________________________________________________Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
U.S. INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3369326
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
101 Wood Avenue South Iselin, New Jersey 08830
(Address of Principal Executive Offices) (Zip Code)
THE AMES GROUP UNION
RETIREMENT SAVINGS & INVESTMENT PLAN
(Full title of the plan)
GEORGE H. MACLEAN
Senior Vice President and General Counsel
U.S. Industries, Inc.
101 Wood Avenue South Iselin, New Jersey 08830
(Name and address of agent for service)
(908) 767-0700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Maxi- Proposed Maxi-
Securities mum Offering mum Aggregate Amount of
to be Amount to be Price Per Offering Registration
Registered Registered Share (2) Price Fee
Common Stock,
par value $.01 8,621 $29.00 $250,000 $ 75.76
per share (1)
_______________________________________________________________________
(1) In Addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit
plan described herein.
(2) Determined in accordance with Rule 457(c) based on the average of
the high and low sales prices on the New York Stock Exchange on
December 8, 1997. <PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents and portions of documents filed by
Registrant or by the Plan pursuant to the Securities Act of 1933 (the
"Act") and the Securities Exchange Act of 1934 (the "Exchange Act") are
incorporated herein by reference:
(a) Registrant's annual Report on Form 10-K for the fiscal year
ended September 27, 1997.
(b) Description of the Common Stock at page 75 of Registrant's
Information Statement, dated April 21, 1995 attached as Annex A to
Registrant's Registration Statement on Form 10, effective April 21,
1995.
(c) All documents filed pursuant to Section 13(a) or 15(d) of
the Exchange Act by Registrant since September 27, 1997 and by
Registrant or the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act on or subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities being offered pursuant hereto have been
sold or which deregisters all such securities then remaining unsold,
also shall be deemed to be a part hereof from the date of filing of
such documents.
Item 6. Indemnification of Directors and Officers.
In accordance with Section 145 of the Delaware General Corporation
Law ("DGCL"), which provides for the indemnification of directors,
officers and employees under certain circumstances, Article XIV
("Article XIV") of the Registrant's By-Laws grants the Registrant's
directors, officers and employees a right to indemnification for all
expenses, liabilities and losses relating to civil, criminal,
administrative or investigative proceedings to which they are a party
(i) by reason of the fact that they are or were directors, officers or
employees of Registrant or (ii) by reason of the fact, while they are
or were directors, officers or employees of Registrant, they are or
were serving at the request of Registrant as directors, officers,
members, employees, fiduciaries or agents of another corporation,
partnership, joint venture, trust or enterprise. Article XIV of the
By-Laws further provides for the mandatory advancement of expenses
incurred by officers and directors in defending such proceedings in
advance of their final disposition upon delivery to Registrant by the
indemnitee of an undertaking to repay all amounts so advanced if it is
ultimately determined that such indemnitee is not entitled to be
indemnified under Article XIV. Registrant may not indemnify or make
advance payments to any person in connection with proceedings initiated
against Registrant by such person without the authorization of the
Board of Directors, except with respect to counterclaims, cross-claims,
third-party claims or as otherwise ordered by a court of competent
jurisdiction.
In addition, Article XIV provides that directors and officers
therein described shall be indemnified to the fullest extent permitted
by Section 145 of the DGCL, or any successor provisions or amendments
thereunder. In the event that any such successor provisions or
amendments provide indemnification rights broader than permitted prior
thereto, Article XIV allows such broader indemnification rights to
apply retroactively with respect to any predating alleged action or
inaction and also allows the indemnification to continue after an
indemnitee has ceased to be a director or officer of the corporation
and to inure to the benefit of the indemnitee's heirs, executors and
administrators.
Article XIV further provides that the right to indemnification is
not exclusive of any other right which any indemnitee may have or
thereafter acquire under any statute, the Certificate of Incorporation
or By-Laws, any agreement or vote of stockholders or disinterested
directors or otherwise, and allows Registrant to indemnify and advance
expenses to any person whom the corporation has the power to indemnify
under the DGCL or otherwise.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted for directors and officers and
controlling persons pursuant to the foregoing provisions, Registrant
has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
Registrant's By-Laws authorize Registrant to purchase insurance
for directors, officers and employees of Registrant, and persons who
serve at the request of Registrant as directors, officers, members,
employees, fiduciaries or agents of other enterprises against any
expense, liability or loss incurred in such capacity, whether or not
Registrant would have the power to indemnify such persons against such
expense or liability under the By-Laws. Registrant intends to maintain
insurance coverage for its officers and directors as well as insurance
coverage to reimburse Registrant for potential costs of its corporate
indemnification of directors and officers.
Item 8. Exhibits.
4.1 Form of amended and restated Certificate of
Incorporation of Registrant incorporated by
reference to Exhibit 1 to Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended
July 1, 1995.
4.2 Amended and Restated By-Laws of Registrant incorporated by
reference to Exhibit 3.2 to Registrant's Form 10 as filed
April 20, 1995.
4.3 Specimen form of certificate representing shares of Common
Stock of Registrant incorporated by reference to Exhibit 4.1
to Registrant's Form 10 as filed April 20, 1995.
4.4 The Ames Group Union Retirement Savings &
Investment Plan.
5.1 Registrant undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the
Plan.
23.1 Consent of Ernst & Young LLP, independent auditors,
New York, New York.
23.2 Consent of Price Waterhouse LLP, independent accountants,
Morristown, New Jersey.
24.1 Power of Attorney
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any fact or
event arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement: (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
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 Iselin, New Jersey on
December 9, 1997.
U.S. INDUSTRIES, INC.
(Registrant)
By: /s/ George H. MacLean
George H. MacLean, Senior
Vice President, General
Counsel and Secretary
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
* Chairman of the December 9, 1997
David H. Clarke Board and Chief
Executive Officer
(Principal Executive
Officer)
* Director, President December 9, 1997
John G. Raos and Chief Operating
Officer
* Director, Senior Vice December 9, 1997
Frank R. Reilly President and Chief
Financial Officer
(Principal Financial
Officer)
* Director December 9, 1997
Brian C. Beazer
* Director December 9, 1997
John J. McAtee, Jr.
* Director December 9, 1997
The Hon. Charles H. Price II
* Director December 9, 1997
Sir Harry Solomon
* Director December 9, 1997
Royall Victor III
* Director December 9, 1997
Mark Vorder Bruegge
* Vice President- December 9, 1997
James O'Leary Corporate Controller
(Principal Accounting
Officer)
* By /s/ George H. MacLean December 9, 1997
George H. MacLean
Attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933, the
Benefits Administration Committee has duly caused this Registration
Statement to be signed on behalf of the Plan by the undersigned,
thereunto duly authorized, in the City of Iselin, and State of New Jersey
on December 9, 1997.
THE AMES GROUP UNION
RETIREMENT SAVINGS & INVESTMENT PLAN
By: /s/ Dorothy E. Sander
Name: Dorothy E. Sander
Title: Committee Member
<PAGE>
EXHIBIT INDEX
Exhibit
No.
4.1 Form of amended and restated Certificate of Incorporation of
Registrant incorporated by reference to Exhibit 1 to
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended July 1, 1995.
4.2 Amended and Restated By-Laws of Registrant
incorporated by reference to Exhibit 3.2 to
Registrant's Form 10 as filed April 20, 1995.
4.3 Specimen form of certificate representing shares
of Common Stock of Registrant incorporated by
reference to Exhibit 4.1 to Registrant's Form 10
as filed April 20, 1995.
4.4 The Ames Group Union Retirement Savings & Investment
Plan.
5.1 Registrant undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and will make all changes
required by the IRS in order to qualify the Plan.
23.1 Consent of Ernst & Young LLP, independent auditors,
New York, New York.
23.2 Consent of Price Waterhouse LLP, independent accountants,
Morristown, New Jersey.
24.1 Power of Attorney
EXHIBIT 4.4
THE AMES GROUP UNION
RETIREMENT SAVINGS & INVESTMENT PLAN
(Effective January 1, 1998)<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
1.1 "Account" . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 "Affiliate" . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 "Appropriate Notice" . . . . . . . . . . . . . . . . . . 1
1.4 "Beneficiary" . . . . . . . . . . . . . . . . . . . . . . 1
1.5 "Board" or "Board of Directors" . . . . . . . . . . . . . 1
1.6 "Code". . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.7 "Committee" . . . . . . . . . . . . . . . . . . . . . . . 1
1.8 "Company" . . . . . . . . . . . . . . . . . . . . . . . . 1
1.9 "Compensation" . . . . . . . . . . . . . . . . . . . . . 1
1.10 "Compensation Deferral Contributions". . . . . . . . . . 2
1.11 "Compensation Deferral Contributions Account". . . . . . 2
1.12 "Effective Date" . . . . . . . . . . . . . . . . . . . . 2
1.13 "Eligible Employee". . . . . . . . . . . . . . . . . . . 2
1.14 "Employee" . . . . . . . . . . . . . . . . . . . . . . . 2
1.15 "Employee Contributions" . . . . . . . . . . . . . . . . 2
1.16 "Employee Contributions Account" . . . . . . . . . . . . 3
1.17 "Employer" . . . . . . . . . . . . . . . . . . . . . . . 3
1.18 "Employer Securities". . . . . . . . . . . . . . . . . . 3
1.19 "Enrollment Date". . . . . . . . . . . . . . . . . . . . 3
1.20 "Enrollment Period". . . . . . . . . . . . . . . . . . . 3
1.21 "ERISA". . . . . . . . . . . . . . . . . . . . . . . . . 3
1.22 "Hour of Service". . . . . . . . . . . . . . . . . . . . 3
1.23 "Initial Enrollment Date". . . . . . . . . . . . . . . . 4
1.24 "Investment Fund". . . . . . . . . . . . . . . . . . . . 4
1.25 "Investment Manager" . . . . . . . . . . . . . . . . . . 4
1.26 "Leased Employee". . . . . . . . . . . . . . . . . . . . 4
1.27 "Leave of Absence" . . . . . . . . . . . . . . . . . . . 4
1.28 "Member" . . . . . . . . . . . . . . . . . . . . . . . . 5
1.29 "Parental Leave" . . . . . . . . . . . . . . . . . . . . 5
1.30 "Plan" . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.31 "Plan Year". . . . . . . . . . . . . . . . . . . . . . . 5
1.32 "Prior Plan" . . . . . . . . . . . . . . . . . . . . . . 5
1.33 "Prior Plan Account" . . . . . . . . . . . . . . . . . . 6
1.34 "Required Beginning Date". . . . . . . . . . . . . . . . 6
1.35 "Retirement" . . . . . . . . . . . . . . . . . . . . . . 6
1.36 "Rollover Contribution". . . . . . . . . . . . . . . . . 6
1.37 "Rollover Contribution Account". . . . . . . . . . . . . 6
1.38 "Service". . . . . . . . . . . . . . . . . . . . . . . . 6
1.39 "Suspense Account" . . . . . . . . . . . . . . . . . . . 6
1.40 "Total and Permanent Disability" . . . . . . . . . . . . 6
1.41 "Trustee". . . . . . . . . . . . . . . . . . . . . . . . 7
1.42 "Trust Fund" . . . . . . . . . . . . . . . . . . . . . . 7
1.43 "Valuation Date" . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
Eligibility and Membership
2.1 Members of Prior Plans. . . . . . . . . . . . . . . . . . 7
2.2 Eligible Employees on and after the Effective Date. . . . 7
2.3 Completion of Appropriate Notice. . . . . . . . . . . . . 7
2.4 Elections Upon Becoming A Member. . . . . . . . . . . . . 7
2.5 Beneficiary Designation.. . . . . . . . . . . . . . . . . 8
