<PAGE> 1
As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 333-38175
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
SCOTT TECHNOLOGIES, 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)
5875 Landerbrook Drive, Suite 250
Mayfield Heights, Ohio 44124
(Address of Principal Executive Offices, Including Zip Code)
----------------------
SCOTT TECHNOLOGIES, INC. 401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
(Full Title of the Plan)
Copy to:
Debra L. Kackley, Esq. Douglas A. Neary, Esq.
Vice President, General Counsel and Calfee, Halter & Griswold LLP
Corporate Secretary 1400 McDonald Investment Center
Scott Technologies, Inc. 800 Superior Avenue
5875 Landerbrook Drive, Suite 250 Cleveland, Ohio 44114
Mayfield Heights, Ohio 44124 (216) 622-8200
(440) 446-1333
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================== =============== ======================= ========================= =================
Title Of
Securities Amount Proposed Maximum Proposed Maximum Amount Of
To Be To Be Offering Price Per Aggregate Offering Registration
Registered Registered Share Price Fee
- -------------------------------------- --------------- ----------------------- ------------------------- -----------------
<S> <C> <C> <C> <C>
Interests In Plan .................. N/A N/A N/A (1)
- -------------------------------------- --------------- ----------------------- ------------------------- -----------------
Common Stock, par value $.10 per
share (2) .......................... N/A N/A N/A (1)
====================================== =============== ======================= ========================= =================
</TABLE>
(1) This post-effective amendment is being filed to reflect certain amendments
that Scott Technologies, Inc. has made to its capital structure and to the
Scott Technologies, Inc. 401(k) Savings Plan for Bargaining Unit Employees
(the "Plan") and for the purpose of updating certain exhibits. No
additional securities are being registered for offers or sales under the
Plan. Therefore, pursuant to Rule 457(a) under the Securities Act of 1933,
no fee is required.
(2) On December 15, 1998, Scott Technologies, Inc. amended provisions of its
Certificate of Incorporation to eliminate the Class A Common Stock and
Class B Common Stock and to provide for the reclassification and conversion
of such classes into one class, designated "Common Stock." The 250,000
shares of Class A Common Stock and the 250,000 shares of Class B Common
Stock previously registered on Form S-8 (Commission File No. 333-38175)
have been reclassified into an aggregate of 500,000 shares of Common Stock.
<PAGE> 2
This Amendment No. 1 hereby amends the Registration Statement on Form S-8
(Commission File No. 333-38175) (the "Registration Statement") for the following
purposes:
(1) to reflect the Company's December 15, 1998 amendment of its
Certificate of Incorporation that eliminated provisions relating to
Class A Common Stock and Class B Common Stock, provided for a single
class of new Common Stock designated "Common Stock" and provided for
the reclassification and conversion of the previously issued shares of
Class A Common Stock and Class B Common Stock into the newly
designated Common Stock;
(2) to reflect the change in the name of the plan from "Figgie
International Inc. 401(k) Savings Plan for Bargaining Unit Employees"
to "Scott Technologies, Inc. 401(k) Savings Plan for Bargaining Unit
Employees;"
(3) to file an updated Power of Attorney at Exhibit 24.1.
Pursuant to General Instruction E to Form S-8, the remaining contents of
the Registration Statement are hereby incorporated by reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Amendment No. 1 shall be deemed to be modified
or superseded for purposes of this Amendment No. 1 to the extent that a
statement contained in this Amendment No. 1 or in any other subsequently filed
document that also is, or is deemed to be, incorporated by reference in this
Amendment No. 1 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 Amendment No. 1.
<PAGE> 3
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 Mayfield Heights, State of Ohio, this 8th day of
January 1999.
SCOTT TECHNOLOGIES, INC.
