-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FLDKUNR6MEDzmvdwD+w2dDkjy7DjwvAPGQRgkmUoJ3Egv9FKAvi2SLoMrHcOyqco pFNe1ou036H9WsRKmUCGkA== 0000950152-00-002918.txt : 20000418 0000950152-00-002918.hdr.sgml : 20000418 ACCESSION NUMBER: 0000950152-00-002918 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000417 EFFECTIVENESS DATE: 20000417 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESIS WORLDWIDE INC CENTRAL INDEX KEY: 0000067532 STANDARD INDUSTRIAL CLASSIFICATION: METALWORKING MACHINERY & EQUIPMENT [3540] IRS NUMBER: 344307810 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-34920 FILM NUMBER: 603102 BUSINESS ADDRESS: STREET 1: 2600 KETTERING TWR STREET 2: PO BOX 668 CITY: DAYTON STATE: OH ZIP: 45423 BUSINESS PHONE: 5134924111 MAIL ADDRESS: STREET 1: 615 N OAK ST STREET 2: PO BOX 668 CITY: SIDNEY STATE: OH ZIP: 45365 FORMER COMPANY: FORMER CONFORMED NAME: MONARCH MACHINE TOOL CO DATE OF NAME CHANGE: 19920703 S-8 1 GENESIS WORLDWIDE, INC. FORM S-8 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ GENESIS WORLDWIDE INC. (Exact name of registrant as specified in its charter) OHIO 34-4307810 (State of Incorporation) (I.R.S. Employer Identification No.) GENESIS WORLDWIDE INC. 2600 KETTERING TOWER DAYTON, OHIO 45423 (Address, including zip code, of registrant's principal executive offices) GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN (Full title of the plan) JOSEPH M. RIGOT, ESQ. THOMPSON HINE & FLORY LLP 2000 COURTHOUSE PLAZA, N.E. DAYTON, OHIO 45402 (937) 443-6586 (Name, address and telephone number, including area code, of agent for service)
------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE =============================================================================== Proposed Maximum Amount of Title of Securities Amount to be Aggregate Registration to be Registered Registered Offering Price Fee Deferred Compensation $2,000,000 $2,000,000 $528 Obligations (1) -------------------------------- --------------- ---------------- -------------
(1) The Deferred Compensation Obligations being registered are unsecured obligations of Genesis Worldwide Inc. to pay deferred compensation in the future in accordance with the terms of the Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan. ================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT -------------------------------------------------- Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The Annual Report on Form 10-K of Genesis Worldwide Inc. (the "Company") for the fiscal year ended December 31, 1999, filed by the Company with the Securities and Exchange Commission (the "Commission") pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold hereunder shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES. Under the Company's Non-Qualified Deferred Compensation Plan, as Amended and Restated (the "Plan"), the Company will provide eligible employees the opportunity to defer receipt of a specified percentage of their base salary and up to 85% of any bonuses payable for services rendered for the Company. In order to defer any salary or bonus under the Plan, a participant must have elected to make the maximum possible elective contributions under the Company's Savings Plan. The Company may, in its sole discretion, make contributions for any particular employee or group of employees participating in the Plan. The obligations of the Company under the Plan to make payments to Plan participants in the future in accordance with the Plan will be unsecured general obligations and indebtedness of the Company outstanding from time to time. An aggregate principal amount of $2,000,000 of such obligations of the Company are being registered hereunder all are referred to herein as the "Deferred Compensation Obligations." The description of the Deferred Compensation Obligations set forth in this Item 4 is qualified in its entirety by reference to the Plan, which is an exhibit to this Registration Statement. The amount of compensation and other amounts to be deferred by each Plan participant during any calendar year and the length of time of the deferral will be determined in accordance with the terms of the Plan. The Plan is administered by the Company, which has delegated to the Benefits Committee of the Company the authority to administer the Plan, except for certain major matters. Each participant's account established for a calendar year will be credited with compensation and other amounts that the participant elects to defer for that year, Company contributions, if any, and any gains (or losses) incurred therein as a result of choices made by Plan participants among investment mediums. All payments to participants in respect of their Deferred Compensation Obligations will be subject to withholding for applicable taxes. An irrevocable trust has been established in connection with the Plan and, at the Company's discretion, contributions by a participant or the Company may be held in the trust. S-2 3 A participant's right to the Deferred Compensation Obligations cannot be transferred, pledged or assigned (except upon the death or incompetency of the participant). The Deferred Compensation Obligations are not subject to the debts or other third party claims of any person entitled to receive benefits under the Plan. The Company may terminate or amend the Plan at any time provided such termination or amendment does not reduce the amount of any benefit of a participant when the Plan is terminated. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Thompson Hine & Flory LLP has provided a legal opinion to the Company with respect to the interests in the Plan and obligations of the Company registered hereunder. Members of that Firm own beneficially approximately 7,000 common shares of the Company and Joseph M. Rigot, a partner of the Firm, is a director of the Company. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article V of the Code of Regulations of the Company sets forth certain rights of directors and officers of the Company to indemnification. Such rights provide indemnification by the Company as permitted by Ohio law. The liabilities against which a director and officer may be indemnified and factors employed to determine whether a director and officer is entitled to indemnification in a particular instance depend on whether the proceedings in which the claim for indemnification arises were brought (a) other than by and in the right of the Company ("Third Party Actions") or (b) by and in the right of the Company ("Company Actions"). In Third Party Actions, the Company will indemnify each director and officer against expenses, including attorneys' fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened or actual proceeding in which he may be involved by reason of his having acted in such capacity, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company and with respect to any criminal action or proceeding, he had no reasonable cause to believe that his conduct was unlawful. In Company Actions, the Company will indemnify each director and officer against expenses, including attorneys' fees, actually and reasonably incurred by him in connection with the defense or settlement of any such proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification is permitted with respect to (i) any matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless a court determines such person is entitled to indemnification and (ii) any liability asserted in connection with unlawful loans, dividends, distribution, distribution of assets and repurchase of Company shares under Section 1701.95 of the Ohio Revised Code. Unless indemnification is ordered by a court, the determination as to whether or not an individual has satisfied the applicable standards of conduct (and therefore may be indemnified) is made by the Board of Directors of the Company by a majority vote of a quorum consisting of S-3 4 directors of the Company who were not parties to the action; or if such a quorum is not obtainable, or if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or by the shareholders of the corporation. Article V of the Company's Code of Regulations does not limit in any way other indemnification rights to which those seeking indemnification may be entitled. The Company maintains insurance policies which presently provide protection, within the maximum liability limits of the policies and subject to a deductible amount for each claim, to the Company under its indemnification obligations and to the directors and officers with respect to certain matters which are not covered by the Company's indemnification obligations. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS. See Index to Exhibits following signature pages. Item 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of 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 this 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 the undertakings set forth in paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant with the Securities and Exchange Commission or furnished to the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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. S-4 5 (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 further 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 plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, 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. S-5 6 SIGNATURES ---------- Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dayton, State of Ohio, on this 14th day of April, 2000. GENESIS WORLDWIDE INC. By /s/ Richard E. Clemens -------------------------------------- Richard E. Clemens President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated: - ------------------------------------------------------------------------------
Name Title Date - ---- ----- ---- - -------------------------------------------------------------------------------------------------------------------- /s/ Richard E. Clemens Director, President and April 14, 2000 - ------------------------- Chief Executive Officer Richard E. Clemens (principal executive officer) /s/ Karl A. Frydryk Vice President and Chief April 14, 2000 - ------------------------- Financial Officer (principal Karl A. Fydryk financial officer) /s/ Leo E. Dugdale Controller (principal April 14, 2000 - ------------------------- accounting officer) Leo E. Dugdale ------------------------------------- *John A. Bertrand Director April 14, 2000 *Gerald L. Connelly Director April 14, 2000 *William A. Enouen Director April 14, 2000
S-6 7 *Augustine A. Fornataro Director April 14, 2000 *Waldemar M. Goulet Director April 14, 2000 *David E. Lundeen Director April 14, 2000 *Joseph M. Rigot Director April 14, 2000 *J. William Uhrig Director April 14, 2000
