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Exhibit 10(lxx)
_______________
THIS AGREEMENT, made as of the 22nd day of
November, 1996, among USLIFE Corporation, a New York
corporation (the "Company"), The Chase Manhattan Bank, a New
York corporation (the "Trustee") and KPMG Peat Marwick
("Independent Contractor").
W I T N E S S E T H :
_ _ _ _ _ _ _ _ _ _
WHEREAS, the Company has entered into certain
written employment contracts and Key Executive Employment
Protection Agreements (referred to collectively herein as
the "Contracts") with a select group of its management
employees (referred to herein as "Contract Holders");
WHEREAS, the Company has awarded certain book
units ("Units") to select key officers (referred to herein
as "Participants") under its Book Unit Plan;
WHEREAS, the Company has provided select
executives with the opportunity to become participants
(referred to herein as "Participants") in the USLIFE
Corporation Deferred Compensation Plan (the "Deferred
Compensation Plan");
WHEREAS, the Company desires to provide additional
assurance to some or all such management employees that
their unfunded contractual rights under the Contracts, Units
and the Deferred Compensation Plan will in the future be met
or substantially met by application of the procedures set
forth herein;
WHEREAS, the Company wishes to establish separate
accounts (hereinafter the "Accounts") with respect to some
or all of the Contract Holders and Participants as
determined by the Company prior to a Change in Control (as
hereinafter defined in Section 2.3(d)(iv)) in order to
provide a source of payments as such may be required under
the terms of the agreements between the Company and each of
the Contract Holders and under the Book Unit Plan and the
Deferred Compensation Plan;
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WHEREAS, except as may be expressly provided in
this Agreement, amounts allocated to each separate Account,
as determined by the Company from time to time in its sole
discretion, and the earnings attributed thereto shall be
used by the Trustee solely in satisfaction of the
liabilities of the Company with respect to the Contract
Holder or Participant for whom such separate Account has
been established and the expenses of administering the
trust, established herein, and such utilization shall be in
accordance with the procedures set forth herein;
WHEREAS, the Company wishes to establish a
separate account with respect to all amounts that are
contributed hereunder by the Company which are not allocated
by the Company at the time of such contribution to the
Account of an individual Contract Holder or Participant (the
"General Account");
WHEREAS, the Trust is intended to be a "grantor
trust" with the corpus and income of the Trust treated as
assets and income of the Company for federal income tax
purposes pursuant to Sections 671 through 678 of the
Internal Revenue Code of 1986 (the "Code"); as amended;
WHEREAS, the Company intends that the assets of
the Trust will be subject to the claims of creditors of the
Company as provided in Article II;
WHEREAS, the Trustee is not a party to any of the
Contracts, the Book Unit Plan or the Deferred Compensation
Plan and makes no representations with respect thereto, and
all representations and recitals with respect to the
Contracts, the Book Unit Plan or the Deferred Compensation
Plan shall be deemed to be those of the Company.
NOW, THEREFORE, in consideration of the premises
and mutual and independent promises herein, the parties
hereto covenant and agree as follows:
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ARTICLE I
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1.1 The Company hereby establishes with the
Trustee a trust consisting of such sums of money and such
property acceptable to the Trustee as shall from time to
time be paid or delivered to the Trustee and the earnings
and profits thereon. All such money and property, all
investments made therewith and proceeds thereof, less the
payments or other distributions which, at the time of
reference, shall have been made by the Trustee, as
authorized herein, are referred to herein as the "Fund" and
shall be held by the Trustee, IN TRUST, in accordance with
the provisions of this Agreement.
1.2 The Trustee shall hold, manage, invest and
otherwise administer the Fund pursuant to the terms of this
Agreement. The Trustee shall be responsible only for
contributions actually received by it hereunder. The amount
of each contribution by the Company to the Fund shall be
determined in the sole discretion of the Company and the
Trustee shall have no duty or responsibility with respect
thereto.
1.3 The Independent Contractor (as hereinafter in
Section 3.1 defined) shall maintain in an equitable manner a
separate Account for each Contract Holder and Participant in
which it shall keep a separate record of the amount of the
fund allocated to such Contract Holder or Participant. The
Company shall certify to the Trustee and the Independent
Contractor at the time of each contribution to the Fund the
amount of such contribution to be allocated to each Account.
Provided, however, that following a Change in Control, the
Company may only allocate contributions to either the
General Account or to Accounts which were established prior
to the Change in Control. Any amount contributed by the
Company that is not so certified shall be allocated to the
General Account.