By: /s/ Glen W. Lindemann
---------------------
Glen W. Lindemann,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned,
being a director or officer, or both of Scott Technologies, Inc., a Delaware
corporation, hereby constitutes and appoints Glen W. Lindemann, Mark A. Kirk,
Debra L. Kackley and Douglas A. Neary, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power, and authority to do and perform each and every act and thing
requisite, necessary or advisable to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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 January 8, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Glen W. Lindemann President and Chief Executive Officer (Principal
- -------------------------
Glen W. Lindemann Executive Officer)
/s/ Mark A. Kirk Senior Vice President and Chief Financial Officer
- -------------------------
Mark A. Kirk (Principal Financial Officer)
/s/ John P. Reilly Director
- -------------------------
John P. Reilly
/s/ Harrison Nesbit, II Director
- -------------------------
Harrison Nesbit, II
/s/ Frank N. Linsalata Director
- -------------------------
Frank N. Linsalata
</TABLE>
<PAGE> 4
/s/ Robert P. Collins
- -------------------------
Robert P. Collins Director
/s/ F. Rush McKnight
- -------------------------
F. Rush McKnight Director
/s/ N. Colin Lind
- -------------------------
N. Colin Lind Director
<PAGE> 5
Pursuant to the requirements of the Securities Act of 1933,
the trustee has 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 January 8, 1999.
SCOTT TECHNOLOGIES, INC. 401(K) SAVINGS
PLAN FOR BARGAINING UNIT EMPLOYEES
By: Wilmington Trust Company,
Trustee
By: /s/ Linda Bailey
---------------------------------------
Linda Bailey,
Senior Financial Services Officer
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation. (1)
3.1.1 Certificate of Designations, Preferences, Related (2)
Rights, Qualifications, Limitations and
Restrictions of Series A Junior Participating
Preferred Shares.
3.2 Amended and Restated By-Laws of the Company. (3)
4 Rights Agreement, dated as of December 15, 1998, (4)
between Scott Technologies, Inc. and National City
Bank, as Rights Agent.
4.1 Scott Technologies, Inc. 401(k) Savings Plan for
Bargaining Unit Employees.
4.2 Indenture, dated as of October 1, 1989, between (5)
Figgie International Inc. and Continental Bank,
National Association (n/k/a State Street Trust),
as Trustee, with respect to the 9.875% Senior
Notes due October 1, 1999.
4.3 Second Supplemental Indenture, dated as of (6)
December 31, 1986, among Figgie International,
Inc. and Marine Midland Bank, N.A., as Trustee,
with respect to the 10.375% Subordinated
Debentures due April 1, 1998.
4.4 First Supplemental Indenture, dated as of July 18, (7)
1983, among Figgie International Inc., Figgie
International Holdings Inc., and Marine Midland
Bank, N.A., as Trustee with respect to the 10-3/8%
Subordinated Debentures due 1998, along with the
Original Indenture dated as of April 1, 1978.
+5.1 Opinion of Calfee, Halter & Griswold LLP
regarding the validity of the securities being
registered.
23.1 Consent of Arthur Andersen LLP.
+ 23.2 Consent of Calfee, Halter & Griswold LLP.
24.1 Power of Attorney and related Certified
Resolution.
- ---------------
+ Previously filed.
</TABLE>
(1) Incorporated herein by reference to Exhibit 3.1 of the Company's
Current Report on Form 8-K, dated December 15, 1998 (File No. 1-8591).
(2) Incorporated herein by reference to Exhibit 3.1.1 of the Company's
Current Report on Form 8-K, dated December 15, 1998 (File No. 1-8591).
<PAGE> 7
(3) Incorporated herein by reference to Exhibit 3.2 of the Company's
Current Report on Form 8-K, dated December 15, 1998 (File No. 1-8591).
(4) Incorporated herein by reference to Exhibit 4 of the Company's Current
Report on Form 8-K, dated December 15, 1998 (File No. 1-8591).
(5) Incorporated herein by reference to Exhibit 4(c) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1989 (File
No. 1-8591).
(6) Incorporated herein by reference to Exhibit 4(c) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1986 (File
No. 1-8591).
(7) Incorporated herein by reference to Exhibit 3(4)(f) to the Company's
Form 8-B filed October 19, 1983 (File No. 1-8591).
<PAGE> 1
Exhibit 4.1
FIGGIE INTERNATIONAL INC.
-------------------------
401(K) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
-------------------------------------------------
Effective: July 1, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE NO.
-----------
<S> <C>
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
</TABLE>
<PAGE> 3
INDEX
<TABLE>
<CAPTION>
ARTICLE NO.
-----------
<S> <C>
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
</TABLE>
<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 follows:
<PAGE> 5
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.