* The undersigned, by signing his name hereto, executes this Registration Statement pursuant to powers of attorney executed by the above-named persons and filed with the Securities and Exchange Commission as an Exhibit to this Registration Statement. /s/ Richard E. Clemens ---------------------- Richard E. Clemens Attorney-in-Fact S-7 8 INDEX TO EXHIBITS (4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES: 4.1 Amended Articles of Incorporation of Genesis Worldwide Inc., as Amended 4.2 Code of Regulations of Genesis Worldwide Inc., incorporated by reference from the Company's Registration Statement on Form S-8 filed with the Securities and Exchange Commission on August 31, 1999 (1999 Long-Term Incentive Stock Plan) 4.3 Genesis Worldwide Inc. Nonqualified Deferred Compensation Plan (5) OPINION RE LEGALITY 5.1 Opinion of Thompson Hine & Flory LLP (23) CONSENTS OF EXPERTS AND COUNSEL: 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Thompson Hine & Flory LLP [contained in their opinion filed as Exhibit 5.1] (24) POWERS OF ATTORNEY 24.1 Powers of Attorney of each person whose signature in this registration statement was signed by another pursuant to a power of attorney. ------------------------------------- S-8 EX-4.1 2 EXHIBIT 4.1 1 Exhibit 4.1 THE MONARCH MACHINE TOOL COMPANY CERTIFICATE OF AMENDMENT TO AMENDED ARTICLES OF INCORPORATION --------------------------------- Leo E. Dugdale III, Secretary of THE MONARCH MACHINE TOOL COMPANY, an Ohio corporation (the "Company"), does hereby certify that the following resolution amending the Amended Articles of Incorporation of the Company was adopted by the holders of shares entitling them to exercise two-thirds of the voting power of the Company, pursuant to Section 1701.71 of the Ohio Revised Code, at a Special Meeting of Shareholders duly held on August 31, 1999 in which a quorum was present and acting throughout: RESOLVED, that Article First of the Amended Articles of Incorporation of The Monarch Machine Tool Company be amended in its entirety to read as follows: "FIRST: The name of the corporation is GENESIS WORLDWIDE INC." IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the 31st day of August, 1999. /s/ Leo E. Dugdale III ----------------------- Leo E. Dugdale III Secretary 2 1980 AMENDED ARTICLES OF INCORPORATION OF THE MONARCH MACHINE TOOL COMPANY FIRST. The name of the corporation is THE MONARCH MACHINE TOOL COMPANY. SECOND. The place in Ohio where its principal office is located is the City of Sidney, in Shelby County. THIRD. The purpose or purposes for which the Company is formed are: (a) To develop, manufacture, assemble, distribute, sell, lease, or otherwise dispose of, and to deal in or with machine tools, machinery, and other products. (b) To manufacture, to purchase, lease, or otherwise acquire, to hold and use, to sell, lease, or otherwise dispose of, and to deal in or with personal property of any description and any interest therein. (c) To purchase, lease, or otherwise acquire, to invest in, hold, use, and encumber, to sell, lease, exchange, transfer, or otherwise dispose of, and to construct, develop, improve, equip, maintain, and operate structures and real property of any description and any interest therein. (d) To borrow money, to issue, sell, and pledge its notes, bonds, and other evidences of indebtedness, to secure any of its obligations by mortgage, pledge, or deed of trust of all or any of its property, and to guarantee and secure obligations of any person, all to the extent necessary, useful, or conducive to carrying out any of the purposes of the Company. (e) To invest its funds in any shares or other securities of another corporation, business, or undertaking or of a government, governmental authority, or governmental subdivision. (f) To do whatever is deemed necessary, useful, or conducive to carrying out any of the purposes of the Company and to exercise all other authority enjoyed by corporations generally by virtue of the provisions of the Ohio General Corporation Law. FOURTH. The authorized number of shares of the Company is 12,500,000, consisting of 500,000 Preferred Shares without par value ("Preferred Shares") and 12,000,000 3 Common Shares without par value ("Common Shares"). The shares of each class shall have the following express terms: DIVISION A EXPRESS TERMS OF PREFERRED SHARES 1. The Preferred Shares may be issued from time to time in one or more series. Each Preferred Share of any one series shall be identical with each other share of the same series in all respects, except as to the date from which dividends thereon shall be cumulative by reason of different dates of issuance; and all Preferred Shares of all series shall rank equally and shall be identical, except in respect of the terms which may be fixed by the Board of Directors as hereinafter provided or which are fixed in Division A-1. Subject to the provisions of sections 2 through 8 of this Division A, which provisions shall apply to all Preferred Shares of all series, the Board of Directors is hereby authorized to cause Preferred Shares to be issued in one or more series and with respect to each such series, prior to the issuance thereof, to fix: (a) The designation of the series, which may be by distinguishing number, letter, or title. (b) The number of shares of the series, which number the Board of Directors may increase or decrease, except where otherwise provided in the creation of the series. (c) The dividend rate of the series. (d) The dates on which dividends, if declared, shall be payable and the dates, if any, from which dividends shall be cumulative. (e) The redemption rights and price or prices, if any, for shares of the series. (f) The terms and amount of any sinking fund provided for the purchase or redemption of shares of the series. (g) Whether the shares of the series shall be convertible into Common Shares and, if so, the conversion rate or rates or price or prices and the adjustments thereof, if any, and all other terms and conditions upon which conversions may be made. (h) The amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Company. (i) Restrictions (in addition to those set forth in sections 6(b) and 6(c) of this Division A) on the issuance of shares of the same series or of any other class or series. -2- 4 The Board of Directors is authorized (as are the shareholders) to adopt from time to time amendments to the Articles of Incorporation or Amended Articles of Incorporation of the Company fixing, with respect to each such series, the matters specified in clauses (a) through (i) of this section 1. 2. The holders of Preferred Shares of each series, in preference to the holders of Common Shares and any other class of shares ranking junior to the Preferred Shares, shall be entitled to receive, out of any funds legally available and when and as declared by the Board of Directors, cash dividends at the rate (and no more) for such series fixed in accordance with the provisions of section 1 of this Division A or in Division A-1, payable quarterly on the dates fixed for such series. Such dividends shall be cumulative from a date specified, or non-cumulative, as fixed with respect to such series in accordance with the provisions of section 1 of this Division A or in Division A-1. No dividends may be paid upon or declared and set apart for any of the Preferred Shares for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be declared and paid or a sum sufficient for payment thereof set apart for the Preferred Shares of all series. 3. So long as any Preferred Shares are outstanding, no dividend (except a dividend payable in Common Shares or in other shares of the Company ranking junior to the Preferred Shares) shall be paid or declared or any distribution be made (except as aforesaid) in respect of the Common Shares or in other shares of the Company ranking junior to the Preferred Shares, nor shall any Common Shares or any other shares of the Company ranking junior to the Preferred Shares be purchased, retired, or otherwise acquired by the Company (except out of the proceeds of the sale of Common Shares or other shares of the Company ranking junior to the Preferred Shares received by the Company subsequent to December 31, 1967), (a) Unless all accrued and unpaid dividends on the Preferred Shares of all series, including the full dividends for the current quarterly dividend period, shall have been declared and paid or a sum sufficient for payment thereof set apart; and (b) Unless redemption of Preferred Shares of any Series shall have been effected from, and any required payment shall have been made into, any sinking fund provided for shares of such series in accordance with the provisions of section 1 of this Division A. 4. (a) Subject to the express terms of each series and to the provisions of section 6(b)(iii) of this Division A, the Company (i) may from time to time redeem all or any part of the Preferred Shares of any series at the time outstanding at the option of the Board of Directors at the applicable redemption price for such series fixed in accordance with the provisions of section 1 of this Division A or in Division A-1, or (ii) shall from time to time make such redemption of the Preferred Shares as may be required to fulfill the requirements of any sinking fund provided for shares of such series at the applicable sinking fund redemption price -3- 5 fixed in accordance with the provisions of section 1 of this Division A, together, in each case, with accrued and unpaid dividends to the redemption date. (b) Notice of every redemption shall be mailed, by first class mail, postage prepaid, to the holders of record of the Preferred Shares to be redeemed, at their respective addresses then appearing on the books of the Company, not less than 30 nor more than 60 days prior to the date fixed for redemption. At any time before or after notice has been given as above provided, the Company may deposit the aggregate redemption price of the Preferred Shares to be redeemed, together with accrued and unpaid dividends thereon to the redemption date, with any bank or trust company in Dayton, Cincinnati, or Cleveland, Ohio, or New York, New York, having capital and surplus of more than $5,000,000, named in such notice, directed to be paid to the respective holders of the Preferred Shares so to be redeemed, in amounts equal to the redemption price of all Preferred Shares so to be redeemed, together with accrued and unpaid dividends thereon to the redemption date, on surrender of the share certificate or certificates held by such holders, and upon the giving of such notice and the making of such deposit such holders shall cease to be shareholders with respect to such shares, and after such notice shall have been given and such deposit shall have been made such holders shall have no claim against the Company or privileges with respect to such shares except only to receive such money from such bank or trust company without interest or the right to exercise, before the redemption date, any unexpired rights or conversion. In case less than all of the outstanding Preferred Shares of any series are to be redeemed, the Company shall select by lot the shares so to be redeemed in such manner as shall be prescribed by its Board of Directors. If the holders of Preferred Shares which shall have been called for redemption shall not, within six years after such deposit, claim the amount deposited for the redemption of their shares, any such bank or trust company shall, upon demand, pay over to the Company such unclaimed amounts and thereupon such bank or trust company and the Company shall be relieved of all responsibility in respect thereof and to such holders. (c) Any Preferred Shares which are redeemed by the Company pursuant to the provisions of this section 4 of this Division A and any Preferred Shares which are purchased and delivered in satisfaction of any sinking fund requirements provided for shares of such series and any Preferred Shares which are converted in accordance with their express terms shall be cancelled and not reissued. Any Preferred Shares otherwise acquired by the Company shall be restored to the status of authorized and unissued Preferred Shares without serial designation. 