1.4 The Company may contribute to the Fund an
irrevocable letter of credit (hereinafter referred to as a
"L/C"). The following provisions shall be applicable to any
such L/C:
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(a) the L/C shall expire no sooner than one
(1) year from the date of issuance,
(b) the Company shall continue to maintain
such L/C in effect until it is replaced by cash or another
irrevocable L/C or this Agreement terminates pursuant to
Article IX, whichever occurs first,
(c) the Company shall renew or replace such
L/C at least thirty (30) days before its expiration for an
additional period of one (1) year,
(d) if such L/C, or any renewal thereof, is
not renewed or replaced by a L/C delivered to the Trustee at
least thirty (30) days before the expiration of the
predecessor L/C, the Trustee may draw down the full amount
of such L/C and hold the proceeds pursuant to the terms of
this Agreement; provided, however, that in the event the
Company is unable to renew such L/C at least thirty (30)
days prior to the expiration of the predecessor L/C at a
cost equal to or less than twenty-five (25) basis points
over the current annual cost of such L/C, and the Trustee
with reasonable diligence is unable to identify a bank
(within the definition of Section 1.4(h)) that will replace
such L/C at a cost equal to or less than twenty-five (25)
basis points over the current annual cost of such L/C, then
the Trustee shall not draw down the amount of such L/C as
provided in this Section 1.4(d),
(e) the Trustee may also draw down on such
L/C at any time the Trustee determines the proceeds of such
L/C are necessary to allow the Trustee to fulfill its
obligations under this Agreement,
(f) the proceeds of such L/C shall be
available to the Trustee upon the Trustee's presentation of
its sight draft,
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(g) the Company may, at any time, replace
such L/C with another irrevocable L/C having substantially
similar terms, or with an equal amount of cash, or any
combination thereof,
(h) any L/C shall be issued by a bank
(including the Trustee) with assets in excess of $2 billion
and net worth in excess of $100 million, shall be reasonably
acceptable to the Trustee, and shall be in a form as shall
be reasonably acceptable to the Trustee.
1.5 The Trustee, for investment purposes only,
may commingle all of the assets of the Fund and treat them
as a single fund, but the records of the Independent
Contractor at all times shall show the percentages of the
Trust allocable to each Account and to the General Account.
The Fund shall be revalued by the Trustee as of the last
business day of each calendar quarter at current market
values, as determined by the Trustee. The Independent
Contractor shall allocate any increase or decrease in the
current market value of the Fund, as determined by the
Trustee, pro-rata to all of the Accounts and to the General
Account in proportion to the balance of the assets allocated
thereto as of the last business day of the previous calendar
quarter.
ARTICLE II
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2.1 Notwithstanding any provision in this
Agreement to the contrary, if at any time while the Trust is
still in existence the Company becomes insolvent (as defined
herein), the Trustee shall upon written notice thereof from
the Company's Board of Directors, Chairman of the Board or
Chief Executive Officer suspend the payment of all amounts
from the Fund and shall thereafter hold the Fund in suspense
for the benefit of the creditors of the Company until it
receives a court order directing the disposition of the
Fund; provided, however, the Trustee may deduct or continue
to deduct its fees and expenses and other expenses of the
Trust, including taxes and the Independent Contractor's fees
and expenses, pending the receipt of such court order. The
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Company shall be considered to be insolvent if (a) a final
judicial determination is entered that the Company is unable
to pay its debts as such debts mature or (b) there shall
have been filed by or against the Company in any court or
other tribunal either of the United States or of any State
or of any other authority now or hereafter exercising
jurisdiction, a petition in bankruptcy or insolvency
proceedings or for reorganization or for the appointment of
a receiver or trustee of all or substantially all of the
Company's property under the present or any future Federal
bankruptcy code or any other present or future applicable
Federal, State or other bankruptcy or insolvency statute or
law. By its approval and execution of this Agreement, the
Company represents and agrees that its Board of Directors,
Chairman of the Board, Vice Chairman or President, as from
time to time acting, shall have the fiduciary duty and
responsibility on behalf of the Company's creditors to give
to the Trustee prompt written notice of any event of the
Company's insolvency and the Trustee shall be entitled to
rely thereon to the exclusion of all directions or claims to
make payments thereafter made. Absent such notice, the
Trustee shall have no responsibility for determining whether
or not the Company has become insolvent.
2.2 The Company represents and agrees that the
Trust established under this Agreement does not fund and is
not intended to fund its obligations under the Contracts,
the Book Unit Plan, the Deferred Compensation Plan or any
other employee benefit plan or program of the Company. Such
Trust is and is intended to be a depository arrangement with
the Trustee for the setting aside of cash and other assets
of the Company as and when it so determines in its sole
discretion for the meeting of part or all of its future
contractual obligations to some or all of the Contract
Holders and Participants. Contributions by the Company to
the Trust shall be in amounts determined solely by the
Company and shall be in respect of only those Contract
Holders and Participants selected prior to a Change in
Control by the Company from time to time as it determines.
