<PAGE> 1
As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 33-33177
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST- EFFECTIVE AMENDMENT NO. 2
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)
5975 Landerbrook Drive, Suite 250
Mayfield Heights, Ohio 44124
(Address of Principal Executive Offices, Including Zip Code)
----------------------
SCOTT TECHNOLOGIES, INC. 401(k) SAVING PLAN FOR SALARIED 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
5975 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)
----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title Of
Securities Amount Proposed Maximum Proposed Maximum Amount Of
To Be To Be Offering Price Per Aggregate Offering Registration
Registered Registered Share (1) Price Fee
- ---------------------------------- ------------------ --------------------- --------------------- ------------------
<S> <C> <C> <C> <C>
Interests In Plan .............. (2) N/A N/A N/A
- ---------------------------------- ------------------ --------------------- --------------------- ------------------
Common Stock, par value $.10 per
share (3) ...................... 109,430 $16.28 $1,781,684 $526
================================== ================== ===================== ===================== ==================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457 under the Securities Act of 1933.
(2) This Amendment No. 2 to the Registration Statement of Form S-8 covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. Pursuant to Rule 457(h)(2) no
additional filing fee is required with respect to the plan interests.
(3) 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 524,591
shares of Class A Common Stock and the 413,794 shares of Class B Common
Stock previously registered on Form S-8 (Commission File No. 33-33177) have
been reclassified into an aggregate of 938,385 shares of Common Stock.
</TABLE>
<PAGE> 2
This Amendment No. 2 hereby amends Registration Statement on Form S-8
(Commission File No. 33-33177), as amended by Post-effective Amendment No. 1,
dated January 17, 1996 (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. Supplementary Retirement Savings Plan" to
"Scott Technologies, Inc. 401(k) Savings Plan for Salaried
Employees" (the "Plan");
(3) to increase the number of shares of Common Stock registered
for offers and sales under the Plan from 938,385 shares of
Common Stock (formerly registered 524,591 shares of Class A
Common Stock and 413,794 shares of Class B Common Stock) to
1,047,815 shares of Common Stock; and
(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. 2 shall be deemed to be modified
or superseded for purposes of this Amendment No. 2 to the extent that a
statement contained in this Amendment No. 2 or in any other subsequently filed
document that also is, or is deemed to be, incorporated by reference in this
Amendment No. 2 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. 2.
<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.
Signature Title
--------- -----
/s/ Glen W. Lindemann President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer)
Glen W. Lindemann
/s/ Mark A. Kirk Senior Vice President and Chief Financial
- ------------------------------ Officer (Principal Financial Officer)
Mark A. Kirk
/s/ Robert P. Collins Chairman of the Board and Director
- ------------------------------
Robert P. Collins
/s/ John P. Reilly Director
- ------------------------------
John P. Reilly
/s/ Harrison Nesbit, II Director
- ------------------------------
Harrison Nesbit, II
/s/ Frank N. Linsalata Director
- ------------------------------
Frank N. Linsalata
<PAGE> 4
/s/ F. Rush McKnight Director
- ------------------------------
F. Rush McKnight
/s/ N. Colin Lind Director
- ------------------------------
N. Colin Lind
<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 SALARIED EMPLOYEES
By: Wilmington Trust Company,
Trustee
By: /s/ Linda Bailey
-----------------------------------
Linda Bailey,
Senior Financial Services Officer
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT INDEX
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
Salaried Employees.
4.2 Indenture, dated as of October 1, 1989, between (5)
Figgie International Inc. (n/k/a Scott
Technologies, 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.
(n/k/a Scott Technologies, 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. (n/k/a Scott
Technologies, 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.
(Contained in Exhibit 5.1).
24.1 Power of Attorney and related Certified Resolution.
<FN>
- --------------
(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).
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
(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).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
SCOTT TECHNOLOGIES, INC.
401(k) SAVINGS PLAN FOR SALARIED EMPLOYEES
As Amended and Restated Effective: January 1, 1998
<PAGE> 2
TABLE OF CONTENTS
ARTICLE NO.
-----------
NAME AND PURPOSE I
DEFINITIONS II
PARTICIPATING DIVISIONS III
ELIGIBILITY AND PARTICIPATION IV
SALARY DEFERRAL CONTRIBUTIONS V
COMPANY CONTRIBUTIONS VI
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT VII
ACCOUNTS VIII
WITHDRAWALS FROM ACCOUNTS IX
HARDSHIP DISTRIBUTIONS X
LOANS XI
TERMINATION OF EMPLOYMENT XII
RETIREMENT BENEFITS XIII
DEATH BENEFITS XIV
DISTRIBUTIONS XV
THE TRUSTEE, ITS POWERS AND DUTIES XVI
INVESTMENT MANAGEMENT XVII
ADMINISTRATION XVIII
PROHIBITION AGAINST ALIENATION XIX
AMENDMENT AND TERMINATION XX
LIMITATIONS ON CONTRIBUTIONS XXI
ii
<PAGE> 3
LIMITATION ON ANNUAL ADDITIONS XXII
ROLLOVERS AND TRANSFERS INVOLVING OTHER
QUALIFIED RETIREMENT PLANS XXIII
TOP-HEAVY PROVISIONS XXIV
SPECIAL PROVISIONS WITH RESPECT TO CERTAIN SHARES XXV
MISCELLANEOUS XXVI
iii
<PAGE> 4
INDEX
ARTICLE NO.
-----------
ACCOUNTS VIII
ADMINISTRATION XVIII
AMENDMENT AND TERMINATION XX
COMPANY CONTRIBUTIONS VI
DEATH BENEFITS XIV
DEFINITIONS II
DISTRIBUTIONS XV
ELIGIBILITY AND PARTICIPATION IV
HARDSHIP DISTRIBUTIONS X
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT VII
INVESTMENT MANAGEMENT XVII
LIMITATION ON ANNUAL ADDITIONS XXII
LIMITATIONS ON CONTRIBUTIONS XXI
LOANS XI
MISCELLANEOUS XXVI
NAME AND PURPOSE I
PARTICIPATING DIVISIONS III
PROHIBITION AGAINST ALIENATION XIX
RETIREMENT BENEFITS XIII
ROLLOVERS AND TRANSFERS INVOLVING OTHER
QUALIFIED RETIREMENT PLANS XXIII
SALARY DEFERRAL CONTRIBUTIONS V
iv
<PAGE> 5
SPECIAL PROVISIONS WITH RESPECT TO CERTAIN SHARES XXV
TERMINATION OF EMPLOYMENT XII
THE TRUSTEE, ITS POWERS AND DUTIES XVI
TOP-HEAVY PROVISIONS XXIV
WITHDRAWALS FROM ACCOUNTS IX
v
<PAGE> 6
AMENDMENT AND RESTATEMENT
OF
FIGGIE INTERNATIONAL INC.
401(k) SAVINGS PLAN FOR SALARIED EMPLOYEES
AS THE
SCOTT TECHNOLOGIES, INC.
401(k) SAVINGS PLAN FOR SALARIED EMPLOYEES
THIS AMENDMENT AND RESTATEMENT is adopted by and between SCOTT
TECHNOLOGIES, INC. (formerly known as 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, on December 23, 1985 the Company established a 401(k)
Savings Plan for Salaried Employees (hereinafter called the "Trust and Plan" and
previously known as the Figgie International Inc. 401(k) Savings Plan for
Salaried Employees and the Figgie International Inc. Supplementary Retirement
Savings Plan), effective January 1, 1985; and
WHEREAS, the Trust and Plan has been amended from time to time
in the years since its establishment; and
WHEREAS, it is the desire of the Company to amend and restate
the Trust and Plan in order to reflect the merger of the Figgie International
Inc. Stock Ownership Trust and Plan into the Trust and Plan and to make certain
other necessary and desirable changes;
vi
<PAGE> 7
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and agreements herein contained, it is mutually agreed that the Trust
and Plan be amended and restated effective, except as otherwise provided herein,
as of the first day of January, 1998, as follows:
vii
<PAGE> 8
ARTICLE I
NAME AND PURPOSE
1.1 The name of this Trust and Plan shall be SCOTT
TECHNOLOGIES, INC. 401(k) SAVINGS PLAN FOR SALARIED EMPLOYEES. This Trust and
Plan was originally created and is hereby continued for the purpose of providing
benefits to the participants in this Trust and Plan upon their retirement and
for the purpose of providing such other benefits to such participants and their
beneficiaries as are hereinafter described.
1-1
<PAGE> 9
ARTICLE II
DEFINITIONS
Unless the context otherwise indicates, the following terms
used herein shall have the following meanings whenever used in this instrument:
2.1 The word "accounts" shall mean "employer contribution
accounts", "salary deferral accounts", "non-forfeitable accounts", "after-tax
accounts" and "Stock Plan accounts", which shall be further denominated as
"Stock Bonus Plan accounts", "ESOP accounts" and "Salaried ESOP accounts."
2.2 The word "Administrator" shall mean the Company.
2.3 The words "Adoption Date" shall mean the date as of which
a Division shall have become a Participating Division in accordance with Article
III hereof.
2.4 The word "affiliate" shall mean any corporation or
business organization during any period during which it is a member of a
controlled group of corporations or trades or businesses which includes the
Company within the meaning of Sections 414(b) and 414(c) of the Code or is a
member of an affiliated service group which includes the Company within the
meaning of Section 414(m) of the Code.
2.5 The words "allocation date" shall mean the last day of
each of the Company's taxable years ending after the restatement date.
2.6 The word "beneficiary" shall mean any person, other than
an alternate payee as defined in Section 19.1(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.
2-1
<PAGE> 10
2.7 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.
2.8 The word "Committee" shall mean the Appeals Committee
constituted under the provisions of Article XVIII hereof.
2.9 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.
2.10 The word "compensation" shall generally mean taxable
remuneration paid to an employee for services rendered to the Company or an
affiliate which must be reported as wages on the employee's Form W-2 for income
tax purposes. Compensation shall be increased for salary reduction amounts which
are excluded from the taxable income of the employee under Sections 125,
402(e)(3) and 402(h) of the Code. Compensation shall be reduced by all of the
following amounts even if they are taxable to the employee:
(a) all amounts related to any funded deferred
compensation plan, whether or not qualified;
(b) expense reimbursements, expense allowances or moving
expenses;
(c) all amounts related to restricted property or stock
options, whether qualified or nonqualified; and
(d) any cash or non-cash fringe benefits or welfare
benefits.
"Compensation" shall not include any remuneration paid to an employee during a
period in which he is not an active participant in this Trust and Plan. In
addition, an employee's "compensation" shall not exceed One Hundred Sixty
Thousand Dollars ($160,000.00) (plus any adjustment after 1998 for
cost-of-living or otherwise as shall be prescribed by the Secretary of the
Treasury pursuant to Sections 401(a)(17) and 415(d) of the Code).
2-2
<PAGE> 11
2.11 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 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.
2.12 The words "Covered Employee" shall an employee of the
Company or an affiliate:
(a) who is a salaried employee, whether or not he is
exempt from the Wage and Hour provisions of the Fair
Labor Standards Act, of a Participating Division; and
(b) either:
(i) who is a citizen or resident of the United
States; or
(ii) whose principal place of employment is in
the United States;
provided, however, that an employee shall not be considered to be a Covered
Employee if he is an employee whose terms and conditions of employment are
covered by a collective bargaining agreement which does not require him to be
included in this Trust and Plan, he is a leased employee, he is a person who
receives payment of his remuneration from an entity which is not
2-3
<PAGE> 12
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 a salaried employee;
(c) his ceasing to be employed by a Participating
Division;
(d) his terms and conditions of employment become covered
by a collective bargaining agreement which does not
require him to be included in this Trust and Plan;
(e) his transfer to a principal place of employment which
is outside the United States if he is not a citizen
or resident of the United States;
(f) 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; or
(g) his becoming a person who receives payment of his
remuneration from an entity which is not the Company
or an affiliate.
2.13 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
2-4
<PAGE> 13
any back pay pursuant to an award or agreement. In the event that a business
organization shall be or shall have been acquired by or merged into the Company
or any affiliate, the date of hire of each employee who is or was an employee on
the date of acquisition shall be deemed to have been the most recent date he was
hired by such business organization and performed an hour of service.
2.14 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, including the Company's Disability Benefits Plan
for Salaried Employees and the Company's Senior Executive Benefits Program.
2.15 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.
2.16 The words "effective date" of this Trust and Plan shall
mean January 1, 1985.
2.17 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.
2.18 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 "ESOP" shall mean the Figgie International Inc.
Stock Ownership Trust and Plan.
2-5
<PAGE> 14
2.20 The words "ESOP Merger Date" shall mean the end of the
day on December 31, 1997.
2.21 The words "fair market value" shall mean with respect to
the Shares that price at which a Share would change hands between a willing
buyer and a willing seller, neither being under any compulsion to buy or sell
and both having reasonable knowledge of the relevant facts, including (but not
limited to) the nature and history of the business, current and prospective
economic conditions, book values, current asset values, earnings capacity,
dividend-paying capacity, goodwill, rates of capitalization for comparable
businesses, recent sales of Shares (if any), market value of comparable
businesses, lack of established marketability, contractual conditions which
restrict transfer and the effect of loss of key men. In the event the Shares are
not readily tradeable on an established securities market, the Trustee shall
rely, for all purposes under this Trust and Plan, upon the independent valuation
described in Section 16.6 hereof. In the event Shares are readily tradeable on
an established securities market, the fair market value of a Share shall be
determined with reference to appropriate market quotations.
2.22 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.
2.23 The words "investment fund" shall mean a fund
established, maintained and administered by the Trustee pursuant to Articles VII
and XVII hereof.
2.24 The words "leased employee" shall mean any individual
(other than a common-law employee of the Company or an affiliate) who, pursuant
to an agreement between the Company or an affiliate and any leasing
organization, has performed services under the
2-6
<PAGE> 15
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.
2.25 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.
2.26 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 vesting service.
Notwithstanding the foregoing to the contrary, the "normal retirement date" of
each participant who was hired prior to January 1, 1990 shall be the date on
which he attains age sixty-five (65).
2.27 The word "participant" shall mean any eligible employee
who has become a participant in this Trust and Plan in accordance with Article
IV hereof or a Supplemental Agreement. A person shall cease to be a participant
upon his termination of employment. A participant shall be considered to be an
"active participant" during any period of employment except for:
(a) any period during which he is not a Covered Employee;
(b) any period during which he is designated as an
inactive participant by a Supplemental Agreement by
which he is covered; and
(c) any period during which he is Disabled.
2-7
<PAGE> 16
2.28 The words "Participating Division" shall mean any
Division which is or shall become a Participating Division in this Trust and
Plan pursuant to Article III hereof.
2.29 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.