1-1
<PAGE> 6
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.
2.7 The word "Committee" shall mean the Appeals Committee constituted
under the provisions of Article XVI hereof.
2-1
<PAGE> 7
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 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
2-2
<PAGE> 8
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 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.
2-3
<PAGE> 9
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 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
2-4
<PAGE> 10
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 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
2-5
<PAGE> 11
employee or former employee is rehired by the Company or any affiliate. A "one
year period of severance" shall mean a twelve (12) month period of severance
during which an employee does not complete at least one (1) hour for the Company
or any affiliate. Notwithstanding the foregoing provisions of this Section, 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.
2-6
<PAGE> 12
2.30 The words "service" shall mean for any employee the aggregate of
all his periods of continuous service with the Company or any affiliate, except
as otherwise provided below.
The "service" of an employee who terminates employment and who is
later reemployed by the Company or any affiliate shall not include the length of
any of his periods of continuous service rendered prior to the date of said
termination of employment if all of the following apply:
(a) his period of severance between said date of termination of
employment and the date he is reemployed equals or exceeds
the period of service he had on said date of termination of
employment; and
(b) he did not have a vested interest under this Trust and Plan
on his termination of employment; and
(c) his period of severance equals or exceeds either:
(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.
2-7
<PAGE> 13
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
(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.
2-8
<PAGE> 14
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, (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.
2-9
<PAGE> 15
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.
2-10
<PAGE> 16
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.
3-1
<PAGE> 17
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 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
4-1
<PAGE> 18
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 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.
4-2
<PAGE> 19
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.
4-3
<PAGE> 20
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 establish and maintain
the following types of investment funds within the Trust Fund:
5-1
<PAGE> 21
(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 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
5-2
<PAGE> 22
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 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
5-3
<PAGE> 23
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.
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
5-4
<PAGE> 24
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.
5-5
<PAGE> 25
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.
6-1
<PAGE> 26
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.
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
7-1
<PAGE> 27
(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.
7-2
<PAGE> 28
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:
(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
8-1
<PAGE> 29
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 contributions 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; 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.
8-2
<PAGE> 30
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 participants during the Transition
Period.
8-3
<PAGE> 31
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:
(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.
9-1
<PAGE> 32
(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 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;
9-2
<PAGE> 33
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 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.
9-3
<PAGE> 34
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 to the contrary,
no loans shall be made during the Transition Period.
9-4
<PAGE> 35
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.
10-1
<PAGE> 36
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.
11-1
<PAGE> 37
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 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:
12-1
<PAGE> 38
(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.
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
12-2
<PAGE> 39
Administrator may direct a participant or former participant to
clarify his designation and if necessary execute a new designation containing
such clarification.
12-3
<PAGE> 40
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, 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.
13-1
<PAGE> 41
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 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.
13-2
<PAGE> 42
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.
13-3
<PAGE> 43
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 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
14-1
<PAGE> 44
Company on file with the Trustee, or by delivering such written notice to the
Company at such address. The Company may remove the Trustee by written notice of
such removal mailed to the Trustee at the last address of the Trustee on file
with the Company, or by delivering such written notice to the Trustee at such
address. Such resignation or removal shall take effect on the date specified in
the notice of resignation or removal, but not less than thirty (30) days, nor
more than sixty (60) days, following the date of mailing of such notice or
delivery of such notice if it be not mailed. Upon such resignation or removal,
the Trustee shall be entitled to its fees to the effective date of resignation
or removal and any and all costs or expenses paid or incurred by the Trustee in
connection with this Trust and Plan. In no event shall such resignation or
removal terminate this Trust and Plan, but the Company shall forthwith appoint a
successor Trustee to carry out the terms of this Trust and Plan, which successor
Trustee shall be any individual, trust company or bank selected by the Company.
In case of the resignation or removal of the Trustee, the Trustee shall
forthwith turn over to the successor Trustee all assets in its possession, and
copies of such records as may be necessary to permit the successor Trustee to
carry out its duties.
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.
14-2
<PAGE> 45
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 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
14-3
<PAGE> 46
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 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.