The purpose of this Trust is to provide a fund from which
the Company's obligations under the Contracts, the Book Unit
Plan and Deferred Compensation Plan may be payable and as to
which Contract Holders and Participants with Accounts
hereunder may, by exercising the procedures set forth
herein, have access to some or all of the amounts due them
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under the Contracts, the Book Unit Plan and the Deferred
Compensation Plan as such become due without having the
payment of such amounts subject to the administrative
control of the Company unless the Company becomes insolvent
as defined in Section 2.1. The Company further represents
that neither the Contracts, the Book Unit Plan nor the
Deferred Compensation Plan are part of and do not constitute
a qualified plan under Section 401(a) of the United States
Internal Revenue Code and therefore the Contracts, the Book
Unit Plan and Deferred Compensation Plan are not subject to
any of the Code requirements applicable to tax-qualified
plans.
2.3 Amounts paid or delivered by the Company to
the Trustee pursuant to Section 1.1 shall not revert to the
Company except as provided below:
(a) Upon the satisfaction of all liabilities
of the Company to Contract Holders and Participants for whom
Accounts have been established, any assets of the Fund then
remaining may be distributed to the Company as per its
instructions as provided in Section 3.6 or
(b) Upon termination of the Trust as
provided in Section 9.1, the Fund may be distributed to the
Company in accordance with Section 9.2.; or
(c) Upon the insolvency of the Company (as
determined in Section 2.1), the assets of the Fund shall be
distributed in accordance with the provisions of Section
2.1; or
(d) Within six (6) months after the payment
or delivery by the Company of any amounts to the Trustee
pursuant to Section 1.1, the Company may request that any
portion of such amounts be returned to the Company (whether
affecting the Accounts of all or any specified Contract
Holders or Participants). Such a request shall be honored
by the Trustee only if at the date of such request, the
Board of Directors of the Company is made up of "Continuing
Directors" (as defined below). Further, within the original
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six (6) month period during which the Continuing Directors
may request a return to the Company of amounts paid or
delivered to the Trustee pursuant to Section 1.1, the
Continuing Directors may request a one time extension of
such period for an additional six months.
For purposes of this Agreement, the following terms have the
meaning indicated:
(i) "Acquiring Person" shall mean any person
who is a Beneficial Owner of 20% or more of the
outstanding shares of Common Stock or 20% or more
of the outstanding shares of Voting Stock of the
Company; provided, however, that the term
"Acquiring Person" shall not include the Company
or any wholly-owned subsidiary of the Company or
any employee benefit plan established by any of
them and either in effect on the date of this
Agreement or hereafter approved by the Continuing
Directors. For purposes of this subsection (i) in
determining the percentage of the outstanding
shares of Common Stock or Voting Stock of the
Company with respect to which a person is the
Beneficial Owner, all shares as to which such
person is deemed the Beneficial Owner shall be
deemed outstanding.
(ii) "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in
Rule 12b-2 under the Securities Exchange Act of
1934, as in effect on the date of this Agreement;
provided, however, that the Company shall, for
purposes of this definition, be deemed to be the
"registrant", as such term is used in such Rule.
(iii) A person shall be deemed the
"Beneficial Owner", and to have "Beneficial
Ownership", of any securities as to which such
person or any of such person's Affiliates or
Associates is or may be deemed to be the
beneficial owner pursuant to Rule 13d-3 under the
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Securities Exchange Act of 1934, as in effect on
the date of this Agreement, as well as any
securities as to which such person or any of such
person's Affiliates or Associates has the right to
become Beneficial Owner (whether such right is
exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion
rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a
person shall not be deemed the "Beneficial Owner",
or to have "Beneficial Ownership", of any security
(A) solely because such security has been tendered
pursuant to a tender or exchange offer made by
such person or any of such person's Affiliates or
Associates until such tendered security is
accepted for purchase or exchange, (B) solely
because such person or any of such person's
Affiliates or Associates has or shares the power
to vote or direct the voting of such security
pursuant to a revocable proxy given in response to
a public proxy or consent solicitation made
pursuant to, and in accordance with, the
applicable rules and regulations of the Securities
Exchange Act of 1934, except if such power (or the
arrangements relating thereto) is then reportable
under Item 6 of Schedule 13D under the Securities
Exchange Act of 1934 ( or any similar provision of
a comparable or successor report) or (C) held for
or pursuant to the terms of any employee stock
ownership or other employee benefit plan of the
Company or a wholly-owned subsidiary of the
Company and either in effect on the date of this
Agreement or hereafter approved by the Continuing
Directors.
(iv) "Change in Control" means (i) a merger
or consolidation to which the Company is a party
and for which the approval of any shareholders of
the Company is required; (ii) any "person" (as
such term is used in Section 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended)
becoming the beneficial owner, directly or
indirectly, of securities of the Company
representing 25% or more of the combined voting
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power of the Company's then outstanding
securities; (iii) a sale or transfer of
substantially all of the assets of the Company;
(iv) a liquidation or reorganization of the
Company; or (v) the occurrence of any Flip Over
Transaction or Event, as defined in Section 1.1(j)
of the Amended and Restated Rights Agreement, as
amended from time to time prior to the occurrence
of any such transaction or event that otherwise
would have previously been considered a Flip Over
Transaction or Event. Provided, however, that an
event described above shall not constitute a
Change in Control if within 10 days of such event
the Continuing Directors provide the Trustee with
a resolution expressly stating that such event
shall not constitute a Change In Control for the
purposes of this Agreement.