2.30 The words "period of severance" shall mean for any
employee or former employee a period commencing on his termination of employment
and ending on the date such employee or former employee is rehired by the
Company or any affiliate. A "one year period of severance" shall mean a twelve
(12) month period of severance during which an employee does not complete at
least one (1) hour for the Company or any affiliate. Notwithstanding the
foregoing provisions of this Section, 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.
2.31 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.
2.32 The words "plan year" shall mean the calendar year.
2-8
<PAGE> 17
2.33 The words "qualified nonelective contributions" shall
mean any special employer contribution made by the Company pursuant to Section
6.3 hereof and any other fully vested employer contribution made by the Company
to this Trust and Plan.
2.34 The words "Qualified Person" shall mean a participant or
former participant who has attained age fifty-five (55) and has completed five
(5) years of vesting service or the beneficiary of such a deceased participant
or former participant.
2.35 The words "restatement date" shall mean the date on which
this Amendment and Restatement became effective, which date is January 1, 1998.
2.36 The words "Salaried ESOP" shall mean the Figgie
International Inc. Stock Ownership Trust and Plan for Salaried Employees.
2.37 The words "salary deferral contributions" shall mean
contributions made to this Trust and Plan by the Company on behalf of an active
participant pursuant to such active participant's election under Section 5.1
hereof and paid to the Trustee pursuant to Section 5.3 hereof.
2.38 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.
2.39 The words "Stock Plans" shall mean the following plans:
(a) the ESOP;
(b) the Figgie International Inc. Stock Bonus Trust and
Plan;
(c) the Salaried ESOP; and
(d) the Figgie Security, Inc. Stock Bonus Trust and Plan.
2-9
<PAGE> 18
2.40 The words "Supplemental Agreement" shall mean an
agreement adopted by the Company pursuant to Section 3.2 hereof setting forth
special provisions applicable to specific groups of employees, former employees
or beneficiaries of deceased employees.
2.41 The words "taxable year" shall mean the calendar year.
2.42 The words "termination of employment" shall mean for any
employee the occurrence of any one of the following events:
(a) his discharge unless he is subsequently reemployed by
the Company or an affiliate and given pay back to his
date of discharge;
(b) his voluntary termination of employment with the
Company or any affiliate;
(c) his retirement from employment with the Company or
any affiliate;
(d) his failure to return to work:
(i) at the end of any leave of absence
authorized by the Company; or
(ii) within ninety (90) days following such
employee's release from military service or
within any other period following military
service in which his right to reemployment
with the Company or any affiliate is
guaranteed by law; or
(iii) after the cessation of disability benefits
under any sick leave, short term disability
program or long term disability program of
the Company; or
(iv) within three (3) days after he has been
recalled to work following a period of
layoff;
(e) he has been continuously laid-off for twelve (12)
months;
(f) if the stock or assets of the business unit by which
the employee is employed 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 (e) above) with such
person, entity or joint venture; or
(g) if the stock or assets of the business unit by which
the employee is employed 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
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<PAGE> 19
the Company and this Trust and Plan is not assumed by
such person, entity or joint venture, the date of
sale of the stock or assets or the date of such
transfer.
In the case of the occurrence of any event described in subparagraph (d)(i),
(d)(ii) or (e) of this Section, the date of such employee's termination of
employment shall be deemed to be the earlier of (A) the first anniversary of the
first day of any such period of leave of absence, military service or layoff, or
(B) the last day of any such period of leave of absence, military service or
layoff.
2.43 The words "Transition Period No. 1" shall mean the period
which commenced on June 14, 1997 and ended on September 26, 1997, the date which
was one (1) month following the final reconciliation of the valuation of this
Trust and Plan's assets by the prior recordkeeper for the second quarter of
1997.
2.44 The words "Transition Period No. 2" shall mean the period
commencing on December 31, 1997 and ending on the date which is one (1) month
following the final reconciliation of the ESOP's fourth quarter valuation by the
ESOP's prior recordkeeper.
2.45 The words "Trust and Plan" shall mean this instrument as
originally executed, as it is amended and restated herein and as it may be
amended from time to time hereafter.
2.46 The word "Trustee" shall mean the person or persons
serving as the Trustee of this Trust and Plan and any successor Trustee or
Trustees.
2.47 The words "Trust Fund" shall mean the Trust established
by this Trust and Plan including the separate investment funds established
pursuant to Article VII hereof.
2.48 The word "Unit" shall mean an accounting unit
representing an interest in one of the investment funds established under
Article VII hereof.
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<PAGE> 20
2.49 The words "valuation date" shall mean the date as of
which account balances are valued.
2.50 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.
2.51 The words "vested interest" shall mean, with respect to
any participant, (a) plus (b) minus (c) below, where:
(a) equals the balances, if any, then credited to all
salary deferral accounts, non-forfeitable accounts,
after-tax accounts and Stock Plan accounts maintained
on his behalf;
(b) equals the sum of:
(i) the balance, if any, then credited to his
employer contribution account multiplied by
his vested percentage; plus
(ii) any distributions made to the participant
which have not been recontributed by the
participant pursuant to Section 12.5 hereof
or withdrawals by the participant from his
employer contribution account since his
earliest date of hire which has not been
followed by a five (5) year period of
severance, multiplied by his vested
percentage; and
(c) equals any distributions made to the participant
which have not been recontributed by the participant
pursuant to Section 12.5 hereof or withdrawals by the
participant from his employer contribution account
since his earliest date of hire which has not been
followed by a five (5) year period of severance.
2.52 The words "vested percentage" shall mean for any
participant a percentage determined on the basis of his number of years of
vesting service in accordance with the following table:
<TABLE>
<CAPTION>
Years of Vesting Service Vested Percentage
------------------------ -----------------
<S> <C>
Less than 1 year 0%
1 but less than 2 years 20%
2 but less than 3 years 40%
3 but less than 4 years 60%
4 but less than 5 years 80%
5 or more years 100%
</TABLE>
2-12
<PAGE> 21
In any event, the "vested percentage" of a participant who has attained his
normal retirement date or who is permanently and totally disabled shall be one
hundred percent (100%).
2.53 The words "vesting 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 "vesting 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 vesting
service he had on said date of termination of
employment; and
(b) he did not have a vested interest under this Trust
and Plan or any of the Stock Plans 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.
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<PAGE> 22
ARTICLE III
PARTICIPATING DIVISIONS
3.1 A Division shall become a Participating Division under
this Trust and Plan by order of the Board of Directors of the Company with, in
the case of a Subsidiary of the Company, the ratification of the Board of
Directors of the Subsidiary. By becoming a Participating Division under this
Trust and Plan, a Subsidiary of the Company is deemed to approve this Trust and
Plan in the form as of its Adoption Date, together with any future amendments or
restatements made by the Company after such Adoption Date, even though such
amendments or restatements are not specifically ratified by the Subsidiary. The
Participating Divisions as of the date of execution of this Amendment and
Restatement are as follows:
Corporate Staff
STI Properties, Inc.
Interstate Electronics Corporation
Scott Aviation Division
Lancaster, New York
Monroe, North Carolina
South Haven, Michigan
A Participating Division shall be added to this Section hereof upon becoming a
Participating Division. Divisions which were formerly Participating Divisions
but which have ceased to be Participating Divisions shall be deleted from this
Section.
3.2 The Company may, in the sole discretion of its Board of
Directors, determine that special provisions shall be applicable to specific
groups of employees, former employees or beneficiaries of deceased employees
which groups are not discriminatory in nature, either in addition to, or in lieu
of the provisions of this Trust and Plan, or may determine that certain
employees of a Participating Division shall not be eligible to participate in
this Trust and
3-1
<PAGE> 23
Plan. In such event, the Company shall adopt a Supplemental Agreement with
respect to such employees, former employees and beneficiaries of deceased
employees which shall specify the employees, former employees and beneficiaries
of deceased employees covered by the Supplemental Agreement and the special
provisions applicable to such employees, former employees and beneficiaries of
deceased employees. Supplemental Agreements shall be deemed to be a part of this
Trust and Plan solely with respect to the employees, former employees and
beneficiaries of deceased employees specified therein.
3.3 The Company may, from time to time amend, modify or
terminate a Supplemental Agreement provided, however, that no such action shall
operate so as to deprive any participant, former participant or beneficiary who
was covered by such Supplemental Agreement of any vested rights to which he is
entitled under this Trust and Plan or the Supplemental Agreement.
3-2
<PAGE> 24
ARTICLE IV
ELIGIBILITY AND PARTICIPATION
4.1 Every employee who was a participant in this Trust and
Plan immediately prior to the restatement date shall continue to be a
participant until his termination of employment.
4.2 On and after the restatement date, every other employee
who is a Covered Employee shall automatically become a participant in this Trust
and Plan on the date he becomes a Covered Employee.
4.3 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.
4.4 Each person on whose behalf account balances have been or
will be transferred to the Trustee from the ESOP as a result of the merger of
the ESOP into this Trust and Plan automatically became a participant, terminated
participant, retired participant, beneficiary or alternate payee, as the case
may be, in this Trust and Plan, effective as of the ESOP Merger Date, if he was
not already a participant under or otherwise entitled to future benefits from
this Trust and Plan.
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<PAGE> 25
ARTICLE V
SALARY DEFERRAL CONTRIBUTIONS
5.1 Pursuant to uniform rules and procedures prescribed by the
Administrator, an active participant may elect that a portion of his unpaid
compensation for a plan year be paid by the Company to the Trustee hereunder 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 restatement date and until changed by
the Administrator pursuant to this Section, the maximum percentage of an active
participant's compensation (minus, for years prior to January 1, 1999, any
salary reduction amounts which are excluded from the taxable income of the
participant under Section 125 of the Code) for a payroll period that is subject
to election pursuant to this Section shall be fifteen percent (15%).
5.2 A participant's initial election pursuant to Section 5.1
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.
5-1
<PAGE> 26
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.
As of the restatement 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 restatement 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
5.1 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.
5.3 All amounts paid by the Company to the Trustee pursuant to
Section 5.1 hereof shall be paid in cash not later than 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.
5.4 In the event a participant receives a distribution from
his salary deferral account as a result of hardship as described in Article X
hereof, such participant's salary deferral
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<PAGE> 27
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 Ten Thousand Dollars ($10,000.00) (plus any
cost of living increase after 1998 allowable under
Section 402(g) of the Code for such immediately
following taxable year of the participant); and
(b) equals the amount of such participant's salary
deferral contributions for the participant's taxable
year during which said hardship distribution is made.
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<PAGE> 28
ARTICLE VI
COMPANY CONTRIBUTIONS
6.1 For each taxable year ending after the restatement date,
the Company may make an employer discretionary contribution to this Trust and
Plan on behalf of each participant who:
(a) is actively employed on the allocation date
coinciding with the last day of said taxable year; or
(b) terminated his employment on or as of said allocation
date.
Participants whose employment terminated prior to such allocation date or who
are Disabled on such allocation date shall not be allocated any portion of said
employer discretionary contribution.
The employer contribution account of each such participant
shall be credited with that portion of the employer discretionary contribution
for such taxable year which bears the same relationship to the employer
discretionary contribution as such participant's compensation, determined as of
the last day of the Company's taxable year, bears to the total compensation,
determined as of said date, of all such participants.
Any employer discretionary contribution shall be an amount of
cash or a number of Shares, or both, as shall be approved or ratified and
confirmed by a resolution of the Board of Directors of the Company. Any
contribution of Shares may be from authorized but unissued Shares or treasury
Shares. The employer discretionary contribution so approved by the Board of
Directors shall be contributed to the Trustee within the first three (3)
calendar months following the end of such taxable year and shall be deemed to
have been credited to the employer contribution accounts of the participants
described above on the aforesaid allocation date
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<PAGE> 29
described above. Fractional interests in Shares shall be credited to the
employer contribution accounts of participants to the nearest one-thousandth
(0.001th) of a Share.
6.2 For each payroll payment after the restatement date, the
Company shall make matching contributions to this Trust and Plan on behalf of
each active participant on whose behalf salary deferral contributions are being
made out of such payroll payment and each active participant on whose behalf
salary deferral contributions would have been made out of such payroll payment
but for the calendar year limit on salary deferral contributions imposed by
Section 402(g)(1) of the Code, as adjusted for cost of living increases
("402(g)(1) Limit"). Matching contributions made on behalf of an active
participant with respect to a particular payroll payment in a calendar year
shall have a value equal to (a) plus (b) below, where:
(a) equals the lesser of:
(i) the salary deferral contributions which were
made to this Trust and Plan by the Company
on behalf of such active participant or
which would have been made on behalf of such
active participant out of such payroll
payment but for the 402(g)(1) Limit (based
on such active participant's rate of salary
deferral contributions immediately prior to
limitation by the 402(g)(1) Limit); and
(ii) one percent (1%) of such active
participant's compensation during the
payroll period to which such payroll payment
relates; and
(b) equals (i) multiplied by (ii) below, where:
(i) equals the lesser of:
(A) the salary deferral contributions
which were made to this Trust and
Plan by the Company on behalf of
such active participant or which
would have been made on behalf of
such active participant out of such
payroll payment but for the
402(g)(1) Limit (based on such
active participant's rate of salary
deferral contributions immediately
prior to limitation by the
402(g)(1) Limit) and which are in
excess of one percent (1%) of such
active participant's compensation
during the payroll period to which
such payroll payment relates; and
6-2
<PAGE> 30
(B) four percent (4%) of such active
participant's compensation during
the payroll period to which such
payroll payment relates; and
(ii) equals twenty-five percent (25%).
Notwithstanding the foregoing, the maximum matching contribution for any
participant for a calendar year ending after the restatement date shall two
percent (2%) of the limit on compensation imposed by Section 401(a)(17) of the
Code, as adjusted for cost of living increases, for such calendar year
("401(a)(17) Limit"). The maximum matching contribution for any participant for
the 1998 calendar year is Three Thousand Two Hundred Dollars ($3,200.00) or two
percent (2%) of the 1998 401(a)(17) Limit.
Any matching contributions shall be in cash and shall be
credited to the employer contribution accounts of such participants as of the
date such contributions are received by the Trustee.
6.3 For each taxable year ending after the restatement date,
the Company may make a special employer contribution to this Trust and Plan. Any
special employer contribution shall be allocated to the non-forfeitable accounts
of some or all of the participants who are not highly compensated employees in
such manner as the Company shall designate at the time such special employer
contribution is made to this Trust and Plan. Any special employer contribution
shall be in an amount of cash as shall be approved or ratified and confirmed by
a resolution of the Board of Directors of the Company. Any special employer
contribution so approved by the Board of Directors shall be contributed to the
Trustee not later than the last day upon which the Company may make a
contribution to this Trust and Plan and secure under the Code a deduction of
such contribution in the computation of its federal income taxes for the taxable
year for which such contribution is made.