14-4
<PAGE> 47
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) 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
15-1
<PAGE> 48
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;
(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;
15-2
<PAGE> 49
(h) To borrow money from any lender (including the Trustee hereunder,
where applicable in its capacity as a banking corporation when permitted to do
so by the applicable laws and regulations then in effect) in any amount and upon
such terms and conditions and for such purposes as the Trustee shall deem
necessary; for any money so borrowed the Trustee may issue its promissory note
as Trustee and to secure the repayment of any such loan, with interest, may
pledge or mortgage all or any part of the Trust Fund, and no person loaning
money to the Trustee shall be obligated to see to the application of the money
loaned or to inquire into the validity, expediency or propriety of any such
borrowing;
(i) To compromise, settle or arbitrate any claim, debt or obligation of
or against the Trust Fund; to enforce or abstain from enforcing any right,
claim, debt or obligation; and to abandon any property determined by it to be
worthless;
(j) To continue to hold any property of the Trust Fund whether or not
productive of income; to reserve from investment and keep unproductive of
income, without liability for interest, such cash as it deems advisable or, in
its discretion, to hold the same, without limitation on duration, on deposit in
the commercial department or in an interest-bearing account in the savings
department of any bank, trust company, or savings and loan institution
(including the Trustee where applicable in its capacity as a banking
corporation) in which deposits are guaranteed by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation;
(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;
15-3
<PAGE> 50
(o) Except as otherwise provided in this Trust and Plan, to do all acts,
execute all instruments, take all proceedings and exercise all rights and
privileges with relation to any assets constituting a part of the Trust Fund,
which it may deem necessary or advisable to carry out the purposes of this Trust
and Plan;
(p) During the minority or incapacity, in either case as determined under
applicable local law, of any participant, former participant or beneficiary
under this Trust and Plan, to make any distribution to which such person would
otherwise be entitled pursuant to this Trust and Plan either to such person or
to the legal guardian of such person, and the receipt of either such minor or
incapacitated person or such legal guardian shall be a full discharge and
acquittance to the Trustee for such distribution;
(q) To commingle the assets of the Trust Fund, other than shares of the
Company's Class A Common Stock or Class B Common Stock, with assets of other
trusts through the medium of the Figgie International Inc. Investment Trust for
Retirement Trusts established by the Company by an agreement dated and executed
on 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;
15-4
<PAGE> 51
to act as the Investment Manager or Managers of all or such portions of the
Trust Fund as the Company in its sole discretion shall direct. In order to serve
as Investment Manager, any such bank, person or insurance company must state in
writing to the Company and the Trustee that it meets the requirements set forth
in this Section to be an Investment Manager and that it acknowledges 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 substantial ownership rights under this Trust and
Plan with respect to Shares held in their accounts under
15-5
<PAGE> 52
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 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
15-6
<PAGE> 53
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 purposes of Section 402(a)(2) of ERISA, be a "named fiduciary" with
respect to such power to direct the Trustee as to the voting of such Shares 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;
15-7
<PAGE> 54
(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 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.
15-8
<PAGE> 55
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 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
16-1
<PAGE> 56
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 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
16-2
<PAGE> 57
discretion, appoint from its members an Appeal Examiner to conduct such review.
Any hearing conducted by an Appeal Examiner shall be held in such location as
shall be reasonably convenient to the applicant. Any hearing conducted by the
Committee shall be held in the Corporate Headquarters of the Company, unless the
Committee shall specify otherwise. The date and time of any such hearing shall
be designated by the Committee or the Appeal Examiner upon not less than seven
(7) days' notice to the applicant and the Administrator unless both of them
accept shorter notice. The Committee or the Appeal Examiner shall make every
effort to schedule the hearing on a day and at a time which is convenient to
both the applicant and the Administrator. The Committee may, in its sole
discretion, establish such rules of procedure as it may deem necessary or
advisable for the conduct of any such review or of any such hearing. After the
review has been completed, the Committee or the Appeal Examiner shall render a
decision in writing, a copy of which shall be sent to both the applicant and 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
16-3
<PAGE> 58
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 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
16-4
<PAGE> 59
harmless the Administrator, Committee, Board of Directors, Appeal Examiner,
and their respective officers, employees, members and agents, for all acts taken
or omitted in carrying out their responsibilities under the terms of this Trust
and Plan or other responsibilities imposed upon such persons by ERISA. This
indemnification for all acts or omissions is intentionally broad, but shall not
provide 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.