(v) "Continuing Directors" shall mean those
individuals who constitute the Board of Directors
of the Company on the date of this Agreement and
any individual becoming a director subsequent to
the date of this Agreement whose election or
nomination for election by the Company's
shareholders is approved by a vote of at least six
Continuing Directors who constitute not less than
three-quarters of the directors comprising the
then Continuing Directors, either by a specific
vote or by approval of the proxy statement of the
Company in which such individual is named as a
nominee for director, without objection to such
nomination, provided that no person shall under
any circumstances be considered a Continuing
Director from and after such time as such person
is an Acquiring Person, an Affiliate or Associate
of an Acquiring Person, or a nominee or
representative of any thereof. References to an
approval or other act of Continuing Directors
shall mean approvals given or actions authorized
and/or taken both (A) by the Board of Directors of
the Company (or any legal successor thereto) of
which at the time not less than eight directors
constituting not less than two-thirds of the
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members are Continuing Directors and (B) by not
less than six Continuing Directors constituting at
least three-fourths of all then Continuing
Directors.
(vi) "Voting Stock" shall mean shares of
capital stock of the Company entitled to vote
generally in the election of the directors of the
Company.
ARTICLE III
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3.1 By its acceptance of this Trust the Trustee
hereby agrees to the designation by the Company of KPMG Peat
Marwick as the Company's independent contractor (the
"Independent Contractor") under this Agreement. Provided,
however, that the Trustee conditions its acceptance of such
Independent Contractor upon the Independent Contractor's
execution of the Form of Acknowledgment and Acceptance, or a
similar form acceptable to both the Company and the Trustee,
set forth in Exhibit A of this Agreement. It is herein
recognized that said Independent Contractor is also acting
as the independent consulting actuary of the Company and
that the Trustee shall have no responsibility hereunder for
the continued retention of KPMG Peat Marwick and/or any
responsibility assigned to said Independent Contractor or
its performance thereof so long as said firm continues to be
the Company's independent consulting actuary. In the event
the Company replaces or no longer uses said firm as its
independent consulting actuary, the Trustee in its sole
discretion may, but need not, designate a new Independent
Contractor from the list set forth in Exhibit B of this
Agreement or may continue to use the same Independent
Contractor; or in the event said firm does not accept its
designation as Independent Contractor or accepts said
designation and subsequently resigns, the Trustee shall
designate another entity from the list set forth in Exhibit
B of this Agreement to be the Independent Contractor,
provided however, that any Independent Contractor appointed
by the Trustee shall be independent of the Company. The
Company shall pay or reimburse the Trustee for all fees and
expenses of any Independent Contractor appointed by the
Trustee. The Company shall indemnify and hold the Trustee
harmless for any actions or omissions of any Independent
Contractor and shall indemnify and hold the Independent
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Contractor harmless for any actions or omissions of the
Trustee. The Independent Contractor shall be paid for its
services on an hourly basis at rates comparable to the rates
that the Independent Contractor charges for comparable
services to its other clients.
3.2 Except for the records dealing solely with
the Fund and its investment, which shall be maintained by
the Trustee, the Independent Contractor shall maintain all
the records of Contract Holders and Participants
contemplated by this Agreement, including the maintenance of
the separate Accounts of each Contract Holder and
Participant under this Agreement and the maintenance of the
General Account. All such records shall be made available
promptly on request of the Trustee of the Company. In the
event of a Change in Control the Independent Contractor
shall also be responsible for information with respect to
payments, if any, to Contract Holders and Participants and
shall perform such other duties and responsibilities as the
Company or the Trustee determines is necessary or advisable
to achieve the objectives of this Agreement.
3.3 Upon the establishment of this Trust or as
soon thereafter as practicable, the Company shall furnish to
the Independent Contractor and to the Trustee all of the
information necessary to determine the amounts payable to or
with respect to each Contract Holder or Participant
(hereinafter referred to as the "Contract Holder and
Participant Data"). Notwithstanding the occurrence of a
Change in Control, the Company shall regularly, at least
annually, furnish revised updated Contract Holder and
Participant Data to the Independent Contractor. In the
event the Company refuses or neglects to provide updated
Contract Holder or Participant information, as contemplated
herein, the Independent Contractor shall be entitled to rely
upon the most recent information furnished to it by the
Company.