6-3
<PAGE> 31
6.4 Any employer discretionary contributions and matching
contributions credited to a participant's employer contribution account pursuant
to Sections 6.1 and 6.2 hereof shall be subject to the vesting schedule set
forth in Section 2.52 hereof. Any special employer contributions credited to a
participant's non-forfeitable account pursuant to Section 6.3 hereof shall be
fully vested and nonforfeitable.
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<PAGE> 32
ARTICLE VII
INVESTMENT FUNDS AND DIRECTION OF INVESTMENT
7.1 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 XVII 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.
As of the restatement date the Trustee is maintaining the
following types of investment funds within the Trust Fund:
(a) Stable Income Fund;
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<PAGE> 33
(b) Fixed Income Fund;
(c) Balanced Fund;
(d) Growth & Income Fund;
(e) Flexible 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.
7.2 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 his accounts, other than his Stock Plan account or accounts, and
contributions being made to any such 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 investment
direction with respect to contributions being made to any such accounts of a
participant shall be deemed a continuing direction and shall remain in effect
unless revoked or changed by the participant. 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,
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<PAGE> 34
may require. Each participant shall indicate whether any change in investment
direction shall apply only to contributions made to this Trust and Plan
following such change or whether such change shall also operate to change the
investment of Units of any investment fund already credited to his accounts. If
a procedure for daily change of investment is offered by the Administrator, such
investment direction may be changed on a daily basis, such change generally to
be effective as of the end of the day of the change, but subject to reasonable
administrative delays. 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 employer contribution accounts, salary deferral
accounts, non-forfeitable accounts and after-tax 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 such account balances, such
undirected portion of such account balances shall be invested in the
Conservative Lifestyle Fund. No directions of investment with respect to Stock
Plan accounts shall be made pursuant to this Section 7.2.
7.3 Each Qualified Person by written direction to the
Administrator or by such other procedures as shall be established by the
Administrator from time to time, may direct the investment of his Stock Plan
account or accounts in any or all of the investment funds established hereunder;
provided, however, that such investment directions shall be made in accordance
with such rules as are established by the Administrator from time to time in its
sole discretion including rules requiring that investment selections be made
effective as of specific dates and within a certain period of dates prior to the
specified date. As of the restatement date and until changed by the
Administrator pursuant to this Section, Qualified Persons shall be able
7-3
<PAGE> 35
to direct the investment of their Stock Plan accounts on a quarterly basis. Such
direction shall become effective after all accounting and recordkeeping
functions for the calendar quarter have been completed. Any rules established by
the Administrator pursuant to this Section shall apply to all Qualified Persons
in a uniform and nondiscriminatory manner. Participants, former participants and
beneficiaries who are not Qualified Persons may not direct the investment of
their Stock Plan accounts and it is intended that such accounts remain invested
in the Class A Common Stock Fund and/or the Class B Common Stock Fund.
7.4 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.
7.5 If a participant, former participant or beneficiary has
made a proper change of investment direction pursuant to Section 7.2 or 7.3
hereof with respect to Units of any
7-4
<PAGE> 36
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.
7.6 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 of his accounts, other than his Stock
Plan account or accounts, 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, other than his Stock Plan
account or accounts, causes such person's investment of such accounts 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, other than his Stock Plan account balance or account balances,
which is invested in the Class A Common Stock Fund or the Class B Common Stock
Fund be reallocated to another investment fund which is not the Class A Common
Stock Fund or the Class B Common Stock Fund, such person's right to direct
further investment in the Class A Common Stock Fund or the Class B Common Stock
Fund shall be suspended for a period of twelve (12) months from the date on
which such reallocation was effective. Such twelve (12) month suspension shall
not apply to reallocations between the Class A Common Stock Fund and the Class B
Common Stock Fund.
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<PAGE> 37
7.7 The Administrator determined that no investment directions
or changes in or revocations of investment directions, including reallocations
between the investment funds, would be accepted by the Administrator from
existing participants, former participants and beneficiaries during Transition
Period No. 1 with respect to Shares or other assets credited to accounts prior
to July 1, 1997 ("Pre-7/1/97 Assets"). Investment directions made by
participants, former participants and beneficiaries after April 1, 1997 and
prior to June 14, 1997 with respect to Pre-7/1/97 Assets were implemented as of
July 1, 1997 and were not permitted to be changed until the end of Transition
Period No. 1. The foregoing restriction did not apply to any assets of this
Trust and Plan which were not Pre-7/1/97 Assets.
Similarly, the Administrator has determined that no investment
directions or changes in or revocations of investment directions, including
reallocations between the investment funds, will be accepted by the
Administrator from Qualified Persons during Transition Period No. 2 with respect
to assets being transferred from the ESOP to accounts hereunder as a result of
the merger of the ESOP into this Trust and Plan as of the ESOP Merger Date.
Investment directions made by Qualified Persons during December 1997 with
respect to such assets will be implemented as of the beginning of the day on
January 1, 1998 and will not be permitted to be changed until the end of
Transition Period No. 2. After Transition Period No. 2 has ended, investment
directions may be made in accordance with procedures established by the
Administrator pursuant to Section 7.3 hereof.
7.8 All assets which are transferred from the ESOP to accounts
hereunder as a result of the merger of the ESOP into this Trust and Plan as of
the ESOP Merger Date shall be credited to the investment funds maintained under
this Trust and Plan effective as of the ESOP Merger Date as follows:
7-6
<PAGE> 38
(a) non-Share assets held in investment funds maintained
under the ESOP shall be credited to the investment
funds being maintained under this Trust and Plan in
accordance with the investment directions of
Qualified Persons;
(b) Shares of the Company's Class A Common Stock ("Class
A Shares") and cash representing fractional Class A
Shares, together with any other attributable cash,
shall be credited to the Class A Common Stock Fund;
and
(c) Shares of the Company's Class B Common Stock ("Class
B Shares") and cash representing fractional Class B
Shares, together with any other attributable cash,
shall be credited to the Class B Common Stock Fund.
7.9 The investment direction procedures of this Article are
and shall continue to be designed so as to comply, in the sole judgement 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.
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<PAGE> 39
ARTICLE VIII
ACCOUNTS
8.1 Salary deferral accounts, employer contribution accounts,
non-forfeitable accounts and after-tax accounts being maintained by the
Administrator immediately prior to the restatement date shall continue to be
maintained under this Trust and Plan as amended and restated herein. In
addition, effective as of the ESOP Merger Date, the Trustee shall establish
Stock Plan accounts to receive assets which were transferred from the ESOP as a
result of the merger of the ESOP into this Trust and Plan and which were
previously held under one or more of the Stock Plans. Such accounts shall be
credited and debited as provided in this Article.
8.2 Upon an employee becoming a participant, the Administrator
shall establish a salary deferral account and employer contribution account in
the name of such participant. Salary deferral and employer contribution accounts
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.
8.3 The accounts of participants shall be credited with
contributions as specified in Articles V and VI hereof and in Sections 12.5 and
24.3 hereof and shall be debited to take into account any withdrawals or
distributions made from such accounts pursuant to Article IX, X or XV 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.
8.4 In the event a participant directs, pursuant to Article
VII 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.
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8.5 In the event that a participant or former participant
shall have more than one salary deferral account, employer contribution account,
non-forfeitable account, after-tax account, Stock Bonus Plan account, ESOP
account or Salaried ESOP account, the Administrator may in its sole discretion
consolidate the multiple accounts into a single account of the same type.
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ARTICLE IX
WITHDRAWALS FROM ACCOUNTS
9.1 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 vested 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 XV hereof;
(d) any withdrawal shall be made in accordance with the
provisions of Section 26.12 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.
9.2 Subject to Section 9.1 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 X hereof.
9.3 Subject to Section 9.1 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
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(70-1/2) or the date a participant becomes permanently and totally disabled,
such participant may withdraw all or a portion of his employer contribution
account balance; provided, however, that in the case of a participant who is not
permanently and totally disabled only the vested portion of the employer
contribution account may be withdrawn. 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
employer contribution account only in the case of hardship as provided in
Article X hereof.
9.4 Subject to Section 9.1 hereof, a participant may withdraw
all or a portion of his after-tax account balance.
9.5 Subject to Section 9.1 hereof, on or after the earlier of
the April 1 following the end of the calendar year in which the participant
attains age seventy and one-half (70-1/2) or the date a participant becomes
permanently and totally disabled, such participant may withdraw all or a portion
of his non-forfeitable account balance and all or a portion of his Stock Plan
account balances. 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 X hereof and may not withdraw from his Stock
Plan accounts.
9.6 Upon an attempt by a participant to use his interest in
this Trust and Plan as security for any type of obligation, or to alienate,
dispose of or in any manner encumber, or upon an attempt by any third person to
attach, levy upon or in any manner convert the use or
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enjoyment of any such interest of a participant, the right to withdraw any
portion thereof pursuant to this Article shall automatically terminate.
9.7 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 X hereof.
9.8 No withdrawals were made by participants during Transition
Period No. 1. Similarly and notwithstanding anything contained in this Article
to the contrary, no withdrawals shall be made by participants from Stock Plan
accounts during Transition Period No. 2.
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ARTICLE X
HARDSHIP DISTRIBUTIONS
10.1 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 10.2 hereof, and is necessary, as described in Section 10.3
hereof, to satisfy such need. Such distribution shall be made only from the
accounts specified in Section 10.4 hereof.
10.2 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.
10.3 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;
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(b) the participant has obtained all distributions, other
than hardship distributions, and all nontaxable (at
the time of the loan) loans currently available under
this Trust and Plan and all other plans maintained by
the Company or any affiliates, unless such
distribution or loan would have the effect of
increasing the amount of the financial need;
(c) this Trust and Plan and all other plans maintained by
the Company or any affiliates provide that the
participant may not make salary deferral
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 5.4 hereof, this Trust and Plan provides
for the restrictions contained above in subparagraphs (c) and (d).
10.4 If the Administrator determines that the criteria set
forth in Sections 10.2 and 10.3 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 employer contribution account
balance multiplied by his vested percentage;
(b) such participant's non-forfeitable account balance;
and
(c) 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, plus earnings thereon, if any,
credited prior to January 1, 1989.
No distributions shall be made from a participant's after-tax account or Stock
Plan accounts pursuant to this Article.
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Such distribution shall be made in a cash lump sum and shall
be made in accordance with the provisions of Section 26.12 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;
(b) second, from his non-forfeitable account;
and
(c) third, from the vested portion of his
employer contribution account.
If the Administrator directs that a distribution be made
hereunder, it may thereafter, if it determines that such hardship no longer
exists or is no longer imminent or upon agreement with the participant, direct
that any such distribution not yet made not be made. Amounts distributed to a
participant under this Section shall be debited to the appropriate account or
accounts as they are paid.
10.5 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.
10.6 No hardship distributions were made to participants
during Transition Period No. 1.
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ARTICLE XI
LOANS
11.1 A participant or a former participant who is a "party in
interest" within the meaning of ERISA Section 3(14) may apply to the
Administrator for a loan from this Trust and Plan; provided, however, that loans
shall not be made available to highly compensated employees in an amount greater
than the amount made available to employees who are not highly compensated
employees. 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 more of his accounts, other than his Stock Plan accounts. The amount of any
such loan shall be determined by the Administrator; provided, however, that any
such loan shall not, when combined with outstanding loans previously made from
this Trust and Plan and loans made under other qualified retirement plans
maintained by the Company or any affiliate, cause the aggregate amount of all
such loans to such borrower to exceed the lesser of (a) or (b) below, where:
(a) equals one-half (1/2) of all vested account balances
held for such borrower under this Trust and Plan; and
(b) equals Fifty Thousand Dollars ($50,000.00) reduced by
the remainder, if any, of:
(i) the highest outstanding balance of loans to
such borrower from this Trust and Plan and
all other qualified retirement plans
maintained by the Company or any affiliate
during the twelve (12) month period
preceding the date on which the loan is to
be made; minus
(ii) the outstanding balance of loans to such
borrower from the plans on the day the loan
is to be made.
The following additional provisions shall be applicable to the
loan program under this Trust and Plan:
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(A.) Loan Program Administration. The loan
program under this Trust and Plan shall be
administered by the Administrator.
(B.) Loan Application Procedure. Each borrower
shall apply for a loan by written
application on a form acceptable to the
Administrator.
(C.) Basis for Approval or Denial of Loans. Loans
will be approved only if:
(I) the Administrator believes the
borrower intends to repay the loan
in accordance with its terms; and
(II) the borrower's spouse, if any,
consents in writing to the loan and
the use of the borrower's account
balances as security for the loan
in accordance with Section 26.6 or
26.7 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, other than
his Stock Plan 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 11.2 hereof.
(D.) One (1) Outstanding Loan. A borrower may
only have one (1) loan from this Trust and
Plan outstanding at any time.
11.2 Any loan made pursuant to Section 11.1 hereof shall be
considered to be made solely from the account or accounts of the borrower, other
than his Stock Plan accounts, 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
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transactions involving lending institutions.
Notwithstanding the preceding sentence, any such loan
shall become immediately due and payable upon a
borrowing participant's termination of employment.
All loans shall provide for the substantially level
amortization of the loan, with payments not less
frequently than quarterly, over the term of the loan;
provided, however, that the terms of the loan may
permit a borrower a grace period of up to one (1)
year from such repayments while such borrower is on
an unpaid leave of absence from the Company or an
affiliate.
(c) Segregation of Accounts. If an individual borrows
money from this Trust and Plan, his accounts, to the
extent of such borrowing, shall be deemed segregated
for investment purposes. The note representing such
loan and the borrower's accounts, to the extent of
such borrowing, shall not be taken into account in
the valuation of this Trust and Plan's investment
funds pursuant to Section 7.4 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. 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
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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.
11.3 Notwithstanding the foregoing provisions of Sections 11.1
and 11.2 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.
11.4 No loans were made during Transition Period No. 1.
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ARTICLE XII
TERMINATION OF EMPLOYMENT
12.1 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 vested interest.
12.2 The vested interest of a terminated participant shall be
distributed to him in accordance with the rules and procedures set forth in
Article XV hereof. Except as otherwise provided in Article XV 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
15.8 hereof, if a participant has a termination of employment pursuant to
Section 2.42(g) 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 business unit or facility with which he was
employed.
12.3 If a terminated participant's vested percentage is one
hundred percent (100%), his employer contribution account shall be deemed to
have become a non-forfeitable account on his date of termination of employment
and shall thereafter be held, administered and distributed in accordance with
Articles VIII and XV hereof. If his vested percentage is greater than zero (0)
but less than one hundred percent (100%), such account shall continue to be
administered as such in accordance with the provisions of Articles VIII and XV
hereof until the earliest to occur of any of the following events:
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(a) he receives a distribution of his entire vested
interest;
(b) he has five (5) year period of severance;
(c) he dies; or
(d) he is rehired by the Company or an affiliate.
