THE TRUSTEE, ITS POWERS AND DUTIES XIV
INVESTMENT MANAGEMENT XV
ADMINISTRATION XVI
PROHIBITION AGAINST ALIENATION XVII
AMENDMENT AND TERMINATION XVIII
LIMITATIONS ON CONTRIBUTIONS XIX
LIMITATION ON ANNUAL ADDITIONS XX
ROLLOVERS AND TRANSFERS INVOLVING OTHER
QUALIFIED RETIREMENT PLANS XXI
MISCELLANEOUS XXII
(2)
<PAGE> 3
INDEX
ARTICLE NO.
-----------
ACCOUNTS VI
ADMINISTRATION XVI
AMENDMENT AND TERMINATION XVIII
DEATH BENEFITS XII
DEFINITIONS II
DISTRIBUTIONS XIII
ELIGIBILITY AND PARTICIPATION III
HARDSHIP DISTRIBUTIONS VIII
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT V
INVESTMENT MANAGEMENT XV
LIMITATION ON ANNUAL ADDITIONS XX
LIMITATIONS ON CONTRIBUTIONS XIX
LOANS IX
MISCELLANEOUS XXII
NAME AND PURPOSE I
PROHIBITION AGAINST ALIENATION XVII
RETIREMENT BENEFITS XI
ROLLOVERS AND TRANSFERS INVOLVING OTHER
QUALIFIED RETIREMENT PLANS XXI
SALARY DEFERRAL CONTRIBUTIONS IV
TERMINATION OF EMPLOYMENT X
THE TRUSTEE, ITS POWERS AND DUTIES XIV
WITHDRAWALS FROM ACCOUNTS VII
(3)
<PAGE> 4
FIGGIE INTERNATIONAL INC.
-------------------------
401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
-------------------------------------------------
THIS AGREEMENT, a Declaration of Trust and Plan, is entered
into by and between FIGGIE INTERNATIONAL INC., a corporation organized and
existing under and by virtue of the laws of the State of Delaware (hereinafter
called the "Company"), and WILMINGTON TRUST COMPANY (hereinafter called the
"Trustee");
W I T N E S S E T H:
--------------------
WHEREAS, pursuant to an Agreement between the Company and the
International Union of Electronic, Electrical, Technical, Salaried and Machine
Workers, (IUE) AFL-CIO, Local No. 326, the Company has duly authorized the
establishment of a 401(k) Savings Plan for Bargaining Unit Employees for the
sole and exclusive benefit of eligible hourly paid employees who qualify as
participants hereunder and their beneficiaries as herein provided; and
WHEREAS, the Company has duly authorized the execution
of this Agreement; and
WHEREAS, it is the intention of the Company that such 401(k)
Savings Plan for Bargaining Unit Employees qualify under Sections 401(a), 401(k)
and 501(a) of the Internal Revenue Code of
1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and agreements herein contained, it is mutually agreed as
(4)
<PAGE> 5
follows:
(5)
<PAGE> 6
ARTICLE I
---------
NAME AND PURPOSE
----------------
1.1 The name of this Trust and Plan is FIGGIE INTERNATIONAL
INC. 401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES. This Trust and Plan is
created for the purpose of providing benefits to the participants in this Trust
and Plan upon their retirement and for the purpose of providing such other
benefits to such participants and their beneficiaries as are hereinafter
described.
<PAGE> 7
ARTICLE II
----------
DEFINITIONS
-----------
Unless the context otherwise indicates, the following terms
used herein shall have the following meanings whenever used in this instrument:
2.1 The word "accounts" shall mean "salary deferral accounts"
and "non-forfeitable accounts."
2.2 The word "Administrator" shall mean the Company.
2.3 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.
2.4 The word "beneficiary" shall mean any person, other than
an alternate payee as defined in Section 17.1(a) hereof, who receives or is
designated to receive payment of any benefit under the terms of this Trust and
Plan because of the participation of another person in this Trust and Plan.
2.5 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.
2.6 The words "Collective Bargaining Agreement" shall mean the
then current agreement between the Employer and the Union.
2-1
<PAGE> 8
2.7 The word "Committee" shall mean the Appeals Committee
constituted under the provisions of Article XVI 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 not include any
remuneration paid to an employee during a period in which he is not an active
participant in this Trust and Plan. In addition, an employee's "compensation"
shall not exceed One Hundred Sixty Thousand Dollars ($160,000.00) (plus any
adjustment after 1997 for cost-of-living or otherwise as shall be prescribed by
the Secretary of the Treasury pursuant to Sections 401(a)(17) and 415(d) of the
Code).
2.10 The words "continuous service" shall mean for any employee
the aggregate of all periods during which he is or was 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
2-2
<PAGE> 9
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 "Covered Employee" shall mean an hourly paid
employee of the Employer who is a member of the bargaining unit represented by
the Union; provided, however, that an hourly paid employee shall not be
considered to be a Covered Employee if he is a leased employee or he is an
employee who is employed in accordance with an oral or written employment,
consulting or other arrangement, the terms and conditions of which preclude his
participation in this Trust and Plan.
Any such employee shall cease to be a Covered Employee upon the
earliest to occur of:
(a) his termination of employment;
(b) his ceasing to be in the bargaining unit represented
by the Union;
(c) his transfer to employment with a Division, other
2-3
<PAGE> 10
than the Employer, or to an affiliate; or
(d) his becoming a leased employee or an employee who is
employed in accordance with an oral or written
employment, consulting or other arrangement, the
terms and conditions of which preclude his
participation in this Trust and Plan.
2.12 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 employee is paid any back pay pursuant to an award or agreement.
2.13 The word "Disabled" shall mean any period during which the participant is
receiving or is entitled to receive disability benefits under any sick leave,
short term disability program or long term disability program of the Company or
any affiliate.
2.14 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.
2.15 The words "effective date" of this Trust and Plan shall
mean July 1, 1997.
2.16 The word "employee" shall mean any employee, whether
salaried or hourly paid or whether full-time or part-time, of the
<PAGE> 11
Company or any affiliate and shall also include a leased employee.
2.17 The word "Employer" shall mean the Scott Aviation Division
of the Company.
2.18 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.
2.19 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.
2.20 The words "investment fund" shall mean a fund established,
maintained and administered by the Trustee pursuant to Articles V and XV hereof.
2.21 The words "leased employee" shall mean any individual
(other than a common-law employee of the Company or an affiliate) who, pursuant
to an agreement between the Company or an affiliate and any leasing
organization, has performed services under the primary direction or control of
the Company or an affiliate or 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.
2.22 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
2-5
<PAGE> 12
enlistment or tour of duty, and further provided that such voluntary enlistment
or tour of duty does not follow involuntary duty.
2.23 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.
2.24 The word "participant" shall mean any eligible employee who
has become a participant in this Trust and Plan in accordance with Article III
hereof. 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 not a Covered
Employee; and
(b) any period during which he is Disabled.
2.25 The words "payroll cut-off date" shall mean the last date
upon which data can be input into the payroll system or changed with respect to
the production of payroll checks for a payroll period.
2.26 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
2-6
<PAGE> 13
(1) hour for the Company or any affiliate. Notwithstanding the foregoing
provisions of this Section, 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.
2.27 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.
2.28 The words "plan year" shall mean the calendar year. The
first plan year shall be a short plan year and shall be deemed to have commenced
on the effective date and to end on December 31, 1997.
2.29 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 4.1
hereof and paid to the Trustee pursuant to Section 4.3 hereof.
2.30 The words "service" shall mean for any employee the
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<PAGE> 14
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:
(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.
2.31 The word "Shares" shall mean Shares of the Company's
capital stock which are denominated either Class A Common Stock or Class B
Common Stock, together with any voting trust certificates representing
beneficial ownership of such Shares.
2.32 The words "taxable year" shall mean the calendar year.
2.33 The words "termination of employment" shall mean for any
employee whose employment is covered by the terms and provisions of the
Collective Bargaining Agreement, the occurrence of any event specified in the
Collective Bargaining Agreement as causing the loss of such employee's
seniority.
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<PAGE> 15
The words "termination of employment" shall mean for any
employee whose employment is not covered by the terms and provisions of the
Collective Bargaining Agreement,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;
(e) he has been continuously laid-off for twelve (12)
months;
(f) he is absent from work for three (3) days without
notifying the Employer;
(g) if the stock or assets of the Employer are sold to
a person or entity which is not an affiliate of the
Company or are transferred to a joint venture which
is not an affiliate of the Company and this Trust
and Plan is assumed by such person, entity or joint
venture, his termination of employment (as defined
in subparagraphs (a) through (f) above) with such
person, entity or joint venture; or
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<PAGE> 16
(h) if the stock or assets of the Employer are sold to a
person or entity which is not an affiliate of the
Company or are transferred to a joint venture which
is not an affiliate of the Company and this Trust and
Plan is not assumed by such person, entity or joint
venture, the date of sale of the stock or assets or
the date of such transfer.