16-5
<PAGE> 60
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 judgment, 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.
17.3 Section 17.2 hereof shall not apply to the creation, assignment or
recognition of a right to any benefit under this ITrust 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.
17-1
<PAGE> 61
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 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.
17-2
<PAGE> 62
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 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.
17-3
<PAGE> 63
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 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.
18-1
<PAGE> 64
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.
18-2
<PAGE> 65
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.
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
19-1
<PAGE> 66
($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 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:
(A) (B)
Average Deferral Limit on Average Deferral
Percentage for Employees Percentage for Employees
Eligible to Participate Eligible to Participate
who are not Highly who are Highly
compensated Compensated
-------------------------- ----------------------------
Less than 2% 2 times Column (A)
2% or more but less than 8% Column (A) plus 2%
8% or more 1.25 times Column (A)
19-2
<PAGE> 67
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 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
19-3
<PAGE> 68
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.
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
19-4
<PAGE> 69
(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 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
(C) 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;
19-5
<PAGE> 70
(iii) employees who normally work during not more than six
(6) months during any year;
(iv) employees who have not attained age twenty-one (21);
(v) except to the extent provided in regulations,
employees who are included in a unit of employees
covered by an agreement which the Secretary of Labor
finds to be a collective bargaining agreement
between employee representatives and the Company or
any affiliate; and
(vi) employees who are nonresident aliens and who receive
no earned income (within the meaning of Section
911(d)(2) of the Code) from a the Company or any
affiliate which constitutes income from sources
within the United States (within the meaning of
Section 861(a)(3) of the Code).
The Company may elect (in such manner as may be provided by
the Secretary of the Treasury or his delegate) to apply
subparagraph (i), (ii), (iii), or (iv) by substituting a
shorter period of service, smaller number of hours or
months, or lower age for the period of service, number of
hours or months, or age (as the case may be) than that
specified in such subparagraph.
(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.
19-6
<PAGE> 71
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 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
20-1
<PAGE> 72
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 with any earnings, shall be distributed to said
participant.
20-2
<PAGE> 73
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 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.
21-1
<PAGE> 74
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 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;
21-2
<PAGE> 75
his total account balances shall be transferred to the trustee or custodian of
such other qualified retirement plan.
21-3
<PAGE> 76
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 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
22-1
<PAGE> 77
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 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
22-2
<PAGE> 78
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 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
22-3
<PAGE> 79
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 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:
22-4
<PAGE> 80
(i) an individual retirement account described in Section
408(a) of the Code;
(ii) an individual retirement annuity described in Section
408(b) of the Code;
(iii) an annuity plan described in Section 403(a) of the Code; or
(iv) a qualified trust described in Section 401(a) of the Code;
that accepts the distributee's eligible rollover distribution.
Notwithstanding the foregoing, in the case of an eligible rollover
distribution to the surviving spouse of a deceased employee, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(c) "distributee" shall mean:
(i) an employee or former employee; and
(ii) an employee's or a former employee's surviving spouse and
an employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic
relations order, as defined in Section 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.
22-5
<PAGE> 81
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 /s/ S. Siemborski
---------------------------------------
And /s/ W. J. Sickman
--------------------------------------
WILMINGTON TRUST COMPANY
("Trustee")
By /s/ Barbara Uberti
---------------------------------------
And /s/ Nino DiRierzo
--------------------------------------
22-6
<PAGE> 82
AMENDMENT NO. 1
TO
FIGGIE INTERNATIONAL INC.
401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
-------------------------------------------------
THIS AMENDMENT NO. 1 is made this 18th day of November, 1998, by SCOTT
TECHNOLOGIES, INC., a Delaware corporation (formerly known as Figgie
International Inc. and hereinafter referred to as the "Company").
