EXHIBIT 10.4
FIRST AMENDMENT AND APPOINTMENT OF SUCCESSOR TRUSTEE
UNDER THE GLOBAL MARINE OUTSIDE DIRECTOR
DEFERRED COMPENSATION TRUST
THIS AGREEMENT made and entered into as of the 1st day of
June, 1999, by and between GLOBAL MARINE INC., a Delaware
corporation having its principal place of business in Houston,
Texas (the "Company"), and SEI TRUST COMPANY, a Pennsylvania trust
company having its principal place of business in Oaks,
Pennsylvania (the "Successor Trustee").
W I T N E S S E T H:
WHEREAS, by the Global Marine Outside Director Deferred
Compensation Trust, dated effective as of January 1, 1996, by and
between the Company and Texas Commerce Bank, N.A., a national
banking association ("TCB"), the Company established a trust (the
"Trust Agreement") for the purpose of holding the assets
accumulated under the Global Marine Retirement Plan for Outside
Directors, as adopted effective as of August 1, 1989, and as
thereafter amended (said Plan, together with any amendments thereto
hereinafter referred to as the "Plan"), and to provide for the
investment and administration of such assets; and
WHEREAS, Chase Bank of Texas, N.A., a national banking
association (the "Trustee") is the successor in interest to TCB;
and
WHEREAS, in accordance with Section 10 of the Trust
Agreement, the Board of Directors of the Company has duly
authorized the Company to remove the Trustee and to appoint the
Successor Trustee as successor trustee under the Trust Agreement,
and the Trustee has been so advised; and
WHEREAS, the Successor Trustee desires to accept
appointment as successor trustee under the Trust Agreement, and, in
connection therewith, the Company desires to amend the Trust
Agreement;
NOW, THEREFORE, the Company and the Successor Trustee
hereby agree as follows:
1. The Company has provided the Trustee with written notice
of its removal as trustee under the Trust Agreement, effective
as of June 1, 1999, or as soon thereafter as practicable (the
"Succession Date"), pursuant to Section 10 of the Trust
Agreement.
2. The Company hereby appoints the Successor Trustee to
replace the Trustee as the trustee under the Trust Agreement,
effective as of the Succession Date.
3. The Successor Trustee hereby accepts its appointment as
successor trustee under the Trust Agreement and agrees to be
bound by the terms of the Trust Agreement, as amended by
Paragraphs 5 through 9 hereof, effective as of the Succession
Date.
4. The Successor Trustee hereby agrees to hold such assets
as are delivered to it by the Trustee, and such assets as may
be received by it subsequent to the Succession Date, pursuant
to the terms of the Trust Agreement.
5. The Company and the Successor Trustee hereby agree that
Section 8(f) of the Trust Agreement shall be deleted in its
entirety, effective as of the Succession Date, and the
following sections relettered accordingly.
6. The Company and the Successor Trustee hereby agree that
Section 5 shall be amended effective as of June 1, 1999, by
adding the following to the end thereof:
"(d) Notwithstanding the foregoing, if and so long
as an Investment Manager has been appointed by the
Retirement Plan Committee to direct the investment of the
Trust Fund in accordance with Section 5(e) of this Trust
Agreement, the Investment Manager, and not the Retirement
Plan Committee, shall manage, invest and reinvest the
Trust Fund, all as hereinafter provided.
(e) The Retirement Plan Committee shall from time
to time specify by written notice to the Trustee whether
the investment of the Trust Fund, in the manner provided
in Section 5(a), shall be managed solely by the
Retirement Plan Committee, or shall be directed in whole
or in part by one or more investment managers
("Investment Managers") appointed by the Retirement Plan
Committee, or whether both the Retirement Plan Committee
and one or more Investment Managers are to participate in
investment management and if so how the investment
responsibility is to be divided with respect to assets,
classes of assets or separate investment funds specified
and defined in such notice. Any such Investment Manager
shall either (i) be a registered investment adviser under
the Investment Advisers Act of 1940, (ii) be a bank, as
defined in that Act or (iii) be an insurance company
qualified to perform investment management services under
the laws of more than one state. If investment of the
Trust Fund is to be directed in whole or in part by an
Investment Manager, the Trustee shall be given copies of
the instruments appointing the Investment Manager and
evidencing his acceptance of such appointment and
acknowledgment that he is a fiduciary of the Plan, and a
certificate evidencing the Investment Manager's
registration under said Act. The Trustee may continue to
rely upon such instruments and certificate until
otherwise notified in writing by the Retirement Plan
Committee.
The Trustee shall follow the directions of the
Investment Manager regarding the investment and
reinvestment of the Trust Fund, or such portion thereof
as shall be under management by the Investment Manager,
and shall be under no duty or obligation to review any
investment to be acquired, held or disposed of pursuant
to such directions nor to make any recommendations with
respect to the disposition or continued retention of any
such investment. The Trustee shall have no liability or
responsibility for acting without question on the
direction of, or failing to act in the absence of any
direction from, the Investment Manager, unless the
Trustee knows that by such action or failure to act it
will be participating in a breach of fiduciary duty by
the Investment Manager.
The Investment Manager at any time and from
time to time may issue orders for the purchase or sale of
securities directly to a broker, and in order to
facilitate such transaction the Trustee upon request
shall execute and deliver appropriate trading
authorizations. Written notification of the issuance of
each such order shall be given promptly to the Trustee by
the Investment Manager, and the execution of each such
order shall be confirmed to the Trustee by the broker.
Such notification shall be authority for the Trustee to
pay for the securities purchased against receipt thereof
and to deliver securities sold against payment therefor,
as the case may be.