3.4 Prior to a Change in Control, upon the
direction of the Company the Independent Contractor shall
prepare a certification (a "Payment Certification") to the
Trustee that the Company's obligations to a Contract Holder
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or Participant have become payable. Notwithstanding any
other provisions of this Agreement, after a Change in
Control upon the proper application of a Contract Holder or
Participant, the Independent Contractor shall, without
direction from the Company, prepare a Payment Certification
to the Trustee, based upon the most recent Contract Holder
and Participant Data furnished to the Independent Contractor
prior to the Change in Control and any supplemental
information furnished to the Independent Contractor by a
Contract Holder or Participant upon which the Independent
Contractor may reasonably rely, that the Company's
obligations to the Contract Holder or Participant have
become payable. In the event that the Trustee (a) suspends
payments from the Fund pursuant to Section 2.1, and (b)
pursuant to a court order as required by Section 2.1,
subsequently resumes all of its duties and responsibilities
under this Agreement, the Independent Contractor shall
prepare a certification (an "Accrued Payment Certification")
of all amounts that would otherwise have been payable to
each Contract Holder or Participant from the Fund during
such period of time as the Trustee suspended payments
pursuant to Section 2.1. Each Payment Certification and
each Accrued Payment Certification shall include the amount
of such payments, the manner of payment and the name,
address and social security number of the recipient. Each
Payment Certification shall be updated annually. The
Trustee shall be entitled to rely on any Payment
Certification or any Accrued Payment Certification provided
by the Independent Contractor, and shall have no duty to
verify the accuracy thereof. Upon the receipt of a Payment
Certification or an Accrued Payment Certification and
appropriate federal, state and local tax withholding
information, the Trustee shall commence cash distributions
from the Trust Fund in accordance therewith to the person or
persons so indicated and to the Company with respect to
taxes required to be withheld and the Independent Contractor
shall charge the Account established hereunder for the
Contract Holder or Participant. The Independent Contractor
shall furnish a copy of each Payment Certification and each
Accrued Payment Certification to the Contract Holder, the
Participant or the Participant's beneficiary for which such
certification has been prepared. The Company shall have
full responsibility for the payment of all withholding taxes
to the appropriate taxing authority and shall furnish each
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Contract Holder, Participant, beneficiary of the Participant
and the Independent Contractor with the appropriate tax
information form evidencing such payment and the amount
thereof.
3.5 Notwithstanding any provision in this
Agreement to the contrary, in the event the Trustee in its
sole discretion reasonably disagrees with the accuracy or
propriety of any Payment Certification or any Accrued
Payment Certification, the Trustee, if unable to resolve
such disagreement with the Independent Contractor, may apply
to a court of appropriate jurisdiction for judicial review
of such Payment Certification or Accrued Payment
Certification. Pending the resolution of any disagreement
with the Independent Contractor with regard to the accuracy
or propriety of any Payment Certification or any Accrued
Payment Certification, the Trustee shall not distribute any
amount from the Fund pursuant to such Payment Certification
or Accrued Payment Certification. The Trustee shall use its
reasonable best efforts to promptly resolve any such
disagreement that it may have with the Independent
Contractor.
3.6 All amounts payable from the Fund to a
Contract Holder or Participant shall be paid solely from the
account of such Contract Holder or Participant. Upon the
satisfaction of all Company liabilities to a Contract Holder
or Participant for whom an Account has been established
hereunder, the Independent Contractor shall prepare a
certification to the Trustee and to the Company showing the
balance, if any, remaining in such Contract Holder's or
Participant's Account. Such balance from a Participant's
Account shall be allocated first among Participant Accounts
within the same Plan, and, if the liability of the Company
to all Participants within the same Plan, has been
satisfied, the balance, if any, shall be allocated among the
Contract Holders' Accounts and Participant Accounts under
the other Plan. Similarly, any Balance from a Contract
Holder's Account shall be allocated first among the Accounts
of Contract Holders and, if the liability of the Company to
all Contract Holders has been satisfied, the balance, if
any, shall be allocated among the Participants' Accounts in
the Book Unit Plan and Deferred Compensation Plan. Such
balance, whether divided among the Contract Holders, the
Participants or both the Contract Holders and Participants,
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shall be reallocated ratably by the Independent Contractor
(using the information set forth on the most recent
estimated statement of amounts payable under the Contracts,
the Book Unit Plan or the Deferred Compensation Plan
prepared by the Independent Contractor pursuant to Section
3.3) to the Accounts of Contract Holders and/or Participants
who at such time have Contracts in effect or interests in
the Book Unit Plan or Deferred Compensation Plan (including
Accounts which may have previously been reduced to a zero
balance) in the ratio that liabilities in respect of each
such Contract Holder under the Contracts or Participant
under the Book Unit Plan or Deferred Compensation Plan bear
to the total liabilities to all such Contract Holders or
Participants. Upon the satisfaction of all liabilities of
the Company to all Contract Holders and Participants for
whom Accounts have been established hereunder, the
Independent Contractor shall prepare a certification to the
Trustee and to the Company, and the Trustee upon receipt of
such certification shall transfer all of the assets of the
Fund to the trust established between the Company and
Trustee, dated September 25, 1990, with regard to the
Company's Supplemental Retirement Plan and as amended with
regard to its Supplemental Employee Savings and Investment
Plan (the "SRIP Trust"). Provided, however, that if the
SRIP Trust has been terminated, upon receiving the
certification referred to in the previous sentence, the
Trustee shall thereupon hold or distribute the Fund in
accordance with the written instructions of the Company.