If the earliest to occur of said events is either the date of
complete distribution of his vested interest, his having had a five (5) year
period of severance or his death, the excess of:
(i) his account balances; over
(ii) his vested interest;
shall be forfeited as of such date and shall be debited to his employer
contribution account. If an account balance remains credited to his employer
contribution account after said forfeiture, such employer contribution account
shall thereafter be deemed to have become a non-forfeitable account and shall be
held, administered and distributed in accordance with Articles VIII and XV
hereof. If a participant terminates employment at a time when his vested
interest is zero (0), such terminated participant shall be deemed to have
received a lump sum distribution from this Trust and Plan in such zero (0)
amount in full discharge of this Trust and Plan's liability with respect to his
retirement benefits and his employer contribution account balance, if any, shall
be forfeited pursuant to this Section. Such distribution and forfeiture shall be
deemed to have occurred on the date of termination of employment of such
terminated participant.
If the earliest of said events shall be the terminated
participant's rehire by the Company or an affiliate, he shall immediately be
reinstated as a participant in this Trust and Plan and this Article shall not
apply to him until a subsequent termination of employment described in Section
12.1 hereof.
12.4 Forfeitures pursuant to Section 12.3 hereof shall be used
following the date of forfeiture to reduce the contributions of the Company
under Article VI hereof.
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12.5 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. If a terminated participant shall be rehired by the Company
or any affiliate at a time when his period of severance is five (5) or more
years, no portion of his employer contribution account balance under this Trust
and Plan or any of the Stock Plans which was forfeited and debited pursuant to
the provisions of this Trust and Plan or any provisions of the Stock Plans shall
be recredited to his accounts. If a terminated participant shall be rehired by
the Company or any affiliate at a time when his period of severance is less than
five (5) years, the portion of his employer contribution account balance under
this Trust and Plan which was forfeited and debited pursuant to the provisions
of this Trust and Plan shall be recredited to his employer contribution account
and the portion of his employer contribution account balance under the Stock
Plans which was forfeited and debited pursuant to the provisions of the Stock
Plans shall be recredited to his Stock Plan account provided that such
participant recontributes to this Trust and Plan on or before the first to occur
of:
(a) the date he incurs a five (5) year period of
severance; and
(b) the fifth (5th) anniversary of his date of rehire;
an amount equal to the value of the portion of his employer contribution
account(s) which was distributed to him following his earlier termination of
employment. Such recontributed amounts shall be credited to employer
contribution accounts if they represent amounts previously distributed from this
Trust and Plan and shall be credited to Stock Plan accounts if they represent
amounts previously distributed from the Stock Plans. Notwithstanding any other
provision of this Trust and Plan to the contrary, in order to balance the
accounts maintained under this Trust and Plan, after giving effect to the
recrediting of prior forfeitures to a rehired participant's employer
contribution account and/or Stock Plan account, the Administrator shall use any
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forfeitures which have not theretofore been used to reduce the contributions of
the Company to this Trust and Plan. To the extent that the forfeitures are less
than the aggregate prior forfeitures which were recredited during the plan year
to the employer contribution accounts and Stock Plan accounts of participants
who were rehired, the Company shall contribute to this Trust and Plan an amount
equal to the difference between the aggregate prior forfeitures which were
recredited during the plan year to the employer contribution accounts and Stock
Plan accounts of participants who were rehired. The Company, at its option, may
also contribute the aggregate prior forfeitures which were recredited during the
plan year to the employer contribution accounts and Stock Plan accounts of
participants who were rehired. Such contribution shall be made by the Company no
later than the due date (including extensions) of the tax return for the taxable
year which includes the last day of the plan year during which such participants
were rehired. Such contribution shall be made in cash by the Company. For
purposes of the limitations contained in Article XXII hereof, such contribution
shall not be deemed to have been contributed at the time it is recontributed
pursuant to this Section, but shall be deemed to have been contributed at the
time of the original contribution.
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ARTICLE XIII
RETIREMENT BENEFITS
13.1 The employer contribution account of a participant who
has attained his normal retirement date shall be fully vested and
nonforfeitable. 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 XV hereof.
13.2 In the event a participant works for the Company or an
affiliate beyond his normal retirement date, his retirement date shall be deemed
to have occurred on the earlier of:
(a) the date of his termination of employment with the
Company or an affiliate for any reason other than
death; or
(b) the date specified in Section 15.8(a)(i) hereof.
Such participant shall be entitled to receive a distribution
of his account balances. Such distribution shall be made in accordance with the
provisions of Article XV hereof.
13.3 Except as otherwise provided in Article XV 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.
13.4 As of the date of retirement of a participant his
employer contribution account shall be deemed to have become a non-forfeitable
account and shall thereafter be held, administered and distributed in accordance
with Articles VIII and XV hereof.
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ARTICLE XIV
DEATH BENEFITS
14.1 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 15.7 and 15.8 hereof, be entitled to receive a
distribution commencing on such date after such death occurs as he shall select
in his sole discretion. Such distribution shall be equal to the deceased
participant's account balances. As of the date of death of such a participant,
his employer contribution account shall become fully vested and nonforfeitable
and shall be deemed to have become a non-forfeitable account. All accounts of
the deceased participant shall be held, administered and distributed in
accordance with Articles VIII and XV hereof.
14.2 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 15.7 and 15.8 hereof, be entitled to receive a distribution
commencing on such date after such death occurs as he shall select in his sole
discretion. Such distribution shall be equal to the deceased participant's
vested interest in his accounts after the debiting of his employer contribution
account by any forfeiture specified in Section 12.3 hereof. The vested interest
of a retired or terminated participant shall not increase as a result of his
death. All accounts of the deceased participant shall be held, administered and
distributed in accordance with Articles VIII and XV hereof.
14.3 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 XV hereof.
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14.4 Unless a participant or former participant has designated
a death beneficiary in accordance with the provisions of Section 14.5 hereof,
his death beneficiary shall be deemed to be the person or persons in the first
of the following classes in which there are any survivors of such participant:
(a) his spouse at the time of his death;
(b) his issue, per stirpes;
(c) his parents; and
(d) the executor or administrator of his estate.
14.5 In lieu of having the benefit distributable pursuant to
this Article distributed to a death beneficiary determined in accordance with
the provisions of Section 14.4 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
26.6 hereof.
14.6 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.
14.7 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
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determined by the deceased participant's or former participant's designation,
shall be distributed to a death beneficiary determined under the provisions of
Section 14.4 hereof.
14.8 Any ambiguity in a participant's or former participant's
death beneficiary designation shall be resolved by the Administrator. Subject to
Section 14.5 hereof, the Administrator may direct a participant or former
participant to clarify his designation and if necessary execute a new
designation containing such clarification.
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ARTICLE XV
DISTRIBUTIONS
15.1 Distributions will commence as of the dates specified in
Articles XII, XIII and XIV hereof. Each participant, former participant and
beneficiary who is eligible for benefits under Article XII, XIII or XIV 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 XII, XIII or XIV 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.
15.2 Unless an annuity method of distribution is selected
under Section 15.3 hereof, the normal method of distribution of the vested
account balances distributable to a participant, former participant or
beneficiary pursuant to Article XII, XIII or XIV 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 26.12 hereof.
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15.3 Subject to Section 15.7 hereof and in lieu of receiving a
single lump sum payment pursuant to Section 15.2 hereof, a participant, former
participant or beneficiary who was:
(a) a participant, former participant or beneficiary
under this Trust and Plan prior to July 1, 1997; or
(b) a participant, former participant or beneficiary
under one or more of the Stock Plans prior to the
restatement date;
or a beneficiary of such a participant or former participant (irrespective
whether such a former participant was deceased as of July 1, 1997 or the
restatement date) may elect that the normal method of distribution of the vested
account balances distributable to him pursuant to Article XII, XIII or XIV
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 commence and to use the amount
of his vested account balances to purchase the following type of annuity
contract of an insurance company:
(i) if distribution is being made to a married
participant or a married former participant,
an immediate joint and survivor annuity
contract issued on the joint lives of such
participant and his spouse with the
provision that after the participant's death
fifty percent (50%) of his monthly annuity
payments shall continue during the life of
and be paid to his spouse; or
(ii) if distribution is being made to an
unmarried participant, an unmarried former
participant or a beneficiary, an immediate
full cash refund life annuity contract
issued on the life of such participant or
beneficiary.
A participant, former participant or beneficiary who is not described in
subparagraph (a) or (b) above or a beneficiary of such a participant or former
participant shall not be able to elect an annuity method of distribution
pursuant to this Section or Section 15.4 hereof.
15.4 Subject to Section 15.7 hereof and in lieu of receiving
the vested account balances distributable to him pursuant to the normal methods
of distribution set forth in Sections 15.2 and 15.3 hereof, a participant,
former participant or beneficiary who is eligible to elect an
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annuity method of distribution pursuant to Section 15.3 hereof may,
subject to the spousal consent requirement set forth in Section 15.6 hereof,
elect to receive such vested account balances pursuant to any one of the
following optional methods of distribution:
(a) on a life, a period certain and life, or a full cash
refund life annuity basis under an immediate annuity
contract issued on the life of such participant,
former participant or beneficiary; or
(b) on a joint and survivor annuity basis under an
immediate annuity contract issued on the joint lives
of such participant, former participant or
beneficiary and such other person as he shall
designate;
(c) in a series of nearly equal annual installments of
cash over a period of years selected by such person
with the provision that, if he shall die prior to the
completion of said installments, the remaining
installments shall be distributed to his beneficiary;
or
(d) in a series of nearly equal annual installments of
the whole Shares then 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, over a period of years
selected by such person with the provision that, if
he shall die prior to the completion of said
installments, the remaining installments shall be
distributed to his beneficiary.
In making distributions to a participant, former participant
or beneficiary under subparagraph (a) or (b) above, the Trustee shall sell any
Shares and any other assets credited to his accounts as of the date distribution
is to commence and shall use the amount of his vested account balances to
purchase an annuity contract of an insurance company as provided in said
subparagraphs, as appropriate. In addition, at the time of any installment
distribution of Shares under subparagraph (d) above, such person may elect, in
lieu of receiving Shares, to have the Trustee sell such Shares and distribute
the proceeds thereof in cash.
A participant, former participant or beneficiary who is not
described in Section 15.3(a) or 15.3(b) hereof or a beneficiary of such a
participant or former participant shall not be able to elect an optional method
of distribution pursuant to this Section.
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15.5 If the annuity method of distribution has been selected
by an eligible participant, former participant or beneficiary as the normal
method of distribution pursuant to Section 15.3 hereof or as an optional method
of distribution pursuant to Section 15.4 hereof (irrespective whether any such
election has been revoked), the Administrator shall, no less than thirty (30)
days and no more than ninety (90) days prior to the date such participant's,
former participant's or beneficiary's benefits become distributable pursuant to
Article XII, XIII or XIV hereof, provide such individual with a written
explanation of the terms and conditions of such annuity method of distribution,
the individual's right to revoke such election or to elect an optional method of
distribution, the effect of such revocation or election, the right of a
participant's or former participant's spouse under the normal method of
distribution and under the optional methods of distribution and the relative
values of the methods of distribution available.
15.6 To elect an annuity method of distribution as set forth
in Section 15.3 hereof or one of the optional methods of distribution set forth
in Section 15.4 hereof, an eligible participant, former participant or
beneficiary shall notify the Administrator of such election in writing prior to
the date his retirement benefits become distributable pursuant to Article XII,
XIII or XIV hereof. If an eligible married participant or former participant has
elected an annuity method of distribution as set forth in Section 15.3 hereof
and desires to revoke such election or to elect to receive his retirement
benefits under an optional method of distribution under Section 15.4 hereof,
such revocation or election shall not be of any effect and the participant or
former participant shall be treated the same as though his revocation or
election had not been made unless the participant's or former participant's
spouse consents in writing to such revocation or election in accordance with
Section 26.6 hereof. Any such election under Section 15.4 hereof by
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a married participant or married former participant shall designate a specific
optional method of distribution which shall not be changed without his spouse's
consent, unless the spouse's original consent expressly permits further changes
by the participant or former participant.
Any such eligible married participant or former participant
shall, after having received a written explanation of the joint and survivor
annuity benefit pursuant to Section 15.5 hereof, be permitted to make such
revocation or election within the ninety (90) day period prior to the date
benefits will be paid or will commence to be paid to him. The date a
participant's benefits become distributable shall be delayed, if necessary, to
insure that a participant shall have received the written explanation described
in Section 15.5 hereof at least thirty (30) days prior to the date his benefits
become distributable unless he waives such thirty (30) day requirement in
writing. In addition to the foregoing, a participant or former participant may,
subject to the spousal consent requirement described above, revoke a prior
election and elect another method of distribution, if desired, prior to the date
benefits will be paid or will commence to be paid to him. The number of
revocations hereunder shall not be limited.
15.7 In the event that the value of a retired, terminated or
deceased participant's vested account balances does not exceed Five Thousand
Dollars ($5,000.00) at the time of distribution, or 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; provided, however, that the Trustee
shall not make any such single lump sum payment after the date a participant's
distribution has commenced unless the participant and his spouse, if any, or in
the case of a payment to the surviving spouse of a deceased participant, the
spouse, consent to the single lump sum payment in writing and provided further
that any such lump sum payment shall be made in accordance with the
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provisions of Section 26.12 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.
15.8 Notwithstanding any other provisions of this Trust and
Plan, distributions made hereunder shall be subject to the following
restrictions:
(a) in the case of a living participant or former
participant:
(i) distribution must commence on or before the
April 1 following the end of the calendar
year in which:
(A) he attains age seventy and one-half
(70-1/2) or retires, whichever is
later, if the participant is not a
five percent (5%) owner with
respect to the plan year ending in
such calendar year; or
(B) he attains age seventy and one-half
(70-1/2) if the participant is a
five percent (5%) owner with
respect to the plan year ending in
such calendar year;
(ii) annuity payments shall not be made beyond
the life of the participant or the joint
lives of the participant and his spouse or
beneficiary;
(iii) period certain payments shall not be made
beyond the life expectancy of the
participant or beyond the joint life
expectancies of the participant and his
spouse or beneficiary;
(iv) installment distributions shall not be
payable over a period of years in excess of
his life expectancy or the joint life
expectancies of himself and his spouse or
beneficiary; and
(b) in the case of a deceased participant or former
participant, distributions after his death shall be
payable either:
(i) within five (5) years of the date of his
death; or
(ii) if distribution commences to his
beneficiary, either:
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(A) within one (1) year of the date of
his death or on a later date
permitted under any lawful
regulations issued by the Secretary
of the Treasury; or
(B) if his spouse is his beneficiary,
by the date such participant would
have attained age seventy and
one-half (70-1/2);
over the life of such beneficiary or over a
period not extending beyond the life
expectancy of such beneficiary; or
(iii) if the participant's distribution had
commenced prior to his death under a form of
payment meeting the requirements of
subparagraph (a)(ii), (a)(iii) or (a)(iv)
above, such distribution must be completed
by the remainder of the period specified in
said subparagraph (a)(ii), (a)(iii) or
(a)(iv); or
(iv) if the participant's distribution had not
commenced prior to his death under a form of
payment meeting the requirements of
subparagraph (a)(ii), (a)(iii) or (a)(iv)
above and the participant's spouse is
entitled to a distribution hereunder but
dies prior to the commencement of such
distribution, then the limitations of this
Section 15.8(b) shall be applied as if the
spouse were the participant; and
(c) in the event payments are made to a participant's
child, for purposes of this Section such payments
shall be deemed to be paid to the participant's
spouse if such payments will become payable to such
spouse upon such child reaching majority or any other
event permitted under any lawful regulations issued
by the Secretary of the Treasury.