2.6 Transfers to or from Non-Covered Status.. . . . . . . . . 8
2.7 Rollover Contributions From Other Plans.. . . . . . . . . 8
ARTICLE III
Compensation Deferral Contributions
3.1 Compensation Deferral Contributions.. . . . . . . . . . . 9
3.2 Changes and Suspension of Contributions.. . . . . . . . . 10
3.3 Transfer of Contributions to Trustee. . . . . . . . . . . 10
ARTICLE IV
Limitations on, and Distribution of,
Excess Compensation Deferral
Contributions of Highly Compensated
Employees
4.1 Limitations.. . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Control of Contributions and Distribution of Excess.. . . 12
4.3 Limitation of Annual Additions. . . . . . . . . . . . . . 13
ARTICLE V
Miscellaneous
5.1 Uniform Administration. . . . . . . . . . . . . . . . . . 15
5.2 Payment Due an Incompetent. . . . . . . . . . . . . . . . 15
5.3 Source of Payments. . . . . . . . . . . . . . . . . . . . 16
5.4 Plan Not a Contract of Employment.. . . . . . . . . . . . 16
5.5 Applicable Law. . . . . . . . . . . . . . . . . . . . . . 16
5.6 Unclaimed Amounts.. . . . . . . . . . . . . . . . . . . . 16
ARTICLE VI
Accounts
6.1 Maintenance of Accounts.. . . . . . . . . . . . . . . . . 16
6.2 Valuations. . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
Vesting of Accounts
ARTICLE VIII
Investment of Accounts
8.1 Investment of Accounts .. . . . . . . . . . . . . . . . . 17
8.2 Redirection of Future Contributions.. . . . . . . . . . . 19
8.3 Reinvestment of Prior Contributions.. . . . . . . . . . . 19
8.4 Statements of Accounts And Confirmation of Investment
Directions. . . . . . . . . . . . . . . . . . . . . . . . 19
8.5 Crediting of Accounts.. . . . . . . . . . . . . . . . . . 20
8.6 Correction of Errors. . . . . . . . . . . . . . . . . . . 21
8.7 Investment of Deferred Distributions. . . . . . . . . . . 21
ARTICLE IX
Withdrawals and Loans During Employment
9.1 Withdrawal Options. . . . . . . . . . . . . . . . . . . . 21
9.2 Hardship Withdrawals. . . . . . . . . . . . . . . . . . . 23
9.3 Values. . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.4 Payment of Withdrawals . . . . . . . . . . . . . . . . . 23
9.5 Loans.. . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE X
Distribution
10.1 Amount of Distribution.. . . . . . . . . . . . . . . . . 25
10.2 Notice of Options and Normal Form of Distribution. . . . 25
10.3 Alternate Form of Distribution.. . . . . . . . . . . . . 26
10.4 Identity of Payee. . . . . . . . . . . . . . . . . . . . 27
10.5 Non-alienation of Benefits.. . . . . . . . . . . . . . . 27
10.6 Qualified Domestic Relations Order.. . . . . . . . . . . 28
10.7 Commencement of Benefits.. . . . . . . . . . . . . . . . 28
10.8 Annuities. . . . . . . . . . . . . . . . . . . . . . . . 28
10.9 Spousal Consent. . . . . . . . . . . . . . . . . . . . . 30
10.10 Payment Without Election . . . . . . . . . . . . . . . 31
10.11 Trustee to Trustee Transfers . . . . . . . . . . . . . 31
ARTICLE XI
Administration of the Plan
11.1 Plan Administrator.. . . . . . . . . . . . . . . . . . . 32
11.2 Board of Directors.. . . . . . . . . . . . . . . . . . . 33
11.3 Appointment of the Committee.. . . . . . . . . . . . . . 33
11.4 Compensation, Expenses.. . . . . . . . . . . . . . . . . 33
11.5 Committee Actions, Agents. . . . . . . . . . . . . . . . 33
11.6 Committee Meetings.. . . . . . . . . . . . . . . . . . . 33
11.7 Authority and Duties of the Committee. . . . . . . . . . 33
11.8 Personal Liability.. . . . . . . . . . . . . . . . . . . 34
11.9 Dealings Between the Committee and Individual
Members. . . . . . . . . . . . . . . . . . . . . . . . . 34
11.10 Information To Be Supplied by the Employer. . . . . . . 34
11.11 Records.. . . . . . . . . . . . . . . . . . . . . . . . 35
11.12 Fiduciary Capacity. . . . . . . . . . . . . . . . . . . 35
11.13 Fiduciary Responsibility. . . . . . . . . . . . . . . . 35
11.14 Claim Procedure.. . . . . . . . . . . . . . . . . . . . 35
ARTICLE XII
Operation of the Trust Fund
12.1 Trust Fund.. . . . . . . . . . . . . . . . . . . . . . . 37
12.2 Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 37
12.3 Investment Manager.. . . . . . . . . . . . . . . . . . . 37
12.4 Purchase and Holding of Securities.. . . . . . . . . . . 37
12.5 Voting of Employer Securities. . . . . . . . . . . . . . 38
12.6 Disbursement of Funds. . . . . . . . . . . . . . . . . . 38
ARTICLE XIII
Amendment, Termination and Merger
13.1 Right to Amend.. . . . . . . . . . . . . . . . . . . . . 39
13.2 Suspension or Termination. . . . . . . . . . . . . . . . 39
13.3 Merger, Consolidation of Transfer. . . . . . . . . . . . 40
<PAGE>
ARTICLE I
Definitions
As used herein, unless otherwise defined or required by the
context, the following words and phrases shall have the meanings
indicated. Some of the words and phrases used in the Plan are
not defined in this Article I, but, for convenience are defined
as they are introduced into the text.
1.1 "Account" means a Member's Employee Contributions
Account, Compensation Deferral Contributions Account, Rollover
Contribution Account or Prior Plan Account as the context re-
quires.
1.2 "Affiliate" means any company which is related to the
Employer as a member of a controlled group of corporations in
accordance with Section 414(b) of the Code, as a trade or busi-
ness under common control in accordance with Section 414(c) of
the Code or members of an affiliated service group as defined
under Section 414(m) of the Code.
1.3 "Appropriate Notice" means the written form, electron-
ic procedure or other method prescribed by the Committee to
convey information for a particular purpose.
1.4 "Beneficiary" means the person or persons designated by
the Plan or by a Member under Section 2.5 (Beneficiary Designa-
tion) to receive benefits payable under the Plan as a result of
the Member's death.
1.5 "Board" or "Board of Directors" means the Board of
Directors of the Employer.
1.6 "Code" means the Internal Revenue Code of 1986, as
amended from time to time and references to sections thereof
shall be deemed to include any such sections as amended, modified
or renumbered.
1.7 "Committee" means the Benefits Administration Committee
appointed in accordance with Section 11.3 (Appointment
of Committee).
1.8 "Company" means the corporation that owns 100% of the
capital stock of the Employer or any person, firm, corporation or
partnership which may succeed to its business.
1.9 "Compensation" means with respect to a Plan Year, the
sum of the amount reported by the Employer to the Internal
Revenue Service on Form W-2 as the Member's compensation for such
calendar year, the amount of any Compensation Deferral Contribu-
tions made on such Member's behalf to the Plan and the amount, if
any, contributed to a cafeteria plan that is excluded from gross
income pursuant to Section 125 of the Code; but exclusive of
termination or severance pay, prizes, awards, grievance settle-
ments, overseas cost of living allowances, relocation allowances,
mortgage assistance, executive perquisites, stock options, and
such other extraordinary items or remuneration as the Committee
shall determine from time to time pursuant to such uniform and
nondiscriminatory rules as it shall adopt. On and after January
1, 1989 the Compensation of each Employee taken into account
under the Plan for any Plan Year shall not exceed $200,000 as
thereafter adjusted for inflation in accordance with Section
415(d) of the Code. For Plan Years beginning after 1993 the
Compensation of each Employee taken into account under the Plan
for any such Plan Year shall not exceed $150,000 as thereafter
adjusted for inflation in accordance with Section 401(a)(17)(B)
of the Code.
1.10 "Compensation Deferral Contributions" means contribu-
tions made by the Employer pursuant to an election by the Member
to reduce the cash compensation otherwise currently payable to
such Member by an equivalent amount, in accordance with the
provisions of Section 3.1 (Compensation Deferral Contributions).
1.11 "Compensation Deferral Contributions Account" means
the separate account maintained for a Member to record such
Member's share of the Trust Fund attributable to Compensation
Deferral Contributions made on such Member's behalf.
1.12 "Effective Date" means January 1, 1998, the date
that the Plan became effective.
1.13 "Eligible Employee" means an Employee of the O. Ames
Company handle plant in Kane, Pennsylvania who is employed on the
Effective Date or who (i) has attained age 21 and (ii) has
worked, at least 1,000 Hours of Service during a consecutive
twelve-month period and who is covered by a collective bargaining
agreement between the Employer and any union.
1.14 "Employee" means a person (but not including a person
acting only as a director) who is employed by the Employer.
Leased Employees shall also be treated as Employees for purposes
of this Plan unless: (i) such Leased Employees are covered by a
Plan described in Code Section 414(n)(5) and (ii) such Leased
Employees constitute less than Twenty Percent (20%) of the
Employer's non-highly compensated workforce as defined in Code
Section 414(n)(5)(c).
1.15 "Employee Contributions" means after tax contributions
that were made by a Member to a Prior Plan.
1.16 "Employee Contributions Account" means the separate
account maintained for a Member to record such Member's share of
the Trust Fund attributable to the Member's Employee Contribu-
tions.
1.17 "Employer" means The O. Ames Company.
1.18 "Employer Securities" means the Common Stock of
U.S. Industries, Inc., a Delaware Corporation.
1.19 "Enrollment Date" means the first day of each month in
the Plan Year.
1.20 "Enrollment Period" means the period commencing on an
Enrollment Date and ending on the next following Enrollment Date.
1.21 "ERISA" means Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as amended from time to
time.
1.22 "Hour of Service" means each hour for which an Employ-
ee is paid, or entitled to payment, or receives earned income
from an Employer or an Affiliate:
(a) for performance of duties;
(b) on account of a period of time which no duties
were performed, provided that except in the case of a Leave
of Absence, no more than 501 Hours of Service shall be
credited for any single continuous period during which an
Employee performs no duty, and provided that no Hours of
Service shall be credited for periods of time in respect of
which an Employee receives severance pay or for payments
made or due under a plan maintained solely for the purpose
of complying with applicable workers' compensation, unem-
ployment compensation or disability insurance laws, or for
reimbursement of medical expenses; and
(c) for which back pay, irrespective of mitigation of
damages, is awarded or agreed to by the Employer provided
that Hours of Service credited under (a) or (b) shall not be
credited under (c).
Hours of Service credited to an Employee for the performance
of duties will be credited to the computation period in which the
duties are performed. The determination of Hours of Service for
reasons other than the performance of duties shall be made in
accordance with the provisions of Labor Department Regulations
Section 2530.200b-2(b), and Hours of Service shall be credited to
the computation periods to which the award or agreement pertains.
Except in the case of a Leave of Absence, not more than 501 Hours
of Service shall be credited for any continuous period during
which an Employee performs no duty or, in the case of service
required to be credited for payments of back pay awarded or
agreed to, for a period during which an employee did not or would
not have performed duties.
To the extent not credited above, during a Leave of Absence
an Employee shall be credited with a number of Hours of Service
for each week of such Leave of Absence equal to the Employee's
weekly average number of Hours of Service scheduled for the
six-week period immediately preceding such Leave of Absence.
In any case in which an individual becomes an Employee upon
the acquisition of all or a portion of the business of his or her
former employer by the Employer or an Affiliate, whether by
merger, acquisition of assets or stock, or otherwise, his or her
service with his or her predecessor employer shall be included in
determining his or her Hours of Service if, and to the extent
that, such service is required to be credited hereunder (A) by
section 414(a) of the Code and any regulations promulgated
thereunder, (B) by the terms of the agreement pursuant to which
the business of such former employer was acquired by the Employer
or an Affiliate, or (C) by vote of the Board of Directors.