The Trustee and the Independent Contractor shall have no
responsibility for determining whether any Contract Holder
or Participant has died and shall be entitled to rely upon
information furnished by the Company.
3.7 The Company reserves the right to transfer to
the Fund paid-up life insurance, retirement income or
annuity policies or contracts on or for the life of any
Contract Holder or Participant for whom an Account has been
established hereunder or, prior to a Change in Control, to
direct the Trustee to purchase any such policies or
contracts on or for the life of any such Contract Holder or
Participant out of the amounts allocated to his or her
Account. Any such policy or contract shall be an asset of
the Fund subject to the claims of the Company's creditors in
the event of insolvency, as specified in Section 2.1. The
proceeds of any life insurance policy shall upon the death
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of the insured Contract Holder be credited to the General
Account. The proceeds of any life insurance policy on a
Participant in the Book Unit Plan or Deferred Compensation
Plan shall be distributed to Participant's beneficiary or
estate to the extent of any Company liability under the Book
Unit Plan or the Deferred Compensation Plan, and thereafter
to the General Account.
3.8 Nothing provided in this Agreement shall
relieve the Company of its liabilities to pay the amounts
due under the Contracts or the Book Unit Plan and Deferred
Compensation Plan except to the extent such liabilities are
met by application of Fund assets. It is the intent of the
Company to have each Account established hereunder treated
as a separate trust designed to satisfy in whole or in part
the Company's legal liability under the Contracts in respect
of the Contract Holder for whom such Account has been
established, or the Company's legal liability to each
Participant under the Book Unit Plan and the Deferred
Compensation Plan. The Company, therefore, agrees that all
income, deductions and credits of each such Account belong
to it as owner for income tax purposes and will be included
on the Company's income tax returns.
ARTICLE IV
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4.1 The Company shall provide the Trustee and the
Independent Contractor with a certified copy of each of the
Contracts, the Book Unit award letters, the Book Unit Plan,
the Deferred Compensation Plan and all amendments thereto
and of the resolutions of the Board of Directors of the
Company approving each of the Contracts, the Book Unit
awards, the Book Unit Plan, the Deferred Compensation Plan
and all amendments thereto, promptly upon their adoption.
After the execution of this Agreement, the Company shall
promptly file with the Trustee and the Independent
Contractor a certified list of the names and specimen
signatures of the directors and officers of the Company and
any delegee authorized to act for it. The Company shall
promptly notify the Trustee and the Independent Contractor
of the addition or deletion of any person's name to or from
such list, respectively. Until receipt by the Trustee
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and/or the Independent Contractor of notice that any person
is no longer authorized so to act, the Trustee or the
Independent Contractor may continue to rely on the authority
of the person. All certifications, notices and directions
by any such person or persons to the Trustee or the
Independent Contractor shall be in writing signed by such
person or persons. The Trustee and the Independent
Contractor may rely on any such certification, notice or
direction purporting to have been signed by or on behalf of
such person or persons that the Trustee or the Independent
Contractor believes to have been signed thereby. The
Trustee and the Independent Contractor may also rely on any
certification, notice or direction of the Company that the
Trustee or the Independent Contractor believes to have been
signed by a duly authorized officer or agent of the Company.
The Company shall be responsible for keeping accurate books
and records with respect to the employees of the Company,
their compensation and their rights and interests under the
Contracts, the Book Unit Plan and the Deferred Compensation
Plan.
4.2 The Company shall make its contributions to
the Trust in accordance with appropriate corporate action
and the Trustee shall have no responsibility with respect
thereto, except to add such contributions to the Fund.
4.3 The Company shall indemnify and hold harmless
the Trustee for any liability or expenses, including without
limitation advances for or prompt reimbursement of
reasonable fees and expenses of counsel and other agents
retained by it, incurred by the Trustee with respect to
holding, managing, investing or otherwise administering the
Fund, other than by its negligence or willful misconduct.
4.4 The Company shall indemnify and hold harmless
the Independent Contractor for any liability or expenses,
including without limitation advances for or prompt
reimbursement of reasonable fees and expenses of counsel and
other agents retained by it, incurred by the Independent
Contractor with respect to keeping the records for Contract
Holders' and Participants' Accounts, reporting thereon to
Contract Holders and Participants, certifying payment
information to the Trustee, determining the status of
18
Accounts and payments hereunder and otherwise carrying out
its obligations under this Agreement, other than those
resulting from the Independent Contractor's negligence or
willful misconduct.
ARTICLE V
_________
5.1 The Trustee shall not be liable in
discharging its duties hereunder, including without
limitation its duty to invest and reinvest the Fund, if it
acts in good faith and in accordance with the terms of this
Agreement and any applicable Federal or state laws, rules or
regulations.