In the case of the occurrence of any event described in subparagraph (d)(i),
(d)(ii) or (e) of this Section, the date of such employee's termination of
employment shall be deemed to be the earlier of (A) the first anniversary of the
first day of any such period of leave of absence, military service or layoff, or
(B) the last day of any such period of leave of absence, military service or
layoff.
2.34 The words "Transition Period" shall mean the period
commencing on the effective date and ending on the date which is one (1) month
following the final reconciliation of the valuation of the assets of the
Company's 401(k) Savings Plan for Salaried Employees by such Plan's prior
recordkeeper for the second quarter of 1997.
2.35 The words "Trust and Plan" shall mean this instrument as
originally executed and as it may be amended from time to time hereafter.
2.36 The word "Trustee" shall mean the person or persons serving
as the Trustee of this Trust and Plan and any successor Trustee or Trustees.
2.37 The words "Trust Fund" shall mean the Trust established by
this Trust and Plan including the separate investment funds established pursuant
to Article V hereof.
2.38 The word "Union" shall mean the International Union of
Electronic, Electrical, Technical, Salaried and Machine Workers,
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<PAGE> 17
(IUE) AFL-CIO, Local No. 326.
2.39 The word "Unit" shall mean an accounting unit representing
an interest in one of the investment funds established under Article V hereof.
2.40 The words "valuation date" shall mean the date as of which
account balances are valued.
2.41 The words "vested account balances" shall mean for any
participant or former participant his vested interest and shall mean for any
beneficiary the portion of his account balances which represent a deceased
participant's or former participant's vested interest.
2.42 The words "vested interest" shall mean, with respect to any
participant the balance, if any, then credited to his salary deferral accounts
and nonforfeitable accounts. All account balances shall be fully vested and
nonforfeitable at all times.
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<PAGE> 18
ARTICLE III
-----------
ELIGIBILITY AND PARTICIPATION
-----------------------------
3.1 Every employee who is a Covered Employee shall
automatically become a participant in this Trust and Plan on the later of the
effective date or the date he becomes a Covered Employee.
3.2 In the event that a former participant is rehired, he
shall become a participant on his date of reemployment if he is a Covered
Employee on such date.
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ARTICLE IV
----------
SALARY DEFERRAL CONTRIBUTIONS
-----------------------------
4.1 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 as
a salary deferral contribution and be treated as a contribution by the Company.
Any election by a participant pursuant to this Section shall be expressed in one
percent (1%) increments of his compensation for a payroll period. The
Administrator may, from time to time, establish maximum percentage limits on the
amount of salary deferral contributions that participants can make under this
Trust and Plan and may establish maximum percentage limits which apply solely to
highly compensated employees. As of the effective date and until changed by the
Administrator pursuant to this Section, the maximum percentage of an active
participant's compensation for a payroll period that is subject to election
pursuant to this Section shall be fifteen percent (15%).
4.2 A participant's initial election pursuant to Section 4.1
hereof shall be in writing, or in such form as is required by the Administrator,
shall become effective at such time as the Administrator shall permit 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
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<PAGE> 20
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 until it is revoked or amended by the participant in writing, or by such
other procedures as shall be established by the Administrator from time to time,
or the participant ceases to be an active participant. A participant may revoke
or amend his election at such times as the Administrator shall permit. A
participant shall revoke or amend his election by providing such notice to the
Administrator as the Administrator, in its sole discretion, shall require. In
the event contributions under this Article are completely discontinued pursuant
to a participant's direction, no contributions may be made on behalf of such
participant under this Article until one (1) year has elapsed since the date as
of which the contributions were discontinued.
As of the effective date and until changed by the
Administrator pursuant to this Section, a participant will be able to revoke or
amend his election as of the first payroll payment date on or after the first
day of any calendar quarter, provided that he notifies the Administrator in
writing, or by such other procedures as shall be established by the
Administrator from time to time, no later than the tenth (10th) day of the month
prior to such calendar quarter. In addition, as of the effective date and until
changed by the Administrator pursuant to this Section, an employee who is a new
active participant will be able to make an election pursuant to
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<PAGE> 21
Section 4.1 hereof upon his entry into this Trust and Plan and such election
shall be implemented as of the next payroll cut-off date after such election is
received by the Administrator.
4.3 All amounts paid by the Company to the Trustee pursuant to
Section 4.1 hereof shall be paid in cash not later than the date on which such
amounts can reasonably be segregated from the Company's general assets, which in
no event shall be later than the fifteenth (15th) business day of the month
following the month in which such amounts would have otherwise been payable to
the participants in cash. Such amounts shall be credited to the participants'
salary deferral accounts.
4.4 In the event a participant receives a distribution from
his salary deferral account as a result of hardship as described in Article VIII
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:
(a) equals Nine Thousand Five Hundred Dollars ($9,500.00)
(plus any cost of living increase after 1997
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> 22
ARTICLE V
---------
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT
--------------------------------------------
5.1 The Trustee shall maintain such investment funds within
the Trust Fund as the Company may from time to time prescribe, 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. Investment funds maintained hereunder
shall be held and administered in accordance with the powers and duties set
forth in Article XV hereof. In addition, the Trustee may hold assets of any
investment fund in cash or in short-term money market instruments as it deems
appropriate.
The Company has directed the Trustee to initially
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<PAGE> 23
establish and maintain the following types of investment funds within the Trust
Fund:
(a) Stable Income Fund;
(b) Fixed Income Fund;
(c) Balanced Fund;
(d) Growth & Income Fund;
(e) Asset Allocation Fund;
(f) Equity Growth Fund;
(g) Small Cap Growth Fund;
(h) International Fund;
(i) Conservative Lifestyle Fund;
(j) Moderate Lifestyle Fund;
(k) Aggressive Lifestyle Fund;
(l) Class A Common Stock Fund, consisting of shares of
the Company's Class A Common Stock; and
(m) Class B Common Stock Fund, consisting of shares of
the Company's Class B Common Stock.
5.2 Each participant, former participant or beneficiary, by
written direction to the Administrator or by such other procedures as shall be
established by the Administrator from time to time, shall direct the investment
of contributions to his accounts in the investment funds established hereunder;
provided, however, that any such investment directions shall be made in
accordance with such other rules as are established by the Administrator from
time to time in its sole discretion including rules requiring that investment
selections be made in percentage increments. Any rules established by the
Administrator pursuant to this Section shall
5-2
<PAGE> 24
apply to all participants, former participants and beneficiaries in a uniform
and nondiscriminatory manner. It is intended that the total account balances of
all salary deferral accounts and non-forfeitable accounts be invested in the
investment funds established hereunder. In the event that a participant, former
participant or beneficiary does not direct the investment of any portion of his
account balances, such undirected portion of his account balances shall be
invested in the Conservative Lifestyle Fund.
5.3 The interest of any account in an investment fund shall be
measured in terms of Units which shall be equal, undivided interests in the
assets of the investment fund. The initial value of a Unit of an investment fund
shall be such uniform amount of money or uniform value as determined by the
Trustee. The value of a Unit in an investment fund shall be redetermined daily
by the Trustee by dividing the fair market value of the investment fund
(including any uninvested cash) as of the next preceding business day by the
total number of Units of such investment fund then credited to the accounts of
participants, former participants and beneficiaries who are then invested in the
investment fund. Fractional Units of the investment fund shall be credited to an
account to a least two (2) decimal places. It is intended that this Section
operate to adjust each investment fund to reflect all income attributable to
such investment fund and changes in the value of such investment fund's assets,
as the case may be, as of any valuation date and, as a result of the adjustment
of Unit values, to distribute among all accounts and subaccounts having an
interest in
5-3
<PAGE> 25
such investment fund, all such income and value changes.
5.4 Any investment direction shall be deemed a continuing
direction and shall remain in effect unless revoked or changed by the
participant, former participant or beneficiary by written direction to the
Administrator or by such other procedures as shall be established by the
Administrator from time to time. A participant, former participant or
beneficiary may change his investment direction at such times and upon such
notice as the Administrator, from time to time, may require. Each participant,
former participant or beneficiary shall indicate whether any change in
investment direction shall apply only to contributions made to this Trust and
Plan following such change or whether such change shall also operate to change
the investment of Units of any investment fund already credited to his accounts.
If a procedure for daily change of investment is offered by the Administrator,
such investment direction may be changed on a daily basis, such change generally
to be effective as of the end of the day of the change, but subject to
reasonable administrative delays.
5.5 If a participant, former participant or beneficiary has
made a proper change of investment direction pursuant to Section 5.4 hereof with
respect to Units of any investment fund already credited to his accounts, his
accounts shall be debited by the number of Units of any such investment fund
which have been sold and credited with the number of Units of any such
investment fund which have been purchased in order to accomplish such change of
investment.