In the event that an Investment Manager should
resign or be removed by the Retirement Plan Committee,
the Retirement Plan Committee shall manage the investment
of the Trust Fund pursuant to Section 5(a) unless and
until it shall appoint another Investment Manager as
provided in this Section 5."
7. The Company and the Successor Trustee hereby agree that
Section 11(b) of the Trust Agreement shall be amended,
effective as of the Succession Date, to read as follows:
"(b) In the event that a successor trustee has not
been appointed by the Company within twenty (20) days
after the Resignation Notice Date or the occurrence of a
vacancy in the position of Trustee, a Successor Trustee
may be appointed by any Pennsylvania or Texas or United
States District Court holding terms in Houston, Xxxxxx
County, Texas, or in Xxxxxxx County, Pennsylvania, upon
the application of Trustee."
8. The Company and the Successor Trustee hereby agree that
Section 13(c) of the Trust Agreement shall be amended,
effective as of the Succession Date, to read as follows:
"(c) This Trust Agreement and the Trust hereby
created shall be governed, construed, administered and
regulated in all respects under the laws of the
Commonwealth of Pennsylvania."
9. The Company and the Successor Trustee hereby agree that
Section 13(f) of the Trust Agreement shall be amended,
effective as of the Succession Date, to delete the phrase "at
000 Xxxxxx, Xxxxxxx, Xxxxx, 00000" and insert in lieu thereof
the phrase "One Freedom Valley Drive, Oaks, Pennsylvania
19456."
10. In consideration of the acceptance by the Successor
Trustee of said successor trusteeship, the Company agrees with
the Successor Trustee as follows:
(a) The Successor Trustee shall have no duty or
responsibility to inquire into the acts or omissions of
the Trustee under the Trust Agreement, the Company or any
of its predecessors, subsidiaries or affiliates, any
member or members of the Administrator designated to
administer the Plan and the Trust Agreement or any agent
of the aforementioned entities to the extent that any
such acts or omissions may have occurred prior to the
Succession Date. Further, the Successor Trustee shall
have fiduciary responsibility, pursuant to the terms of
the Trust Agreement, only with respect to such assets as
are delivered to it by the Trustee, and such assets as
may be received by it subsequent to the Succession Date
during the period that the Successor Trustee is acting in
such fiduciary capacity.
(b) Successor Trustee shall not be liable or
responsible, in any manner whatsoever, for any action or
omitted action in connection with the administration of
the Plan and Trust Agreement prior to the Succession Date
by the Trustee, person serving as Administrator, the
Company or any of its predecessors, subsidiaries or
affiliates, or any agent of the aforementioned entities.
11. Upon the transfer by the Trustee to the Successor Trustee
of all of the trust properties held by the Trustee under the
Trust Agreement (and the records relating thereto) after the
Succession Date, the Successor Trustee hereby agrees to
acknowledge receipt of said trust properties and hereby agrees
to hold and invest said trust properties as part of the Trust
to be held and invested pursuant to the terms and provisions
of the Trust Agreement.
12. It is the intention of the parties hereto that the
provisions and covenants of this Agreement shall be binding
upon the successors and assigns of the Company and the
Successor Trustee, respectively.
IN WITNESS WHEREOF, the Company and the Successor Trustee
have executed this instrument in multiple counterparts, each of
which shall have the force and effect of an original, but all of
which shall together constitute but one and the same instrument, as
of the day and year first above written.
GLOBAL MARINE INC.
By: /s/ W. Xxxx Xxxxx
Name: W. Xxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
ATTEST: Xxxxxx X. Driver
SEI TRUST COMPANY,
Successor Trustee
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President & Loan Officer
ATTEST: Xxxxxxx X. Xxxxx
THE STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, on this day
personally appeared W. Xxxx Xxxxx, Senior Vice President and Chief
Financial Officer of GLOBAL MARINE INC., known to me to be the person
and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that the same was the act of said GLOBAL MARINE INC.,
a Delaware corporation, and that he executed the same as the act and deed
of such corporation for the purposes and consideration therein expressed,
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 17th day
of May, 1999.
/s/ Xxxxx X. Xxxxxx
Notary Public, State of Texas
Seal
My Commission Expires
May 7, 2002
THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF XXXXXXX
BEFORE ME, the undersigned authority, on this day
personally appeared Xxxx Xxxxxxx, Xxxx Xxxxx of, SEI TRUST COMPANY
known to me to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the
same as the act of the said SEI TRUST COMPANY, a Pennsylvania trust company,
and that he was duly authorized to perform the same and that he
executed the same as the act and deed of such trust company for the
purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 25 day
of May, 1999.
/s/ Xxxxxxx X. Xxxxxx
Notary Public, Commonwealth of
Pennsylvania
Seal
My Commission Expires
June 21, 1999
IN WITNESS WHEREOF, the Trustee acknowledges of the
foregoing instrument, as of the day and year first above written.
CHASE BANK OF TEXAS, N.A., Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President and Trust Officer
ATTEST: Xxxxxx X. Good, A.V.P. and Trust Officer
THE STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned authority, on this day
personally appeared Xxxxx X. Xxxxxx, Vice President and Trust officer
of Chase Bank of Texas, N.A., known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same as the act of the said Chase Bank of Texas,
N.A., a national banking association, and that he was duly authorized to
perform the same and that he executed the same as the act and deed of such
national association for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 27th day
of May, 1999.
/s/ Xxxxx X. Xxxxx
Notary Public, State of Texas
Seal
My Commission Expires
June 5, 2001