A participant, former participant or beneficiary may elect to have his life
expectancy redetermined from time to time but no more frequently than annually.
In the event a participant, former participant or beneficiary fails to make such
an election, then no recalculation shall be performed.
15.9 Except in the case of a joint and survivor annuity
contract issued on the joint lives of a participant or former participant and
his spouse, any other method of distribution payable to a participant or former
participant shall conform to the incidental death benefit requirements of
Section 1.401(a)(9)-2 of the Treasury Regulations.
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15.10 In the event that the Trustee obtains an annuity
contract or contracts for the benefit of a participant, a former participant or
a beneficiary, the Trustee shall, after having selected such settlement options
and placed such restrictive endorsements thereon as are directed by the
Administrator, transfer ownership of the contract or contracts to such
participant, former participant, or beneficiary and deliver said contract or
contracts to him.
15.11 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.
15.12 Notwithstanding any provisions of this Article to the
contrary, the method of distribution being utilized, as of the date immediately
prior to the restatement date, to distribute benefits to or with respect to
participants who had retired, died or terminated employment prior to the
restatement date shall not be changed even though the method of distribution is
not permitted by this Trust and Plan as amended and restated.
15.13 No distributions were made to participants, former
participants or beneficiaries during Transition Period No. 1. Similarly and
notwithstanding anything to the contrary contained in this Trust and Plan, no
distributions shall be made to participants, former participants or
beneficiaries from Stock Plan accounts during Transition Period No. 2.
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ARTICLE XVI
THE TRUSTEE, ITS POWERS AND DUTIES
16.1 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 Articles V and VI
hereof. Except as provided in Article VII hereof, the Trustee shall invest any
monies received as cash dividends paid on Shares held in the Stock Plan accounts
in Shares as soon after their receipt as is possible without disrupting the
market for Shares or violating any federal or state securities laws. No purchase
of Shares by the Trustee shall be at a price in excess of the fair market value
of the Shares as reasonably determined by the Trustee. Notwithstanding the
foregoing, the Trustee shall not be obligated to acquire Shares if no Shares are
available for purchase at a purchase price which is less than or equal to their
fair market value. 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
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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.
16.2 The Trustee may resign from this Trust and Plan by
mailing to the Company a written notice of resignation addressed to the Company
at the last address of the Company on file with the Trustee, or by delivering
such written notice to the Company at such address. The Company may remove the
Trustee by written notice of such removal mailed to the Trustee at the last
address of the Trustee on file with the Company, or by delivering such written
notice to the Trustee at such address. Such resignation or removal shall take
effect on the date specified in the notice of resignation or removal, but not
less than thirty (30) days, nor more than sixty (60) days, following the date of
mailing of such notice or delivery of such notice if it be not mailed. Upon such
resignation or removal, the Trustee shall be entitled to its fees to the
effective date of resignation or removal and any and all costs or expenses paid
or incurred by the Trustee in connection with this Trust and Plan. In no event
shall such resignation or removal terminate this Trust and Plan, but the Company
shall forthwith appoint a successor Trustee to carry out the terms of this Trust
and Plan, which successor Trustee shall be any individual, trust company or bank
selected by the Company. In case of the resignation or removal of the Trustee,
the Trustee shall forthwith turn over to the successor Trustee all assets in its
possession, and copies of such records as may be necessary to permit the
successor Trustee to carry out its duties.
16.3 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
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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.
16.4 Any segregation of assets required under this Trust may
be made in cash or in kind, or partly in cash and partly in kind, according to
the discretion of the Trustee, but any such segregation shall be made on the
basis of the most recent valuation made pursuant to Section 7.4 hereof.
16.5 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.
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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.
16.6 In the event the Shares are not readily tradeable on an
established securities market and it is necessary to make a determination under
this Trust and Plan as to the fair market value of any Shares, the Trustee shall
rely on a valuation of the Shares by an independent appraiser who meets
requirements similar to the requirements of the regulations prescribed under
Section 170(a)(1) of the Code.
16.7 To the maximum extent permitted by ERISA and to the
extent there is no self-dealing, negligence, embezzlement, criminal act, or
violation of the duty to keep the assets of this Trust and Plan safe on the part
of the Trustee, its officers, employees or agents, the Company shall indemnify
the Trustee and its officers, employees and agents if the Trustee or its
officers, employees or agents are made a party, or are threatened to be made a
party, to any threatened, pending, or completed action, suit or proceeding,
whether civil, administrative, or investigative (including any such action by or
in the right of the Company), by reason of the fact that the Trustee or its
officers, employees or agents acted in a 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,
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negligence, embezzlement, criminal act, or violation of the duty to keep the
assets of this Trust and Plan safe on the part of the Trustee, its officers,
employees or agents. This indemnification shall not apply to any excise taxes
assessed against the Trustee with respect to any prohibited transaction where
the Trustee was the party in interest dealing with this Trust and Plan.
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ARTICLE XVII
INVESTMENT MANAGEMENT
17.1 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 Articles VII and XXV 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 individual or group
life insurance contract, annuity contract, deposit administration contract,
investment contract or other contract issued by an insurance company, shares of
any Regulated Investment Company, units of any common trust fund of any bank or
trust company now in existence or hereafter established, shares of common,
preference and preferred stock, put and call options, rights, options,
subscriptions, warrants, trust receipts, investment trust certificates,
mortgages, leases, bonds, notes, debentures, equipment or collateral trust
certificates and other corporate, individual or government obligations, whether
secured or unsecured; to invest and reinvest in and retain any stocks, bonds or
other securities of any corporate trustee serving hereunder, or any parent or
affiliate thereof; to invest in commodities and commodity contracts; to invest
and reinvest in any time or savings deposits of the Trustee or any parent or
affiliate thereof if such deposits bear a reasonable rate of interest or of any
bank, trust company, or savings and loan institution, which deposits may but
need not be guaranteed by the Federal Deposit Insurance Corporation or the
Federal Savings and Loan Insurance Corporation; and in addition to become a
general partner or limited partner in any partnership or limited partnership the
purposes of which are to invest or reinvest the partnership assets in any such
properties or deposits;
(b) To invest a portion or all of the Trust Fund in units of
any common or group trust created solely for the purpose of providing a
satisfactory diversification of investments for 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
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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, including Shares which are not held in
accounts of participants, former participants, beneficiaries and "alternate
payees" (as defined in Section 19.1(a) hereof), 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 17.4 hereof with respect to Shares held in
accounts of participants, former participants, beneficiaries and "alternate
payees" (as defined in Section 19.1(a) hereof), such power and duty shall be
subject to the direction of participants, former participants, beneficiaries and
"alternate payees" pursuant to such Section 17.4;
(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
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plan of reorganization, recapitalization, consolidation, merger or liquidation,
to deposit any property with any committee or depositary; and to retain any
property allotted to the Trust Fund in any reorganization, recapitalization,
consolidation, merger or liquidation;
(h) To borrow money from any lender (including the Trustee
hereunder, where applicable in its capacity as a banking corporation when
permitted to do so by the applicable laws and regulations then in effect) in any
amount and upon such terms and conditions and for such purposes as the Trustee
shall deem necessary; for any money so borrowed the Trustee may issue its
promissory note as Trustee and to secure the repayment of any such loan, with
interest, may pledge or mortgage all or any part of the Trust Fund, and no
person loaning money to the Trustee shall be obligated to see to the application
of the money loaned or to inquire into the validity, expediency or propriety of
any such borrowing;
(i) To compromise, settle or arbitrate any claim, debt or
obligation of or against the Trust Fund; to enforce or abstain from enforcing
any right, claim, debt or obligation; and to abandon any property determined by
it to be worthless;
(j) To continue to hold any property of the Trust Fund whether
or not productive of income; to reserve from investment and keep unproductive of
income, without liability for interest, such cash as it deems advisable or, in
its discretion, to hold the same, without limitation on duration, on deposit in
the commercial department or in an interest-bearing account in the savings
department of any bank, trust company, or savings and loan institution
(including the Trustee where applicable in its capacity as a banking
corporation) in which deposits are guaranteed by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation;
(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
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the payment of all costs and expenses, it shall not be required to contest the
validity of any tax, or to institute, maintain or defend against any other
action or proceeding either at law or in equity;
(o) Except as otherwise provided in this Trust and Plan, to do
all acts, execute all instruments, take all proceedings and exercise all rights
and privileges with relation to any assets constituting a part of the Trust
Fund, which it may deem necessary or advisable to carry out the purposes of this
Trust and Plan;
(p) During the minority or incapacity, in either case as
determined under applicable local law, of any participant, former participant or
beneficiary under this Trust and Plan, to make any distribution to which such
person would otherwise be entitled pursuant to this Trust and Plan either to
such person or to the legal guardian of such person, and the receipt of either
such minor or incapacitated person or such legal guardian shall be a full
discharge and acquittance to the Trustee for such distribution;
(q) To commingle the assets of the Trust Fund, other than
shares of the Company's Class A Common Stock or Class B Common Stock, with
assets of other trusts through the medium of the 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.
17.2 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;
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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 17.1 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.
17.3 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.
17.4 It is the purpose of this Section to permit participants,
former participants, beneficiaries and "alternate payees" (as defined in Section
19.1(a) hereof) to exercise substantial
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ownership rights under this Trust and Plan with respect to Shares held in their
accounts under this Trust and Plan. Therefore, the power to direct the Trustee
regarding:
(a) the appropriate response to any tender or exchange offer
made by any person, including the Company, for the
Company's Shares; or
(b) the exercise of the right to vote Shares 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 with respect to the number of Shares
of Class A and Class B Common Stock held in their accounts. 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 or as to the voting of such Shares as are subject to his direction
as hereinafter provided.
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, exchange or voting of Shares held
in his accounts, the Trustee shall respond to the tender
or exchange offer for such Shares or 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 tendered, exchanged or 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
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tender, exchange or voting decision is the same, for
tender, exchange or voting purposes; but:
(i) for tender or exchange purposes, if there still
remains a fractional Share for which the decision was
to tender or exchange, such fractional Share shall be
tendered or exchanged only if permitted by the rules
governing such tender or exchange and shall not be
tendered or exchanged if fractional Shares are not
permitted to be tendered or exchanged; or
(ii) for voting purposes, 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
tender, exchange or voting of Shares, the Administrator
shall establish a procedure for tallying and recording
such directions which will not reveal to the Trustee, the
Company, any Participating Division or any affiliate of
the Company, to the extent reasonably practicable under
the circumstances, the identity of the participant or
other person giving a particular direction.
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ARTICLE XVIII
ADMINISTRATION
18.1 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.
18.2 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
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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.
18.3 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 18.4 hereof,
and any other information deemed necessary or advisable by the Administrator.
18.4 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
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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
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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.
18.5 The interpretations, determinations and decisions of the
Administrator, Appeal Examiner and Committee shall, except to the extent
provided in Section 18.4 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 18.4 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 18.4
hereof prior to the commencement of any such action.
18.6 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.
18.7 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
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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.
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ARTICLE XIX
PROHIBITION AGAINST ALIENATION
19.1 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.
19.2 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.
19.3 Notwithstanding Section 19.2 hereof to the contrary, the
following shall not be treated as an assignment or alienation prohibited by said
Section 19.2:
(a) the creation, assignment or recognition of a right to any
benefit payable with respect to a participant or former
participant under this Trust and Plan pursuant to a
qualified domestic relations order; or
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(b) the offset of a participant's or former participant's
benefit under this Trust and Plan against an amount that
such participant or former participant is ordered or
required to pay to this Trust and Plan where:
(i) the order or requirement to pay arises under a
judgment for a crime involving this Trust and Plan,
a civil judgment, consent order or decree for
violation or alleged violation of fiduciary duties
as stated in part 4 of subtitle B of title I of
ERISA, or pursuant to a settlement agreement between
the Secretary of Labor or the Pension Benefit
Guaranty Corporation and the participant or former
participant for violation or alleged violation of
fiduciary duties as stated in part 4 of subtitle B
of title I of ERISA by a fiduciary or any other
person; and
(ii) the judgment, order, decree, or settlement agreement
expressly provides for the offset of all or part of
the amount ordered or required to be paid to this
Trust and Plan against the participant's or former
participant's benefits provided by this Trust and
Plan; and
(iii) to the extent, if any, that survivor annuity
requirements apply to distributions to the
participant or former participant under Code Section
401(a)(11), the rights of such participant's or
former participant's spouse are preserved in
accordance with Code Section 401(a)(13)(C)(iii); or
(c) any other arrangement, transfer or transaction which is
not treated as a prohibited assignment or alienation under
Code Section 401(a)(13) and the regulations thereunder or
other applicable law.
19.4 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.
19.5 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
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<PAGE> 86
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. 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.
19.6 The balance credited to any segregated account which has
been created under Section 19.5 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 VII hereof as the Administrator shall
direct until it is determined whether such domestic relations order is a
qualified domestic relations order.
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19.7 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 XVIII
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 XVIII hereof.
19.8 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.
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ARTICLE XX
AMENDMENT AND TERMINATION
20.1 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 of this Trust and
Plan under the terms of Section 401 of the Code or its successor section or
sections. This Trust and Plan as amended and restated herein may be modified and
amended retroactively, if necessary, to secure exemption effective on the
restatement date under Section 401 of the Code. No amendment shall be binding on
the Trustee until the receipt of such amendment by the Trustee.
20.2 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 7.4 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 XIV hereof.
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Upon termination of this Trust and Plan all annuity policies
held by the Trustee shall be delivered, and all rights therein shall be
transferred to those persons then receiving benefits or entitled to receive
benefits from them. The Administrator may direct that any spendthrift provisions
contained in such annuity contracts be continued in effect or terminated.
20.3 Upon the partial termination of this Trust and Plan or
upon complete discontinuance of contributions to this Trust and Plan by the
Company, the account balances of participants affected by such partial
termination or complete discontinuance shall be fully vested and nonforfeitable.