5. (a) The holders of Preferred Shares of any series shall, in case of liquidation, dissolution, or winding up of the affairs of the Company, be entitled to receive in full, out of the assets of the Company, including its capital, before any amount shall be paid or distributed among the holders of Common Shares or any other shares ranking junior to the Preferred Shares, the amounts fixed with respect to shares of any such series in accordance with section 1 of this Division A or in Division A-1, plus in any such event an amount equal in all dividends accrued and unpaid thereon to the date of payment of the amount due pursuant to such liquidation, dissolution, or winding up of the affairs of the Company. In case the net assets of the -4- 6 Company legally available therefor are insufficient to permit the payment upon all outstanding Preferred Shares of all series of the full preferential amount to which they are respectively entitled, then such net assets shall be distributed ratably upon outstanding Preferred Shares of all series in proportion to the full preferential amount to which each such share is entitled. After payment to holders of Preferred Shares of full preferential amounts as aforesaid, holders of Preferred Shares as such shall have no right or claim to any of the remaining assets of the Company. (b) The merger or consolidation of the Company into or with any other corporation, or the merger of any other corporation into it, or the sale, lease, or conveyance of all or substantially all of the property or business of the Company, shall not be deemed to be a dissolution, liquidation, or winding up of the Company for the purposes of this section 5 of this Division A. 6. (a) The holders of Preferred Shares of all series shall be entitled to one vote for each such share upon all matters presented to shareholders; and, except as otherwise provided herein or required by law, the holders of Preferred Shares of all series and the holders of Common Shares shall vote together as one class on all matters. If, and as often as, the Company shall be in default in the payment of the equivalent of six quarterly dividends (whether or not consecutive) on any series of Preferred Shares at any time outstanding, whether or not earned or declared, the holders of Preferred Shares of all series voting separately as a class and in addition to all other rights to vote for Directors shall thereafter be entitled to elect, as herein provided, two members of the Board of Directors of the Company; provided, however, that the special class voting rights provided for herein, when the same shall have become vested, shall remain so vested until all accrued and unpaid dividends on the Preferred Shares of all series then outstanding shall have been paid, whereupon the holders of Preferred Shares shall be divested of their special class voting rights in respect to subsequent elections of Directors, subject to the revesting of such special class voting rights in the event hereinabove specified in this section 6(a). In the event of default entitling the holders of Preferred Shares to elect two Directors as above specified, a special meeting of the shareholders for the purpose of electing such Directors shall be called by the Secretary of the Company upon written request of, or may be called by, the holders of record of the greater of 10% of the Preferred Shares of all series at the time outstanding or 50,000 Preferred Shares, and notice thereof shall be given in the same manner as that required for the annual meeting of shareholders; provided, however, that the Company shall not be required to call such special meeting if the annual meeting of shareholders shall be held within 90 days after the date of receipt of the foregoing written request from the holders of Preferred Shares. At any meeting at which the holders of Preferred Shares shall be entitled to elect Directors, the holders of not less than the greater of one-third of the outstanding Preferred Shares of all series or 50,000 Preferred Shares, present in person or by proxy, shall be sufficient to constitute a quorum and the vote of the holders of a majority of such shares so present at any such meeting at which there shall be a quorum shall be sufficient to elect the members of the Board of Directors which the holders of Preferred Shares are entitled to elect as hereinbefore provided. The two Directors who may be elected by the holders of Preferred Shares pursuant to -5- 7 the foregoing provisions shall be in addition to any other Directors then in office or proposed to be elected otherwise than pursuant to such provisions, and nothing in such provisions shall prevent any change otherwise permitted in the total number of Directors of the Company or require the resignation of any Director elected otherwise than pursuant to such provisions. (b) The affirmative vote or consent of the holders of at least two-thirds of the then outstanding Preferred Shares of all series, given in person or by proxy, either in writing or at a meeting called for the purpose at which the holders of Preferred Shares of all series shall vote separately as a class, shall be necessary to effect any one or more of the following (but, insofar as the holders of Preferred Shares are concerned, such action may be effected with such vote or consent): (i) Any amendment, alteration, or repeal of any of the provisions of the Articles of Incorporation or of the Regulations of the Company which affects adversely the voting powers, rights, or preferences of the holders of Preferred Shares; provided, however, that for the purpose of this clause (i) only, neither the amendment of the Articles of Incorporation of the Company to authorize, or to increase the authorized or outstanding number of, Preferred Shares or of any shares of any class ranking on a parity with or junior to the Preferred Shares, nor the increase by the shareholders pursuant to the Regulations of the number of Directors of the Company shall be deemed to affect adversely the voting powers, rights, or preferences of the holders of Preferred Shares; and provided further that, if such amendment, alteration, or repeal affects adversely the rights or preferences of one or more but not all then outstanding series of Preferred Shares, only the affirmative vote or consent of the holders of at least two-thirds of the number of the then outstanding shares of the series so affected shall be required; (ii) The authorization, or the increase in the authorized number of, shares of any class ranking prior to the Preferred Shares; or (iii) The purchase or redemption (whether for sinking fund purposes or otherwise) of less than all the then outstanding Preferred Shares except in accordance with a purchase offer made to all holders of record of Preferred Shares, unless all dividends on all Preferred Shares then outstanding for all previous quarterly dividend periods shall have been declared and paid or funds therefor set apart and all accrued sinking fund obligations applicable to all Preferred Shares shall have been complied with. (c) The affirmative vote or consent of the holders of at least a majority of the then outstanding Preferred Shares of all series, given in person or by proxy, either in writing or at a meeting called for the purpose at which the holders of Preferred Shares of all series shall vote separately as class, shall be necessary (but insofar as the holders of Preferred Shares are concerned, such action may be effected with such affirmative vote or consent) to authorize any shares ranking on a parity with the Preferred Shares or an increase in the authorized number of Preferred Shares. -6- 8 7. No holder of Preferred Shares of any series, as such, shall have any pre-emptive right to purchase or subscribe for shares of the Company, of any class, or other securities of the Company, of any class, whether now or hereafter authorized. 8. For the purposes of this Division A: (a) Whenever reference is made to shares "ranking prior to the Preferred Shares," such reference shall mean and include all shares of the Company in respect of which the rights of the holders thereof as to the payment of dividends or as to distributions in the event of a voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Company are given preference over the rights of the holders of Preferred Shares. (b) Whenever reference is made to shares "ranking on a parity with the Preferred Shares," such reference shall mean and include all shares of the Company in respect of which the rights of the holders thereof as to the payment of dividends and as to distributions in the event of a voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Company rank on an equality with the rights of the holders of Preferred Shares. (c) Whenever reference is made to shares "ranking junior to the Preferred Shares," such reference shall mean and include all shares of the Company other than those defined under clauses (a) and (b) of this section 8 as shares "ranking prior to" or "ranking on a parity with" the Preferred Shares. DIVISION A-1 EXPRESS TERMS OF $1.80 CUMULATIVE CONVERTIBLE PREFERRED SHARES, SERIES A There is hereby established a first series of Preferred Shares to which the following shall be applicable: Section 1. DESIGNATION OF SERIES. The series shall be designated "$1.80 Cumulative Convertible Preferred Shares, Series A" (hereinafter called "Series A Preferred Shares"). Section 2. NUMBER OF SHARES. The number of Series A Preferred Shares initially fixed is 117,734, which number the Board of Directors may increase or decrease (but not below the number of shares of the series then outstanding). -7- 9 Section 3. DIVIDEND RATE. The dividend rate for Series A Preferred Shares is $1.80 per share per annum. Section 4. DIVIDEND PAYMENT DATES; CUMULATIVE DATES. The dates at which dividends on the Series A Preferred Shares shall be payable are March 1, June 1, September 1, and December 1 of each year. Dividends on Series A Preferred Shares shall be cumulative as follows: (a) In the case of shares issued during the period commencing immediately after the record date for the payment of a dividend and terminating at the close of the payment date for such dividend, dividends shall be cumulative from such last-mentioned dividend payment date. (b) In all other cases dividends shall be cumulative from the dividend payment date next preceding the date of issuance of such shares. Section 5. REDEMPTION PRICE. The redemption price for the Series A Preferred Shares shall be $40.00 per share. Section 6. CONVERSION RIGHTS. (a) [These 1980 Amended Articles of Incorporation give effect to adjustments of the conversion price of the Series A Preferred Shares occurring prior to the filing of these 1980 Amended Articles of Incorporation with the Ohio Secretary of State and delete provisions in the express terms of the Series A Preferred Shares that are no longer applicable at the time of the filing.] The holder of Series A Preferred Shares shall be entitled at any time (but in the case of such shares which have been called for redemption, such right shall expire at the close of business on the date fixed for such redemption, unless default shall be made in the deposit of the redemption price), to convert, in the manner hereinafter provided (giving to Series A Preferred Shares for the purpose hereof a value of $39.60 per share) into fully paid and nonassessable Common Shares at the conversion price of $9.90 for each Common Share. The conversion price of the Common Shares shall be subject to adjustment from time to time in certain instances, as hereinafter provided; provided, however, that no adjustment under paragraph (b) of this Section 6 of the conversion price shall be made unless such adjustment with any other adjustments not yet made by reason of this proviso would result in a change of at least fifty cents in the conversion price in effect. (b) Except as otherwise hereinafter provided, whenever the Company shall issue Common Shares (which term shall not include the sale of treasury shares) in excess of the number of Common Shares theretofore issued and outstanding without receiving therefor a consideration per share at least equal to the conversion price per Common Share in effect immediately prior to such issuance, then, upon such issuance, the conversion price per Common Share shall be adjusted to the price obtained by: -8- 10 (i) Multiplying the number of Common Shares constituting issued and outstanding shares when the conversion price then in effect became effective by the conversion price then in effect; (ii) Adding to the product the total amount of consideration, if any, received by the Company for the issuance of such additional Common Shares and for all other issuances of Common Shares subsequent to the time when the conversion price then in effect became effective; and (iii) Dividing the sum so obtained by the total number of Common Shares constituting issued and outstanding shares immediately after the issuance of such additional Common Shares, disregarding in the quotient so obtained fractions of one cent. (c) For the purpose of making the computations described in paragraph (b) of this section 6, the following provisions shall be applicable: (i) Common Shares issued as a stock dividend or split and Common Shares issued to change or replace issued Common Shares shall, except for any money or other property also received by