1.23 "Initial Enrollment Date" means the earliest date
following the Effective Date set by the Committee for Eligible
Employees to apply to become Members of the Plan.
1.24 "Investment Fund" means the investment choices de-
scribed in Section 8.1 (Investment of Accounts).
1.25 "Investment Manager" means the individual and/or other
entity appointed in accordance with Section 12.3 (Investment
Manager) who has acknowledged in writing that such individual is
a fiduciary with respect to the Plan and who is:
(a) registered as an investment adviser under the
Investment Advisers Act of 1940, or
(b) a bank, as defined in such Act, or
(c) an insurance company qualified to manage,
assign or dispose of assets of pension plans.
1.26 "Leased Employee" shall mean any person who pursuant
to an agreement between the Employer and any other person has
performed services for the Employer or any related person as
defined in Code Section 414(n)(6) under the primary direction and
control of the Employer or such related person on a substantially
full time basis for a period of at least one year.
1.27 "Leave of Absence" means an absence or interruption of
service approved by the Committee under uniform and
nondiscriminatory rules and procedures. Members on leave of
absence for service in the Armed Forces of the United States,
however, shall be deemed to have been on Leave of Absence,
provided they return to service with an Employer within the
required time limitations set forth in the then applicable laws
governing reemployment rights of persons inducted, or who have
enlisted, in the Armed Forces.
1.28 "Member" means an Eligible Employee who has become a
member of the Plan in accordance with Article II (Eligibility and
Membership). Each Member shall continue to be such until the
later of the date such Member ceases to be an Eligible Employee
or such Member's Accounts have been completely distributed.
1.29 "Parental Leave" means a period not in excess of two
(2) years commencing after December 31, 1984 during which an
individual is absent from work for any period:
(a) by reason of the pregnancy of the individual,
(b) by reason of the birth of a child of the
individual,
(c) by reason of the placement of a child with
the individual in connection with the adoption of such
child by such individual, or
(d) for purposes of caring for such child for a
period beginning immediately following such birth or
placement.
An absence from work shall not be a Parental Leave unless the
Employee furnishes the Plan Administrator such timely information
as may reasonably be required to establish that the absence from
work was for one of the reasons specified in this Section 1.31
and the number of days for which there was such an absence.
Nothing contained herein shall be construed to establish an
Employer policy of treating a Parental Leave as a Leave of
Absence.
1.30 "Plan" means The Ames Group Union Retirement Savings &
Investment Plan as set forth herein or as amended from time to
time.
1.31 "Plan Year" means the calendar year.
1.32 "Prior Plan" means an employee benefit plan qualified
under Section 401(a) of the Code all or part of the assets of
which are transferred to the Plan in a transaction which meets
the requirements of Regulation 1.414(l) of the Code.
1.33 "Prior Plan Account" means the separate account main-
tained for a Member to record such Member's share of the Trust
Fund attributable to employer contributions to the plans de-
scribed herein as Prior Plans.
1.34 "Required Beginning Date" means April 1 of the year
following the Plan Year in which occurs the later of the date
that the Member terminates employment or the date on which the
Member attains the age of 70-1/2 years.
1.35 "Retirement" means a Member's normal, early or de-
ferred retirement whichever shall apply to the Member under the
provisions of the Employer's pension plan applicable to such
Member, or the termination of employment of a Member on or after
such Member's attainment of age 65.
1.36 "Rollover Contribution" means an amount which is
transferred from another plan to this Plan, in accordance with
the provisions of Section 2.7 (Rollover Contribution From Other
Plans).
1.37 "Rollover Contribution Account" means the separate
Account maintained for a Member to record such Member's share of
the Trust Fund attributable to any Rollover Contribution made to
the Plan on his behalf.
1.38 "Service" means the period of employment beginning on
the first day the Eligible Employee performs duties for the
Employer or an Affiliate and ending on the day of quit, retire-
ment, discharge or death, two years after the commencement of
absence on account of Parental Leave, or one year after an
absence for any other reason. All prior periods of employment
with the Employer or an Affiliate, and breaks in employment of
less than one year shall be included in Service. If a break in
employment of not more than two years is on account of Parental
Leave not more than one year of Service shall be credited to an
Eligible Employee for a period of Parental Leave.
1.39 "Suspense Account" means the separate account main-
tained for a Member who had monies credited to such account
pursuant to Section 4.3 (Limitation of Annual Additions), re-
flecting the current dollar value of such credit.
1.40 "Total and Permanent Disability" means permanent
incapacity which results in a Member being unable to engage in
regular employment or occupation by reason of any medically
demonstrable physical or mental condition acceptable to the
Committee on a nondiscriminatory basis and which would entitle
the Member to benefits under the Employer's long-term disability
plan, if any, or to Social Security benefits as evidenced by a
disability award letter. However, no Member shall be deemed to
be disabled if such incapacity (a) resulted from or consists of
habitual drunkenness or addiction to narcotics, or (b) was in-
curred, suffered or occurred while the Member was engaged in, or
resulted from having engaged in, a criminal enterprise, or (c)
was intentionally self-inflicted.
1.41 "Trustee" means the corporate trustee appointed from
time to time by the Company to administer the Trust Fund in
accordance with Section 12.2 (Trustee).
1.42 "Trust Fund" means the trust fund established in
accordance with Section 12.1 (Trust Fund) from which benefits
provided under this Plan will be paid.
1.43 "Valuation Date" means the last business day of each
calendar month on which the New York Stock Exchange is open for
trading.
ARTICLE II
Eligibility and Membership
2.1 Members of Prior Plans. Each person who was a member
of a Prior Plan shall become a member of the Plan on the effec-
tive date of the transaction referred to in Section 1.34.
2.2 Eligible Employees on and after the Effective Date. On
and after the Effective Date an Eligible Employee may elect to
become a Member on the Initial Enrollment Date or any Enrollment
Date thereafter. Notwithstanding the foregoing, a former employ-
ee who is reemployed following a termination of employment and
who, prior to termination, satisfied the conditions for member-
ship in the Plan, shall not be eligible to become a Member of the
Plan until the first anniversary of his or her reemployment.
2.3 Completion of Appropriate Notice. In order to become a
Member on any Enrollment Date, an Eligible Employee must give the
Appropriate Notice to the Committee at least 30 days (or such
other period as the Committee may prescribe) prior to that
Enrollment Date.
2.4 Elections Upon Becoming A Member. An Eligible Employ-
ee, in giving the Appropriate Notice specified in Section 2.3,
shall (a) authorize the Employer to reduce current compensation
for Compensation Deferral Contributions pursuant to Section 3.1
(Compensation Deferral Contributions ), (b) make an investment
election from among those options enumerated in Section 8.1
(Investment of Accounts) and (c) designate a Beneficiary in
accordance with Section 2.5 (Beneficiary Designation). Any such
payroll authorization, investment election or Beneficiary desig-
nation shall remain in effect until changed by giving the Appro-
priate Notice to the Committee subject to the provisions of the
Plan.
2.5 Beneficiary Designation. Each Member shall designate a
Beneficiary by giving the Appropriate Notice to the Committee.
The designated Beneficiary may be an individual, estate or trust;
however, if the Member is married at the time of such Member's
death, such Member's surviving spouse shall automatically be such
Member's sole Beneficiary unless the spouse has consented in
writing in accordance with Section 10.9 (Spousal Consent) to a
designation of a different Beneficiary. If more than one indi-
vidual or trust is named, the Member shall indicate the shares
and/or precedence of each individual or trust so named. Any
Beneficiary so designated may be changed by the Member at any
time (subject to his spouse's consent, if applicable) by giving
the Appropriate Notice to the Committee.
In the event that no Beneficiary has been designated or that
no designated Beneficiary survives the Member, the following
Beneficiaries (if then living) shall be deemed to have been
designated in the following priority: (a) spouse, (b) children,
including adopted children, in equal shares, (c) parents, in
equal shares, or the Member's surviving parent, if only one
parent survives, and (d) Member's estate.
2.6 Transfers to or from Non-Covered Status. If a Member
ceases to meet the definition of Eligible Employee as set forth
in Section 1.13 (Eligible Employee) but continues to be an
Employee or an employee of an Affiliate, such Member's right to
make or have contributions made on such Member's behalf to the
Plan shall be suspended. If during the period of suspension, a
Member's employment with the Employer or an Affiliate terminates
for any reason, there shall be a distribution of such Member's
Accounts in accordance with the provisions of Article X (Distri-
bution).
If and when the suspended Member again becomes an Eligible
Employee, such Member may resume having Compensation Deferral
Contributions made on such Member's behalf as of the second
Enrollment Date following the month in which the Appropriate
Notice is given to the Committee.
2.7 Rollover Contributions From Other Plans. An Eligible
Employee or an individual who meets the definition of Eligible
Employee in Section 1.13 except for the age or service require-
ments, who is in receipt of a distribution which is eligible to
be "rolled over" to a qualified plan in accordance with applica-
ble Code sections may, in accordance with and subject to
such rules and procedures approved by the Committee, transfer all
or part of such distribution into the Plan; provided, that
distributions which are so transferred to the Plan shall consist
only of cash and that such transfer shall be in conformity with
requirements set forth in the Code.
Upon approval by the Committee, the amount transferred to
the Plan shall be deposited in the Trust Fund in cash and shall
be credited to a Rollover Contribution Account.
If a Rollover Contribution is made on behalf of an individu-
al who has not yet become a Member, such individual shall be
deemed a Member upon the establishment of the Rollover Contribu-
tion Account; however, participation in the Plan shall be limited
to the Rollover Contribution Account until the other requirements
for membership under this Article II are fulfilled.
ARTICLE III
Compensation Deferral Contributions
3.1 Compensation Deferral Contributions. Each Member who
is an Eligible Employee may elect to have the Employer make
Compensation Deferral Contributions not to exceed $9,500 per year
(subject to adjustment for inflation in accordance with Section
415(d) of the Code) to the Plan on such Member's behalf to be
credited to such Member's Compensation Deferral Contributions
Account, in which case the cash compensation otherwise payable by
the Employer to the Member shall be reduced by an amount equal to
the Compensation Deferral Contributions so made. Subject to the
limitations prescribed in Section 4.1 the amount of Compensation
Deferral Contributions in any payroll period shall be in whole
percentages from 1% to 17% of the Member's Compensation as the
Member shall designate (or such greater or lesser percentages as
the Committee may from time to time prescribe for the Plan).
The foregoing notwithstanding during the 'make up period,'
as defined below, a former Member (a 'Veteran') who is reemployed
after a period of military service may elect to have the Employer
make additional Compensation Deferral Contributions to the Plan
on such Veteran's behalf, the total of which may not exceed the
maximum Compensation Deferral Contributions that the Veteran
could have elected to have made if no military leave had oc-
curred. For the purposes of calculating the amount of such
additional Compensation Deferral Contributions the Veteran's
Compensation during such leave of absence shall be deemed to have
been the Veteran's annual rate of compensation at the time the
military leave of absence commenced (the 'Deemed Compensation
Rate') and the 'make up period' during which such additional
Compensation Deferral Contributions may be elected shall be equal
to the lesser of five years or three times the period of the
military leave of absence. Such additional Compensation Deferral
Contributions in any payroll period shall be in whole percentages
of the Veteran's current payroll and shall not exceed the maximum
amount that could have been deferred at the Deemed Compensation
Rate. In the event that the additional Compensation Deferral
Contributions to the Plan on a Veteran's behalf that are autho-
rized by this paragraph exceed the limitations set forth in
Article IV of the Plan or otherwise conflict with provisions of
the Code or ERISA, such limitations or conflicts shall be ignored
to the extent permitted by Code Section 414(u).
3.2 Changes and Suspension of Contributions. Compensation
Deferral Contributions made on a Member's behalf may be increased
or decreased or suspended effective on the second Enrollment Date
following the month in which the Appropriate Notice is given to
the Committee. A Member who has suspended Compensation Deferral
Contributions may resume having such contributions made on his or
her behalf commencing on the second Enrollment Date following the
month in which the Appropriate Notice is given to the Committee.