5.2 Subject to investment guidelines agreed to in
writing from time to time prior to a Change in Control, by
the Company and the Trustee, the Trustee shall have the
power in investing and reinvesting the Fund in its sole
discretion:
(a) To invest and reinvest in any property,
real, personal or mixed, wherever situated and whether or
not productive of income or consisting of wasting assets,
including without limitation, common and preferred stocks,
bonds, notes, debentures (including convertible stocks and
securities but not including any stock or security of the
Trustee, the Company or any affiliate thereof), leaseholds,
mortgages, certificates of deposit or demand or time
deposits (including any such deposits with the Trustee),
shares of investment companies and mutual funds, interests
in partnerships and trusts, insurance policies and annuity
contracts, and oil, mineral or gas properties, royalties,
interests or rights, without being limited to the classes of
property in which trustees are authorized to invest by any
law or any rule of court of any state and without regard to
the proportion any such property may bear to the entire
amount of the Fund;
(b) To invest and reinvest all or any
portion of the Fund collectively through the medium of any
common, collective or commingled trust fund that may be
established and maintained by the Trustee, subject to the
19
instrument or instruments establishing such trust fund or
funds and with the terms of such instrument or instruments,
as from time to time amended, being incorporated into this
Agreement to the extent of the equitable share of the Fund
in any such common, collective or commingled trust fund;
(c) To retain any property at any time
received by the Trustee;
(d) To sell or exchange any property held by
it at public or private sale, for cash or on credit, to
grant and exercise options for the purchase or exchange
thereof, to exercise all conversion or subscription rights
pertaining to any such property and to enter into any
covenant or agreement to purchase any property in the
future;
(e) To participate in any plan of
reorganization, consolidation, merger, combination,
liquidation or other similar plan relating to property held
by it and to consent to or oppose any such plan or any
action thereunder or any contract, lease, mortgage,
purchase, sale or other action by any person;
(f) To deposit any property held by it with
any protective, reorganization or similar committee, to
delegate discretionary power thereto, and to pay part of the
expenses and compensation thereof and any assessments levied
with respect to any such property so deposited;
(g) To extend the time of payment of any
obligation held by it;
(h) To hold uninvested any moneys received
by it, without liability for interest thereon, until such
moneys shall be invested, reinvested or disbursed;
(i) To exercise all voting or other rights
with respect to any property held by it and to grant
proxies, discretionary or otherwise;
20
(j) For the purposes of the Trust, to borrow
money from others, to issue its promissory note or notes
therefor, and to secure the repayment thereof by pledging
any property held by it;
(k) To manage, administer, operate, insure,
repair, improve, develop, preserve, mortgage, lease or
otherwise deal with, for any period, any real property or
any oil, mineral or gas properties, royalties, interests or
rights held by it directly or through any corporation,
either alone or by joining with others, using other Trust
assets for any such purposes, to modify, extend, renew,
waive or otherwise adjust any provision of any such mortgage
or lease and to make provision for amortization of the
investment in or depreciation of the value of such property;
(l) To employ suitable agents and counsel,
who may be counsel to the Company or the Trustee, and to pay
their reasonable expenses and compensation from the Fund to
the extent not paid by the Company;
(m) To cause any property held by it to be
registered and held in the name of one or more nominees,
with or without the addition of words indicating that such
securities are held in a fiduciary capacity, and to hold
securities in bearer form;
(n) To settle, compromise or submit to
arbitration any claims, debts or damages due or owing to or
from the Trust, respectively, to commence or defend suits or
legal proceedings to protect any interest of the Trust, and
to represent the Trust in all suits or legal proceedings in
any court or before any other body or tribunal; provided,
however, that the Trustee shall not be required to take any
such action unless it shall have been indemnified by the
Company to its reasonable satisfaction against liability or
expenses it might incur therefrom;
21
(o) To organize under the laws of any state
a corporation or trust for the purpose of acquiring and
holding title to any property which it is authorized to
acquire hereunder and to exercise with respect thereto any
or all of the powers set forth herein; and
(p) Generally, to do all acts, whether or
not expressly authorized, that the Trustee may deem
necessary or desirable for the protection of the Fund.
Notwithstanding the foregoing, the Trustee
shall upon the written direction of the Company prior to a
Change in Control, invest all or part of the amount to the
credit of any Contract Holder's or Participant's Account in
a commercial annuity, retirement income or life insurance
policy or contract selected by the Company and the Trustee
shall have no responsibility for any such investment other
than as owner and custodian thereof.
Notwithstanding the foregoing, after a Change
in Control, the Trustee shall follow the investment
guidelines agreed to by the Company and the Trustee as in
effect immediately prior to the Change in Control.
5.3 No person dealing with the Trustee shall be
under any obligation to see to the proper application of any
money paid or property delivered to the Trustee or to
inquire into the Trustee's authority as to any transaction.