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<PAGE> 26
5.6 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 such limit as shall be
established by the Administrator from time to time. 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 such limit, 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 his account balances which is invested in the Class
A Common Stock Fund or the Class B Common Stock Fund be reallocated to another
investment fund which is not the Class A Common Stock Fund or the Class B Common
Stock Fund, such person's right to direct further investment in the Class A
Common Stock Fund or the Class B Common Stock Fund shall be suspended for a
period of twelve (12) months from the date on which such reallocation was
effective. Such twelve (12) month suspension shall not apply to reallocations
between the Class A Common Stock Fund and the Class B Common Stock Fund.
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<PAGE> 27
ARTICLE VI
----------
ACCOUNTS
--------
6.1 Upon an employee becoming a participant, the Administrator
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.
6.2 The accounts of participants shall be credited with
contributions as specified in Article IV hereof and shall be debited to take
into account any withdrawals or distributions made from such accounts pursuant
to Article VII, VIII or XIII 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.
6.3 In the event a participant directs, pursuant to Article V
hereof, that his account or accounts are to be invested in more than one (1)
investment fund, the Administrator 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.
6.4 In the event that a participant or former participant
shall have more than one salary deferral account or non-forfeitable account, the
Administrator may in its sole discretion consolidate the multiple accounts into
a single account of the same type.
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ARTICLE VII
-----------
WITHDRAWALS FROM ACCOUNTS
-------------------------
7.1 Withdrawals made pursuant to this Article shall be
subject to the following restrictions:
(a) the minimum amount of any such withdrawal shall be
the lesser of an amount set by the Administrator or
the total of the account balances which are subject
to withdrawal pursuant to this Article;
(b) the withdrawing participant shall make a written
application on a form provided by the Administrator
or shall follow such procedures as shall be specified
by the Administrator from time to time 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 XIII
hereof;
(d) any withdrawal shall be made in accordance with the
provisions of Section 22.11 hereof;
(e) no amounts withdrawn pursuant to this Article may
be recontributed to this Trust and Plan; and
(f) 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.
7.2 Subject to Section 7.1 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 VIII hereof.
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<PAGE> 29
7.3 Subject to Section 7.1 hereof, on or after the earlier of
the April 1 following the end of the calendar year in which the participant
attains age seventy and one-half (70-1/2) or the date a participant becomes
permanently and totally disabled, such participant may withdraw all or a portion
of his non- forfeitable account balance. Prior to the earlier of the April 1
following the end of the calendar year in which a participant attains age
seventy and one-half (70-1/2) or the date on which a participant becomes
permanently and totally disabled, such participant may withdraw from his
non-forfeitable account only in the case of hardship as provided in Article VIII
hereof.
7.4 Upon an attempt by a participant to use his interest in
this Trust and Plan as security for any type of obligation, or to alienate,
dispose of or in any manner encumber, or upon an attempt by any third person to
attach, levy upon or in any manner convert the use or enjoyment of any such
interest of a participant, the right to withdraw any portion thereof pursuant to
this Article shall automatically terminate.
7.5 A participant may not withdraw his account balances prior
to his retirement or termination of employment except as provided in this
Article and in Article VIII hereof.
7.6 Notwithstanding anything contained in this Article to the
contrary, no withdrawals shall be made by participants during the Transition
Period.
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<PAGE> 30
ARTICLE VIII
------------
HARDSHIP DISTRIBUTIONS
----------------------
8.1 Subject to such uniform rules and procedures as the
Administrator may prescribe, in the case of hardship, a participant may apply to
the Administrator for a hardship distribution. For the purposes of this Section,
a distribution shall be on account of hardship only if the distribution is made
on account of an immediate and heavy financial need of the participant, as
described in Section 8.2 hereof, and is necessary, as described in Section 8.3
hereof, to satisfy such need. Such distribution shall be made from his accounts
as specified in Section 8.4 hereof.
8.2 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.
8.3 A distribution will be deemed to be necessary to satisfy
an immediate and heavy financial need of a participant only if all of the
following requirements are satisfied:
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<PAGE> 31
(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 this Trust and Plan and all other
plans maintained by the Company or any affiliates,
unless such distribution or loan would have the
effect of increasing the amount of the financial
need;
(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 immediately
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 after-tax contributions,
if applicable, to this Trust and Plan and such other
plans for at least twelve (12) months after receipt
of the hardship distribution.
By virtue of this Section and Section 4.4 hereof, this Trust and Plan provides
for the restrictions contained above in subparagraphs (c) and (d).
8.4 If the Administrator determines that the criteria set
forth in Sections 8.2 and 8.3 hereof have been satisfied with respect to a
participant, it may order a distribution of all or a portion of the sum of:
(a) such participant's non-forfeitable account balance;
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<PAGE> 32
and
(b) the lesser of:
(i) his salary deferral account balance; and
(ii) the sum of the aggregate amount of the
contributions made to his salary deferral
account, without earnings thereon.
Such distribution shall be made in a cash lump sum and shall
be made in accordance with the provisions of Section 22.11 hereof. Any
distribution from a participant's accounts under this Article shall be deemed to
be made in the following order:
(a) first, from his salary deferral account; and
(b) second, from his non-forfeitable account.
If the Administrator directs that a distribution be made
hereunder, it may thereafter, if it determines that such hardship no longer
exists or is no longer imminent or upon agreement with the participant, direct
that any such distribution not yet made not be made. Amounts distributed to a
participant under this Section shall be debited to the appropriate account or
accounts as they are paid.
8.5 Neither the application for nor payment of any
distribution in accordance with this Article shall have the effect of
terminating a participant's participation in this Trust and Plan. The
Administrator may prescribe the use of such forms, conduct such investigation,
and require the making of such representations and warranties, as it deems
desirable to carry out the purpose of this Article.
8.6 Notwithstanding anything contained in this Article to the
contrary, no hardship distributions shall be made to
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<PAGE> 33
participants during the Transition Period.
8-4
<PAGE> 34
ARTICLE IX
----------
LOANS
-----
9.1 A participant may apply to the Administrator for a loan
from this Trust and Plan. If 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 both of his 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 this Trust and
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 account balances
held for such borrower under this 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 this Trust and 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 Trust and Plan:
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<PAGE> 35
(A) LOAN PROGRAM ADMINISTRATION. The loan
program under this Trust and Plan shall be
administered by the Administrator.
(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 Section 22.5 or 22.6
hereof 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 borrower's vested
account balances at the time of such
loan; and
(IV) the amount of such loan shall not be
less than One Thousand Dollars
($1,000.00); and
(V) the loan satisfies the requirements
of Section 9.2 hereof.
(D) ONE (1) OUTSTANDING LOAN. A borrower may
only have one (1) loan from this Trust and
Plan outstanding at any time.
9.2 Any loan made pursuant to Section 9.1 hereof shall be
considered to be made solely from the 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 fixed by the Administrator at the time the loan
is approved. The interest rate used shall be the
interest rate that would be charged at the time of
the loan application by the Trustee in its capacity
as a bank for a fully collaterized loan for which the
bank has possession of the collateral.
(b) LOAN TERM AND REPAYMENT SCHEDULE. The term of any
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<PAGE> 36
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.
Notwithstanding the preceding sentence, any such loan
shall become immediately due and payable upon a
borrowing participant's termination of employment.
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 this Trust and Plan, his accounts, to the
extent of such borrowing, shall be deemed segregated
for investment purposes. The note representing such
loan and the borrower's accounts, to the extent of
such borrowing, shall not be taken into account in
the valuation of this Trust and Plan's investment
funds pursuant to Section 5.3 hereof.
(d) REPAYMENT PROCEDURES. Repayment of any loan made
to a participant shall be by payroll deduction
unless another procedure is agreed to by the
Administrator and the participant. Repayment of any
loan made to a borrower who is not a participant
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 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. 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 a required payment of principal or interest
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by the end of the calendar quarter which next follows
the calendar quarter in which such payment is due or
if he fails to make a required payment after a
permitted one (1) year grace period, as provided in
subparagraph (b) above. In the event of default by a
borrower, his loan shall be accelerated, and:
(i) If his collateral security in this Trust and
Plan is adequate to cover all or part of the
outstanding principal and interest, and if
distribution of such collateral security
would not, in the opinion of the
Administrator, put at risk the tax qualified
status of this 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 this 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 this Trust and Plan.
9.3 Notwithstanding the foregoing provisions of Sections 9.1
and 9.2 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 recent loan shall not extend beyond the period
of repayment under the prior loan. For purposes of this Section, the
Administrator shall be able to rely on a certification by the borrower as to the
use of the new loan's proceeds.