3.3 Transfer of Contributions to Trustee. Contributions
made under this Article III will be transferred to the Trustee by
the 15th day of the month following the month in which the
contributions are withheld from the Member's Compensation and/or
in which the Member's cash compensation is reduced; provided that
all Compensation Deferral Contributions for a Plan Year shall be
transferred to the Trustee not later than 30 days after the end
of the Plan Year.
ARTICLE IV
Limitations on, and Distribution of, Excess Compensation
Deferral Contributions of Highly Compensated Employees
4.1 Limitations. The Committee in its sole discretion shall
separately limit the amount of Compensation Deferral Contribu-
tions made on behalf of each "Highly Compensated Employee" (as
defined below) for each Plan Year to insure that neither the
Deferral Percentage nor the Contributions Percentage ( as defined
below and referred to herein as the "Percentage") does not exceed
the greater of (X) 125 percent of the Percentage in the preceding
Plan Year of all other eligible employees or, alternatively, (Y)
the Percentage in the preceding Plan Year of all other eligible
employees plus 2 percentage points and the actual Percentage for
the Highly Compensated Employees is not more than two times the
actual Percentage in the preceding Plan Year of all other eligi-
ble employees.
For purposes of this Section, the term "Deferral Percentage"
with respect to any Plan Year means the Compensation Deferral
Contributions for the Plan Year divided by Compensation.
For the purposes of this Section, the term "Highly Compen-
sated Employee" with respect to any Plan Year means an Eligible
Employee or former Eligible Employee who performed services
during the Plan Year for which the determination is being made
and:
(a) at any time during such Plan Year or preceding Plan
Year was a 5-percent owner of the Employer (as defined for
top-heavy plans under Code Sec. 416(1); or
(b) earned $80,000 or more in the preceding Plan Year
(subject to adjustment for inflation in accordance with
Section 415(d) of the Code) in annual Compensation from the
Employer.
(1) For the purposes of this Section, the term "Compensation"
means Compensation within the meaning of Code Section 415(c)(3),
including elective or salary reduction contributions to a
cafeteria plan, cash or deferred arrangement or tax sheltered annu-
ity.
(2) For the purpose of this Section the term "Employer" shall
also include all other entities aggregated with the Employer
under the requirements of Code Section 414(b), (c), (m) and (o).
For purposes of this Section, the Employer is permitted to
determine whether Members are in the category of Highly Compen-
sated Employees or other Eligible Employees based on the Member's
Compensation for the immediately preceding Plan Year or on
estimated Compensation for the Current Plan Year in accordance
with uniform and nondiscriminatory rules whenever information
regarding actual Compensation for the Plan Year is not reasonably
available at the time the amount of a contribution hereunder is
determined or limited.
For purposes of this Section the definition of "Compensation
Deferral Contributions" shall include Compensation Deferral
Contributions made under any other plan that is aggregated with
this Plan for purposes of Sections 401(a)(4) or 410(b) (other
than Section 410(b)(2)(A)(ii)) of the Code and if any such plan
is permissively aggregated with this Plan for the purposes of
Section 401(k) of the Code, the plans so aggregated must also
satisfy Section 401(a)(4) and 410(b) as if they were a single
plan. Further, for the purposes of this Section, Compensation
Deferral Contributions made on behalf of each Highly Compensated
Employee shall be determined by treating all cash or deferred
arrangements under which each such Highly Compensated Employee is
eligible as a single arrangement.
4.2 Control of Contributions and Distribution of Excess.
Rules For Compensation Deferral Contributions.The Committee
may, in accordance with uniform and nondiscriminatory rules it
establishes from time to time, require that Members who are among
the Highly Compensated Employees for the Plan Year make Compensa-
tion Deferral elections following and/or preceding the completion
of such elections by all other Eligible Employees and the Commit-
tee may (X) limit the amount by which each Member who is among
the Highly Compensated Employees may elect to reduce his or her
Compensation, and (Y) subject to Section 402(g) of the Code
permit each other Eligible Employee to elect to reduce his or her
Compensation within higher limits than those for Highly Compen-
sated Employees.
In the event that it is determined prior to the close of any
Enrollment Period that the amount of Compensation Deferral
Contributions to be made with respect to such Enrollment Period
would cause the limitation contained in this Section to be
exceeded for the Plan Year in which such Enrollment Period
occurs, the amount of Compensation Deferral Contributions allowed
to be made on behalf of Highly Compensated Employees for such
Enrollment Period shall be reduced. The Highly Compensated
Employees to whom the reduction is applicable, and the amount of
the excess Compensation Deferral Contributions, shall be deter-
mined by reducing the actual Deferral Contributions of the Highly
Compensated Employee or Employees with the highest actual Defer-
ral Contributions to the extent required to--
(i) enable the arrangement to satisfy the limita-
tion set forth in Section 4.1 above; or
(ii) cause such Highly Compensated Employee's or
Employees' actual Deferral Compensation to equal the
Deferral Compensation of the Highly Compensated Employ-
ee or Employees with the next highest actual Deferral
Compensation.
The "leveling" process described in paragraph (i) or (ii)
shall be repeated until the limitations set forth in this Section
are satisfied.
If the Committee determines that the limitations contained
in this Section have not been met for any Plan Year, the Commit-
tee may return the excess Compensation Deferral Contributions of
Members who are Highly Compensated Employees (calculated in the
manner set forth above) to such Members within the 12-month
period beginning after the last day of the Plan Year for which
such contributions were made. The amount of such excess Compen-
sation Deferral Contributions shall be adjusted to reflect any
income or loss allocable to such excess during the Plan Year
determined in accordance with the alternative method set forth in
Reg. Section 1.401(k)-1(f)(4)(ii)(c) and also from the end of the
Plan Year to the date of distribution determined in accordance
with the safe harbor method set forth in Reg. Section
1.401(k)-1(f)(4)(2)(d).
4.3 Limitation of Annual Additions.
(a) Notwithstanding anything herein to the con-
trary, in no event shall the Annual Additions (as here-
inafter defined) with respect to any Member in any Plan
Year exceed the Maximum Annual Addition. A Member's
"Maximum Annual Additions" means the lesser of (i) 25%
of the Member's compensation reported on Form W-2
(after December 31, 1997, compensation for the purposes
of Annual Additions shall also include elective or
salary reduction contributions to a cafeteria plan,
cash or deferred compensation arrangement or tax shel-
tered annuity) or (ii) the dollar limit in effect for
such Plan Year in accordance with Section 415(c)(1)(A)
of the Code ($30,000 as hereafter adjusted for infla-
tion in accordance with Section 415(d) of the Code),
(b) For purposes of this Section 4.3 the term
"Annual Additions" means the sum for any Plan Year of
(i) Compensation Deferral Contributions
made in accordance with Section 3.1 (Compen-
sation Deferral Contributions),
(ii) The amount of annual additions (within
the meaning of Section 415(c)(2) of the Code)
under all other qualified defined contribution
plans of the Employer or an Affiliate.
(c) If the Member's Annual Additions exceed the
Maximum Annual Additions limitations in accordance with
this Section 4.3, such amounts shall not be contributed
to the Trust or, if contributed by or on behalf of a
Member under the Plan shall be reduced to the extent
necessary to meet the limitations.
(d) Combined Fraction.
(i) Notwithstanding the foregoing, for any Plan
Year beginning before January 1, 2000, if a Member is a
participant in any qualified defined benefit plan main-
tained by an Employer or an Affiliate, the sum of the
"Defined Benefit Plan Fraction" (as defined below) and
the "Defined Contribution Plan Fraction" (as defined
below) for such Member shall not exceed 1.0 (called
"Combined Fraction"). If for any Plan Year the Com-
bined Fraction of a Member exceeds 1.0 after applica-
tion of provisions for limitation of benefits under all
such qualified defined benefit plans, the Maximum
Annual Additions of such Member shall be reduced as
provided in Section 4.3(c) to the extent necessary to
reduce the Combined Fraction of such Member to 1.0.
(ii) The "Defined Benefit Plan Fraction" applica-
ble to a Member for any Plan Year is a fraction, the
numerator of which is the sum of the Projected Annual
Benefit of the Member under all of the qualified de-
fined benefit Plans maintained by the Employer or an
Affiliate, (whether or not terminated) in which such
Member participates (determined as of the close of the
Plan Year) and the denominator of which is the lesser
of (A) the product of 1.25 multiplied by the maximum
dollar limitation on a Member's Projected Annual Bene-
fit if the plan provided the maximum benefit allowable
under Section 415(b) of the Code for such Plan Year, or
(B) the product of 1.4 multiplied by 100% of the
Member's Highest Average Compensation.
Notwithstanding the above, if the Member was a
participant in one or more defined benefit plans main-
tained by the Employer which were in existence on July
1, 1982, the denominator of this fraction will not be
less than 1.25 multiplied by the sum of the annual
benefits under such plans which the Member had accrued
as of the later of September 30, 1983, or the last
limitation year beginning before January 1, 1983. The
preceding sentence applies only if defined benefit
plans individually and in the aggregate satisfied the
requirements of Section 415 of the Code as in effect at
the end of the 1982 limitation year.
(iii) The "Defined Contribution Plan Fraction"
applicable to a Member for any Limitation Year is a
fraction, the numerator of which is the sum of the
Member's Annual Additions as of the close of such Plan
Year for that Plan Year and for all prior Plan Years
under all of the defined contribution plans maintained
by an Employer or an Affiliate in which Member partici-
pates, and the denominator of which is the lesser of
the following amounts (determined for such Plan Year
and for each prior Plan Year of service with the Em-
ployer or any Affiliate regardless of whether a plan
was in existence during those years): (A) the product
of 1.25 multiplied by the dollar limitation in effect
under Code Section 415(c)(1)(A) for the Plan Year
(determined without regard to the special dollar limi-
tation for employee stock ownership plans), or (B) the
product of 1.4 multiplied by twenty-five percent of the
Member's Compensation for the Plan Year.
(e) Definitions.
(i) "Highest Average Compensation" means the
average of a Member's high three consecutive Plan Years
(determined as of the close of the Plan Year) of em-
ployment with the Employer or the actual number of
years of employment for those Members who are employed
for less than three consecutive years with the Employ-
er.
(ii) "Projected Annual Benefit" means the annual
benefit a Member would receive from employer contribu-
tions under a defined benefit plan, adjusted, in the
case of any benefit payable in a form other than a
single life annuity or a qualified joint and survivor
annuity, to the actuarial equivalent of a single life
annuity, assuming (A) the Member continues employment
until reaching the plan's normal retirement age (or the
Member's current age, if later), (B) compensation
remains unchanged and (C) all other relevant factors
used to determine benefits under the plan remain con-
stant in the future.
(f) For purposes of this Section 4.3, the standard of
control for determining if a company is an Affiliate under
Section 414(b) and 414(c) of the Internal Revenue Code shall
be deemed to be "more than 50%" rather than "at least 80%."
ARTICLE V
Miscellaneous
5.1 Uniform Administration. Whenever, in the administra-
tion of the Plan, any action is required by the Employer or the
Committee, including, but not by way of limitation, action with
respect to eligibility or classification of employees, contribu-
tions or benefits, such action shall be uniform in nature as
applied to all persons similarly situated and no such action
shall be taken which will discriminate in favor of Members who
are officers or significant shareholders of the Employer or
persons whose principal duties consist of supervising the work of
other employees or highly compensated Members.
5.2 Payment Due an Incompetent. If the Committee deter-
mines that any person to whom a payment is due hereunder is
incompetent by reason of physical or mental disability, the
Committee shall have power to cause the payments becoming due to
such person to be made to another for the benefit of the incompe-
tent, without responsibility of the Committee or the Trustee to
see to the application of such payment. Payments made in accor-
dance with such power shall operate as a complete discharge of
all obligations on account of such payment of the Committee, the
Trustee and the Trust Fund.