W I T N E S S E T H:
WHEREAS, on June 30, 1997 the Company established the FIGGIE
INTERNATIONAL INC. 401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES
(hereinafter referred to as both "Plan" and "Trust and Plan"), effective as of
July 1, 1997; and
WHEREAS, the Company reserved the right, pursuant to Section
18.1 of the Plan, to make certain amendments thereto; and
WHEREAS, it is the desire of the Company to amend the Plan in
order to change its name to reflect the Company's current name, to bring it into
compliance with the Tax Reform Act of 1997 and to make certain other necessary
and desirable changes;
NOW, THEREFORE, pursuant to Section 18.1 of the Plan, the
Company hereby amends the Plan, except as otherwise provided, effective as of
January 1, 1998, as follows:
(1) Effective as of May 26, 1998, Section 1.1 of Article I of
the Plan is hereby amended by the deletion of said Section 1.1 and the
substitution in lieu thereof of a new Section 1.1 to read as follows:
"1.1 The name of this Trust and Plan is SCOTT TECHNOLOGIES, INC.
401(k) SAVINGS PLAN FOR BARGAINING UNIT EMPLOYEES. This Trust and Plan
was created and is hereby continued for the purpose of providing benefits
to the participants
<PAGE> 83
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."
(2) Effective as of May 26, 1998, Section 2.8 of Article II of the Plan
is hereby amended by the deletion of said Section 2.8 and the substitution in
lieu thereof of a new Section 2.8 to read as follows:
"2.8 The word "Company" shall mean SCOTT TECHNOLOGIES, 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."
(3) Section 2.11 of Article II of the Plan is hereby amended by the
deletion of said Section 2.11 and the substitution in lieu thereof of a new
Section 2.11 to read as follows:
"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, he is a person who receives payment of his remuneration from an
entity which is not the Company or an affiliate 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 than the
Employer, or to an affiliate;
(d) his becoming a leased employee or an employee who is
employed in accordance with an oral or written employment,
consulting or other
2
<PAGE> 84
arrangement, the terms and conditions of which preclude his
participation in this Trust and Plan; or
(e) his becoming a person who receives payment of his remuneration
from an entity which is not the Company or an affiliate."
(4) Section 2.38 of Article II of the Plan is hereby amended by the
deletion of said Section 2.38 and the substitution in lieu thereof of a new
Section 2.38 to read as follows:
"2.38 The word "Union" shall mean Local 326 of the International
Union of Electronic, Electrical, Salaried, Machine and Furniture Workers,
A.F.L. C.I.O."
(5) Section 4.2 of Article IV of the Plan is hereby amended by the
deletion of the first paragraph of said Section 4.2 and the substitution in lieu
thereof of a new paragraph to read as follows:
"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 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."
3
<PAGE> 85
(6) Section 5.2 of Article V of the Plan is hereby amended by the
deletion of said Section 5.2 and the substitution in lieu thereof of a new
Section 5.2 to read as follows:
"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 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
which have not been segregated as a result of a loan 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."
(7) Article V of the Plan is hereby further amended by the
addition at the end thereof of a new Section 5.7 to read as follows:
"5.7 The investment direction procedures of this Article are
and shall continue to be designed so as to comply, in the sole judgment
of the Administrator, with the requirements imposed by Section 404(c)
of ERISA and regulations thereunder, and shall apply to all
participants, former participants and beneficiaries in a uniform and
nondiscriminatory manner."
4
<PAGE> 86
(8) Section 9.2 of Article IX of the Plan is hereby amended by the
deletion of subparagraph (f) of said Section 9.2 and the substitution in lieu
thereof of a new subparagraph to read as follows:
"(f) DEFAULT. The Administrator shall designate certain
occurrences as "events of default." Events of default may
include, but shall not be limited to, the following:
(i) failure of the borrower to make a required payment
of principal or interest under the loan;
(ii) termination of this Trust and Plan;
(iii) sale of the Division which employs the borrower; and
(iv) the borrower's termination of employment or death.
If an event of default occurs with respect to a borrower,
such borrower's loan shall be accelerated and shall become
due and payable as of the date specified by the
Administrator. If a required payment of principal or
interest is not made by the end of the calendar quarter
which next follows the calendar quarter in which the event
which triggers the default occurs or if a required payment
is not made after a permitted one (1) year grace period, as
provided in subparagraph (b) above, the loan shall be in
default and the outstanding loan balance shall be deemed to
be distributed to the borrower or his beneficiary or
estate, as applicable.