However, after any such partial termination or complete discontinuance of
contributions, the Administrator shall continue to administer this Trust and
Plan in the manner in which this Trust and Plan was administered before any such
partial termination and a participant shall only be entitled to receive benefits
upon the occurrence of an event which under the terms of this Trust and Plan
would entitle him to receive such benefits. For purposes of this Section, no
event shall be a "partial termination" unless: (a) the Company has so designated
such event in a writing delivered to the Trustee; or (b) such event has been
finally and expressly determined to be a partial termination within the meaning
of Section 411(d) of the Code in an administrative or judicial proceeding to
which both the Company and the Commissioner of Internal Revenue or his delegate
were parties.
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ARTICLE XXI
LIMITATIONS ON CONTRIBUTIONS
21.1 The amount and allocation of contributions under this
Trust and Plan, including any contributions made pursuant to a Supplemental
Agreement, shall be subject to several limitations. Those limitations are as
follows:
(a) Salary deferral contributions shall be subject to the
individual dollar limit described in Section 21.2 hereof;
(b) Salary deferral contributions plus, to the extent elected
by the Company, any qualified nonelective contributions
shall be subject to the deferral percentage limit set
forth in Section 21.3 hereof;
(c) Matching contributions, other than qualified nonelective
contributions used in the deferral percentage test set
forth in Section 21.3 hereof, and after-tax contributions,
if any, made to this Trust and Plan pursuant to a
Supplemental Agreement shall be subject to the
contribution percentage limit set forth in Section 21.4
hereof;
(d) The contributions described in subparagraphs (b) and (c)
above shall be subject to the limit on "multiple use" set
forth in Section 21.5 hereof;
(e) All contributions made pursuant to Articles V and VI
hereof and any other employer contributions made pursuant
to the Supplemental Agreements shall, in the aggregate, be
subject to the deductibility limit set forth in Section
21.6 hereof; and
(f) The allocation of all of the foregoing contributions, in
the aggregate, shall be subject to the limitation on
annual additions set forth in Article XXII hereof.
In addition, the following rules and procedures shall apply
for purposes of this Article:
(i) For purposes of determining a participant's deferral
or contribution percentage pursuant to Section
21.8(b) or 21.8(c) hereof, all salary deferral
contributions that are made under two (2) or more
plans (or after-tax and matching contributions, as
appropriate) 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.
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(ii) If two (2) or more plans are permissively aggregated
for purposes of Section 401(k) or 401(m) of the
Code, the aggregated plans shall also satisfy
Sections 401(a)(4) and 410(b) of the Code as though
they were a single plan.
(iii) The deferral or contribution percentage of any
highly compensated employee shall be determined by
treating all plans maintained by the Company and any
affiliates that are subject to Section 401(k) or
401(m) of the Code (other than those that may not be
permissively aggregated) as a single plan.
21.2 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 Ten Thousand Dollars ($10,000.00), plus any adjustment for
cost-of-living after 1998 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.
21.3 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
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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:
<TABLE>
<CAPTION>
(A) (B)
<S> <C>
Average Deferral Limit on Average Deferral
Percentage for Employees Percentage for Employees
Eligible to Participate Eligible to Participate
who are not Highly who are Highly
Compensated Compensated
------------------------ -------------------------
Less than 2% 2 times Column (A)
2% or more but less than 8% Column (A) plus 2%
8% or more 1.25 times Column (A)
</TABLE>
In the event the Company elects to determine the average deferral percentages of
employees who are not highly compensated employees on the basis of the current
plan year rather than the preceding plan year in accordance with Section
401(k)(3)(A) of the Code, such election by the Company may not be changed for
plan years commencing after December 31, 1998, except as provided by the
Secretary of the Treasury.
If, for any plan year, this Trust and Plan satisfies the
requirements of Section 21.4 hereof, then the Company may elect, in such manner
as the Secretary of the Treasury or his delegate may provide, to take into
account, as additional amounts for purposes of this Section, all or a part of
the fully vested matching contributions, if any, made for the plan year.
21.4 The contributions made for a plan year (hereinafter
sometimes referred to as "current plan year") as matching contributions and/or
as after-tax contributions shall be limited so that the average contribution
percentage for the highly compensated employees who are participants or who are
eligible to become participants for such plan year shall not exceed an amount
determined based upon the average contribution percentage for the employees who
are participants or who are eligible to become participants but are not highly
compensated
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employees for the preceding plan year or, if the Company elects, for the current
plan year, in accordance with the table set forth in Section 21.3 hereof.
In the event the Company elects to determine the average
contribution 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(m)(2)(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.
If, for any plan year, this Trust and Plan satisfies the
requirements of Section 21.3 hereof, then the Company may elect, in such manner
as the Secretary of the Treasury or his delegate may provide, to take into
account, as additional amounts for purposes of this Section, all or a part of
the salary deferral contributions made to this Trust and Plan.
21.5 If the sum of the deferral percentage and the
contribution percentage for one or more highly compensated employees exceeds the
aggregate limit defined in Section 21.8(a) hereof, the contribution percentage
for such employee or employees shall be reduced in accordance with Section 21.7
hereof so that the aggregate limit is not exceeded. The amount by which a highly
compensated employee's contribution percentage is reduced shall be treated as an
excess contribution pursuant to Section 21.7. The deferral percentage and
contribution percentage of the highly compensated employees shall be determined
after any corrections are made to meet the deferral percentage and contribution
percentage limits. Multiple use does not occur if neither the average deferral
percentage nor the average contribution percentage of the highly compensated
employees exceeds one and twenty-five hundredths (1.25) multiplied by the
corresponding average deferral percentage or average contribution percentage of
the non-highly compensated employees.
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21.6 In no event shall the total of all contributions made
pursuant to Articles V and VI hereof and any other employer contributions made
pursuant to the Supplemental Agreements 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). This limitation shall not apply to contributions which may be
required in order to provide the minimum contributions described in Article XXIV
hereof for any plan year in which this Trust and Plan is top-heavy. Nor shall
this limitation apply to contributions which may be required in order to
recredit the account of any rehired participant whose account is to be
recredited with prior forfeitures as described in Section 12.5 hereof.
21.7 In the event that the limitations set forth in Section
21.2, 21.3, 21.4 or 21.5 hereof shall be exceeded, the Administrator shall take
action to reduce future salary deferral contributions made pursuant to Article V
hereof, future matching contributions made pursuant to Article VI hereof and any
after-tax contributions made pursuant to a Supplemental Agreement as
appropriate. Such action may include a reduction in the future rate of salary
deferral contributions or after-tax contributions of any highly compensated
participant pursuant to any legally permissible procedure. In the event that
such action shall fail to prevent the excess, prior salary deferral
contributions made pursuant to Article V hereof or prior after-tax contributions
made pursuant to a Supplemental Agreement, plus any income and minus any losses
allocable thereto to the date of distribution, shall be distributed to the
participant on whose behalf such contributions were made or, in the case of
salary deferral contributions, shall be recharacterized as after-tax
contributions if such recharacterization does not cause the limitations of
Section 21.3 hereof to be exceeded with respect to such participant and such
participant is permitted to make
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after-tax contributions to this Trust and Plan pursuant to a Supplemental
Agreement. In the event salary deferral contributions are recharacterized,
excess contributions shall be determined after first determining the excess
contributions which are recharacterized. In the event that any salary deferral
contributions made pursuant to Article V hereof or any after-tax contributions
made pursuant to any Supplemental Agreement are distributed to a participant,
any related matching contributions, plus any income and minus any losses
allocable thereto to the date of distribution, shall be:
(a) forfeited and disposed of if such matching contributions
are not vested; and
(b) distributed to the participant if such matching
contributions are vested.
In the event of such a distribution, recharacterization or forfeiture, the
salary deferral account, and if applicable the employer contribution account or
the after-tax account, of such participant shall be debited, or in the case of
recharacterization, debited or credited as appropriate with the amount of such
distribution, recharacterization or forfeiture. Any such adjustments made in
participants' accounts shall be made in a uniform manner for similarly situated
participants. In addition, any salary deferral contributions which are
recharacterized will remain subject to the same distribution restrictions which
apply to salary deferral contributions.
In the event that distributions must be made in order to bring
this Trust and Plan into compliance with Section 21.3, 21.4 or 21.5 hereof, the
Administrator shall reduce the dollar amount of deferrals and/or contributions
of highly compensated employees in descending order, beginning with the highly
compensated employee(s) with the highest total deferral amount or highest total
contribution amount, until such limitations have been satisfied. In performing
such reduction, the reduced deferral amount or reduced contribution amount of
any affected highly
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compensated employee shall, in no event, be lower than that of the highly
compensated employee with the next highest deferral amount or next highest
contribution amount.
Any excess salary deferral contributions to be distributed to
a participant or recharacterized 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 XXII hereof.
21.8 For purposes of this Trust and Plan, the following
definitions and special rules shall apply:
(a) "aggregate limit" shall mean the greater of (i) or (ii),
where:
(i) equals the sum of:
(A) one and twenty-five hundredths (1.25) times the
greater of the deferral percentage or the
contribution percentage for the non-highly
compensated employees; and
(B) two (2) percentage points plus the lesser of the
deferral percentage or the contribution
percentage for the non-highly compensated
employees; and
(ii) equals the sum of:
(A) one and twenty-five hundredths (1.25) times the
lesser of the deferral percentage or the
contribution percentage for the non-highly
compensated employees; and
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(B) two (2) percentage points plus the greater of
the deferral percentage or the contribution
percentage for the non-highly compensated
employees.
In no event, however, shall the amounts set forth in
subparagraphs (i)(B) and (ii)(B) above exceed twice
the greater of the deferral percentage or the
contribution percentage for the non-highly
compensated employees.
(b) "contribution percentage" shall mean for a participant for
any plan year a fraction:
(i) the numerator of which shall equal the total of (A)
plus (B), where:
(A) equals matching contributions made on his
behalf; and
(B) his after-tax contributions; and
(ii) the denominator of which shall equal his Total
Remuneration for such plan year;
provided, however, that the Company may elect to take into
account additional contributions pursuant to Section 21.4
hereof. In addition, "contribution percentage" shall mean
zero percent (0%) for an employee who is eligible to
become a participant but who is not a participant. In
addition, after-tax contributions will be taken into
account if they are paid to this Trust and Plan or
transmitted to this Trust and Plan within a reasonable
period after the end of such plan year and matching
contributions shall be considered to be made on a
participant's behalf for a plan year if such matching
contributions are made as a result of the participant's
salary deferral contributions or after-tax contributions,
are allocated to the participant's employer contribution
account during such plan year and are paid to this Trust
and Plan no later than twelve (12) months after the end of
such plan year.
(c) "deferral percentage" shall mean for a participant for any
plan year a fraction:
(i) the numerator of which shall equal the total of the
salary deferral contributions made on his behalf for
such plan year; and
(ii) the denominator of which shall equal his Total
Remuneration for such plan year;
provided, however, that the Company may elect to take into
account additional contributions pursuant to Section 21.3
hereof. In addition, "deferral percentage" shall mean zero
percent (0%) for an employee who is eligible to become a
participant but who is not a participant. In
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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.
(d) "highly compensated employee" shall mean an employee who
is a "highly compensated employee" for a plan year as
described in Section 414(q) of the Code which is hereby
incorporated by reference and who is described for
informational purposes herein as an employee during a plan
year if either:
(i) during the preceding plan year, he:
(A) was at any time a five percent (5%) actual or
constructive owner of 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 1998 as determined by the
Secretary of the Treasury or his delegate) and,
if the Company so elects, was in the "top paid
group" of employees of the Company and its
affiliates for such plan year; or
(ii) during the current plan year, he was at any time a
five percent (5%) or more actual or constructive
owner of the Company and its affiliates.
(e) "top paid group" shall mean a group consisting of the top
paid twenty percent (20%) of the employees of the Company
and all affiliates ranked on the basis of Total
Remuneration from the Company and all affiliates paid
during the plan year. In determining the members of the
top paid group, the following employees shall be excluded:
(i) employees who have not completed six (6) months
service;
(ii) employees who normally work less than seventeen and
one-half (17-1/2) hours per week;
(iii) employees who normally work during not more than six
(6) months during any year;
(iv) employees who have not attained age twenty-one (21);
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(v) except to the extent provided in regulations,
employees who are included in a unit of employees
covered by an agreement which the Secretary of Labor
finds to be a collective bargaining agreement
between employee representatives and the Company or
any affiliate; and
(vi) employees who are nonresident aliens and who receive
no earned income (within the meaning of Section
911(d)(2) of the Code) from a the Company or any
affiliate which constitutes income from sources
within the United States (within the meaning of
Section 861(a)(3) of the Code).
The Company may elect (in such manner as may be provided
by the Secretary of the Treasury or his delegate) to apply
subparagraph (i), (ii), (iii), or (iv) by substituting a
shorter period of service, smaller number of hours or
months, or lower age for the period of service, number of
hours or months, or age (as the case may be) than that
specified in such subparagraph.
(f) "Total Remuneration" shall mean compensation as defined in
Section 2.10 hereof but including a participant's
compensation during periods in which he is not an active
participant.
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ARTICLE XXII
LIMITATION ON ANNUAL ADDITIONS
22.1 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.
22.2 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 Retirement Income Plan II, 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 Retirement
Income Plan II shall be reduced;
(b) second, accrued benefits under the Company's Retirement
Income Plan II including employee contributions, if any,
shall be reduced; and
(c) third, annual additions which consist of salary deferral
contributions, matching contributions and employer
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 Retirement Income Plan II
shall be reduced in the order set forth in subparagraphs (a) and (b) above.
Furthermore, in the event a participant's excess annual additions would only
result in a violation under Section 415(c) of the Code, his annual additions
shall be reduced
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under the Company's defined contribution plans, including this Trust and Plan,
as set forth in subparagraph (c) above and thereafter under the Company's
Retirement Income Plan II as set forth in subparagraph (b) above if further
reduction is needed after the reduction in subparagraph (c).
22.3 For purposes of calculating the maximum allowable amounts
under Section 22.1 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.
22.4 In the event that, after the application of any other
provisions of this Trust and Plan and any provisions of the retirement plans
described in Section 22.2 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, Company contributions
which, if allocated to a participant, would be in excess of the limits on annual
additions set forth in Section 22.1 hereof, such excess shall be used as of the
next allocation date and any succeeding allocation date, as necessary, to reduce
the Company contributions which would otherwise be made for such participant for
the taxable years ending on such dates. In the event such participant is not an
active participant on the next allocation date, or on any succeeding allocation
date on which such excess still remains, such excess shall be used as of such
allocation date and on any succeeding allocation date to reduce the Company
contributions for all participants who are active participants. In the event
that salary deferral contributions made by a terminated participant are
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used for the benefit of other participants after the participant terminates
employment, the Company shall make a direct payment to the terminated
participant on whose behalf such salary deferral contributions were made equal
to the total of such amounts.