the Company therefor, be deemed to have then issued for a consideration of no value. (ii) Common Shares issued for money or in extinguishment of debts or obligations of the Company shall be deemed to have been issued for a consideration equal to the money received by the Company and the amount of any debt or obligation so extinguished, plus such reasonable commissions and discounts for the underwriting or marketing thereof as may have been deducted from the money which otherwise would have been received by the Company or from the amount of the debt or obligation which would have been extinguished. (iii) Common Shares issued for property other than cash shall be deemed to have been issued for a consideration equal to the fair value of such property as determined by the Board of Directors of the Company, plus such reasonable commissions for the underwriting or marketing of such Common Shares as may have been charged to the Company or deducted from the property which otherwise would have been received by the Company. (iv) In case the Company shall in any manner issue or sell any shares or obligations (other than the presently authorized Series A Preferred Shares) which, at the option of the holder thereof, may be converted into or may be replaced by Common Shares at a price less than the conversion price in effect immediately prior to the issuance or sale of such convertible shares or obligations, such issuance or sale shall be deemed to be an issuance or sale (as of the date of the issuance or sale of such convertible shares or obligations) of the maximum number of Common Shares necessary to effect the -9- 11 conversion or replacement of all such convertible shares or obligations and the amount received by the Company as the consideration for the issuance or sale of such convertible shares or obligations plus the total amount or additional consideration, if any, payable to the Company on conversion or replacement (plus such reasonable commissions and discounts for the underwriting or marketing of such convertible shares or obligations as may have been charged to the Company or deducted from the consideration which otherwise would have been received by the Company) shall be deemed to be consideration actually received for the issuance or sale of such Common Shares, and such Common Shares shall be deemed to constitute issued and outstanding Common Shares as of said date; provided, however, that no further adjustment of the conversion price shall be made upon the actual issuance of any Common Shares to effect such conversion or replacement; and provided further that, if any such convertible shares or obligations shall be retired by the Company or otherwise cancelled without the issuance of any Common Shares to effect the conversion or replacement above provided, a computation as aforesaid shall again be made in the same manner as though the convertible shares or obligations, to the extent so retired or cancelled, had not been issued or sold. (v) In case the Company shall grant any right or option (expiring more than 21 days from the date of the grant thereof) to subscribe for or purchase any Common Shares at a price less than the conversion price in effect immediately prior to the granting of such options or rights; such grant shall, except as provided in clause (vi) below, be deemed to be an issuance (as of the date of the granting of such right or option) of the maximum number of Common Shares issuable upon the exercise of such right or option, and the amount, if any, received by the Company as the consideration for the granting of such right or option plus the total amount of additional consideration, if any, payable to the Company upon the exercise of such right or option (plus such reasonable commissions and discounts for the underwriting or marketing of such right or option as may have been charged to the Company or deducted from the consideration which otherwise would have been received by the Company) shall be deemed to be the consideration actually received for the issuance of such Common Shares, and such Common Shares shall be deemed to constitute issued and outstanding Common Shares as of said date; provided, however, that no further adjustment of the conversion price shall be made upon the actual issuance of any Common Shares upon the exercise of any such right or option; and provided further that, if any such rights or options shall be terminated or shall expire without being fully exercised, a computation as aforesaid shall again be made in the same manner as though the rights or options, to the extent that they remain unexercised, had not been granted. (vi) Common Shares issued pursuant to any employee stock option plan, employee stock purchase plan, or similar plan of the Company in existence on the date of the first issuance of Series A Preferred Shares or thereafter approved at a meeting of shareholders of the Company by the vote of the holders of a majority of the shares -10- 12 entitled to vote shall be deemed to have been issued for a consideration equal to the conversion price in effect at the time of issuance thereof. (vii) Common Shares issued upon conversion of a Series A Preferred Shares shall be deemed to have been issued for a consideration equal to the conversion price in effect at the time of issuance thereof. (d) In the event that shares of any class (other than Common Shares) are issued by way of a stock divided on outstanding Common Shares, then, in addition to any Common Shares receivable upon exercise of the conversion rights to the Series A Preferred Shares, the holder of a Series A Preferred Share (entitled to receive a specified number of shares of the first mentioned class were such Series A Preferred Share converted immediately prior to the declaration and issuance of the stock dividend) shall, upon such exercise of the conversion rights of the Series A Preferred Shares, be entitled to receive the same number of the first mentioned class and/or shares of any class issued successively thereon as a stock dividend and/or any shares issued successively upon any exchange, replacement, subdivision, or combination thereof. No adjustment in the conversion price shall be made merely by virtue of the happening of any event specified in this paragraph (d). (e) Upon conversion of the Series A Preferred Shares, no adjustment shall be made for any dividends on the Series A Preferred Shares, or for any dividends on the shares into which the Series A Preferred Shares are converted. (f) In the event that the Company shall effect any capital reorganization or reclassification of its shares or shall consolidate or merge with or into any other corporation, involving in any such case the issuance or delivery to the holders of Common Shares of other stock (or securities or assets), then in any one or more of such events the Company shall give notice thereof by mail as hereinafter provided, which notice shall state the date as of or after which such transaction shall take place and the date as of which holders of Common Shares shall be entitled to replace their Common Shares with stock (and other securities and assets, if any) pursuant to such reclassification, reorganization, merger, or consolidation, to the end that the holders of the Series A Preferred Shares may at their option on or before the date so specified surrender them for conversion and thereby be entitled in respect of the Common Shares issuable upon such conversion to receive such stock (and other securities and assets, if any), to the same extent and on the same basis as other holders of Common Shares. The notice herein required to be given shall be sufficiently given if the Company shall mail a copy thereof to the holders of the Series A Preferred Shares at their addresses as shown by the books of the Company, first class, postage prepaid. Such written notice shall be mailed not less than 30 days before the proposed effective date of any such transaction and not less than 30 days before the date as of which holders of Common Shares shall be entitled to replace their Common Shares with stock or securities pursuant to such reclassification, reorganization, merger, or consolidation. -11- 13 (g) In the event that the Company shall effect any capital reorganization or reclassification of its shares or shall consolidate or merge with or into any other corporation or shall sell all or substantially all of its property as an entirety, lawful provision shall be made as part of the terms of such transaction that the holders of Series A Preferred Shares may then or thereafter receive in lieu of each Common Share otherwise issuable to them upon conversion of the Series A Preferred Shares (but at the conversion price which would otherwise be in effect at the time of conversion and with the same protection against dilution, all as herein provided), the same kind and amount of stock (and other securities and assets, if any) as may be issuable or distributable upon such transaction with respect to each outstanding Common Share, and after such transaction the conversion rights of the holders of the Series A Preferred Shares shall be merely to receive such stock (and other securities and assets, if any). The foregoing provisions shall similarly apply to successive transactions of a similar nature by any such successor or purchaser. (h) Whenever there shall be any issuance of Common Shares or there shall happen any other event as a consequence of which the conversion price of the Common Shares or the conversion rights of the Series A Preferred Shares shall be altered or varied, the Company shall forthwith file with the Transfer Agent for the Series A Preferred Shares a statement describing specifically such issuance of Common Shares or such other event (and, in the case of a reorganization, reclassification, consolidation, merger, or sale, the terms thereof) and the adjusted conversion price resulting from such event and the change, if any, in the stock (and other securities and assets, if any) issuable or distributable upon conversion. The Transfer Agent may receive and file such statements without responsibility on its part for the matters therein recited and as conclusive evidence of the facts therein stated. (i) When the exercise of the conversion rights of the Series A Preferred Shares shall result in a fraction of a Common Share issuable upon such conversion, the Company shall not issue a fractional share but in lieu thereof shall make a cash adjustment in respect thereof on the basis of the then existing conversion price of the Common Shares. (j) Any holder of a Series A Preferred Share desiring to exercise the right of conversion shall surrender to the Company at the office of the Transfer Agent (or at the principal office of the Company if, at the time of such conversion, there be no transfer agent for the Series A Preferred Shares) the certificate evidencing the Series A Preferred Shares so to be converted, duly endorsed for transfer to the Company or accompanied by an appropriate separate instrument of assignment; and promptly thereafter the Company shall issue and deliver a stock certificate representing the full Common Shares into which such Series A Preferred Shares shall have been so converted together with cash adjustments in lieu of fractional shares and certificates representing any shares to which such holder shall be entitled by reason of the provisions of paragraph (g) of this section 6, under all suitable regulations to be prescribed by the Company's Board of Directors. The issuance of the Common Shares and the issuance of any such other shares shall be as of the date of the surrender, as aforesaid, of the certificate evidencing the Series A Preferred Share for conversion, notwithstanding any delay in the delivery of the certificate for -12- 14 the Common Shares into which such Series A Preferred Shares shall have been so converted or in the delivery of certificates for any such other shares. The Company shall pay any and all taxes which may be imposed in respect to the issuance and delivery of the Common Shares (and any such other shares) issuable upon conversion of Series A