5.3 Source of Payments. All benefits under the Plan shall
be paid or provided solely from the Trust Fund and the Employer
assumes no liability or responsibility therefor, except to the
extent required by law.
5.4 Plan Not a Contract of Employment. Nothing herein
contained shall be deemed to give any Eligible Employee or Member
the right to be retained in the employ of the Employer or to
interfere with the right of the Employer to discharge any Eligi-
ble Employee or Member at any time.
5.5 Applicable Law. Except to the extent governed by
Federal law the Plan shall be administered and interpreted in
accordance with the laws of the State of New York.
5.6 Unclaimed Amounts. It shall be the duty and responsi-
bility of a Member or a Beneficiary to keep the Committee ap-
prised of such Member's whereabouts and of such Member's current
mailing address. Unclaimed amounts shall consist of the amounts
of the Accounts of a retired, deceased or terminated Member which
cannot be distributed because of the Committee's inability, after
a reasonable search, to locate a Member or a Member's Beneficiary
within a period of two (2) years after the payment of benefits
becomes due. Unclaimed amounts for a Plan Year shall be Forfei-
tures for the Plan Year in which such two-year period shall end.
Such Forfeitures shall be treated as provided in Section 5.2.
If an unclaimed amount is subsequently properly claimed by
the Member or the Member's Beneficiary ("Reclaimed Amount") and
unless an Employer in its discretion makes a contribution to the
Plan for such year in an amount sufficient to pay such Reclaimed
Amount to the extent that the Reclaimed Amount originated as an
unclaimed amount, it shall be charged against Forfeitures for the
Plan Year and, to the extent such Forfeitures are not sufficient,
shall be treated as an expense of the trust fund.
ARTICLE VI
Accounts
6.1 Maintenance of Accounts. For each Member the Committee
shall, where applicable, cause a separate Compensation Deferral
Contributions Account, a Rollover Contribution Account and a
Prior Plan Account to be maintained. For Employee contributions
made to a Prior Plan which were not Compensation Deferral Contri-
butions the Committee shall continue to maintain a separate
Employee Contributions Account.
6.2 Valuations. As of each Valuation Date, the Committee
shall adjust the Employee Contributions Account, the Compensation
Deferral Contributions Account, the Rollover Contribution Account
and Prior Plan Account, as applicable, for each Member to reflect
his share of contributions (including for this purpose contribu-
tions made after such Valuation Date but credited as of such
Valuation Date), amounts of interest paid or accrued in respect
of a loan made to such Member pursuant to Section 9.5, withdraw-
als, distributions, forfeitures, income, expenses payable from
the Trust Fund and any increase or decrease in the value of Trust
Fund assets since the preceding Valuation Date. Each separate
account maintained for each loan made to a Member pursuant to
Section 9.5 shall be valued as of each Valuation Date by adjust-
ing the balance of the loan for the payments of principal there-
under.
ARTICLE VII
Vesting of Accounts
Interests in Compensation Deferral Contributions Accounts,
Prior Plan Accounts, Rollover Contribution Accounts and Employee
Contributions Accounts shall be fully vested at all times.
ARTICLE VIII
Investment of Accounts
8.1 Investment of Accounts. Upon becoming a Member, the
Member shall direct that Compensation Deferral Contributions and
any Prior Plan Contributions, Rollover Contributions or Employee
Contributions be invested in increments of 5% in one or more of
the following Investment Funds (or such other Fund as may hereaf-
ter be approved by the Committee) which individually and collec-
tively are designed to conform to DOL Regulation 2550.404c-1 for
so-called Section 404(c) plans in order that fiduciaries of the
Plan may be relieved of liability for any losses which are the
direct and necessary result of a Member's investment directions:
(a) The Company Stock Fund, which is invested in
Employer Securities. Members will not be permitted to
direct that an investment be made in the Company Stock Fund
unless and until the Member has received a prospectus in
respect of Employer Securities in the Company Stock Fund
which meets the requirements of the Securities Act of 1933
or in the opinion of counsel for the Company such investment
may be otherwise permitted.
(b) The Fixed Income Fund, which invests mainly in
fixed income investments that emphasize preservation of
principal and seeks a target rate of return over a period of
at least six months.
(c) The Federated Bond Fund, seeks high income by
investing in a wide range of bonds, including lower-rated,
high-yielding bonds.
(d) The Janus Fund, which seeks long-term growth by
investing in common stocks in companies of any size but with
an emphasis on larger companies.
(e) The Neuberger & Berman Guardian Trust Fund, which
seeks long-term growth and income by investing in stocks of
established high-quality companies considered to be under-
valued in comparison with stocks of similar companies.
(f) The BT Investment International Equity Fund, which
is invested in stocks of established companies in countries
with strong economies primarily in Europe and the Pacific
Basin. Investments in companies outside the United States
offer increased diversification with broadened opportunity
and potentially high returns.
(g) The Twentieth Century Ultra Fund, which seeks
long-term growth by investing in stocks of medium-size to
large companies with better than average growth potential.
(h) The BT Investment Equity Appreciation Fund, which
is invested in stocks of medium-sized companies in high-growth
industries. The Fund focuses on industries most
likely to benefit from large scale changes taking place in
society. Investments in medium-sized companies in high
growth industries offers greater volatility than investments
in larger companies in mature industries.
(i) The BT Investment Small Cap Fund, which seeks
long-term growth by primarily investing in stocks of small
U.S. companies with superior growth potential. This fund
may also invest up to 25% of its assets in foreign stocks.
(j) Three BT Investment Lifecycle Funds, which are
each invested in a continuously monitored mix of stocks,
bonds and money market instruments keyed to the investor's
investment term and risk tolerance:
I. The Short Range Fund, concentrates on securities
offering high income yield with less potential for
growth. Suitable for investment terms of five or
fewer years.
II. The Mid-Range Fund seeks a balance between invest-
ments offering high income yield and those offer-
ing more growth potential for the medium term.
III. The Long Range Fund pursues higher growth and
income investments while reducing exposure to
market volatility through the benefits of invest-
ing for longer terms.
8.2 Redirection of Future Contributions. A Member's
investment direction under Section 8.1 may be changed at any time
and will be effective for contributions received for the current
month provided that the Appropriate Notice is received by the
Committee before 2 P.M. Eastern Time on the last business day of
the month. Such change in direction will not be effective as to
amounts previously contributed or invested.
8.3 Reinvestment of Prior Contributions.
(a) Effective on the Enrollment Date following the
month in which the Appropriate Notice is received by the
Committee (not later than 2 P.M. Eastern Time on the last
business day of the month) a Member may direct that up to
the total value in any Investment Fund holding investments
from the Member's Compensation Deferral Contributions Acc-
ount, Prior Plan Account, Rollover Contribution Account or
Employee Contributions Account be transferred from such
Investment Fund to any other Investment Fund in increments
of 5%.
(b) The Committee may, in its sole discretion, impose
at any time or from time to time such restrictions on the
transfers of monies from one Investment Fund to another as
it deems necessary or appropriate.
8.4 Statements of Accounts And Confirmation of Investment
Directions.
(a) Statements of Accounts. Each Member shall be
furnished a quarterly statement of accounts. A like
statement shall be furnished to a Member upon any
distribution being made under the Plan.
(b) Confirmations of Investment Directions. All
investment directions given by Members under the Plan
shall be confirmed in writing.
8.5 Crediting of Accounts. Interests in each of the
Investment Funds shall be credited to each Member's Accounts as
units of value determined separately for each Investment Fund, as
follows:
(a) the initial value of a unit in each Investment
Fund shall be one dollar,
(b) the unit of value of each Investment Fund shall be
redetermined on each Valuation Date by dividing the then
fair market value of all of the assets of such Investment
Fund by the number of units therein then outstanding.
Amounts held as a result of forfeiture shall not be included
in the value of the Company Stock Fund in determining the
unit of value; and
(c) current Compensation Deferral Contributions and
Rollover Contributions will be credited to the Member's
Accounts as units of value, the number of which is deter-
mined by dividing the dollar amount of the contribution by
the then current unit of value.
If a suspense account credited in accordance with Section
4.3(f) is in existence on a Valuation Date, the number of units
of value in the suspense account shall be adjusted as of each
Valuation Date so that such an account does not participate in
the Trust's investment gains or losses. To the extent a Member's
Compensation Deferral Contributions Account is invested pursuant
to Section 9.5 in a loan to a Member, the Member's Accounts shall
be credited and charged directly with income, gains, losses and
expenses attributable to such loan as of each Valuation Date and
the value of the account will be adjusted through the date of a
distribution to reflect the value of such direct investments on
the distribution date. The Member's loan principal and interest
payments (i) shall be credited to the Member's Compensation
Deferral Contributions Account as units of value, the number of
which is determined as of the Valuation Date next following the
date of such payment by dividing the dollar amount of the payment
by the then current unit of value and (ii) shall be invested in
accordance with the Member's investment directions for future
Compensation Deferral Contributions pursuant to Section 8.2.
8.6 Correction of Errors. In the event of an error in the
adjustment of a Member's Account, the Committee, in its sole
discretion, may correct such error by either crediting or charg-
ing the adjustment required to make such correction to or against
Forfeitures for the Plan Year or to or against income as an
expense of the Trust for the Plan Year in which the correction is
made, or if an Employer contributes an amount to correct any such
error, from such amount. Except as provided in this Section, the
Accounts of other Members shall not be readjusted on account of
such error.
8.7 Investment of Deferred Distributions. Former Members
of the Plan shall have the same investment options for their
Accounts as are available for the Accounts of current Members of
the Plan.
ARTICLE IX
Withdrawals and Loans During Employment
9.1 Withdrawal Options. In any twelve-month period a
Member may make one withdrawal from the Plan that is not less
than $500 or the combined total of all of the eligible funds in
the Member's Accounts from which withdrawals may be made.
Eligibility includes:
(a) Hardship Eligibility. In the event of Hardship
(as defined in Section 9.2) before age 59-1/2, the entire
balance in the Member's Employee Contributions Account,
Rollover Contribution Account or Prior Plan Account, plus
the sum of all contributions that have been credited to a
Member's Compensation Deferral Contributions Account to date
together with any Income allocable to such contributions as
of December 31, 1988.
(b) Age 59-1/2 Eligibility. After a Member attains
age 59-1/2 the entire balance in all of the Member's Ac-
counts.
9.2 Hardship Withdrawals.
(a) Verification of Need. Each request for a hardship
withdrawal must be accompanied by a statement signed by the
Member attesting that the financial need cannot be relieved,
(i) Through reimbursement or compensation by
insurance or otherwise,
(ii) By liquidation of the Member's assets (in-
cluding those assets of the Member's spouse and minor
children that are reasonably available to the Member)
to the extent such liquidation will not itself cause
immediate and heavy financial need,
(iii) By ceasing Compensation Deferral Contribu-
tions under the Plan, or
(iv) By other distributions or nontaxable (at the
time of the loan) loans from any plan maintained by the
Employer or any other employer, or by borrowing from
commercial sources on reasonable commercial terms.
The Committee shall be entitled to rely on the Member's
statement of need without inquiry into the Member's finan-
cial circumstances.