Until any excess described above is used to reduce Company
contributions, it shall be held in a suspense account. Such suspense account
shall not be subject to the valuation procedure described in Section 7.4 hereof.
Notwithstanding any other provisions of this Trust and Plan to the contrary (and
specifically Section 26.5 hereof), in the event this Trust and Plan is
terminated at a time when there are amounts credited to a suspense account
pursuant to this Section, such excess shall be returned to the Company. In the
event that amounts representing salary deferral contributions are returned to
the Company hereunder, the Company shall make payments to the participants on
whose behalf such salary deferral contributions were made equal to the total of
such refunded amounts.
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ARTICLE XXIII
ROLLOVERS AND TRANSFERS INVOLVING
OTHER QUALIFIED RETIREMENT PLANS
23.1 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.
23.2 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
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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 appropriate accounts of the
participant on whose behalf the assets were so transferred. The Administrator
shall establish such accounts as are necessary in order to accomplish the
foregoing on behalf of such a participant, including, in the case of a qualified
defined contribution plan which is maintained by the Company, the establishment
of an employer contribution account to receive any assets credited to an
employer contribution account which are partially vested and subject to the
vesting schedule identical to the one set forth in Section 2.52 hereof.
23.3 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 and, if he is a former participant, shall have a
vested percentage of one hundred percent (100%);
(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;
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the following shall be transferred to the trustee or custodian of such other
qualified retirement plan:
(i) if he is a participant, his total account balances;
or
(ii) if he is a former participant, an amount equal to
his vested interest.
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ARTICLE XXIV
TOP-HEAVY PROVISIONS
24.1 During any plan year that this Trust and Plan is
top-heavy, as determined in accordance with Section 24.2 hereof, the special
restrictions contained in Sections 24.3 and 24.4 hereof shall apply.
24.2 This Trust and Plan shall be considered to be top-heavy
in any plan year if, as of the determination date for such plan year, all the
aggregation groups of which this Trust and Plan is a member are top-heavy
groups. In the event that in any plan year this Trust and Plan is a member of an
aggregation group which is not a top-heavy group, this Trust and Plan shall not
be considered to be top-heavy for such plan year.
For purposes of determining the foregoing, the following terms
shall be defined as follows:
(a) "determination date" shall mean for the first plan year,
its last day, and shall mean, for any other plan year, the
last day of the preceding plan year;
(b) "key employee" shall mean a "key employee" as described in
Section 416(i) of the Code which is hereby incorporated by
reference and who is described for informational purposes
herein as any employee, former employee or beneficiary who
at any time during the plan year or the four (4) preceding
plan years is:
(i) an officer of the Company or an affiliate having
total remuneration (as defined in Section 24.2(g)
hereof) for the plan year of determination greater
than fifty percent (50%) of the amount specified in
Section 415(b)(1)(A) of the Code (plus any increase
for cost-of-living after 1998 as determined from
time to time pursuant to regulations issued by the
Secretary of the Treasury or his delegate pursuant
to Section 415(d) of the Code);
(ii) a one-half of one percent (.5%) actual or
constructive owner of the Company or any affiliate
who owns one of the ten (10) largest interests in
the Company or any affiliate and who is an employee
of the Company or an affiliate having total
remuneration (as defined in Section 24.2(g) hereof)
greater than Thirty Thousand
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Dollars ($30,000.00) or, if greater, the amount
specified in Section 415(c)(1)(A) of the Code (plus
any increase for cost-of-living after 1998 as
determined from time to time pursuant to regulations
issued by the Secretary of the Treasury or his
delegate pursuant to Section 415(d) of the Code);
(iii) a five percent (5%) actual or constructive owner of
the Company or any affiliate; or
(iv) a one percent (1%) actual or constructive owner of
the Company or any affiliate having total
remuneration (as defined in Section 24.2(g) hereof)
from the Company and all affiliates for the plan
year of determination greater than One Hundred Fifty
Thousand Dollars ($150,000.00);
provided that any such employee also performed service for
the Company or an affiliate during the five (5) plan year
period ending on the determination date; and provided that
an amount held for the beneficiary of a key employee who
is deceased shall be deemed to be an amount held for a key
employee;
(c) "non-key employee" shall mean any employee, former
employee or beneficiary who is not a key employee
including any employee or beneficiary who was formerly a
key employee;
(d) "permissive aggregation group" shall mean the required
aggregation group plus one (1) or more other plans to
which the Company or any affiliate makes contributions
which, when considered as a group with the required
aggregation group, would continue to comply with Sections
401(a)(4) and 410 of the Code;
(e) "required aggregation group" shall mean each defined
benefit plan and each defined contribution plan of the
Company or any affiliate in which a key employee is a
participant in the plan year containing the determination
date or in any of the four (4) preceding plan years and
each other defined benefit plan and each other defined
contribution plan which, during said plan years, enables
such plans to meet the requirements of Section 401(a)(4)
or 410 of the Code, including for this purpose each
defined benefit plan and each defined contribution plan of
the Company or any affiliate which was terminated during
any of said plan years;
(f) "top-heavy group" shall mean any aggregation group if the
sum, as of the determination date, of:
(i) the aggregate value of the account balances of key
employees under all defined contribution plans
included in such group; and
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(ii) the present value of the cumulative accrued benefits
for key employees under all defined benefit plans
included in such group;
exceeds sixty percent (60%) of a similar sum determined
for all participants, former participants and
beneficiaries permitted to be taken into account pursuant
to Section 416(g) of the Code, with such values being
determined for each plan as of the most recent valuation
date occurring within the twelve (12) month period ending
on the determination date and subject to appropriate
adjustments under said Section 416(g) and lawful
regulations issued thereunder, including the requirement
that benefits and accounts of a participant be increased
by the aggregate distributions with respect to such
participant during the five (5) year period ending on the
determination date;
(g) "total remuneration" shall mean, for any participant, all
amounts paid to him in payment for services rendered by
him to the Company or any affiliate which may be taken
into account for purposes of determining limitations on
annual additions and benefits under Section 415 of the
Code and any lawful regulations thereunder; provided that
total remuneration shall not exceed One Hundred Sixty
Thousand Dollars ($160,000.00) (plus any adjustment after
1998 for cost-of-living or otherwise as shall be
prescribed by the Secretary of the Treasury pursuant to
Sections 401(a)(17) and 415(d) of the Code); and
(h) "valuation date" shall mean:
(i) in the case of a defined contribution plan, a date
as of which account balances are valued; and
(ii) in the case of a defined benefit plan, a date as of
which liabilities and assets are valued for
computing plan costs for purposes of determining the
plan's minimum funding requirements under Section
412 of the Code.
In making any of the aforementioned calculations,
contributions due but unpaid as of the determination date shall be included in
determining the value of account balances. In addition, the present value of
cumulative accrued benefits shall be determined as if they accrued no more
rapidly than the slowest rate of accrual permitted under the fractional rule of
Section 411(b)(1)(C) of the Code utilizing the actuarial factors and assumptions
set forth in the defined benefit plans included in the aggregation groups.
Furthermore, for purposes of making the aforementioned calculations with respect
to defined benefit plans, proportional subsidies and
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benefits not relating to retirement benefits, such as pre-retirement death and
disability benefits and post retirement medical benefits, are to be disregarded
but nonproportional subsidies are to be taken into account.
24.3 During any plan year that this Trust and Plan is
top-heavy, the Company or a Participating Division shall make a minimum
contribution to this Trust and Plan on behalf of each non-key employee who meets
all of the following requirements:
(a) he is not covered by a collective bargaining agreement;
(b) he is a participant on the last day of such plan year or
was a participant whose employment terminated on or as of
said date, irrespective of whether he has completed one
thousand (1,000) hours for the Company or an affiliate
during such plan year; and
(c) he is not a participant in a defined benefit pension plan
that provides him with a minimum accrued benefit
(regardless of whether such accrued benefit is offset by
benefits under this Trust and Plan) which satisfies the
requirements of Section 416(c)(1) of the Code.
The minimum contribution to be made hereunder for such a non-key employee shall
be an amount which when added to the contributions allocable to such non-key
employee under all other defined contribution plans of the Company or any
affiliate shall cause such total contributions to be at least equal to the
lesser of:
(i) three percent (3%) of the non-key employee's total
remuneration (as defined in Section 24.2(g) hereof)
during the plan year; or
(ii) the largest percentage of total remuneration
provided to any key employee by the contributions of
the Company or any affiliate for such plan year.
In determining the percentage set forth in subparagraph (ii) above, salary
reduction amounts which are excluded from the taxable income of a key employee
under Code Section 402(e)(3) shall be taken into account, but such amounts,
together with any related matching contributions, shall not be taken into
account with respect to non-key employees in determining compliance
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with this Section. Any employer contributions made pursuant to this Section
shall be credited to a participant's employer contribution account and shall be
subject to the vesting schedule set forth in Section 2.52 hereof. However,
employer contributions made pursuant to Section 12.5 hereof shall not be taken
into account when determining the employer contributions required under this
Section.
24.4 During any plan year ending prior to January 1, 2000 that
this Trust and Plan is top-heavy the limitations on annual additions and annual
benefits under Section 415 of the Code, described in Section 22.1 hereof, shall
be reduced as described in Section 416(h) of the Code. The Company and the
Participating Divisions will not make the additional contributions permitted by
Section 416(h)(2) of the Code to increase the limits under Section 415(e) of the
Code.
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ARTICLE XXV
SPECIAL PROVISIONS WITH RESPECT TO CERTAIN SHARES
25.1 Unless the context otherwise indicates, the following
terms used herein shall have the following meanings whenever used in this
Article:
(a) The words "Debt Financed Shares" shall mean any Shares
acquired with the proceeds of a loan made to the ESOP by a
disqualified person as defined in Code Section 4975(e)(2)
or a loan made to the ESOP which was guaranteed by such a
disqualified person ("ESOP loan") or with the proceeds of
a prior ESOP loan which was repaid with the proceeds of
the ESOP loan, and shall mean any Shares acquired under an
installment purchase obligation which constitutes an ESOP
loan. Said Debt Financed Shares shall be further
denominated as either "Debt Financed Class A Shares" or
"Debt Financed Class B Shares".
(b) The words "4980 Shares" shall mean any Shares acquired by
the Salaried ESOP prior to its merger into the ESOP
directly or indirectly as a result of the transfer of
amounts from the Company's terminated Retirement Income
Plan. Said 4980 Shares are credited to Salaried ESOP
accounts.
(c) The words "publicly traded" shall mean with respect to any
Shares that such Shares are listed on a national
securities exchange registered under Section 6 of the
Securities Exchange Act of 1934 or that such Shares are
quoted on a system sponsored by a national securities
association registered under Section 15(A)(b) of the
Securities Exchange Act of 1934.
(d) The words "trading limitation" shall mean any restriction
with respect to any Shares under any federal or state
securities law, any regulation thereunder or an agreement
affecting such Shares which would make them not as freely
tradeable as Shares not subject to such restriction.
25.2 Qualified Persons may diversify the investment of their
Stock Plan accounts by directing the investment of their Stock Plan accounts in
accordance with Article VII hereof.
25.3 Until such time as all Debt Financed Shares have been
distributed from an ESOP account, the Trustee shall maintain subaccounts as a
part of each ESOP account. Such
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subaccounts shall show the number of Debt Financed Shares and other Shares
credited to such subaccounts.
25.4 In the event that Shares which are credited to a Stock
Plan account are distributed to a participant, former participant or beneficiary
and such Shares are not publicly traded or are subject to a trading limitation,
the Company shall grant to certain holders of such Shares an option to require
the Company to purchase and redeem such Shares. Such option shall be granted to
such participant, former participant or beneficiary or to any one of such
participant, former participant or beneficiary or to any person (including an
estate or its distributee) to whom the Shares pass by reason of such
participant's, former participant's or beneficiary's death. Such option shall be
exercisable by notice in writing given to the Company prior to the later of:
(a) fifteen (15) months after the date on which the
distribution of such Shares is made by this Trust and
Plan; and
(b) sixty (60) days after the holder of such Shares is
notified of the fair market value of such Shares computed
as of the first day of the first plan year commencing more
than sixty (60) days after the date of distribution of
such Shares.
Such period of exercise shall be extended by a period of time equal to the
amount of time during which any distributee of this Trust and Plan is unable to
exercise the put option provided for herein due to the fact that the Company is
prohibited from honoring such put option obligation by applicable Delaware law.
If necessary, the Company shall be required to amend its Certificate of
Incorporation to reduce its stated capital or to make any other changes
necessary to enable distributees to exercise the put option provided for under
this Section. In the event that Shares which are credited to a Stock Plan
account are publicly traded without restriction when distributed but cease to be
so traded within the period of exercise described above, the Company shall
notify in writing, on or before the tenth (10th) day after the date the Shares
cease to be publicly traded, any stockholder or stockholders who would have been
entitled to exercise the
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foregoing put option had the Shares not been publicly traded when distributed
and shall grant to such stockholder or stockholders a put option in accordance
with this Section for the remainder of the period of exercise described above.
Such notice shall inform such stockholder or stockholders of the terms of the
put option extended to them and, if actually given later than the tenth (10th)
day after the date on which the Shares ceased to be publicly traded, such notice
shall provide that the put option shall be extended beyond the period of
exercise by the number of days between such tenth (10th) day and the date on
which notice is actually given. If the foregoing option is not exercised within
the exercise period and any extensions thereof, it shall lapse.
25.5 The price at which Shares shall be purchased by the
Company pursuant to Section 25.4 hereof shall be equal to their fair market
value determined in accordance with Section 16.6 hereof. In the case of a
transaction between this Trust and Plan and a disqualified person (as defined in
Section 4975 of the Internal Revenue Code), such price must be determined as of
the date of the transaction. For all other purposes under this Trust and Plan,
the fair market value of Shares which are credited to a Stock Plan account may
be determined as of the immediately preceding valuation date under this Trust
and Plan.
25.6 In the event any put option provided for pursuant to
Section 25.4 hereof is exercised by a participant, former participant or
beneficiary who has received a single distribution of Shares pursuant to Section
15.2 or 15.7 hereof, payment by the Company pursuant to the exercise of such
option shall be made in substantially equal annual installments over a period of
time beginning no later than thirty (30) days after the option is exercised and
ending no later than five (5) years thereafter. The balance outstanding at any
time with respect to payment by the Company pursuant to the exercise of such
option shall be adequately secured and bear
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interest at the prime rate determined as of the first day of each quarter of the
plan year but, in any event, not in excess of the maximum rate permitted by law.