9.4 Notwithstanding anything contained in this Article
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to the contrary, no loans shall be made during the Transition Period.
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ARTICLE X
---------
TERMINATION OF EMPLOYMENT
-------------------------
10.1 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.
10.2 The account balances of a terminated participant shall be
distributed to him in accordance with the rules and procedures set forth in
Article XIII hereof. Except as otherwise provided in Article XIII hereof, such
distribution shall be made or shall commence to be made on such date on or after
his date of termination of employment as shall be directed by the terminated
participant in his sole discretion; provided, however, that such distribution
need not be made earlier than administratively possible. Notwithstanding
anything contained in this Trust and Plan to the contrary, other than Section
13.4 hereof, if a participant has a termination of employment pursuant to
Section 2.33(h) hereof that does not meet the requirements of Section 401(k)(10)
of the Code, such participant shall not be eligible to receive a distribution
from this Trust and Plan until he terminates employment with the person, entity
or joint venture acquiring the Employer.
10.3 If a terminated participant shall be rehired by the Company
or any affiliate, he shall immediately be reinstated as a participant in this
Trust and Plan.
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ARTICLE XI
----------
RETIREMENT BENEFITS
-------------------
11.1 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 XIII hereof.
11.2 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 date of his termination of employment with the Company
or an affiliate for any reason other than death.
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 XIII hereof.
11.3 Except as otherwise provided in Article XIII hereof,
distribution of the accounts of a participant who retires in accordance with the
provisions of this Article shall be made or commence to be made on such date on
or after his date of retirement as shall be directed by the participant in his
sole discretion; provided, however, that such distribution need not be made
earlier than administratively possible.
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ARTICLE XII
-----------
DEATH BENEFITS
--------------
12.1 In the event of the termination of employment of a
participant by reason of his death, his death beneficiary shall, except as
otherwise provided in Sections 13.3 and 13.4 hereof, be entitled to receive a
distribution commencing on such date after such death occurs as he shall select
in his sole discretion. Such distribution shall be equal to the deceased
participant's account balances. All accounts of the deceased participant shall
be held, administered and distributed in accordance with Articles VI and XIII
hereof.
12.2 In the event of the death of a retired or terminated
participant prior to the date of distribution or the commencement of
distribution to him, his death beneficiary shall, except as otherwise provided
in Sections 13.3 and 13.4 hereof, be entitled to receive a distribution
commencing on such date after such death occurs as he shall select in his sole
discretion. Such distribution shall be equal to the deceased participant's
account balances. All accounts of the deceased participant shall be held,
administered and distributed in accordance with Articles VI and XIII hereof.
12.3 In the event of the death of a retired or terminated
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 retired or terminated
participant was receiving
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distributions under Article XIII hereof.
12.4 Unless a participant or former participant has designated a
death beneficiary in accordance with the provisions of Section 12.5 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.
12.5 In lieu of having the benefit distributable pursuant to
this Article distributed to a death beneficiary determined in accordance with
the provisions of Section 12.4 hereof, a participant or former participant may
sign a document designating a death beneficiary or death beneficiaries to
receive such benefit. 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
22.5 hereof.
12.6 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 to any person or
persons in any sums in accordance with the instructions it receives from the
Administrator.
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<PAGE> 43
12.7 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 benefit distributable under this Trust and Plan upon
his death, then the portion of such benefit 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
12.4 hereof.
12.8 Any ambiguity in a participant's or former participant's
death beneficiary designation shall be resolved by the Administrator. Subject to
Section 12.5 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 XIII
------------
DISTRIBUTIONS
-------------
13.1 Distributions will be made as of the dates specified in Articles
X, XI and XII hereof. Each participant, former participant and beneficiary who
is eligible for benefits under Article X, XI or XII 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,
XI or XII hereof, the Administrator shall promptly notify the Trustee in
writing, or by such other procedures as shall be established by the
Administrator from time to time, of his eligibility and of the method of
distribution selected in accordance with this Article.
13.2 The normal method of distribution of the vested account balances
distributable to a participant, former participant or beneficiary pursuant to
Article X, XI or XII hereof shall be for the Trustee to sell any Shares and any
other assets credited to his accounts as of the date distribution is to be made
and to distribute the portion of the proceeds attributable to his vested account
balances in a single lump sum payment of cash; provided, however,
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<PAGE> 45
that a participant or former participant may elect to receive a single
distribution of the whole Shares credited to his accounts and attributable to
his vested account balances, together with cash in an amount equal to the
balance of his vested account balances. Any distribution shall be made in
accordance with the provisions of Section 22.11 hereof.
13.3 In the event that the vested account balances 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 vested account balances in a single lump sum payment without the
consent of the participant, his spouse or his beneficiary. Any such lump sum
payment shall be made in accordance with the provisions of Section 22.11 hereof.
Unless such participant elects to receive the whole Shares, if any, credited to
his accounts and attributable to his vested account balances, 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 amount of his vested account
balances 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.
13.4 Notwithstanding any other provisions of this Trust and Plan,
distributions made hereunder shall be subject to the
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<PAGE> 46
following restrictions:
(a) in the case of a living participant or former participant,
distribution must be made on or before the April 1 following the
end of the calendar year in which he attains age seventy and
one-half (70- 1/2) or retires, whichever is later;
(b) in the case of a deceased participant or former participant,
distributions after his death shall be made within five (5) years
of the date of his death; and
(c) in the case of a participant or former participant, a
distribution shall conform to the incidental death benefit
requirements of Section 1.401(a)(9)-2 of the Treasury
Regulations.
13.5 As long as assets of this Trust and Plan remain credited to an
account of a participant, former participant or beneficiary, the Administrator
shall continue to maintain and administer said account in accordance with the
terms and provisions of this Trust and Plan.
13.6 Notwithstanding anything to the contrary contained in this Trust
and Plan, no distributions shall be made to participants, former participants or
beneficiaries during the Transition Period.
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<PAGE> 47
ARTICLE XIV
-----------
THE TRUSTEE, ITS POWERS AND DUTIES
----------------------------------
14.1 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
cash contributions or Share contributions deposited with it are the
contributions provided to be deposited under the terms of Article IV 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
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<PAGE> 48
authority and protection in respect of any action taken, suffered or omitted by
the Trustee in good faith and in accordance with such opinion, provided due care
is exercised in the selection of such counsel.
14.2 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
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<PAGE> 49
may be necessary to permit the successor Trustee to carry out its duties.
14.3 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.
14.4 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 5.3 hereof.
14.5 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
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<PAGE> 50
then acting, or by written authorization and affirmative consent without a
meeting. The trustees by written agreement among 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.
14.6 To the maximum extent permitted by ERISA and to the extent there
is no self-dealing, negligence, embezzlement, criminal act, or violation of the
duty to keep the assets of this Trust and Plan safe on the part of the Trustee,
its officers, employees or agents, the Company shall indemnify the Trustee and
its officers, employees and agents if the Trustee or its officers, employees or
agents are made a party, or are threatened to be made a party, to any
threatened, pending, or completed action, suit or proceeding, whether civil,
administrative, or investigative (including any such action by or in the right
of the Company), by reason of the fact that the Trustee or its officers,
employees or agents acted in a
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<PAGE> 51
fiduciary capacity under this Trust and Plan, against expenses (including
attorney's fees) judgments, fines, and amounts paid in settlement actually and
reasonably incurred by the Trustee, its officers, employees or its agents in
connection with such action, suit, or proceeding. Reasonable expenses incurred
in defending any such action, suit, or proceeding shall be paid by the Company
in advance of a final disposition of such action, suit, or proceeding, upon
presentation of the statements for such expenses to the Company subject to the
right of the Company to recover such payments if it is subsequently determined
as a part of the final disposition of such action that there was self-dealing,
negligence, embezzlement, criminal act, or violation of the duty to keep the
assets of this Trust and Plan safe on the part of the Trustee, its officers,
employees or agents. This indemnification shall not apply to any excise taxes
assessed against the Trustee with respect to any prohibited transaction where
the Trustee was the party in interest dealing with this Trust and Plan.