(b) Determination of Hardship. A withdrawal will be
deemed to be a hardship withdrawal if made on account of:
(i) Medical expenses incurred, or to be incurred,
by the Member, the Member's spouse, or any dependent,
(ii) Purchase (excluding mortgage payments) of a
principal residence for the Member,
(iii) Payment of tuition for the next year,
semester or quarter of post-secondary education for the
Member, the Member's spouse or any dependent,
(iv) The need to prevent the eviction of the
Member from the Member's principal residence or fore-
closure on the mortgage of the Member's principal
residence,
(v) Such other immediate and heavy financial need
as the Commissioner of Internal Revenue may from time
to time publish by revenue rulings, notices and other
documents of general applicability, or
(vi) Any other immediate and heavy financial need
as determined on the basis of all relevant facts and
circumstances by the Committee in an objective and
nondiscriminatory manner in accordance with the re-
quirements of the Code and the applicable regulations
and in accordance with the following standards and
principles:
(A) the need shall be due to an extra-ordi-
nary emergency,
(B) the need shall be heavy,
(C) the need shall be immediate,
(D) the need shall be for reasons of hard-
ship as commonly understood such as financial
expenses and not for entertainment or pleasure,
and
(E) the need shall not fail to qualify as
immediate and heavy merely because such need was
reasonably foreseeable or voluntarily incurred.
9.3 Values. All withdrawals under Sections 9.1 or 9.2
shall be based on the values of Accounts as of the Valuation Date
next following the date that the Appropriate Notice was given to
the Committee, or such other Valuation Date as the Committee
shall prescribe. Any withdrawal from any Account (or Subaccount
thereof) under Sections 9.1 and 9.2 shall be charged proportion-
ately against each Investment Fund described in Article VIII
(Investment of Accounts) in which such Account is invested.
9.4 Payment of Withdrawals. Any amount withdrawn under
Section 9.1 shall be paid to a Member in a lump sum in cash, as
soon as practicable after the Valuation Date as of which the
withdrawal election is effective provided, however, that at the
Member's request whole numbers of Employer Securities contained
in the Member's Account may be distributed in kind.
9.5 Loans. A Member who is a "party in interest" as
defined in Section 3(14) of ERISA (a "Party in Interest") may
borrow for any purpose from his or her Employee Contributions
Account, Compensation Deferral Contributions Account, Prior Plan
Account, if any, and Rollover Contribution Account in increments
of not less than $1,000 once in any twelve-month period an amount
(inclusive of current loans) of up to one half of the total of
such accounts, but in any event not more than $50,000 reduced by
the excess (if any) of the highest balance of existing loans
during the preceding 12 months over the current loan.
For the purposes of the foregoing, any outstanding
balance of an existing loan shall be aggregated with any addi-
tional funds being borrowed in order to calculate a Member's
borrowing limit. Transactions for additional funds shall be
booked and documented at then current interest rates as a new
loan.
All loans shall be made pursuant to such other procedures
and terms as shall be adopted by the Committee, subject to the
following:
(a) A loan may remain outstanding so long as the
borrower remains a Party in Interest and shall be repayable
within five years from the date of borrowing upon such terms
as may be determined by the Committee; provided, however,
that any loan of more than $15,000 used to acquire the
primary residence of a Member shall be repayable over a
period of up to ten years as determined by the Committee. A
Member may have no more than one primary residence loan and
one loan for any other purpose outstanding at any time.
The Committee may in its absolute discretion grant such
loan in accordance with such uniform and nondiscriminatory
rules as it may from time to time establish. Any such loan
shall be made at a then prevailing commercial rate of inter-
est for similar credits on such terms of repayment (in level
payments not less frequent than monthly) and subject to such
rules and restrictions as the Committee shall determine,
provided that any such loans shall be available to all
Members on a reasonably equivalent basis and that any loan
may be repaid at any time without penalty.
All Member loans shall be secured on a dollar for dollar
basis by up to 50% of the balance of the Accounts from which
the loan is made. To the extent a loan is unpaid, it shall
be deducted from the amount payable to such Member or such
Member's beneficiary at the time of distribution of the
Accounts from which the loan was made;
(b) In the event that a Member fails to repay a loan
according to its terms and foreclosure occurs, the Plan may
foreclose on the portion of the Member's Accounts for which
a distributable event has occurred. In the event of fore-
closure, a distributable event shall be deemed to occur
immediately following the next Valuation Date for any por-
tion of an Account with respect to which the Member or the
Member's Beneficiary would be permitted in accordance with
Sections 9.1 or 10.1 to elect an immediate distribution;
(c) The receivable representing the loan (and other
loans to the same Member) will be accounted for by the
Trustee as a separate earmarked investment solely for the
individual account of the Member. A Member's payments to
the Trust of principal and interest on the loan shall be
invested by the Trustee as elected by the Member in accor-
dance with the Member's investment directions for future
contributions in accordance with Section 8.2, as soon as
reasonably practical;
(d) Loan applications may be made at any time by any
Member by giving the Appropriate Notice to the Committee or
its designee at any time.
(e) No loan shall remain outstanding after a Member is
no longer a Party in Interest. If a Member who is no longer
a Party in Interest elects under Section 10.7 not to file a
claim for the commencement of benefits when the Member's
employment is terminated, the balance of any outstanding
loan must be repaid in full within sixty (60) days.
(f) Loan Origination Fee. From time to time the
Committee may set a reasonable loan origination fee for each
loan application. Such fees shall be deducted from loan
proceeds paid to loan applicants.
ARTICLE X
Distribution
10.1 Amount of Distribution. The Member or the Member's
beneficiary, as the case may be, shall not be entitled to elect
to receive a distribution of the vested value of the Member's
account until:
(a) the Member's attainment of age 59 1/2, Retirement,
termination of employment, death or Permanent Disability, or
(b) termination of the Plan without establishment or main-
tenance of a successor plan, or
(c) the date of sale of substantially all of the assets of
the Employer to an acquiring corporation which continues the
employment of the Member without the establishment of a
successor plan.
The vested value of the Member's Account shall be determined
as of the Valuation Date next following such distribution events
except that in the case of the Member's Total and Permanent
Disability the vested value of the Member's account shall be
determined as of the Valuation Date next following the date the
Committee determines that the Member has a Total and Permanent
Disability. In any event, such Valuation Date shall be no later
than the Valuation Date which immediately precedes the Member's
Required Beginning Date (or the date which would have been the
Member's Required beginning Date had the Member survived).
Distributions under the Plan to a Member's Beneficiary shall be
completed not more than five years after the Member's death.
10.2 Notice of Options and Normal Form of Distribution.
(a) Notice of Options.
(i) No less than thirty (30) nor more than ninety
(90) days prior to the date of any distribution hereunder
the Plan Administrator shall provide the Member with a
general description of the material features and an explana-
tion of the relative values of the optional forms of bene-
fits available under the Plan.
(ii) If a distribution is one to which Sections
401(a)(11) and 417 of the Code do not apply, such distribu-
tion may commence less than thirty (30) days after the
notice required under Reg. Section 1.411(a)-11(c) is given,
provided that:
(A) the Plan Administrator clearly informs the Member
that the Member has a right to a period of at least
thirty (30) days after receiving the notice to consider
the decision of whether or not to elect a distribution
(and, if applicable, a particular distribution option),
and
(B) the Member, after receiving the notice,
affirmatively elects a distribution.
(iii) If the distribution is one to which sections
401(a)(11) and 417 of the Code do apply such distributions
may commence less than thirty (30) days after the notice
required by Section 10.8 provided that:
(A) The Plan Administrator clearly inform the Member
that the Member has a right to at least 30 days to consider
whether to waive the Qualified Joint and Survivor Annuity
and consent to a form of distribution other than a Qualified
Joint and Survivor Annuity;
(B) the Member, after receiving the notice, affirma-
tively elects (with spousal consent) to waive the Qualified
Joint and Survivor Annuity; and,
(C) Distribution in accordance with the affirmative
election does not commence before the expiration of the 7-day
period that begins the day after the explanation of the
Qualified Joint and Survivor Annuity is provided to the
participant.
(b) Normal Form of Distribution. Unless otherwise
elected in accordance with Section 10.3 and subject to
Section 10.7, distributions shall be made by the Trustee as
soon as practicable after the Valuation Date next following
the Member's (or the Member's Beneficiary's as the case may
be) election and written consent to receive a distribution
of the vested value of such Member's Account, in a single
sum in cash except that (i) at the Member's option Employer
Securities held in the Member's Account may be distributed
in kind and (ii) in the discretion of the Committee, a note
with respect to a Participant's loan from such Member's
Compensation Deferral Account may be distributed in kind.
10.3 Alternate Form of Distribution. A Member may request
to have the value of such Member's Accounts distributed in a
manner other than in accordance with Section 10.2. For any
portion of such Member's benefits accrued before May 1, 1995 that
become distributable under the Plan after May 1, 1995 such
alternate form of payment may be an annuity contract pursuant to
Section 10.8 or periodic installments of all benefits commencing
at such time as the Member shall elect in accordance with the
Plan payable over a fixed period not to exceed the lesser of ten
years or the life expectancy of the Member at the time payments
commence. Payment of any interest in the Company Stock Fund in a
Member's Accounts, if any, to which the Member has a nonforfeit-
able interest may be made in cash solely for the purpose of
effecting such an alternate form of distribution.
Distributions will be made in accordance with the require-
ments of the regulations under Code Section 401(a)(9), including
the minimum distribution incidental benefit requirements of
Proposed Regulations Section 1.401(a)(9)-2. Such minimum distri-
bution requirements shall supersede any distribution options in
the Plan that are inconsistent therewith.
10.4 Identity of Payee. The determination of the Committee
as to the identity of the proper payee of any benefit under the
Plan and the amount of such benefit properly payable shall be
conclusive, and payment in accordance with such determination
shall constitute a complete discharge of all obligations on
account of such benefit.
10.5 Non-alienation of Benefits.
(a) No benefit payable at any time under this
Plan shall be subject in any manner to alienation,
sale, transfer, assignment, pledge, attachment, or
other legal processes, or encumbrance of any kind. Any
attempt to alienate, sell, transfer, assign pledge or
otherwise encumber any such benefits, whether currently
or thereafter payable, shall be void. No benefit, nor
any fund which may be established for the payment of
such benefits, shall, in any manner, be liable for or
subject to the debts or liabilities of any person
entitled to such benefits. If any person shall attempt
to, or shall alienate, sell, transfer, assign, pledge
or otherwise encumber benefits to which such person may
become entitled under this Plan, or if by reason of
such person's bankruptcy or other event happening at
any time, such benefits would devolve upon any other
person or would not be enjoyed by the person entitled
thereto under the Plan, then the Committee, in its
discretion, may terminate the interest in any such
benefits of the person entitled thereto under the Plan
and hold or apply them to or for the benefit of such
person entitled thereto under the Plan or such person's
spouse, children or other dependents, or any of them,
in such manner as the Committee may deem proper.
(b) Notwithstanding Section 10.5(a), the Trustee
(i) shall comply with an order entered on or
after January 1, 1985, determined by the Committee to
be a Qualified Domestic Relations Order as provided in
Section 10.6 and
(ii) may treat an order entered before January 1,
1985, as a Qualified Domestic Relations Order even if
it does not meet the requirements of Section 10.6.
(iii) shall comply with a Federal tax levy made
pursuant to Code Section 6331 and with collection
proceedings by the United States on a judgment result-
ing from an unpaid tax assessment.
10.6 Qualified Domestic Relations Order.
(a) The Plan shall comply with the provisions of Code
Section 414(p) relating to qualified domestic relations
orders and all regulations pertaining thereto.
(b) An alternate payee's interest in the Plan will be
distributed in the form of a single sum as soon as practica-
ble after a proposed order is determined to be a qualified
domestic relations order.
10.7 Commencement of Benefits. Unless a Member elects
otherwise, the payment of benefits under the Plan shall begin not
later than the 60th day after the latest of the close of the Plan
Year in which:
(a) the Member attains age 65;
(b) the 10th anniversary of the date the Member's
participation in the Plan occurs;
(c) the Member's employment with the Employer or an
Affiliate is terminated.
provided that, except as provided in Section 10.10, no benefits
shall be distributed unless the Member has filed a claim for
benefits until the Valuation Date immediately preceding the
Required Beginning Date and further provided that benefits shall
commence to be distributed to the Member not later than the
Member's Required Beginning Date.