Preferred Shares; provided, however, that the Company shall not be required in any event to pay any transfer or other taxes by reason of the issuance of such Common Shares (or any such other shares) in a name or names other than the name of the owner of the Series A Preferred Share surrendered for conversion. (k) The Company shall reserve and keep available out of its authorized but unissued shares, solely for the purpose of delivery upon exercise of the conversion rights provided in this section 6, such number of shares as shall from time to time be sufficient to effect the conversion of all of the Series A Preferred Shares then outstanding. The Company shall from time to time, in accordance with the laws of the State of Ohio, increase the authorized number of shares at any time the number of shares remaining unissued and available for effecting conversion of Series A Preferred Shares shall not be sufficient to permit the conversion of all then outstanding Series A Preferred Shares. (l) All Series A Preferred Shares surrendered for conversion into the Common Shares shall be cancelled and not again issued. Section 7. LIQUIDATION RIGHTS. The amount payable on Series A Preferred Shares in the event of any voluntary liquidation, dissolution, or winding up of the affairs of the Company shall be $40.00 per share. FIFTH. The Company, by action of its directors, and without action by its shareholders, may purchase its own shares, of any class or series, in accordance with the provisions of the Ohio General Corporation Law, either in the open market or at public or private sale, in such manner and amounts, from such holder or holders of outstanding shares of the Company, and at such prices as the Directors shall from time to time determine, subject, however, to such limitation or restriction, if any, as may be contained in the express terms of any class or series of shares of the Company outstanding at the time of such purchase. SIXTH. No holder of shares of the Company or any class, as such, shall have any pre-emptive right to purchase or subscribe for shares of the Company, of any class, or other securities of the Company, of any class, whether now or hereafter authorized. SEVENTH. These Amended Articles of Incorporation supersede and take the place of the existing Articles of Incorporation of the Company. -13- EX-4.3 3 EXHIBIT 4.3 1 Exhibit 4.3 GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN As Amended and Restated Effective January 1, 2000 2 GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN TABLE OF CONTENTS
Section Page ------- ---- ARTICLE I - NAME, PURPOSE, LEGAL STATUS........................................... 1 Name..................................................................... 1.01 1 Purpose.................................................................. 1.02 1 ERISA Top Plan........................................................... 1.03 1 Code Unfunded Plan....................................................... 1.04 1 Grantor Trust............................................................ 1.05 1 ARTICLE II - DEFINITIONS.......................................................... 2 ARTICLE III - PLAN PARTICIPATION.................................................. 4 Participant.............................................................. 3.01 4 Continued Participation.................................................. 3.02 4 ARTICLE IV - DEFERRAL ELECTIONS................................................... 5 Salary................................................................... 4.01 5 Bonus.................................................................... 4.02 5 Election Terms and Conditions............................................ 4.03 6 Company Savings Plan..................................................... 4.04 6 New Eligible Employees................................................... 4.05 7 2000 Plan Year........................................................... 4.06 7 Trust.................................................................... 4.07 8 ARTICLE V - EMPLOYER CONTRIBUTIONS................................................ 9 Employer Contributions................................................... 5.01 9 Prior Employer Contributions............................................. 5.02 9 Trust.................................................................... 5.03 9 ARTICLE VI - DEFERRED COMPENSATION ACCOUNTS....................................... 10 Deferred Compensation Account............................................ 6.01 10 Vesting.................................................................. 6.02 10 Investment Selections, Experience........................................ 6.03 10 Administration Expenses.................................................. 6.04 11 ARTICLE VII - TRUST............................................................... 12 Trust.................................................................... 7.01 12 Plan Applicable Trust.................................................... 7.02 12 Trust Fund............................................................... 7.03 12 Investments.............................................................. 7.04 12 ARTICLE VIII - DISTRIBUTIONS...................................................... 13
-i- 3 Distributions............................................................ 8.01 13 Retirement Installments.................................................. 8.02 13 Plan Termination, Change in Control, Etc................................. 8.03 13 Change in Control........................................................ 8.04 13 Source of Benefits, Withholding.......................................... 8.05 14 ARTICLE IX - ADMINISTRATION....................................................... 15 General.................................................................. 9.01 15 Company.................................................................. 9.02 15 Plan Administrator....................................................... 9.03 15 Indemnity................................................................ 9.04 15 Claims Procedure......................................................... 9.05 15 ARTICLE X - AMENDMENT OR TERMINATION.............................................. 16 Amendment or Termination................................................. 10.01 16 ARTICLE XI - MISCELLANEOUS PROVISION.............................................. 17 No Guarantee of Employment............................................... 11.01 17 Non-Assignability of Benefits............................................ 11.02 17 Rules of Construction.................................................... 11.03 17 Governing Law............................................................ 11.04 17
-ii- 4 EXHIBIT A--HISTORY OF PLAN EXHIBIT B--EMPLOYERS, EFFECTIVE JANUARY 1, 2000 EXHIBIT C--COMPENSATION COMMITTEE DELEGATION -iii- 5 GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN ARTICLE I NAME, PURPOSE, LEGAL STATUS --------------------------- 1.01 NAME. The Plan shall be known as the Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan. The history of the Plan is contained in EXHIBIT A. 1.02 PURPOSE. The Plan is intended to permit certain select management and highly compensated employees to defer the receipt of compensation to Termination of Employment or Retirement in accordance with the terms of the Plan. 1.03 ERISA TOP PLAN. The Plan is a plan which is unfunded and maintained primarily for the purpose of providing a deferred compensation plan for a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). 1.04 CODE UNFUNDED PLAN. The Plan is an unfunded deferred compensation plan, with taxability thereof governed by Section 451 of the Internal Revenue Code of 1986, as amended (the "Code") and not Section 83 of the Code. 1.05 GRANTOR TRUST. The Plan has an associated trust known as the Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan Trust, formerly known as the Salem Corporation Nonqualified Deferred Compensation Plan Trust, dated March 6, 1996 (the "Trust"). The Trust is a grantor trust under Sections 671 and 677 of the Code. The trust agreement for the Trust is based on the model agreement under IRS Rev. Proc. 92-64 (commonly known as a "rabbi trust"). The Trust is irrevocable. Pursuant to Section 7.01, the Plan Sponsor reserves the right to discontinue funding the Trust with respect to future amounts under the Plan. -0- 6 ARTICLE II DEFINITIONS ----------- 2.01 "Beneficiary" means the person, entity or entities designated by the Participant to receive the balance of the Participant's Deferred Compensation Account in the event of the Participant's death (or, in the absence of an effective designation, his estate). 2.02 "Bonus" means any bonus payable to an Eligible Employee by any Employer for services rendered to the Employer. A Bonus shall not be considered to include a signing bonus, severance pay or extraordinary compensatory payments. 2.03 "Code" means the Internal Revenue Code of 1986, as amended. 2.04 "Company" means Genesis Worldwide Inc. 2.05 "Company Savings Plan" means the Genesis Worldwide Inc. 401(k) Savings Plan or any other qualified section 401(k) savings plan maintained by the Company or an Employer in which an Eligible Employee is (or will be) eligible to participate. 2.06 "Deferral Election" means an election by an Eligible Employee to defer Salary and/or Bonus under Sections 4.01 and 4.02 and otherwise in accordance with the provisions of the Plan. 2.07 "Deferred Amounts" means the amount of Salary and/or Bonus deferred under the Plan pursuant to a Deferral Election. 2.08 "Deferred Compensation Account" means the account established and maintained by the Plan Administrator and the Employers under Article VII for a Participant's Deferred Amounts and Employer Contributions, if any. 2.09 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. 2.10 "Eligible Employee" means an Employee who is (i) a select group of management or highly compensated employee, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA and (ii) is a President or Vice President of an Employer or specifically designated by name by the Company as eligible for participation in the Plan. 2.11 "Employee" means a common law employee of an Employer. 2.12 "Employer" means the Company and any affiliated entity of the Company designated by the Company as a participating employer of the Plan. The current Employers of the Plan are listed in EXHIBIT B. 2.13 "Employer Contribution" means any contributions to the Plan made by an Employer pursuant to Article V. 2.14 "Participant" means an individual who becomes a participant of the Plan pursuant to Section 3.01 and continues to be a participant under Section 3.02. 2.15 "Plan" means the Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan, as set forth herein and as amended from time to time. -1- 7 2.16 "Plan Administrator" means the Plan Sponsor. The Benefits Committee of the Company shall have the rights, and fulfill the obligations and responsibilities, of the Plan Administrator under the Plan. 2.17 "Plan Sponsor" means the Company. The Compensation Committee of the Board of Directors of the Company shall have all authority of the Company under the Plan. 2.18 "Plan Year" means the calendar year. 2.19 "Restatement Effective Date" of this amendment and restatement means January 1, 2000. The original effective date of the Plan is January 1, 1996. 2.20 "Retirement" means the Participant's Termination of Employment on or after his 55th birthday. 2.21 "Salary" means the gross compensation (including commissions) payable to an Eligible Employee by any Employer for services rendered to the Employer, exclusive of Bonuses, moving expense amounts and other supplemental forms of compensation. Salary shall not be considered to include severance pay or extraordinary compensatory payments. 2.22 "Termination of Employment" means the Participant's voluntary or involuntary termination of employment with his Employer, the Company and all their affiliates, for any reason (other than death). 