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ARTICLE XV
----------
INVESTMENT MANAGEMENT
---------------------
15.1 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 V hereof and the limitations hereinafter
set forth in this Article, have the following powers and duties:
(a) To invest and reinvest the principal and income of the Trust Fund
and keep the same invested with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of like
character and with like aims, without distinction between principal and income
and without regard to any limitations, other than such prudent man rule,
prescribed by law or custom upon the investments of fiduciaries, in each and
every kind of property, whether real, personal or mixed, tangible or intangible,
and wherever situated, any deposit administration contract, investment contract
or other contract issued by an insurance company, shares of any Regulated
Investment Company, units of any common trust fund of any bank or trust company
now in existence or hereafter established, shares of common, preference and
preferred stock, put and call options, rights, options, subscriptions, warrants,
trust receipts, investment trust certificates, mortgages, leases, bonds, notes,
debentures, equipment or collateral trust certificates and other corporate,
individual or government obligations, whether secured or unsecured; to invest
and reinvest in and retain any stocks, bonds or other securities of any
corporate trustee serving hereunder, or any parent or affiliate thereof; to
invest in commodities and commodity contracts; to invest and reinvest in any
time or savings deposits of the Trustee or any parent or affiliate thereof if
such deposits bear a reasonable rate of interest or of any bank, trust company,
or savings and loan institution, which deposits may but need not be guaranteed
by the Federal Deposit Insurance Corporation or the Federal Savings and Loan
Insurance Corporation; and in addition to become a general partner or limited
partner in any partnership or limited partnership the purposes of which are to
invest or reinvest the partnership assets in any such properties or deposits;
(b) To invest a portion or all of the Trust Fund in units of any
common or group trust created solely for the purpose of providing a satisfactory
diversification of investments for participating trusts; provided that such
common or group trust, (i)
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<PAGE> 53
limits participation thereunder to pension and profit sharing trusts which
qualify under Section 501(a) of the Code, (ii) prohibits income and/or principal
attributable to a participating trust from being used for any purpose other than
the exclusive benefit of the employees or their beneficiaries of such
participating trust, (iii) prohibits assignment by a participating trust of any
part of such participating trust's equity or interest in the common or group
trust, (iv) is created or organized in the United States and is maintained at
all times as a domestic trust in the United States; as long as the Trustee holds
such units hereunder, the instrument establishing such common or group trust
(including all amendments thereto) shall be deemed to have been adopted and made
a part of this Trust and Plan;
(c) Upon direction by the Company, to invest or reinvest a portion of
the Trust Fund in qualifying employer securities and/or qualifying employer real
estate as such terms are defined in Section 4975 of the Code and Section 407(d)
of ERISA, which investment may constitute more than ten percent (10%) of the
fair market value of the assets of the Trust Fund, and to retain, or to sell,
exchange or otherwise dispose of any such securities or real estate held in the
Trust Fund. In the event of any such investment, the Trustee shall file with the
appropriate District Director of Internal Revenue such returns and other
information as shall be required from time to time by the Code;
(d) To sell, convert, redeem, exchange, grant options for the purchase
or exchange of, or otherwise dispose of, any real or personal property, at
public or private sale, for cash or upon credit, with or without security,
without obligation on the part of any person dealing with the Trustee to see to
the application of the proceeds of or to inquire into the validity, expediency
or propriety of any such disposal;
(e) To manage, operate, repair, partition and improve and mortgage or
lease (with or without option to purchase) for any length of time any real
property held in the Trust Fund; to renew or extend any mortgage or lease, upon
any terms the Trustee may deem expedient; to agree to reduction of the rate of
interest on any mortgage note; to agree to any modification in the terms of any
lease or mortgage or of any guarantee pertaining to either of them; to enforce
any covenant or condition of any lease or mortgage or of any guarantee
pertaining to either of them or to waive any default in the performance thereof;
to exercise and enforce any right of foreclosure; to bid on property on
foreclosure; to take a deed in lieu of foreclosure with or without paying
consideration therefor and in connection therewith to release the obligation on
the bond secured by the mortgage; and to exercise and enforce in any action,
suit or proceeding at law or in equity any rights or remedies in respect of any
lease or mortgage or of any guarantee pertaining to either of them;
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<PAGE> 54
(f) To exercise, personally or by general or limited proxy, the right
to vote any shares of stock or other securities held in the Trust Fund; to
delegate discretionary voting power to trustees of a voting trust for any period
of time; and to exercise or sell, personally or by power of attorney, any
conversion or subscription or other rights appurtenant to any securities or
other property held in the Trust Fund, provided that in each instance described
in Section 15.4 or 15.5 hereof, such power and duty shall be subject to the
direction of participants, former participants, beneficiaries and "alternate
payees" (as defined in Section 17.1(a) hereof) pursuant to such Section 15.4 or
15.5;
(g) To join in or oppose any reorganization, recapitalization,
consolidation, merger or liquidation, or any plan therefor, or any lease (with
or without an option to purchase), mortgage or sale of the property of any
organization the securities of which are held in the Trust Fund; to pay from the
Trust Fund any assessments, charges or compensation specified in any plan of
reorganization, recapitalization, consolidation, merger or liquidation, to
deposit any property with any committee or depositary; and to retain any
property allotted to the Trust Fund in any reorganization, recapitalization,
consolidation, merger or liquidation;
(h) To borrow money from any lender (including the Trustee hereunder,
where applicable in its capacity as a banking corporation when permitted to do
so by the applicable laws and regulations then in effect) in any amount and upon
such terms and conditions and for such purposes as the Trustee shall deem
necessary; for any money so borrowed the Trustee may issue its promissory note
as Trustee and to secure the repayment of any such loan, with interest, may
pledge or mortgage all or any part of the Trust Fund, and no person loaning
money to the Trustee shall be obligated to see to the application of the money
loaned or to inquire into the validity, expediency or propriety of any such
borrowing;
(i) To compromise, settle or arbitrate any claim, debt or obligation
of or against the Trust Fund; to enforce or abstain from enforcing any right,
claim, debt or obligation; and to abandon any property determined by it to be
worthless;
(j) To continue to hold any property of the Trust Fund whether or not
productive of income; to reserve from investment and keep unproductive of
income, without liability for interest, such cash as it deems advisable or, in
its discretion, to hold the same, without limitation on duration, on deposit in
the commercial department or in an interest-bearing account in the savings
department of any bank, trust company, or savings and loan institution
(including the Trustee where applicable in its capacity as a banking
corporation) in which deposits are guaranteed by the Federal Deposit Insurance
Corporation or the Federal Savings and
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<PAGE> 55
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;
(q) To commingle the assets of the Trust Fund, other than shares of
the Company's Class A Common Stock or Class B Common Stock, with assets of other
trusts through the medium of the Figgie
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<PAGE> 56
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 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.
15.2 Notwithstanding any provisions of this Trust and Plan, the
Company hereby retains the right to appoint, from time to time, one or more:
(a) banks, as defined in the Investment Advisers Act of 1940;
(b) persons registered as investment advisers under said Act; or
(c) insurance companies qualified to perform investment advisory
services under the laws of more than one state;
to act as the Investment Manager or Managers of all or such portions of the
Trust Fund as the Company in its sole discretion shall direct. In order to serve
as Investment Manager, any such bank, person or insurance company must state in
writing to the Company and the Trustee that it meets the requirements set forth
in this Section
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<PAGE> 57
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 15.1 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.
15.3 All income from investment and reinvestment made as provided in
this Article shall be treated as principal, and investments and reinvestments
shall be made without distinction between income and principal.
15.4 It is the purpose of this Section to permit participants, former
participants, beneficiaries and "alternate payees" (as defined in Section
17.1(a) hereof) to exercise
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substantial ownership rights under this Trust and Plan with respect to Shares
held in their accounts under this Trust and Plan. Therefore, the power to direct
the Trustee regarding the appropriate response to any tender or exchange offer
made by any person, including the Company, for the Company's Shares, is hereby
granted to such participants, former participants, beneficiaries and alternate
payees pursuant to this Section. Each such person shall, for purposes of Section
402(a)(2) of ERISA, be a "named fiduciary" with respect to such power to direct
the Trustee as to whether to tender or exchange such Shares as are subject to
his direction as hereinafter provided. Each such named fiduciary is described
herein by qualification and shall be identified by the Company at the
appropriate time by application of said description. Each participant (whether
or not he is an active participant), former participant, beneficiary or
alternate payee shall be eligible to direct the Trustee regarding the response
to a tender or exchange offer with respect to the number of Shares of Class A
and Class B Common Stock held in his accounts.
The power of direction hereinbefore described in this Section shall be
exercised as follows:
(a) The Company shall furnish each person who is eligible to direct
the Trustee with one or more documents for use in exercising such
direction;
(b) Such document or documents shall permit the person to exercise
such right with respect to:
(i) Class A Common Stock held in his accounts; and
(ii) Class B Common Stock held in his accounts;
(c) If such person shall timely direct the Trustee with
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respect to the tender or exchange of Shares 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, 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, the Administrator shall establish a procedure
for tallying and recording such directions which will not reveal
to the Trustee, the Company, the Employer 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.