10.8 Annuities. If the form of distribution is to be an
annuity contract, it may be in such form and with such provisions
as the Member or the Member's Beneficiary, as the case may be,
may elect which are available for purchase from an insurance
company including, but not limited to, a full cash refund life
annuity, an annuity with income for life or an annuity with
income for a period certain (payable at least annually). Such
distribution is to be provided through the purchase from an
insurance company and distribution from the Trust Fund of a
nontransferable annuity contract; provided the benefit under such
annuity contract cannot be paid to anyone other than the Member
prior to the Member's death, and if a joint and survivor annuity
is provided, unless such joint annuitant shall be the Member's
spouse, the actuarial value of the Member's benefits, as of the
date benefit payments commence, shall be more than 50 percent
(50%) of the Member's vested Accounts.
(a) Limitation on Member Elections.
Notwithstanding any elections made by the Member,
benefit payments shall be made over a period not in
excess of the life of the Member or the lives of the
Member and the Member's Beneficiary or the Member's
life expectancy or the joint and last survivor life
expectancy of the Member and the Member's Beneficiary.
In the event the annuity benefits have commenced to be
paid to a Member before the Member's death the remain-
ing interest will be distributed at least as rapidly as
under the election made by the Member prior to the date
of death.
(b) Qualified Joint and Survivor Annuities.
Notwithstanding the foregoing provisions of this Sec-
tion 10.8, in the case of a Member who has elected to
receive an annuity form of benefit, distribution shall
be in the form of a Qualified Joint and Survivor Annu-
ity, unless the Member with the Member's spouse's con-
sent as provided in Section 10.9 elects to receive a
different form of annuity. The term "Qualified Joint
and Survivor Annuity" means an annuity payable to the
Member for life and, if the Member's spouse survives
the Member, a survivor annuity payable to the spouse
for life in an amount equal to 50 percent (50%) of the
annuity payable to the Member. If the Member who has
elected to receive an annuity form of benefit is not
married, subject to Section 10.6 (Qualified Domestic
Relations Order), the annuity shall be paid in the form
of a single life annuity unless the Member waives the
single life annuity. The amount of the benefits pay-
able under a Qualified Joint and Survivor Annuity shall
be the amount which can be purchased from an insurance
company with the Member' Accounts.
(c) A Member who elects to receive benefits in
the form of a life annuity and to whom benefits would
be payable in the form of a Qualified Joint and Survi-
vor Annuity pursuant to this Section 10.8 shall have
the right to waive a Qualified Joint and Survivor Annu-
ity, such waiver shall be consented to by the Member's
spouse in writing in accordance with Section 10.9 by
delivering written notice to the Committee, at any time
within the 90-day period prior to the annuity starting
date, to receive a different form of an annuity, the
Committee shall within a reasonable period of time
provide the Member, by personal delivery or first class
mail, with a written explanation of:
(i) the terms and conditions of the Quali-
fied Joint and Survivor Annuity;
(ii) the Member's right to make, and
the effect of, an election to waive the Qual-
ified Joint and Survivor Annuity;
(iii) the rights of the Member's spouse
to consent to the Member's election to waive
the Qualified Joint and Survivor Annuity and
the effect of consenting to such waiver; and
(iv) the Member's right to make, and
the effect of, a revocation of an election to
waive the Qualified Joint and Survivor Annu-
ity.
Any election made by a Member pursuant to Sections 10.8(b)
and 10.8(c) may be revoked by such Member by delivering written
notice to the Committee at any time prior to the Member's annuity
starting date and, once revoked, may be made again at any time by
delivering written notice to the Committee prior to the Member's
annuity starting date.
10.9 Spousal Consent. A valid spousal consent to the
Member's naming of a Beneficiary other than the Member's spouse
or to the Member's waiver of a Qualified Joint and Survivor
Annuity as defined in Section 10.8(b) shall be designated:
(a) in a writing acknowledging the effect of the
consent;
(b) witnessed by a notary public; and
(c) effective only for the spouse who exercises
the consent;
provided that, notwithstanding the provisions of this Article X,
the consent of a Member's spouse shall not be required if it is
established to the satisfaction of the Plan Administrator that
such consent may not be obtained because there is no spouse,
because the spouse cannot be located or because of such other
circumstances as the Secretary of the Treasury may by regulations
prescribe.
10.10 Payments Without Election. Notwithstanding any other
provision of this Article X:
(a) If a Member or a Beneficiary is entitled to a distribu-
tion and if the vested value of a Member's Account or
the vested value of the Beneficiary's share of the
Member's Account before benefits are paid or commence
to be paid hereunder does not exceed (and at the time
of any previous distribution did not exceed) $3,500
($5,000 after January 1, 1998), the Committee may in
accordance with uniform and nondiscriminatory rules
direct the immediate distribution of such benefit in a
single lump sum to the person entitled thereto regard-
less of any election or consent of the Member, the
Member's spouse or other Beneficiary, or
(b) If a Member has reached Normal Retirement Age and has
terminated his or her employment, the Committee may
direct the immediate distribution of the Member's
benefits as such Member may elect after notice given in
accordance with Section 10.2 (the "Notice"), which
distribution shall commence as soon as administratively
possible following the later of:
(i) 90 days after the Member's termination date, or
(ii) the last business day of November of the year in
which the Member becomes (or would have become)
70 1/2 years of age;
10.11. Trustee to Trustee Transfers.
(a) A Member who receives an Eligible Rollover
Distribution after December 31, 1992 may elect to have such
distribution paid directly to an Eligible Retirement Plan by
specifying in the Appropriate Notice the Eligible Retirement
Plan to which such distribution is to be paid in a direct
trustee to trustee transfer pursuant to such uniform rules
as to the form and time of transfer as the Committee shall
prescribe.
(b)(i) "Eligible Rollover Distribution." An Eligible
Rollover Distribution is any distribution of all or a por-
tion of the balance to the credit of the Member distributee,
except that an Eligible Rollover Distribution does not
include: any distribution that is one of a series of sub-
stantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
Member distributee or the joint lives (or joint life expec-
tancies) of the Member distributee and the Member's desig-
nated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the por-
tion of any distribution that is not includible in gross
income ( determined without regard to the exclusion for net
unrealized appreciation with respect to Employer Securi-
ties).
(b)(ii) "Eligible Retirement Plan." An Eligible
Retirement Plan is an individual retirement account de-
scribed in section 408(a) of the Code, an individual
retirement annuity described in section 408(b) of the
Code, an annuity plan described in section 403(a) of
the Code, or a qualified trust described in section
401(a) of the Code, that accepts the Member distribute-
e's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the sur-
viving spouse of a Member, an Eligible Retirement Plan
is an individual retirement account or an individual
retirement annuity.
ARTICLE XI
Administration of the Plan
11.1 Plan Administrator. The Committee shall be the Plan
Administrator:
(a) The Committee shall administer, enforce and
interpret the Plan and the trust agreement established
hereunder and shall have the powers necessary thereto,
including but not by way of limitation the powers to exer-
cise its responsibilities in accordance with Sections 1.3
(Appropriate Notice), 1.9 (Compensation), 1.21 (Enrollment
Date), 1.29 (Leave of Absence), 1.42 (Total and Permanent
Disability), Article II (Eligibility and Membership) 3.1
(Compensation Deferral Contributions), 3.2 (Changes and
Suspension of Contributions), 4.1 (Limitations), 6.1 (Main-
tenance of Accounts), 6.2 (Valuations), Article VIII (In-
vestment of Accounts), Article IX (Withdrawals and Loans
During Employment), 12.6 (Disbursement of Funds), Article
XIV (Miscellaneous), and the remainder of this Article XI,
and
(b) Authority to hold the funds of the Plan shall be
delegated to the Trustee in accordance with Section 12.2
(Trustee), and
(c) Authority to direct the investment of the Plan's
funds shall be delegated to an Investment Manager in accor-
dance with Section 12.3 (Investment Manager).
With respect to all other responsibilities of the Plan
Administrator the Committee shall act through its duly authorized
officers and agents.
11.2 Board of Directors. With respect to Sections 11.8
(Personal Liability), 13.1 (Right to Amend) and 13.2 (Suspension
or Termination) the Employer shall act only by or pursuant to, a
resolution of the Board of Directors.
11.3 Appointment of the Committee. The Committee shall be
the Benefits Administration Committee.
11.4 Compensation, Expenses. All proper expenses required
for the administration of the Plan incurred by the Committee, the
Employer, an Investment Manager or the Trustee for accounting,
legal and other professional, consulting or technical services,
including fees and expenses of a recordkeeper, the Trustee or any
Investment Manager shall be paid by the Trust.
11.5 Committee Actions, Agents. The Committee may appoint
such agents, who need not be members of the Committee, as it may
deem necessary for the effective performance of its duties and
may delegate to such agents such powers and duties as the Commit-
tee may deem expedient or appropriate.
Any action of the Committee, including but not by way of
limitation, instructions to the Trustee, shall be evidenced by
the signature of a member who has been so authorized by the
Committee to sign for it, and the Trustee shall be fully protect-
ed in acting thereon. A certificate of the secretary or an
assistant secretary of the Committee setting forth the name of
the members thereof shall be sufficient evidence at all times as
to the persons then constituting the Committee.
11.6 Committee Meetings. The Committee shall hold meetings
upon such notice, at such time and place as they may determine.
The Committee shall act by a majority of its members at the time
in office and such action may be taken from time to time by a
vote at a meeting or in writing without a meeting. A majority of
the members of the Committee at the time in office shall consti-
tute a quorum for the transaction of business.
11.7 Authority and Duties of the Committee. The Committee
may from time to time establish rules for the administration of
the Plan. The Committee shall have the exclusive right to
interpret the Plan and to decide any matters arising thereunder
in connection with the administration of the Plan. It shall
endeavor to act by general rules so as not to discriminate in
favor of any person. Its decisions and the records of the
Committee shall be conclusive and binding upon the Employer,
Members and all other persons having an interest under the Plan.
No member of the Committee shall be disqualified from exercising
the powers and discretion herein conferred by reason of the fact
that the exercise of any such power or discretion may affect the
payment of benefits to such member under the Plan; however, no
member may vote on a matter relating exclusively to such member.
To the extent that it is administratively feasible, the period of
notice required for Members' elections to commence, change or
suspend contributions hereunder or to make or change investment
elections for either future contributions or existing accounts
may be relaxed, reduced or eliminated by the Committee in accor-
dance with uniform and non-discriminatory rules.
The Committee shall keep or cause to be kept all records and
other data as may be necessary for the administration of the
Plan.
11.8 Personal Liability. To the extent not contrary to the
provisions of ERISA, no member of the Committee, officer, direc-
tor or employee of an Employer shall be personally liable for
acts done in good faith hereunder unless resulting from such
member's own negligence or willful misconduct. Each such member
of the Committee, officer and director shall be indemnified by
the Employer against expenses reasonably incurred by such member
in connection with any action to which he may be a party by
reason of such member's responsibilities hereunder, except in
relation to matters as to which such member shall be adjudged in
such action to be liable for negligence or misconduct in the
performance of such member's duty. However, nothing in this Plan
shall be deemed to relieve any person who is a fiduciary under
the Plan for purposes of ERISA from any responsibility or liabil-
ity which such Act shall impose upon such member.
11.9 Dealings Between the Committee and Individual Members.
Any notice required to be given to, or any document required to
be filed with, the Committee will be properly given or filed if
mailed by registered or certified mail, postage prepaid, or
delivered to the Chairman of the Benefits Administration Commit-
tee, c/o U.S. Industries, Inc. 101 Wood Avenue South, Iselin, New
Jersey 08830, or to such other place as the Committee may hereaf-
ter from time to time designate.
The Committee shall make available to such Member for
examination, such of its records as pertain to the benefits to
which such Member shall be entitled under the Plan.
11.10 Information To Be Supplied by the Employer. The
Employer shall provide the Committee or its delegate with such
information as it shall from time to time need in the discharge
of its duties.