2.23 "Trust" means the Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan Trust, formerly known as the Salem Corporation Nonqualified Deferred Compensation Plan Trust, dated March 6, 1996, as set forth in the trust agreement therefor, and as amended from time to time. 2.24 "Trustee" means the trustee of the Trust. Currently, the Trustee of the Trust is Bankers Trust Company. -2- 8 ARTICLE III PLAN PARTICIPATION ------------------ 3.01 PARTICIPANT. An individual shall become a Participant of the Plan pursuant to the following provisions: (a) PRIOR PARTICIPANT. A participant of the Plan prior to the Restatement Effective Date who has an undistributed benefit under the Plan as of the Restatement Effective Date shall become a Participant on the Restatement Effective Date. (b) CURRENT ELIGIBLE EMPLOYEE. An Eligible Employee as of the Restatement Effective Date shall become a Participant on the Restatement Effective Date. (c) NEW ELIGIBLE EMPLOYEE. Any other Eligible Employee shall become a Participant on the effective date of his designation by the Company as an Eligible Employee. 3.02 CONTINUED PARTICIPATION. A Participant under Section 3.01 shall continue to be a Participant until such time as his Deferred Account has been completely distributed to him or his Beneficiary. -3- 9 ARTICLE IV DEFERRAL ELECTIONS ------------------ 4.01 SALARY. For each Plan Year, a Participant who is an Eligible Employee may make a Deferral Election with respect to his Salary for the Plan Year pursuant to Sections 4.03 and 4.04 and the following provisions: (a) ELECTION AMOUNT. The Participant may make a Deferral Election to defer under the Plan an amount not to exceed 25% of his Salary for the Plan Year. As used in this Article, the Salary "for" or "of" the Plan Year shall refer to the Salary of the Participant which is (i) attributable to his services rendered for the Employer during the Plan Year and (ii) otherwise payable to him within the Plan Year. (b) DEFERRED AMOUNTS. The Deferred Amounts of his Salary under subsection (a) shall be deferred under the Plan from and with respect to the portion of his Salary for the remainder of the Plan Year payable after the date of his contribution of the maximum elective contributions to the Company Savings Plan. The Plan Administrator shall calculate, consistent with his Deferral Election under subsection (a), the specific monthly amounts and frequency of the Deferred Amounts of his Salary for the remainder of the Plan Year. (c) DEFERRED COMPENSATION ACCOUNT. The Deferred Amounts of Salary shall be credited to the Participant's Deferred Compensation Account as soon as practicable after the time of deferral of the Deferred Amounts under subsection (b). 4.02 BONUS. For each Plan Year, a Participant who is an Eligible Employee may make a Deferral Election with respect to his Bonus for the Plan Year pursuant to Sections 4.03 and 4.04 and the following provisions: (a) ELECTION AMOUNT. The Participant may make a Deferral Election to defer under the Plan an amount not to exceed 85% of his Bonus for the Plan Year. As used in this Article, the phrase Bonus "for" or "of" the Plan Year shall refer to the Bonus (if any) of the Participant which is (i) attributable to his services rendered for the Employer during the Plan Year and (ii) otherwise payable to him within or shortly after the Plan Year. (b) DEFERRED AMOUNT. The Deferred Amount of his Bonus under subsection (a) shall be deferred under the Plan from and with respect to the Bonus for the Plan Year at the time otherwise payable to the Participant (and without regard to whether, at such time, he has contributed the maximum elective contributions to the Company Savings Plan). The Plan Administrator shall calculate, consistent with his Deferral Election under subsection (a), the exact amount of the Deferred Amount of his Bonus for the Plan Year. (c) DEFERRED COMPENSATION ACCOUNT. The Deferred Amount of Bonus shall be credited to the Participant's Deferred Compensation Account as soon as practicable after the time of deferral of the Deferred Amount under subsection (b). 4.03 ELECTION TERMS AND CONDITIONS. A Participant's Deferral Election of Salary or Bonus shall be subject to the following terms and conditions: -4- 10 (a) TIME, MANNER OF ELECTION. The Deferral Election must be (i) in writing, (ii) irrevocable and (iii) made, and received by the Plan Administrator, during the 30 day period ending on the December 31 immediately preceding the Plan Year of the Salary and Bonus. (b) DEFERRED PAYMENT. The Deferral Election must specify that the Deferred Amounts of Salary and Bonus, as maintained under his Deferred Compensation Account, shall be payable at the time and manner as provided under Article VIII. (c) UNFUNDED, UNSECURED PROMISE. The Deferral Election must acknowledge that his Deferred Compensation Account is (i) unfunded, (ii) represents an unsecured promise to pay benefits in the future and (iii) is subject to the claims of general creditors of his Employer. (d) INVESTMENT SELECTIONS. The Deferral Election must contain (or incorporate by reference) the specific investment selections made by the Participant for the Deferred Amounts of Salary and Bonus, as maintained under his Deferred Compensation Account, under Section 6.03(b) (regarding a Participant's selection of alternative investments for the measurement of earnings and losses on the Deferred Amounts). (e) INVESTMENT EXPERIENCE. The Deferral Election must acknowledge that (i) the Participant has no right to the assets of the Plan or Trust attributable to the investment alternatives of his investment selections and (ii) the earnings or loss credited or charged on the Deferred Amounts of Salary and Bonus, as maintained under his Deferred Compensation Account, shall be determined on the basis of the investment experience of his investments selections made for the Deferred Amounts under Section 6.03(e) (regarding determination of investment experience). 4.04 COMPANY SAVINGS PLAN. A Participant's Deferral Election of Salary or Bonus shall be subject to the following terms and conditions concerning the Company Savings Plan: (a) MAXIMUM ELECTION. If the Participant is (or will be) eligible under the Company Savings Plan during the Plan Year that any Deferred Amounts of Salary or Bonus would be otherwise payable to him, then, on the date of his Deferral Election (of either Salary or Bonus), the Participant must have in effect with his Employer an election to make the maximum possible elective contributions under the Company Savings Plan (i) for each such Plan Year and (ii) thereby from all eligible compensation under the Company Savings Plan for such Plan Years (including therefore any Bonus payable during the Plan Year). (b) SALARY DEFERRAL ELECTION, HIGHEST RATE. If the Participant makes a Deferral Election of Salary, the Participant's maximum election of elective contributions under subsection (a) must further provide that the elective contributions shall be made to the Company Savings Plan at the highest and most immediate rate of contribution permitted under the Company Savings Plan. (c) MODIFICATION OF SAVINGS PLAN ELECTION. In the event that the Participant, after the date of his Deferral Election, modifies his election of elective contributions under the Company Savings Plan, the amount of his Deferral Elections of his Salary or Bonus under Sections 4.01(a) and 4.02(a) shall not change (notwithstanding any implication of subsections (a) and (b) hereof). However, the Plan Administrator shall modify, to the extent -5- 11 necessary and in its discretion, the amount and frequency of his Deferred Amounts of Salary for the Plan Year in a manner to comply with the amount of his Deferral Election under Section 4.01(a), notwithstanding Section 4.01(b) (regarding time of Deferred Amounts after making the maximum elective contributions under the Company Savings Plan). 4.05 NEW ELIGIBLE EMPLOYEES. A Participant who first becomes an Eligible Employee during a Plan Year may make a Deferral Election under Section 4.01 and/or 4.02 for the Plan Year, with the following modifications: (a) TIME OF ELECTION. Notwithstanding Section 4.03(a)(iii) (regarding the December 31 deadline for Deferral Elections), the Participant's Deferral Election must be made during the 30 day period beginning with date on which he first became a Participant of the Plan. (b) SALARY ELECTION AMOUNT. Notwithstanding Section 4.01(a) (regarding election amounts of Salary), the Participant may make a Deferral Election to defer under the Plan an amount not to exceed 25% of his remaining Salary for the Plan Year for services after the date of his Deferral Election. (c) BONUS ELECTION AMOUNT. Consistent with Section 4.02(a) (regarding election amounts of Bonuses), the Participant may make a Deferral Election to defer under the Plan an amount not to exceed 85% of his Bonus for the Plan Year. (d) COMPANY SAVINGS PLAN. Notwithstanding Section 4.04(a)(ii) (regarding the maximum election from all eligible compensation under the Company Savings Plan), the Participant's maximum election under the Company Savings Plan shall apply only to eligible compensation under the Company Savings Plan payable after the date of his Deferral Election. The remaining provisions of this Article shall apply to the Participant's Deferral Election and Deferred Amounts thereunder. 4.06 2000 PLAN YEAR. For the Plan Year ending on December 31, 2000 (the "2000 Plan Year"), a Participant who is an Eligible Employee may make a Deferral Election under Section 4.01 and/or 4.02 for the 2000 Plan Year, with the following modifications: (a) TIME OF ELECTION. Notwithstanding Section 4.03(a)(iii) (regarding the December 31 deadline for Deferral Elections), the Participant's Deferral Election must be made during the period from April 7, 2000 (or, if later, the date of distribution of offering materials under the Plan) through April 30, 2000. (b) SALARY ELECTION AMOUNT. Notwithstanding Section 4.01(a) (regarding election amounts of Salary), the Participant may make a Deferral Election to defer under the Plan an amount not to exceed 25% of his remaining Salary for the 2000 Plan Year for services on and after May 1, 2000. (c) BONUS ELECTION AMOUNT. Consistent with Section 4.02(a) (regarding election amounts of Bonuses), the Participant may make a Deferral Election to defer under the Plan an amount not to exceed 85% of his Bonus for the Plan Year. -6- 12 (d) COMPANY SAVINGS PLAN. Notwithstanding Section 4.04(a)(ii) (regarding the maximum election from all eligible compensation under the Company Savings Plan), the Participant's maximum election under the Company Savings Plan shall apply only to eligible compensation under the Company Savings Plan payable on or after May 1, 2000. The remaining provisions of this Article shall apply to the Participant's Deferral Election and Deferred Amounts thereunder. 4.07 TRUST. With respect to the Deferred Amounts of Salary and/or Bonus made to the Plan under Sections 4.01(b) and 4.02(b), the Plan Sponsor may direct a Participant's Employer to (i) transfer cash equal to the Deferred Amounts to the Trustee for the Trust, (ii) transfer cash equal to the Deferred Amounts to a trustee of a separate grantor trust under Sections 671 and 677 of the Code established with respect to the Plan or (iii) retain the Deferred Amounts with the Employer. -7- 13 ARTICLE V EMPLOYER CONTRIBUTIONS ---------------------- 5.01 EMPLOYER CONTRIBUTIONS. For any Plan Year, the Company, in its sole discretion, may authorize an Employer Contribution to the Plan for any particular Participant or group of Participants pursuant to the following provisions: (a) AMOUNT. The amount of the Employer Contribution may be any amount determined by the Company with respect to the Participant or group of Participants. (b) DEFERRED COMPENSATION ACCOUNT. The Employer Contribution under subsection (a) shall be credited to the Participant's Deferred Compensation Account as of the date specified by the Company therefor. (c) DEFERRED PAYMENT. The Employer Contribution, as credited to the Participant's Deferred Compensation Account, shall be payable at the time and manner as provided under Article VIII. 5.02 PRIOR EMPLOYER CONTRIBUTIONS. Any Employer Contributions made prior to the Restatement Effective Date shall be held under the Plan and credited in the Deferred Compensation Account of the Participant for whom the Employer Contribution was made to the Plan. The foregoing Employer Contributions are held in the Trust. 