15.5 It is the purpose of this Section to permit participants,
former participants, beneficiaries and "alternate payees" (as defined in Section
17.1(a) hereof) to exercise voting rights under this Trust and Plan with respect
to Shares held in their accounts under this Trust and Plan. Therefore, the power
to direct the Trustee regarding the exercise of the right to vote the Shares in
the Trust Fund held in their accounts with respect to any matter on which such
Shares may be voted is hereby granted to such participants, former participants,
beneficiaries and alternate payees pursuant to this Section. Each such person
shall, for pur-
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poses 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 as are subject to
his direction as hereinafter provided. Each such named fiduciary is described
herein by qualification and shall be identified by the Company at the
appropriate time by application of said description. Each participant (whether
or not he is an active participant), former participant, beneficiary or
alternate payee shall be eligible to direct the Trustee regarding the exercise
of the right to vote of the number of Shares of Class A and Class B Common Stock
held in his accounts.
The power of direction hereinbefore described in this Section shall be
exercised as follows:
(a) The Company shall furnish each person who is eligible to direct
the Trustee with one or more documents for use in exercising such
direction;
(b) Such document or documents shall permit the person to exercise
such right with respect to:
(A) Class A Common Stock held in his accounts; and
(B) Class B Common Stock held in his accounts;
(c) If such person shall timely direct the Trustee with respect to
the voting of Shares 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, 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
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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, the Administrator shall establish a procedure for
tallying and recording such directions which will not reveal to
the Trustee, the Company, the Employer 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 XVI
-----------
ADMINISTRATION
--------------
16.1 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 or
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in accordance with such other procedures as shall be established
by the Administrator from time to time.
16.2 An Appeals Committee consisting of three (3) or more members
shall be appointed by the Board of Directors of the Company to serve at the
pleasure of such Board of Directors. Members of the Committee may be officers,
directors, stockholders, or employees of the Company or an affiliate and may,
but need not be, participants under this Trust and Plan. The members of the
Committee shall be reimbursed for expenses incurred by them in the performance
of their duties hereunder but shall serve without compensation as such. The
Committee shall appoint a Chairman from among its members and may appoint a
Secretary who may, but need not be, a member of the Committee. The Secretary
shall keep written minutes of the meetings and actions of the Committee. Any
action expressed from time to time by a vote at a meeting, or expressed in
writing, after notice to all members of the Committee, may be done by a majority
of the members of the Committee at the time acting hereunder; and such action
shall constitute the action of the Committee and shall have the same effect for
all purposes as if assented to by all the members of the Committee at the time
in office.
16.3 If any participant, any former participant, any beneficiary, or
the authorized representative of a participant, former 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
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also set forth the specific Trust and Plan provisions upon which the denial is
based, an explanation of the provisions of Section 16.4 hereof, and any other
information deemed necessary or advisable by the Administrator.
16.4 Any participant, any former participant, any beneficiary, or any
authorized representative of a participant, former 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
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<PAGE> 65
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 the Administrator. In rendering its decision, the
Committee or the Appeal Examiner shall have full power and discretion to
interpret this Trust and Plan, to resolve ambiguities, inconsistencies and
omissions, to determine any question of fact, to determine the right to benefits
of, and the amount of benefits, if any, payable to, the applicant in accordance
with the provisions of this Trust and Plan. Such decision shall set forth the
specific reason or reasons for the decision and the specific Trust and Plan
provisions upon which the decision is based and, if the decision is made by an
Appeal Examiner, the rights of the applicant or the Administrator to request a
review by the entire Committee of the decision of the Appeal Examiner. Either
the applicant or the Administrator may request a review of an adverse decision
of the Appeal Examiner by filing a written request with the Committee within
thirty (30) days after they receive a copy of the Appeal Examiner's decision.
The review of a decision of the Appeal Examiner shall be conducted by the
Committee in accordance with the procedures of this Section. There shall be no
further appeal from a decision rendered by a quorum of the Committee.
16.5 The interpretations, determinations and decisions of the
Administrator, Appeal Examiner and Committee shall, except to the extent
provided in Section 16.4 hereof, be final and binding upon all persons with
respect to any right, benefit and privilege
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hereunder. Except as otherwise provided in ERISA, the review procedures of said
Section 16.4 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, former participant or beneficiary must exhaust the review
procedures of Section 16.4 hereof prior to the commencement of any such action.
16.6 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.
16.7 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
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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 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 XVII
------------
PROHIBITION AGAINST ALIENATION
------------------------------
17.1 Unless the context otherwise indicates, the following terms used
herein shall have the following meanings whenever used in this Article:
(a) The words "alternate payee" shall mean any spouse, former spouse,
child or other dependent of a participant or former participant
who is recognized by a domestic relations order as having a right
to receive all, or a portion of, such participant's or former
participant's account balances.
(b) The words "domestic relations order" shall mean, with respect to
any participant or former participant, any judgement, decree or
order (including approval of a property settlement agreement)
which both:
(i) relates to the provisions of child support, alimony payments
or marital property rights to a spouse, former spouse, child
or other dependent of the participant or former participant;
and
(ii) is made pursuant to a State domestic relations law
(including a community property law).
(c) The words "qualified domestic relations order" shall mean a
domestic relations order which satisfies the requirements of
Section 414(p)(1)(A) of the Code.
17.2 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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17.3 Section 17.2 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.
17.4 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.
17.5 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 portion of the
participant's or former participant's account balances 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 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
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Trust and Plan is served with such domestic relations order, the Administrator
shall hold and dispose of the segregated account balance 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 segregated account balance to the
appropriate accounts maintained for the benefit of the person who would have
been entitled to such segregated account balance 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.
17.6 The balance credited to any segregated account which has been
created under Section 17.5 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 V hereof as the Administrator shall direct until
it is determined whether such domestic relations order is a qualified domestic
relations order.
17.7 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
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pursuant to Article XVI hereof, request a review by such Committee of the
Administrator's determination with respect to the 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 XVI hereof.
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ARTICLE XVIII
-------------
AMENDMENT AND TERMINATION
-------------------------
18.1 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 may be modified and amended retroactively, if necessary, to
secure exemption effective on the effective date under Section 401 of the Code.
No amendment shall be binding on the Trustee until the receipt of such amendment
by the Trustee.
18.2 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 adjusted in accordance with Section 5.3 hereof. All
account balances of participants and former participants at the time of
termination of this Trust and Plan shall be fully vested and
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nonforfeitable. Such account balances 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 XII hereof.
18.3 Upon the partial termination of this Trust and Plan or upon
complete discontinuance of contributions to this Trust and Plan by the Company,
the account balances 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
Administrator shall continue to administer this Trust and Plan in the manner in
which this Trust and Plan was administered before any such partial termination
and a participant shall only be entitled to receive benefits upon the occurrence
of an event which under the terms of this Trust and Plan would entitle him to
receive such benefits. For purposes of this Section, no event shall be a
"partial termination" unless: (a) the Company has so designated such event in a
writing delivered to the Trustee; or (b) such event has been finally and
expressly determined to be a 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 XIX
-----------
LIMITATIONS ON CONTRIBUTIONS
----------------------------
19.1 The amount of salary deferral contributions under this Trust and
Plan shall be subject to several limitations. Those limitations are as follows:
(a) Salary deferral contributions shall be subject to the individual
dollar limit described in Section 19.2 hereof;
(b) Salary deferral contributions shall be subject to the deferral
percentage limit set forth in Section 19.3 hereof;
(c) Salary deferral contributions shall be subject to the
deductibility limit set forth in Section 19.4 hereof; and
(d) Salary deferral contributions shall be subject to the limitation
on annual additions set forth in Article XX hereof.
In addition, the following rules and procedures shall apply for
purposes of this Article:
(i) For purposes of determining a participant's deferral percentage
pursuant to Section 19.6(a) hereof, all salary deferral
contributions that are made under two (2) or more plans that are
aggregated for purposes of Sections 401(a)(4) or 410(b) of the
Code (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) of the Code, the aggregated plans shall also
satisfy Sections 401(a)(4) and 410(b) of the Code as though they
were a single plan.
(iii) The deferral 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) of the Code
(other than those that may not be permissively aggregated) as a
single plan.
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19.2 The salary deferral contributions with respect to the taxable
year of a participant plus similar amounts contributed on a similar basis by any
other employer (whether or not related to the Company) required by law to be
aggregated with his salary deferral contributions under this Trust and Plan
shall not exceed Nine Thousand Five Hundred Dollars ($9,500.00), plus any
adjustment for cost-of-living after 1997 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. Any such refund of excess contributions shall be debited from the
participant's salary deferral account.
19.3 Salary deferral contributions made on behalf of a participant for
a plan year (hereinafter sometimes referred to as the "current 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 for
such plan year shall not exceed an amount determined based upon the
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<PAGE> 76
average deferral percentage for the employees who are participants or who are
eligible to become participants but are not highly compensated employees for the
preceding plan year or, if the Company elects, for the current plan year, as
follows:
<TABLE>
<CAPTION>
(A) (B)
<S> <C>
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)
</TABLE>
In the event the Company elects to determine the average deferral percentages of
employees who are not highly compensated employees on the basis of the current
plan year rather than the preceding plan year in accordance with Section
401(k)(3)(A) of the Code, such election by the Company may not be changed for
plan years commencing after December 31, 1998, except as provided by the
Secretary of the Treasury.