Notwithstanding the foregoing, the Company may, in its discretion, elect to make
such payment in a single lump sum payment within thirty (30) days after the date
on which the option is exercised.
In the event any put option provided for pursuant to Section
25.4 hereof is exercised by a participant, former participant or beneficiary who
is receiving installment distributions of Shares pursuant to Section 15.4(d)
hereof, payment by the Company pursuant to the exercise of such option shall be
made within thirty (30) days after the date on which the option is exercised.
25.7 The Company's obligation to pay, in all or in part, the
price for any Shares as to which a put option is exercised pursuant to this
Article shall be conditioned upon:
(a) receipt by the Company of appropriate share certificates
duly endorsed by the person exercising the put option; and
(b) receipt of appropriate assurances that the Shares tendered
for purchase pursuant to the put option are free and clear
of any liens, encumbrances or adverse claims or that such
liens, encumbrances or adverse claims will be paid and
satisfied forthwith as a part of such purchase
transaction.
25.8 Notwithstanding the provisions of Section 20.1 hereof to
the contrary, the provisions of this Article with respect to the granting and
exercise of put options shall not be amended or terminated in any way which
would lessen the rights of a stockholder holding Shares to which the put option
relates or would relate. In addition, until distributed from this Trust and
Plan, Shares subject to a put pursuant to this Article shall not be subject to a
put, call, or other option, or buy-sell or similar arrangement other than the
put option described in Section 25.4 hereof.
25.9 The Trustee is expressly forbidden from selling or
exchanging any 4980 Shares except as follows:
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<PAGE> 115
(a) the Trustee may sell 4980 Shares as needed for the purpose
of making distributions of cash in lieu of Shares or
fractional Shares pursuant to Section 15.2, 15.4 or 15.7
hereof or paying Trustee fees;
(b) the Trustee may sell or exchange 4980 Shares in response
to a tender or exchange offer for Shares pursuant to
Section 17.4 hereof; or
(c) the Trustee may sell or exchange 4980 Shares to carry out
directions of Qualified Persons with respect to the
diversification of the investments of their accounts
pursuant to Sections 7.3 and 25.2 hereof.
Notwithstanding anything contained in this Trust and Plan to the contrary, any
sale or exchange of 4980 Shares shall be subject to Code Section 4980 which
requires that 4980 Shares must remain in this Trust and Plan, as the successor
by merger to the ESOP, until either distribution to participants in accordance
with the provisions of this Trust and Plan or diversification of investment by
Qualified Persons in accordance with Sections 7.3 and 25.2 hereof.
25-5
<PAGE> 116
ARTICLE XXVI
MISCELLANEOUS
26.1 No insurance company shall be deemed to be a party to
this Trust and Plan for any purpose, nor shall it be responsible for the
validity of this Trust and Plan. No such company shall be required to look into
the terms of this Trust and Plan or question any action of the Trustee
hereunder, nor be responsible to see that any action of the Trustee is
authorized by the terms of this Trust and Plan. Any such insurance company shall
be fully discharged from any and all liability for any amount paid to the
Trustee or paid in accordance with the direction of the Administrator, or for
any change made or action taken by such insurance company upon such direction,
and no insurance company shall be obligated to see to the distribution or
further application of any moneys so paid by it. The certificate of the
Administrator may be received by any insurance company as conclusive evidence of
any of the matters mentioned in this Trust and Plan, and each insurance company
shall be fully protected in taking or permitting any action on the faith thereof
and shall incur no liability or responsibility for doing so.
26.2 In the event the Company shall at any time be judicially
declared bankrupt or insolvent, or in the event of its dissolution, merger or
consolidation without any provisions being made for the continuation of this
Trust and Plan, the Trust and Plan created hereunder shall terminate and the
Trustee shall make distributions as provided in Section 20.2 hereof.
26.3 In the event this Trust and Plan shall merge or
consolidate with, or transfer any of its assets or liabilities to any other
plan, each participant shall be entitled to receive, if this Trust and Plan were
terminated immediately thereafter, a benefit which is equal to or greater than
the benefit he would have been entitled to receive immediately before the
merger, consolidation
26-1
<PAGE> 117
or transfer if this Trust and Plan had then terminated, in accordance with
Section 414(l) of the Code and Section 208 of ERISA.
26.4 Neither anything contained herein, nor any contribution
made hereunder, nor any other acts done in pursuance of this Trust and Plan,
shall be construed as entitling any participant to be continued in the employ of
the Company or any affiliate for any period of time nor as obliging the Company
or any affiliate to keep any participant in its employ for any period of time,
nor shall any employee of the Company or any affiliate nor anyone else have any
rights whatsoever, legal or equitable, against the Company or any affiliate or
the Trustee as a result of this Trust and Plan except those expressly granted to
him hereunder.
26.5 No contribution or payment by the Company to the Trustee
of this Trust and Plan, nor any income of the Trust Fund, shall in any event
revert or be credited to or be used for the benefit of the Company or any
affiliate, and all such contributions, payments and income shall be used solely
and exclusively for the benefit of the participants and their beneficiaries
under this Trust and Plan, except that the Trustee shall return to the Company
upon written request of the Company:
(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.
26-2
<PAGE> 118
26.6 If any provision of this Trust and Plan shall require the
consent of the spouse of a participant, such consent shall be in writing with
the signature of the spouse notarized or witnessed by the Administrator.
Notwithstanding any provision hereof to the contrary, the consent of the spouse
shall not be necessary if it is established to the satisfaction of the
Administrator that the signature of the spouse cannot be obtained either because
the spouse cannot be located or because of such other circumstances as the
Secretary of the Treasury may prescribe by lawful regulations. Any consent given
by a spouse pursuant to this Section shall be effective only with respect to
such spouse and shall not be effective with respect to any other spouse of such
participant.
26.7 Notwithstanding any provision of this Trust and Plan to
the contrary, the Administrator, where required by law or where it deems
appropriate in its sole discretion, may require spousal consent for any actions
taken, elections made, or the exercise of any rights by a married participant
under this Trust and Plan. Any consent by a spouse pursuant to this Section
shall be made in accordance with Section 26.6 hereof.
26.8 Whenever any pronoun is used herein, it shall be
construed to include the masculine pronoun, the feminine pronoun or the neuter
pronoun as shall be appropriate.
26.9 This Trust and Plan shall be construed under and in
accordance with the laws of the State of Ohio and of the United States of
America.
26.10 This Trust and Plan may be modified and amended
retroactively, if necessary, to secure exemption under Section 401(a) of the
Code.
26.11 In the event that amounts representing salary deferral
contributions are returned to the Company pursuant to the provisions of Section
26.5 hereof, the Company shall
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make payments to the participants on whose behalf such salary deferral
contributions were made equal to the total of such refunded amounts.
26.12 Any distribution made hereunder to a distributee shall
be made directly to such distributee unless he elects a direct rollover pursuant
to the second paragraph of this Section; provided, however, that the distributee
must acknowledge in writing that he understands that any payment which includes
more than two hundred dollars ($200.00) in cash and which, under Code Section
402(c), is eligible to be rolled over to an eligible retirement plan will be
subject to withholding taxes.
Each distributee shall have the right to direct that any
distribution which, under Code Section 402(c), qualifies as an eligible rollover
distribution be transferred directly to an eligible retirement plan. A
distributee may direct that part of the distribution be transferred directly to
an eligible retirement plan 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;
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<PAGE> 120
(ii) any distribution to the extent such distribution is
required under Section 15.8 hereof which reflects
the requirements under Section 401(a)(9) of the
Code; and
(iii) the portion of any distribution that is not
includible in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) "eligible retirement plan" shall mean:
(i) an individual retirement account described in
Section 408(a) of the Code;
(ii) an individual retirement annuity described in
Section 408(b) of the Code;
(iii) an annuity plan described in Section 403(a) of the
Code; or
(iv) a qualified trust described in Section 401(a) of the
Code;
that accepts the distributee's eligible rollover
distribution.
Notwithstanding the foregoing, in the case of an eligible
rollover distribution to the surviving spouse of a
deceased employee, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(c) "distributee" shall mean:
(i) an employee or former employee; and
(ii) an employee's or a former employee's surviving
spouse and an employee's or former employee's spouse
or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in
Section 19.1(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.
26.13 Notwithstanding any provision of this Amendment and
Restatement to the contrary, this Amendment and Restatement shall not affect the
total balances credited to the accounts of any participant as of the restatement
date, and shall not affect the amount or method
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<PAGE> 121
of distribution of the vested interests of participants who died, retired or
terminated employment prior to the restatement date.
26.14 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 XI hereof
as permitted under Section 414(u)(4) of the Code.
26-6
<PAGE> 122
IN WITNESS WHEREOF, SCOTT TECHNOLOGIES, INC. by its
appropriate officers duly authorized, and WILMINGTON TRUST COMPANY have caused
this Amendment and Restatement of the Trust and Plan, together with the
Supplemental Agreement hereto, to be executed as of the 5th day of
November, 1998.
SCOTT TECHNOLOGIES, INC.
("Company")
By /s/ W. J. Sickman
----------------------------
And /s/ Glen Lindemann
----------------------------
WILMINGTON TRUST COMPANY
("Trustee")
By /s/ Barbara Uberti
----------------------------
And /s/ Linda M. Bailey
----------------------------
26-7
<PAGE> 123
ECONOMY ENGINEERING COMPANY
SUPPLEMENTAL AGREEMENT
TO
SCOTT TECHNOLOGIES, INC.
401(k) SAVINGS PLAN FOR SALARIED EMPLOYEES
THIS SUPPLEMENTAL AGREEMENT hereby sets forth certain
provisions of the SCOTT TECHNOLOGIES, INC. 401(k) SAVINGS PLAN FOR SALARIED
EMPLOYEES (hereinafter referred to as the "Trust and Plan") which shall apply
solely to the Covered Former Employees and Covered Beneficiaries (as hereinafter
defined).
DEFINITIONS
The following terms shall have the following meanings whenever
used in this Supplemental Agreement:
(1) The words "Covered Beneficiary" shall mean all
beneficiaries who had amounts transferred on their behalf from the Prior Plan to
the Trust and Plan as of the Merger Date.
(2) The words "Covered Former Employees" shall mean all former
participants in the Prior Plan who:
(a) retired or terminated employment prior to the Merger
Date; and
(b) had amounts transferred from the Prior Plan to the
Trust and Plan as of the Merger Date.
(3) The words "Merger Date" shall mean December 31, 1995.
(4) The words "Prior Plan" shall mean the Economy Engineering
Company Restated Salaried Employees' Profit Sharing Plan and Trust.
Economy Engineering Company
Prior Profit Sharing Plan Participants - 1
<PAGE> 124
FORM OF DISTRIBUTION
(5) A Covered Former Employee or a Covered Beneficiary who was
not receiving benefits from the Prior Plan immediately prior to the Merger Date
may, in lieu of receiving distribution of his vested account balances under a
method of distribution set forth in Section 15.2, 15.3 or 15.4 of the Trust and
Plan, elect to receive distribution of his vested account balances in
semi-annual, quarterly or monthly installments. Installment distributions shall
not be payable over a period of years in excess of the life expectancy of the
Covered Former Employee or the joint life expectancies of the Covered Former
Employee and his beneficiary. If the Covered Former Employee shall die prior to
the completion of said installments, his beneficiary, determined pursuant to
Article XIV of the Trust and Plan, shall receive the balance of the
installments. If the Covered Former Employee is married, any such election shall
be effective only if his spouse consents thereto in accordance with Section 26.6
of the Trust and Plan.
In addition, if a Covered Former Employee filed an election
under the Prior Plan prior to January 1, 1984 that his distribution from the
Prior Plan either be under a form or commence after a date not provided for in
the Prior Plan or the Trust and Plan, distribution of his account balances shall
nevertheless be made in accordance with such election provided that the
provisions of such election complied with the terms of the Prior Plan as in
effect on the date such election was filed.
LOANS
(6) A Covered Former Employee who has an outstanding loan from
the Prior Plan shall repay such loan in accordance with the terms and provisions
of the Trust and Plan and the collateral promissory note signed by such
borrower. However, the terms of any loan from
Economy Engineering Company
Prior Profit Sharing Plan Participants - 2
<PAGE> 125
the Prior Plan must remain the same and may not be changed. In addition, no such
loan may be extended. Any loan from the Prior Plan will be deemed to be an
outstanding loan from the Trust and Plan and payments on such a loan shall be
made to the Trust and Plan and credited to the borrower's non-forfeitable
account. The non-forfeitable account of such borrower shall, to the extent of
such borrowing, be deemed segregated for investment purposes. The note
representing such loan and the borrower's non-forfeitable account, to the extent
of such borrowing, shall not be taken into account in the valuation of the Trust
and Plan's investment funds pursuant to Section 7.4 of the Trust and Plan.
Economy Engineering Company
Prior Profit Sharing Plan Participants - 3
<PAGE> 1
CALFEE, HALTER & GRISWOLD LLP
Attorneys at Law
------------------------------------------------
1400 McDonald Investment Center EXHIBIT 5.1
800 Superior Avenue Cleveland, Ohio 44114-2688
216/622-8200 Fax 216/241-0816
January 8, 1999
Scott Technologies, Inc.
5875 Landerbrook Drive, Suite 250
Mayfield Heights, Ohio 44124
We are familiar with the proceedings taken by Scott Technologies, Inc.,
a Delaware corporation (the "Company"), with respect to the 109,430 shares of
Common Stock, $.10 par value per share (the "Common Stock"), of the Company
offered and sold from time to time pursuant to the Company's 401(k) Savings Plan
for Salaried Employees (the "Plan"), as well as an indeterminate amount of
participation interests ("Interests") in the Plan. As counsel for the Company
and the Plan, we have assisted in the preparation of a Post-Effective Amendment
No. 2 to the Registration Statement on Form S-8 (the "Registration Statement")
to be filed by the Company with the Securities and Exchange Commission to effect
the registration of the Common Stock and Interests.
As counsel, we have examined the Restated Certificate of Incorporation
of the Company, the By-laws of the Company, the records of proceedings of the
Board of Directors and stockholders of the Company and such other records and
documents as we deemed necessary or advisable to render the opinion contained
herein. Based upon our examination and inquiries, we are of the opinion that the
Common Stock, when issued pursuant to the terms and conditions of the Plan, will
be duly authorized, legally issued, fully paid and non-assessable.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced, filed publicly or relied upon by any
other person for any purpose without the express written consent of the
undersigned.
This opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no view as to the effect of any other law on the
opinion set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Post-Effective Amendment No. 2 to the Registration Statement.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD LLP
<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 Scott Technologies, Inc. Form 10-K for the year
ended 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 Registration Statement (the "Amended 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 Salaried Plan, and any and all amendments,
post-effective amendments and exhibits to such Amended 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 Salaried Plan covered by such Amended 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 Salaried 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.