5.03 TRUST. With respect to the Employer Contributions under Section 5.01, the Plan Sponsor may direct a Participant's Employer to (i) transfer cash equal to the Employer Contributions to the Trustee for the Trust, (ii) transfer cash equal to the Employer Contributions to the trustee of a separate grantor trust under Sections 671 and 677 of the Code established with respect to the Plan or (iii) retain the Deferred Amounts with the Employer. -8- 14 ARTICLE VI DEFERRED COMPENSATION ACCOUNTS ------------------------------ 6.01 DEFERRED COMPENSATION ACCOUNT. The Plan Administrator and each Employer of a Participant shall establish and maintain a Deferred Compensation Account for the Participant pursuant to the following provisions: (a) UNFUNDED, UNSECURED PROMISE. The Deferred Compensation Account shall be (i) established and maintained within the Employer's general assets and (ii) reflected in the financial statements of the Employer as an unfunded and unsecured promise to pay amounts thereof in future to the Participant. (b) ACCOUNTING, MAINTENANCE. The Deferred Compensation Account shall be (i) credited with Deferred Amounts of his Salary or Bonus under Article IV, (ii) credited with any Employer Contributions made on his behalf under Article V, (iii) adjusted to reflect investment experience under Section 6.03(e), (iv) reduced by any administration expenses under Section 6.04 and (v) reduced by any distributions under Article VIII during the Plan Year. (c) SUB-ACCOUNTS. The Plan Administrator may require that an Employer maintain sub-accounts for and under a Participant's Deferred Compensation Account to separately reflect Deferred Amounts of Salary or Bonus, Employer Contributions, investments or for any other purpose determined by the Plan Administrator. 6.02 VESTING. A Participant shall have at all times a one hundred percent (100%) vested and nonforfeitable right to all amounts in his Deferred Compensation Account. 6.03 INVESTMENT SELECTIONS, EXPERIENCE. The Plan Sponsor and Plan Administrator shall comply with the following procedures concerning the measure of investment experience of a Participant's Deferred Amounts and Deferred Compensation Account. (a) INVESTMENT ALTERNATIVES. The Plan Sponsor shall, from time to time, designate various investment alternatives as the measure of earnings and losses on Deferred Amounts and Deferred Compensation Accounts under the Plan. (b) DEFERRAL ELECTION INVESTMENT SELECTIONS. In his Deferral Election for a Plan Year, the Participant shall make investment selections from among the various investment alternatives under subsection (a) (subject to the consent of the Plan Administrator) for his Deferred Amounts of Salary and Bonus for the Plan Year, as maintained under his Deferred Compensation Account. (c) INVESTMENT SELECTION CHANGES. After his initial investment selections under subsection (b), the Participant may make changes to his investment selections (subject to the consent of the Plan Administrator) for his Deferred Amounts for the Plan Year and all amounts in his Deferred Compensation Account. (d) NO RIGHT TO INVESTMENTS. A Participant's investment selection shall be used solely as the measure of earnings and losses on his Deferred Amounts and Deferred Compensation Accounts. The Participant shall have no rights to any actual investments of -9- 15 the Plan or Trust, including the actual investment alternatives made by the Plan Administrator or Trustee based on the Participant's investment selections. All rights associated with the assets of the Plan and Trust shall be exercised by the Plan Administrator and the Trustee consistent with the terms of the Plan and trust agreement for the Trust. (e) INVESTMENT EXPERIENCE. The Plan Administrator periodically shall, based on a Participant's investment selections under subsections (b) and (c), adjust his Deferred Compensation Account for the investment experience of his selected investment alternatives, I.E., interest and dividends, gains and losses (whether realized or unrealized), investment expenses and other related items of the investment alternatives. 6.04 ADMINISTRATION EXPENSES. The Company, in its sole discretion, shall charge the Deferred Compensation Accounts with any administration expenses of the Plan or Trust, including but not limited to Trustee fees, legal, accounting, consultant fees and expenses, etc. The Plan Administrator shall apply, in its sole discretion, the administration expenses either proportionately among all Deferred Compensation Accounts (either on a per capita or dollar amount basis) or individually per Deferred Compensation Account. The Plan Administrator also may impose charges and deductions individually per Deferred Compensation Account upon a Participant's Termination of Employment or Retirement in connection with the distribution of benefits under Article VIII. -10- 16 ARTICLE VII TRUST ----- 7.01 TRUST. The Trust holds assets associated with the Plan. The Plan Sponsor, however, reserves the right to (i) discontinue funding the Trust with respect to future Deferred Amounts and Employer Contributions under the Plan, (ii) establish for the Plan a separate grantor trust under Sections 671 and 677 of the Code for such future amounts, with such trust being either revocable or irrevocable (as directed by the Plan Sponsor) or (iii) retain such Deferred Amounts with the Employer of the Participant. 7.02 PLAN APPLICABLE TRUST. The following provisions of this Article shall apply to (i) the Trust and (ii) any separate trust under Section 7.01(ii). As used in this Article, the terms (i) "Trust" shall refer to the Trust and any such separate trust and (ii) "Trustee" shall refer to the Trustee and the trustee under any such separate trust. 7.03 TRUST FUND. The Trust shall maintain a trust fund for the Plan pursuant to any trust agreement for the Trust and the following provisions: (a) TRANSFER TO TRUST. If directed by the Plan Sponsor, each Employer of a Participant shall transfer to the Trust cash equal to his Deferred Amounts of Salary and Bonus and Employer Contributions at the times directed by the Plan Administrator. The Trustee shall hold the amounts pursuant to the terms of the trust agreement for the Trust. (b) TRUST ACCOUNTS. The Trustee shall maintain accounts under the Trust in the name of each Participant equal to his Deferred Compensation Account under the Plan. (c) EMPLOYER GENERAL ASSETS. Consistent with Section 6.01(a) and the terms of the Plan, the assets of the Trust and each Deferred Compensation Account shall remain, until distributed to a Participant or his Beneficiary, a part of the general assets of each Employer and subject to the claims of general creditors of the Employer. Each Participant and his Beneficiary shall have the status solely of an unsecured general creditor of the Employer. 7.04 INVESTMENTS. If and as directed by the Plan Sponsor, the Trustee shall invest the assets of the trust fund of the Trust (i) in the various investment alternatives designated by the Plan Sponsor under Section 6.03(a) and (ii) in the manner consistent with the investment selections made by the Participants under Section 6.03(b) and (c). -11- 17 ARTICLE VIII DISTRIBUTIONS ------------- 8.01 DISTRIBUTIONS. A Participant shall receive his Deferred Compensation Account at the time and manner prescribed in the following provisions: (a) TERMINATION, RETIREMENT. Upon his Termination of Employment or Retirement, the Participant shall receive his Deferred Compensation Account (i) within 30 days thereof, (ii) in a single, lump sum cash payment and (iii) in an amount equal to the value of his Deferred Compensation Account as most recently valued by the Plan Administrator. (b) RETIREMENT ELECTION. Notwithstanding subsection (a), in the case of his Retirement, the Participant may make a written election, if made at least one year prior to his Retirement, to (i) delay distribution (or commencement of distribution, if he elects installments hereunder) of his Deferred Compensation Account under subsection (a) for up to one year after his Retirement and/or (ii) receive his Deferred Compensation Account in substantially equal annual installments over a period not exceeding 10 years, payable in amounts as determined under Section 8.02. (c) DEATH. Upon his death prior to payment or commencement under subsection (a) or (b) above, the Participant's Beneficiary shall receive his Deferred Compensation Account (i) within 30 days thereof, (ii) in a single, lump sum cash payment and (iii) in an amount equal to the value of his Deferred Compensation Account as most recently valued by the Plan Administrator. 8.02 RETIREMENT INSTALLMENTS. A Participant who makes an installment payment election under Section 8.01(b) with respect to his Retirement shall receive his Deferred Compensation Account in substantially equal annual installments over a period selected by the Participant of up to 10 years. The annual installments shall (i) commence at the date selected by the Participant, but within one year of his Retirement, (ii) in a single cash payment and (iii) in an annual amount each year equal to the value of his Deferred Compensation Account as most recently valued by the Plan Administrator, divided by the number of remaining annual installments (including the installment being made). Upon the death of the Participant after commencement of installment payments, the Beneficiary of the Participant shall receive the remaining installments at the same time and manner as the Participant (I.E., without acceleration). 8.03 PLAN TERMINATION, CHANGE IN CONTROL, ETC. Notwithstanding Section 8.01 and 8.02, in the event of termination of the Plan under Section 10.01, a Change in Control of the Company or the sale either the stock or substantially all of the assets of an Employer, the Plan Sponsor in its discretion, with respect to affected Deferred Compensation Accounts, shall (i) accelerate distribution of such Accounts, (ii) transfer such Accounts to a successor plan or (iii) otherwise modify the time and manner of distribution of such Accounts. 8.04 CHANGE IN CONTROL. For purposes of Section 8.03, the term "Change in Control" means the purchase or other acquisition by any person, entity or group of persons, within the meaning of section 13(d) or 14(d) of the Securities Exchange Act of 1934 ("Act"), or any comparable -12- 18 successor provisions, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Act) of 30 percent or more of either the outstanding shares of common stock or the combined voting power of the Plan Sponsor's then outstanding voting securities entitled to vote generally, or the approval by the stockholders of the Plan Sponsor of a reorganization, merger, or consolidation, in each case, with respect to which persons who were stockholders of the Plan Sponsor immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than 50 percent of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated Plan Sponsor's then outstanding securities, or a liquidation or dissolution of the Plan Sponsor or of the sale of all or substantially all assets of the Plan Sponsor. 8.05 SOURCE OF BENEFITS, WITHHOLDING. The Plan shall pay benefits to a Participant or his Beneficiary from the Trust (or any other grantor trust under Article VII) and/or the Employer, as applicable pursuant to the terms of the Trust (or other grantor trust) and the terms of the Plan. In the event that the Trust (or other grantor trust) or the Employer is unable to pay benefits, the Company shall pay the benefits for such periods that the Trust (or other grantor trust) or Employer is unable to pay benefits. The foregoing guarantee by the Company shall constitute no more than an unfunded and unsecured promise of payment and performance, consistent with obligation of the Employer under the terms of the Plan. The Trust, Employer or Company shall withhold any required Federal, state or local taxes from each benefit payment under the Plan, as applicable pursuant to the terms of the Trust (or other grantor trust) and consistent with the terms of the Plan. -13- 19 ARTICLE IX ADMINISTRATION -------------- 9.01 GENERAL. The Plan Sponsor, Company, Plan Administrator, Employers and Trustee shall have the respective rights and obligations prescribed to them under the terms of the Plan and the trust agreement for the Trust. 