In addition, for this Trust and Plan's first plan year the Company
elects that the average deferral percentage of employees who are participants or
who are eligible to become a participants but who are not a highly compensated
employees shall be deemed to be the greater of three percent (3%) or the actual
average deferral percentage for such first plan year.
19.4 In no event shall the amount of all salary deferral contributions
exceed the maximum amount allowable as a deduction under Section 404(a)(3) of
the Code or any statute of similar
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import, including the amount of any contribution carryforward allowable under
said Section 404(a)(3).
19.5 In the event that the limitations set forth in Section 19.2 or
19.3 hereof shall be exceeded, the Administrator shall take action to reduce
future salary deferral contributions made pursuant to Article IV hereof. Such
action may include a reduction in the future rate of salary deferral
contributions of any highly compensated participant pursuant to any legally
permissible procedure. In the event that such action shall fail to prevent the
excess, prior salary deferral contributions made pursuant to Article IV hereof,
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. In the event of such a distribution, the salary
deferral account of such participant shall be debited with the amount of such
distribution. Any such adjustments made in participants' accounts shall be made
in a uniform manner for similarly situated participants.
In the event that distributions must be made in order to bring this
Trust and Plan into compliance with Section 19.3 hereof, the Administrator shall
reduce the dollar amount of deferrals of highly compensated employees in
descending order, beginning with the highly compensated employee(s) with the
highest total deferral amount, until such limitation has been satisfied. In
performing such reduction, the reduced deferral amount of any affected highly
compensated employee shall, in no event, be lower than that of the highly
compensated employee with the next highest deferral amount.
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Any excess salary deferral contributions to be distributed to a
participant pursuant to this Section shall be reduced by any excess salary
deferral contributions previously distributed to such participant for such
participant's taxable 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, which are distributable as described
above shall be distributed to a participant within one (1) year after the end of
such plan year. If such excess amounts are not distributed within two and
one-half (2-1/2) months of the end of the plan year, 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 XX hereof.
19.6 For purposes of this Article, the following definitions and
special rules shall apply:
(a) "deferral percentage" shall mean for a participant for any plan
year a fraction:
(i) the numerator of which shall equal the total of the salary
deferral contributions made on his behalf for such plan
year; and
(ii) the denominator of which shall equal his Total Remuneration
for such plan year; 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
received (but for the deferral election) within two
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and one-half (2-1/2) months after the end of such plan year and
are paid to this Trust and Plan no later than twelve (12) months
after the end of such plan year.
(b) "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 Thousand Dollars
($80,000.00) (plus any increase for cost of living
after 1997 as determined by the Secretary of the
Treasury or his delegate) and, if the Company so
elects, was in the "top paid group" of employees of the
Company and its affiliates for such plan year; or
(ii) during the current plan year, he was at any time a five
percent (5%) or more actual or constructive owner of the
Company and its affiliates.
(c) "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.
(d) "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, other
than periods prior to the effective date.
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ARTICLE XX
----------
LIMITATION ON ANNUAL ADDITIONS
------------------------------
20.1 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 for periods
prior to January 1, 2000 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.
20.2 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 Pension Plan for Hourly Paid Employees of its Scott Aviation
Division, prior to January 1, 2000 adjustment under Section 415 of the Code
shall be made in the following order:
(a) first, projected benefits under the Company's Pension Plan for
Hourly Paid Employees of its Scott Aviation Division shall be
reduced;
(b) second, accrued benefits under the Company's Pension Plan for
Hourly Paid Employees of its Scott Aviation Division shall be
reduced; and
(c) third, annual additions which consist of salary deferral
contributions hereunder shall be reduced.
Notwithstanding the foregoing, in the event a participant's excess annual
benefits or projected benefits would only result in a
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violation under Section 415(b) of the Code, his benefits under the Company's
Pension Plan for Hourly Paid Employees of its Scott Aviation Division 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 this Trust and Plan, as set forth in subparagraph (c) above.
20.3 For purposes of calculating the maximum allowable amounts under
Section 20.1 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.
20.4 In the event that, after the application of any other provisions
of this Trust and Plan and any provision of the retirement plan described in
Section 20.2 hereof, there still remain, as a result of a reasonable error in
estimating a participant's compensation or other limited facts and circumstances
which the Commissioner of Internal Revenue finds justify the availability of the
rules set forth in this Section, salary deferral contributions which, if
contributed on behalf of a participant, would be in excess of the limits on
annual additions set forth in Section 20.1 hereof, such salary deferral
contributions, together
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with any earnings, shall be distributed to said participant.
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ARTICLE XXI
-----------
ROLLOVERS AND TRANSFERS INVOLVING
---------------------------------
OTHER QUALIFIED RETIREMENT PLANS
--------------------------------
21.1 In the event that:
(a) any active participant shall have been, either prior to becoming
an employee or while an employee, a participant under another
qualified retirement plan which met the requirements of Section
401(a) of the Code, including this Trust and Plan; and
(b) either:
(i) the custodian or trustee of the assets held pursuant to said
plan on behalf of said participant; or
(ii) the custodian or trustee of the assets of an individual
retirement account established pursuant to Section 408 of
the Code to hold the assets distributed to said participant
from said plan; or
(iii) the said participant who holds assets distributed to him
during the preceding sixty (60) days from such plan or from
an individual retirement account described in paragraph (i)
above;
shall agree to transfer said assets to the Trustee hereunder; and
(c) the assets to be so transferred shall not be made available to
said employee in the course of the transfer except to the extent
permitted by paragraph (b)(iii) above; and
(d) the Administrator consents to the transfer;
the Trustee hereunder shall accept such transferred assets and hold and
administer them pursuant to the terms and provisions of this Trust and Plan and
this Article. Notwithstanding the foregoing, in no event shall any assets be
transferred from another qualified retirement plan to this Trust and Plan if the
transfer of such
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assets would require that the provisions of this Trust and Plan governing
distributions be amended to comply with the provisions of Section 401(a)(11) of
the Code.
21.2 Upon the receipt of assets from a qualified defined benefit
retirement plan or a qualified defined contribution retirement plan which is not
maintained by the Company, the Trustee shall credit such amounts to the
non-forfeitable account of the participant on whose behalf the assets were so
transferred. Upon the receipt of assets from a qualified defined contribution
plan which is maintained by the Company, the Trustee shall credit such assets to
the salary deferral account and/or non-forfeitable account, as appropriate, of
the participant on whose behalf the assets were so transferred. The
Administrator shall establish a salary deferral account or non-forfeitable
account as necessary in order to accomplish the foregoing on behalf of such a
participant.
21.3 In the event that:
(a) any participant hereunder shall either:
(i) terminate his employment and subsequently become a
participant under the qualified retirement plan of another
employer, which plan satisfies the requirements of Section
401 of the Code; or
(ii) cease to be an active participant in this Trust and Plan and
subsequently become an active participant in another
qualified defined contribution retirement plan of the
Company, which plan satisfies the requirements of Section
401 of the Code;
(b) said participant or former participant shall have account
balances hereunder which have not have been distributed to him;
(c) the participant or former participant shall
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<PAGE> 86
apply to the Administrator hereunder for transfer to such
other plan of assets held pursuant to this Trust and Plan
representing said participant's or former participant's
account balances;
(d) the assets to be transferred shall not be made available to
said participant or former participant in the course of the
transfer except to the extent permitted by Section 402(a)(5)
of the Code; and
(e) the Administrator shall consent to such transfer;
his total account balances shall be transferred to the trustee or custodian of
such other qualified retirement plan.
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<PAGE> 87
ARTICLE XXII
------------
MISCELLANEOUS
-------------
22.1 In the event the Company shall at any time be judicially declared
bankrupt or insolvent, or in the event of its dissolution, merger or
consolidation without any provisions being made for the continuation of this
Trust and Plan, the Trust and Plan created hereunder shall terminate and the
Trustee shall make distributions as provided in Section 18.2 hereof.
22.2 In the event this Trust and Plan shall merge or consolidate with,
or transfer any of its assets or liabilities to any other plan, each participant
shall be entitled to receive, if this Trust and Plan were terminated immediately
thereafter, a benefit which is equal to or greater than the benefit he would
have been entitled to receive immediately before the merger, consolidation or
transfer if this Trust and Plan had then terminated, in accordance with Section
414(1) of the Code and Section 208 of ERISA.