11.11 Records. The regularly kept records of the Committee
and the Employer shall be conclusive evidence of the Credited
Service and Service of an Employee, the Employee's Compensation,
age, marital status, status as an Employee, and all other matters
contained therein applicable to this Plan; provided that an
Employee may request a correction in the record of age or any
other disputed fact at any time prior to retirement. Such
correction shall be made if within 90 days after such request the
Employee furnishes the Committee in support thereof documentary
proof of age or the other disputed fact satisfactory to the
Committee.
11.12 Fiduciary Capacity. Any person or group of persons
may serve in more than one fiduciary capacity with respect to the
Plan.
11.13 Fiduciary Responsibility. If a Plan fiduciary acts
in accordance with ERISA, Title I, Subtitle B, Part 4,
(a) in determining that a Member's spouse has consent-
ed to the naming of a Beneficiary other than the spouse or
that the consent of the Member's spouse may not be obtained
because there is no spouse, the spouse cannot be located or
other circumstances prescribed by the Secretary of the
Treasury by regulations, then to the extent of payments made
pursuant to such consent, revocation or determination, the
Plan and its fiduciaries shall have no further liability; or
(b) in treating a domestic relations order as being
(or not being) a Qualified Domestic Relations Order, or,
during any period in which the issue of whether a domestic
relations order is a Qualified Domestic Relations Order is
being determined (by the Committee, by a court of competent
jurisdiction, or otherwise), in separately accounting for
the amounts which would have been payable to the alternate
payee during such period if the order had been determined to
be a Qualified Domestic Relations Order, in paying the
amounts separately accounted for to the person entitled
thereto if within 18 months the domestic relations order (or
a modification thereof) is determined to be a Qualified
Domestic Relations Order, in paying such amounts to the
person entitled thereto if there had been no order if within
18 months the domestic relations order is determined not to
be qualified or if the issue is not resolved within 18
months and in prospectively applying a domestic relations
order which is determined to be qualified after the close of
the 18-month period, then the obligation of the Plan and its
fiduciaries to the Member and each alternate payee shall be
discharged to the extent of any payment made pursuant to
such acts.
11.14 Claim Procedure.
(a) Each Member or Beneficiary ("Claimant") may submit
an application for benefits ("Claims") to the Committee or
to such other person as may be designated by the Committee
in writing in such form as is provided or approved by the
Committee. A Claimant shall have no right to seek review of
a denial of benefits, or to bring any action in any court to
enforce a Claim prior to filing a Claim and exhausting all
rights to review in accordance with this Section.
When a Claim has been filed properly, such Claim
shall be evaluated and the Claimant shall be notified
of the approval or the denial of the Claim within
ninety (90) days after the receipt of such Claim unless
special circumstances require an extension of time for
processing the claim. If such an extension of time for
processing is required, written notice of the extension
shall be furnished to the Claimant prior to the termi-
nation of the initial ninety (90) day period, which
notice shall specify the special circumstances requir-
ing an extension and the date by which a final decision
will be reached (which date shall not be later than one
hundred and eighty (180) days after the date on which
the Claim was filed). A Claimant shall be given a
written notice in which the Claimant shall be advised
as to whether the Claim is granted or denied, in whole
or in part. If a Claim is denied, in whole or in part,
the notice shall contain (1) the specific reasons for
the denial, (2) references to pertinent Plan provisions
upon which the denial is based, (3) a description of
any additional material or information necessary to
perfect the Claim and an explanation of why such mate-
rial or information is necessary, and (4) the
Claimant's rights to seek review of the denial.
(b) If a Claim is denied, in whole or in part, the
Claimant shall have the right to (i) request that the
Committee (or such other person as shall be designated
in writing by the Committee) review the denial, (ii)
review pertinent documents, and (iii) submit issues and
comments in writing, provided that the Claimant files a
written request for review with the Committee within
sixty (60) days after the date on which the Claimant
received written notification of the denial. Within
sixty (60) days after a request for review is received,
the review shall be made and the Claimant shall be
advised in writing of the decision on review, unless
special circumstances require an extension of time for
processing the review, in which case the Claimant shall
be given a written notification within such initial
sixty (60) day period specifying the reasons for the
extension and when such review shall be completed
within one hundred and twenty (120) days after the date
on which the request for review was filed. The deci-
sion on review shall be forwarded to the Claimant in
writing and shall include specific reasons for the
decision and references to Plan provisions upon which
the decision is based. A decision on review shall be
final and binding on all persons for all purposes. If
a Claimant shall fail to file a request for review in
accordance with the procedures herein outlined, such
Claimant shall have no rights to review and shall have
no right to bring action in any court and the denial of
the Claim shall become final and binding on all persons
for all purposes.
ARTICLE XII
Operation of the Trust Fund
12.1 Trust Fund. All assets of the Plan shall be held in
trust as a Trust Fund for the exclusive benefit of Members and
their Beneficiaries, and no part of the corpus or income shall be
used for or diverted to any other purpose. No person shall have
any interest in or right to any part of the Trust Fund, except to
the extent provided in the Plan.
12.2 Trustee. All contributions to the Plan shall be paid
to a Trustee or Trustees which shall be appointed from time to
time by the Company by appropriate instrument with such powers in
the Trustee as to control and disbursement of the funds as the
Company shall approve and as shall be in accordance with the
Plan. The Company may remove any Trustee at any time, upon
reasonable notice and upon such removal or upon the resignation
of any Trustee the Company shall designate a successor Trustee.
12.3 Investment Manager. In accordance with the terms of
the trust agreement, the Company may appoint one or more Invest-
ment Managers (individuals and/or other entities), who may
include the Trustee and who are collectively referred to herein
as the Investment Manager, to direct the investment and reinvest-
ment of part or all of the Plan's funds that are not invested in
Employer Securities. The Company may change the appointment of
the Investment Manager from time to time.
12.4 Purchase and Holding of Securities. As soon as
convenient after receiving contributions, the Trustee shall:
(a) in the case of contributions which are to be in-
vested in Employer Securities purchase Employer Securities
in the open market, and register and hold such securities in
the name of the Trustee or its nominee;
(b) in the case of contributions which are to be
invested in the Fixed Income Fund, purchase group annuity
contracts or make other investment arrangements that in the
aggregate will provide the target rate of return; and,
(c) In the case of any of the managed funds listed in
Section 8.1 (c) through (j), purchase and hold shares in
such funds in accordance with the directions of Plan Mem-
bers.
12.5 Voting of Employer Securities. For shareholders'
meetings Members shall be furnished proxy material and a form for
instructing the Trustee how to vote the Employer Securities
represented by units credited to their Accounts, and the Trustee
shall vote or otherwise exercise shareholder rights with respect
to such Employer Securities as instructed. The Trustee shall
hold such instructions in confidence and shall not divulge them
to anyone, including, but not limited to, the Employer, its
officers or employees.
Shares for which no instructions are received shall be
voted by the Trustee in the same proportion as those shares for
which instructions have been received. With respect to the
exercise of shareholder's rights to sell or retain the Employer
Securities represented by units credited to a Member's Accounts
in extraordinary instances involving an unusual price and terms
and conditions for such securities such as a tender offer, the
Trustee shall act in accordance with the Committee's instruc-
tions.
12.6 Disbursement of Funds. The funds held by the Trustee
shall be applied, in the manner determined by the Committee, to
the payment of benefits to such persons as are entitled thereto
in accordance with the Plan.
The Committee shall determine the manner in which the funds
of the Plan shall be disbursed in accordance with the Plan,
including the form of voucher or warrant to be used in authoriz-
ing disbursements and the qualification of persons authorized to
approve and sign the same and any other matters incident to the
disbursement of such funds.
12.7 Exclusive Benefit of Members. All contributions under
the Plan shall be paid to the Trustee and deposited in the Trust
Fund and shall be held, managed and distributed solely in the
interest of the Members and beneficiaries for the exclusive
purpose of (1) providing benefits to Members and beneficiaries
and (2) defraying reasonable administrative expenses of the Plan
and the Trust, to the extent such expenses are not paid by the
Company or an Affiliate provided that:
(a) if a timely determination letter request is filed and
the Plan is denied initial qualification under Section
401(a) of the Code, contributions conditioned upon such
qualification shall be returned to the Company or the Affil-
iate making such contributions within one year of the denial
of qualification;
(b) if, and to the extent, a deduction for a contribution
under Section 404 of the Code is disallowed, contributions
conditioned upon deductibility shall be returned to the
Company or the Affiliate making such contribution within one
year after the disallowance of the deduction; and
(c) if, and to the extent, a contribution is made through a
good faith mistake of fact, such contribution shall be
returned to the Company or the Affiliate making such contri-
bution within one year.
ARTICLE XIII
Amendment, Termination and Merger
13.1 Right to Amend. The right to modify or amend the
provisions of the Plan in whole or in part at any time or from
time to time is reserved to the Company, but no such amendment
shall divest any Member of any amount previously credited to a
Member's Accounts or, except to the extent permitted by the
Secretary of the Treasury by regulation, shall eliminate with
respect to a Member's Account balance at the time of such amend-
ment an optional form of benefit, and further provided that no
part of the assets of the Trust Fund shall, by reason of any
modification or amendment, be used for or diverted to, purposes
other than for the exclusive benefit of Members and their Benefi-
ciaries, under the Plan.
13.2 Suspension or Termination. The Employer may at any
time suspend Compensation Deferral Contributions in whole or in
part. The suspension of Compensation Deferral Contributions
shall not in itself constitute a termination of the Plan. The
Employer may at any time terminate or discontinue the Plan by
filing with the Committee a certified copy of the resolution of
its board of directors authorizing the termination or discontinu-
ance.
If the Plan is terminated, no further contributions shall be
made by the Employer and the Account of each Member shall be
applied for the Member's (or the Member's Beneficiary's) benefit
either by payment in cash or in kind, or by the continuation of
the Trust Fund in accordance with the trust instrument and the
provisions of the Plan as though the Plan were otherwise in full
force and effect.
13.3 Merger, Consolidation of Transfer. In the case of any
merger, or consolidation with, or transfer of assets or liabili-
ties to any other plan, each Member in the Plan would (if the
Plan then terminated) receive a benefit immediately after the
merger, consolidation, or transfer which is equal to or greater
than the benefit such Member would have been entitled to receive
immediately before the merger consolidation, or transfer (if the
Plan had then terminated).
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Regis-
tration Statement on Form S-8, pertaining to The Ames Group Union
Retirement Savings & Investment Plan, of our report dated Novem-
ber 17, 1997 with respect to the consolidated financial state-
ments and schedule of U.S. Industries, Inc. included in its
Annual Report on Form 10-K for the year ended September 27, 1997,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
December , 1997
EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated November
14, 1997, which appears on page 25 of the U.S. Industries, Inc.
Annual Report on Form 10-K for the year ended September 30, 1997.
PRICE WATERHOUSE LLP
Morristown, New Jersey
December 8, 1997
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes George H. Maclean his true
and lawful attorney-in-fact and agent, with full power of substi-
tution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign a registration state-
ment on Form S-8 of U.S. Industries, Inc. with respect to the THE
AMES GROUP UNION RETIREMENT SAVINGS & INVESTMENT PLAN and to sign
and file any other documents in connection therewith, including
amendments thereto, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and
authority to do and perform each act and thing requisite and
necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power
of Attorney as of the 28th day of November 1997.
/s/ David H. Clarke /s/ John G. Raos
David H. Clarke John G. Raos
/s/ Frank R. Reilly /s/ Brian C. Beazer
Frank R. Reilly Brian C. Beazer
/s/ John J. McAtee, Jr. /s/ Charles H. Price
John J. McAtee, Jr. The Hon. Charles H. Price II
/s/ Harry Solomon /s/ Royall Victor III
Sir Harry Solomon Royall Victor III
/s/ Mark Vorder Bruegge /s/ James O'Leary
Mark Vorder Bruegge James O'Leary