9.02 COMPANY. All actions required by the Company under the Plan shall be taken by the Board of Directors of the Company, except where (i) the Board of Directors has delegated authority to the Compensation Committee of the Board of Directors regarding the Plan or (ii) the Compensation Committee has delegated authority to the Benefits Committee regarding the Plan. Currently, the (i) Board of Directors has delegated authority to Compensation Committee regarding the Plan generally and (ii) Compensation Committee has delegated authority to the Benefits Committee to administer the Plan on behalf of the Company as Plan Administrator and amend the Plan in certain respects, as so provided in the resolutions adopted by the Compensation Committee as applicable to the Plan in EXHIBIT C. 9.03 PLAN ADMINISTRATOR. The Plan Administrator will administer the Plan. The Benefits Committee of the Company shall fulfill the obligations of the Plan Administrator. The Plan Administrator shall have the full power and discretionary authority to interpret, construe and administer the Plan provisions. In implementation of this responsibility, the Plan Administrator may adopt rules, procedures or regulations relative to the administration of the Plan. Any final decision by the Plan Administrator shall be binding upon a Participant and his Beneficiary and all interested persons. 9.04 INDEMNITY. The Company shall indemnify to the fullest extent by law each member of the Board of Directors, Compensation Committee and Benefits Committee of the Company, and each officer and employee of the Company, in connection with the Plan. 9.05 CLAIMS PROCEDURE. The Plan Administrator shall follow the claims procedures of Section 503 of ERISA and the final regulations thereunder in connection with any disputed claim for benefits under the Plan. -14- 20 ARTICLE X AMENDMENT OR TERMINATION ------------------------ 10.01 AMENDMENT OR TERMINATION. The Company shall have the right to amend or terminate the Plan at any time; provided, however, that no such amendment or termination of the Plan shall reduce the amount of any Deferred Compensation Account of a Participant under the Plan. -15- 21 ARTICLE XI MISCELLANEOUS PROVISIONS ------------------------ 11.01 NO GUARANTEE OF EMPLOYMENT. Neither the adoption of the Plan, the making of a Deferral Election, or any action of the Company, Employer or Plan Administrator respecting the Plan or its administration, shall be deemed to confer on any Participant the right to be continued as an Employee of an Employer. 11.02 NON-ASSIGNABILITY OF BENEFITS. A Participant's rights to benefit payments under the Plan are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Participant or his Beneficiary. A Participant, however, may designate a Beneficiary and his benefit otherwise may pass by will or by the laws of descent and distribution. 11.03 RULES OF CONSTRUCTION. Masculine terms contained in the Plan shall be construed to contain the feminine, and singular terms shall be construed to include the plural, wherever necessary for a reasonable interpretation of the plan. 11.04 GOVERNING LAW. The Plan shall be construed under the laws of the State of Ohio, except where preempted by ERISA and other federal law. -16- 22 GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN Exhibit A--History of Plan -------------------------- Effective January 1, 1996, the Salem Corporation established the Salem Corporation Nonqualified Deferred Compensation Plan. Effective January 1, 1996, the Salem Corporation entered into a trust agreement with Bankers Trust Company for the Plan, with the trust known as the Salem Corporation Nonqualified Deferred Compensation Plan Trust, dated March 6, 1996. Effective September 18, 1997, Salem Corporation changed its name to Herr-Voss Industries, Inc. ("HVI"). Effective June 30, 1999, The Monarch Machine Tool Company (the "Company") acquired the stock of Precision Industrial Corporation, which such Corporation owned the stock of HVI. Effective September 1, 1999, the Company restructured its domestic subsidiaries and was renamed Genesis Worldwide Inc. (the "Company"). Effective September 1, 1999, HVI relinquished its sponsorship, administrator, employer and named fiduciary status of the Plan, pursuant to resolutions adopted by HVI on December [1], 1999. Effective September 1, 1999, the Company became the sponsor, administrator, an employer and named fiduciary of the Plan, pursuant to resolutions adopted by the Company on December 1, 1999. Effective September 1, 1999, the Plan was renamed as the Genesis Worldwide Inc. Non-Qualified Deferred Compensation Plan (the "Plan"), pursuant to resolutions adopted by the Company on December 1, 1999. Effective January 1, 2000, the Company (i) authorized eligible employees and participating employers for the Plan and (ii) discontinued excess employer contributions under the Plan, all pursuant to resolutions adopted by the Company on December 1, 1999. Effective January 1, 2000, the Company hereby amends and restates the Plan as provided herein. -18- 23 GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN Exhibit B--Employers, Effective January 1, 2000 ----------------------------------------------- Genesis Worldwide Inc. GenSystems Inc. GenSystems Services Inc. GenCoat Inc. GenInternational Inc. -19- 24 GENESIS WORLDWIDE INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN Exhibit C--Compensation Committee Delegation -------------------------------------------- Currently, the Board of Directors of the Company have delegated to the Compensation Committee of the Company (the "Compensation Committee") all authority with respect to the Plan, including therefore the authority to adopt amendments and changes to the Plan, authorize any Employer Contributions and administer the Plan. Pursuant to a resolution of the Compensation Committee approved on December 1, 1999, the Compensation Committee delegated to the Benefits Committee of the Company, effective December 2, 1999, the authority to approve and adopt all amendments and changes to the Plan, except for the following: (i) The appointment of the Trustee for the Plan. (ii) The selection of Eligible Employees for the Plan. (iii) Amendments or changes to the Plan which: (A) represent a major change in policy; or (B) involve significant financial cost. (iv) The establishment or termination of the Plan. The Compensation Committee also directed the Benefits Committee to approve and adopt amendments or changes to the Plan by resolution (either by meeting or written consent) and adopt such by-laws or procedures as it deems necessary therefor. The Compensation Committee also directed the Benefits Committee to fulfill, on behalf of the Company, the obligations of the Company as "administrator" of the Plan, as that term is used in ERISA, including the authority and responsibility to (i) make benefit decisions, (ii) adopt procedures for the administration of the Plan and (iii) exercise the sole and absolute discretionary authority to interpret and construe the provisions of the Plan. -20- EX-5.1 4 EXHIBIT 5.1 1 Exhibit 5.1 Thompson Hine & Flory LLP 2000 Courthouse Plaza NE Dayton, Ohio 45402 April 14, 2000 Genesis Worldwide Inc. 2600 Kettering Tower Dayton, Ohio 45323 Re: Genesis Worldwide Inc. Nonqualified Deferred Compensation Plan Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of deferred compensation obligations (the "Obligations") of Genesis Worldwide Inc., an Ohio corporation (the "Company"), to be offered and sold under the Company's Non-Qualified Deferred Compensation Plan (the "Plan"). As counsel for the Company, we have examined and are familiar with the Plan and such other documents, records, certifications and other instruments as we have deemed necessary for purposes of this opinion. Based upon the foregoing, and upon investigation of such other matters as we considered appropriate to permit us to render an informed opinion, it is our opinion that the Obligations, when sold pursuant to the terms of the Plan, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Plan, except as enforceability (i) may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally, and (ii) is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). We are members of the bar of the State of Ohio and do not express any opinion herein concerning any laws other than the laws of the State of Ohio. This opinion is solely for your information in connection with the Registration Statement and is not to be quoted or otherwise 2 THOMPSON HINE & FLORY LLP Genesis Worldwide Inc. April 14, 2000 Page 2 referred to in any of your financial statements or public releases, filed with any governmental agency (except as set forth below), or given to any other person without our prior written consent. This opinion may not be relied upon by any other person, or used by you for any other purpose, without our prior written consent. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Thompson Hine & Flory LLP EX-23.1 5 EXHIBIT 23.1 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated March 9, 2000 relating to the consolidated financial statements, which appears in the 1999 Annual Report to Shareholders of Genesis Worldwide Inc., which is incorporated by reference in the Genesis Worldwide Inc's Annual Report on Form 10-K for the year ended December 31, 1999. We also consent to the incorporation by reference of our report dated March 9, 2000 relating to the financial statement schedule, which appears in such Annual Report on Form 10-K. /s/ PricewaterhouseCoopers LLP ----------------------------------- Dayton, Ohio PricewaterhouseCoopers LLP April 14, 2000 EX-24.1 6 EXHIBIT 24.1 1 Exhibit 24.1 GENESIS WORLDWIDE INC. LIMITED POWER OF ATTORNEY WHEREAS, Genesis Worldwide Inc., an Ohio corporation (the "Company"), intends to file with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-8 covering interests that may be issued under the Company's Non-Qualified Deferred Compensation Plan (the "Registration Statement"). NOW THEREFORE, the undersigned, in his capacity as a director of the Company, hereby appoints Richard E. Clemens and Karl A. Frydryk and each of them to be his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to execute in his name, place and stead, as aforesaid, the Registration Statement and any post-effective amendments thereto, and any and all other instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission. Said attorney shall have full power and authority to do and perform, in the name and on behalf of the undersigned, every act whatsoever necessary or desirable to be done, as fully to all intents and purposes as the undersigned might or could do in person. The undersigned hereby ratifies and approves the acts of said attorney. IN WITNESS WHEREOF, the undersigned has executed this instrument this 11th day of February, 2000. /s/ John A. Bertrand /s/ William R. Graber - -------------------------------------- ----------------------------------------- John A. Bertrand William R. Graber /s/ Gerald L. Connelly /s/ William A. Enouen - -------------------------------------- ----------------------------------------- Gerald L. Connelly William A. Enouen /s/ Augustine A. Fornataro /s/ Waldemar M. Goulet - -------------------------------------- ----------------------------------------- Augustine A. Fornataro Waldemar M. Goulet
2 /s/ David E. Lundeen /s/ Joseph M. Rigot - -------------------------------------- ----------------------------------------- David E. Lundeen Joseph M. Rigot /s/ J. William Uhrig - -------------------------------------- J. William Uhrig
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