22.3 Neither anything contained herein, nor any contribution made
hereunder, nor any other acts done in pursuance of this Trust and Plan, shall be
construed as entitling any participant to be continued in the employ of the
Company or any affiliate for any period of time nor as obliging the Company or
any affiliate to keep any participant in its employ for any period of time, nor
shall any employee of the Company or any affiliate nor anyone else have any
rights whatsoever, legal or equitable, against
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<PAGE> 88
the Company or any affiliate or the Trustee as a result of this Trust and Plan
except those expressly granted to him hereunder.
22.4 No contribution or payment by the Company to the Trustee of this
Trust and Plan, nor any income of the Trust Fund, shall in any event revert or
be credited to or be used for the benefit of the Company or any affiliate, and
all such contributions, payments and income shall be used solely and exclusively
for the benefit of the participants and their beneficiaries under this Trust and
Plan, except that the Trustee shall return to the Company upon written request
of the Company:
(a) any contributions made by the Company by a mistake of fact,
provided such contributions are returned to the Company within
one (1) year after the date such contributions were made;
(b) any contributions made for plan years during which this Trust and
Plan 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, but only
if an application for determination was made with the Internal
Revenue Service by the time prescribed by law for filing the
Company's tax return for the taxable year in which this Trust and
Plan was adopted, or on such later date as the Secretary of the
Treasury may prescribe; and
(c) any contributions, to the extent that their deduction is
disallowed under Section 404 of the Code, provided that such
disallowed contributions are returned to the Company within one
(1) year after the disallowance of the deduction.
22.5 If any provision of this Trust and Plan shall require the consent
of the spouse of a participant, such consent shall be in writing with the
signature of the spouse notarized or witnessed by the Administrator.
Notwithstanding any provision hereof to the contrary, the consent of the spouse
shall not be necessary if it is
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<PAGE> 89
established to the satisfaction of the Administrator that the signature of the
spouse cannot be obtained either because the spouse cannot be located or because
of such other circumstances as the Secretary of the Treasury may prescribe by
lawful regulations. Any consent given by a spouse pursuant to this Section shall
be effective only with respect to such spouse and shall not be effective with
respect to any other spouse of such participant.
22.6 Notwithstanding any provision of this Trust and Plan to the
contrary, the Administrator, where required by law or where it deems appropriate
in its sole discretion, may require spousal consent for any actions taken,
elections made, or the exercise of any rights by a married participant under
this Trust and Plan. Any consent by a spouse pursuant to this Section shall be
made in accordance with Section 22.5 hereof.
22.7 Whenever any pronoun is used herein, it shall be construed to
include the masculine pronoun, the feminine pronoun or the neuter pronoun as
shall be appropriate.
22.8 This Trust and Plan shall be construed under and in accordance
with the laws of the State of Ohio and of the United States of America.
22.9 If the Internal Revenue Service determines that this Trust and
Plan does not initially qualify under Section 401(a) of the Code or any statute
of similar import, or fails or refuses to issue a favorable determination letter
with respect thereto or with respect to the taxable year of the Company ending
on December 31, 1997, all initial contributions made by the Company to this
Trust
22-3
<PAGE> 90
and Plan shall be returned to the Company by the Trustee, provided that the
application for determination was made with the Internal Revenue Service by the
time prescribed by law for filing the Company's tax return for the taxable year
in which this Trust and Plan was adopted, or such later date as the Secretary of
the Treasury may prescribe. This Trust and Plan may be modified and amended
retroactively, if necessary, to secure exemption under Section 401(a) of the
Code.
22.10 In the event that amounts representing salary deferral
contributions are returned to the Company pursuant to the provisions of Section
22.4 and 22.9 hereof, the Company shall make payments to the participants on
whose behalf such salary deferral contributions were made equal to the total of
such refunded amounts.
22.11 Any distribution made hereunder to a distributee shall be made
directly to such distributee unless he elects a direct rollover pursuant to the
second paragraph of this Section; provided, however, that the distributee must
acknowledge in writing that he understands that any payment which includes more
than two hundred dollars ($200.00) in cash and which, under Code Section 402(c),
is eligible to be rolled over to an eligible retirement plan will be subject to
withholding taxes.
Each distributee shall have the right to direct that any distribution
which, under Code Section 402(c), qualifies as an eligible rollover distribution
be transferred directly to an eligible retirement plan. A distributee may direct
that part of the distribution be transferred directly to an eligible retirement
plan
22-4
<PAGE> 91
and the balance be paid to him, provided that the amount directly transferred to
the eligible retirement plan shall be at least five hundred dollars ($500.00). A
distributee is not permitted to direct that his distribution be transferred
directly to more than one eligible retirement plan. In the event that a
distributee fails to make any direction, the distribution shall be paid directly
to him after deduction of appropriate withholding taxes.
Unless the context otherwise indicates, the following terms shall have
the following meanings whenever used in this Section:
(a) "eligible rollover distribution" shall mean any distribution
of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution
does not include:
(i) any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten (10) years or more;
(ii) any distribution to the extent such distribution is
required under Section 13.4 hereof which reflects the
requirements under Section 401(a)(9) of the Code; and
(iii) the portion of any distribution that is not includible
in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect
to employer securities).
(b) "eligible retirement plan" shall mean:
(i) an individual retirement account described in Section
408(a) of the Code;
(ii) an individual retirement annuity described in Section
408(b) of the Code;
(iii) an annuity plan described in Section 403(a) of
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<PAGE> 92
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 17.1(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.
22.12 Notwithstanding any provision of this Trust and Plan to the
contrary, contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Section 414(u) of the Code.
In addition, loan repayments will be suspended under Article IX hereof as
permitted under Section 414(u)(4) of the Code.
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<PAGE> 93
IN WITNESS WHEREOF, FIGGIE INTERNATIONAL INC. by its appropriate
officers duly authorized, and WILMINGTON TRUST COMPANY have caused this Trust
and Plan to be executed as of the 30th day of June, 1997.
FIGGIE INTERNATIONAL INC.
("Company")
By_____________________________
And____________________________
WILMINGTON TRUST COMPANY
("Trustee")
By_____________________________
And____________________________
22-7
<PAGE> 1
EXHIBIT 5.1
October 17, 1997
Figgie International Inc.
4420 Sherwin Road
Willoughby, Ohio 44094
We are familiar with the proceedings taken by Figgie International
Inc., a Delaware corporation (the "Company"), with respect to the 250,000 shares
of Class A Common Stock, $.10 par value per share (the "Class A Shares"), and
the 250,000 shares of Class B Common Stock, $.10 par value per share (the
"Class B Shares") (collectively, the Class A Shares and the Class B Shares are
referred to as the "Shares"), of the Company to be offered and sold from time to
time pursuant to the Company's 401(k) Savings Plan for Bargaining Unit Employees
(the "Plan"), as well as an indeterminate amount of participation interests
("Interests") in the Plan. As counsel for the Company and the Plan, we have
assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission to effect the registration of the Shares and the Interests
under the Securities Act of 1933, as amended.
In this connection, we have examined the Restated Certificate of
Incorporation of the Company, as amended, and the Bylaws of the Company, as
amended and restated, the records of proceedings of the Board of Directors and
stockholders of the Company and such other records and documents as we have
deemed necessary or advisable to render the opinion contained herein. Based upon
our examination and inquiries, we are of the opinion that the Shares, when
issued pursuant to the terms and conditions of the Plan, will be duly
authorized, legally issued, fully paid and nonassessable.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced, filed publicly or relied upon by any
other person for any purpose without the express written consent of the
undersigned.
This opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no view as to the effect of any other law on the
opinion set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD LLP
II-7
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 22, 1997 included in Figgie International Inc.'s Form 10-K for the year
December 31, 1996 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Cleveland, Ohio
October 13, 1997
II-8
<PAGE> 1
EXHIBIT 23.2
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their opinion
filed as Exhibit 5.1 to this Registration Statement.
II-9
<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
Cleveland, Ohio on October 17, 1997.
FIGGIE INTERNATIONAL INC.
By:/s/ Steven L. Siemborski
--------------------------------------
Steven L. Siemborski,
Chief Financial Officer and
Senior Vice President
II-10
<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 May 21,
1997, 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
Corporation to sign, attest and file a Registration Statement (the "Registration
Statement") on Form S-8, or any other appropriate form that may be used from
time to time, with respect to the issue and sale of its Class A Common Stock,
its Class B Common Stock and interests in the Bargaining Unit Savings Plan, and
any and all amendments, post-effective amendments and exhibits to the
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 Bargaining Unit Plan covered by the
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 the Bargaining Unit Plan 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 Corporation; and the President
of the Corporation and the Chief Financial Officer of the Corporation be, and
each hereby is separately authorized and directed for and on behalf of the
Corporation to execute a Power of Attorney evidencing the foregoing appointment.
/s/ Robert D. Vilsack
-----------------------------------
Robert D. Vilsack, Secretary
Dated: September 19, 1997.
------------------
II-11