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) Section 13.3 of Article XIII of the Plan is hereby amended by
the deletion of said Section 13.3 and the substitution in lieu thereof of a new
Section 13.3 to read as follows:
"13.3 In the event that the vested account balances of a
retired, terminated or deceased participant have a value of Five
Thousand Dollars ($5,000.00) or less at the time of distribution, and
had a value which was not greater than Five Thousand Dollars
($5,000.00) 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
5
<PAGE> 87
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."
(10) Section 15.1 of Article XV of the Plan is hereby amended by
the deletion of subparagraphs (q) and (r) of said Section 15.1 and the
substitution in lieu thereof of new subparagraphs (q) and (r) to read as
follows:
"(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 Company's
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 Company's 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."
(11) Sections 15.4 and 15.5 of Article XV of the Plan are hereby
amended by the deletion of the last sentence of the first paragraphs of
said Sections 15.4 and 15.5.
6
<PAGE> 88
(12) Article XVII of the Plan is hereby amended by the addition at
the end thereof of a new Section 17.8 to read as follows:
"17.8 Notwithstanding anything contained in this Trust and Plan to
the contrary, distribution of the vested portion of an alternate payee's
segregated account may be made to the alternate payee if such
distribution is authorized by a qualified domestic relations order,
regardless of whether the affected participant shall at such time be
eligible for distribution under this Trust and Plan. Where authorized by
a qualified domestic relations order, distribution of the vested portion
of an alternate payee's interest in this Trust and Plan shall be made in
an immediate lump sum as soon as reasonably possible following the
receipt by the Administrator of the qualified domestic relations order.
The alternate payee shall, with respect to this Trust and Plan, to the
extent of his interest in this Trust and Plan, have such rights as are
specified in the qualified domestic relations order."
(13) Section 18.1 of Article XVIII of the Plan is hereby amended
by the deletion of said Section 18.1 and the substitution in lieu thereof of a
new Section 18.1 to read as follows:
"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 vested benefits of participants, former participants or
beneficiaries receiving benefits under this Trust and Plan and no other
vested benefits under this Trust and Plan shall in any way be reduced
except that such benefits may be reduced if such a reduction is necessary
to continue the qualified status
7
<PAGE> 89
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."
IN WITNESS WHEREOF, the Company, by its duly authorized officers, has
caused this Amendment No. 1 to be executed as of the day and year
first above written.
SCOTT TECHNOLOGIES, INC.
("Company")
By /s/ W. J. Sickman
---------------------------------------
And /s/ Debra L. Kackley
--------------------------------------
<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
February 23, 1998 included in Figgie International Inc. Form 10-K for the year
December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Cleveland, Ohio
January 8, 1999
<PAGE> 1
EXHIBIT 24.1
SCOTT TECHNOLOGIES, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Scott Technologies, Inc.
hereby constitutes and appoints Mark A. Kirk, Debra L. Kackley, William Sickman
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
Mayfield Heights, Ohio on January 8, 1999.
SCOTT TECHNOLOGIES, INC.
By: /s/ Glen W. Lindemann
-------------------------------------
Glen W. Lindemann
President and Chief Executive Officer
<PAGE> 2
EXHIBIT 24.1
(Continued)
SCOTT TECHNOLOGIES, INC.
Certified Resolution
I, DEBRA L. KACKLEY, Secretary of Scott Technologies, 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 September
22, 1998, and that the same has not been changed and remains in full force and
effect.
RESOLVED, that Mark A. Kirk, Debra L. Kackley, William
Sickman and Douglas A. Neary be, and each of them hereby is, appointed as the
attorney of Scott Technologies, Inc., with full power of substitution and
resubstitution for and in the name, place and stead of the Company to sign,
attest and file any amendment(s) to the Bargaining Unit Registration Statement
(the "Amended Bargaining Unit Registration Statement"), 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 Plan, and any and all amendments, post-effective amendments and
exhibits to such Amended Bargaining Unit 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 such Amended Bargaining Unit 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, the 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 the authority to do the foregoing on behalf and in the name of any
duly authorized officer of the Company; and the President, any Vice President or
the Chief Financial Officer of the Company be and each hereby is separately
authorized and directed for and on behalf of the Company to execute a Power of
Attorney evidencing the foregoing appointment.
/s/ Debra L. Kackley
-----------------------------------
Debra L. Kackley, Secretary
Dated: January 8, 1999.