The Independent Contractor's obligations are limited solely
to those explicitly set forth herein and the Independent
Contractor shall have no responsibility, authority or
control, direct or indirect, over the maintenance or
investment of the Fund and shall have no obligation in
respect of the Trustee or the Trustee's compliance with the
Independent Contractor's certifications to the Trustee.
22
5.4 The Trustee shall distribute cash or property
from the Fund in accordance with Article III hereof.
The Trustee may make any distribution
required hereunder by mailing its check for the specified
amount, or delivering the specified property, to the person
to whom such distribution or payment is to be made, at such
address as may have been last furnished to the Trustee, or
if no such address shall have been so furnished, to such
person in care of the Company, or (if so directed by the
Company) by crediting the account of such person or by
transferring funds to such person's account by bank or wire
transfer.
23
ARTICLE VI
__________
6.1 The Company shall pay any Federal, state or
local taxes on the Fund, or any part thereof, and on the
income therefrom.
6.2 The Company shall pay to the Trustee its
reasonable expenses for the management and administration of
the Fund, including without limitation advances for or
prompt reimbursement of reasonable expenses and compensation
of counsel and other agents employed by the Trustee, all
other reasonable and necessary expenses of managing and
administering the Trust that are not paid by the Company
including, but not limited to, investment management fees,
computer time charges, data retrieval and input costs, and
charges for time expended by personnel of the Trustee in
fulfilling the Trustee's duties. The Company shall also pay
to the Trustee reasonable compensation for its services as
Trustee hereunder, the amount of which shall be agreed upon
from time to time by the Company and the Trustee in writing;
provided, however, that if the Trustee forwards an amended
compensation schedule to the Company requesting its
agreement thereto and the Company fails to object thereto
within thirty (30) days of its receipt, the amended
compensation schedule shall be deemed to be agreed upon by
the Company and the Trustee. Such expenses and compensation
shall be a charge on the Fund and shall constitute a lien in
favor of the Trustee until paid by the Company. All such
expenses and compensation charged to the Fund, unless
otherwise paid by the Company, shall be applied against the
General Account. In the event that the assets allocated to
the General Account are entirely depleted, all such expenses
and compensation charged to the Fund shall be applied pro-
rata against all Accounts in proportion to the assets
allocated thereto. Notwithstanding any other provision of
this Section 6.2, to the extent that the Trustee, in its
discretion, decides that an expense is specifically
attributable to one or more specified Accounts such expense
shall be charged to such specified Accounts in such
proportion as the Trustee decides. Prior to allocating any
particular expense to a specific Account, the Trustee shall
provide notice of its intention to so allocate to the
24
Company, the Independent Contractor and the Contract Holder
or Participant for whom such Account was established.
ARTICLE VII
___________
7.1 The Trustee shall maintain records with
respect to the Fund that show all its receipts and
disbursements hereunder. The records of the Trustee with
respect to the Fund shall be open to inspection by the
Company, or its representatives, at all reasonable times
during normal business hours of the Trustee and may be
audited not more frequently than once each fiscal year by an
independent certified public accountant engaged by the
Company; provided, however, the Trustee shall be entitled to
additional compensation from the Company in respect of
audits or auditors' requests which the Trustee determines to
exceed the ordinary course of the usual scope of such
examinations of its records.
7.2 Within a reasonable time after the close of
each fiscal year of the Company (or, in the Trustee's
discretion, at more frequent intervals), or of any
termination of the duties of the Trustee hereunder, the
Trustee shall prepare and deliver to the Company a statement
of transactions reflecting its acts and transactions as
Trustee during such fiscal year, portion thereof or during
such period from the close of the last fiscal year or last
statement period to the termination of the Trustee's duties,
respectively, including a statement of the then current
value of the Fund. The Independent Contractor shall also
prepare and furnish to the Company a statement of the then
current value of each Account and of the General Account.
Any such statement shall be deemed an account stated and
accepted and approved by the Company, and the Trustee shall
be relieved and discharged, as if such account had been
settled and allowed by a judgment or decree of a court of
competent jurisdiction, unless protested by written notice
to the Trustee within sixty (60) days of receipt thereof by
the Company.
25
The Trustee shall have the right to apply at any
time to a court of competent jurisdiction for judicial
settlement of any account of the Trustee not previously
settled as herein provided or for the determination of any
question of construction or for instructions regarding this
Agreement. In any such action or proceeding it shall be
necessary to join as parties only the Trustee and the
Company (although the Trustee may also join such other
parties as it may deem appropriate), and any judgment or
decree entered therein shall be conclusive.
ARTICLE VIII
____________
8.1 Prior to a Change in Control the Trustee may
resign at any time by delivering written notice thereof to
the Company; provided, however, that no such resignation
shall take effect until the earlier of (i) sixty (60) days
from the date of delivery of such notice to the Company or
(ii) the appointment of a successor trustee. Following a
Change in Control, the Trustee may resign only under one of
the following circumstances:
(a) The Trustee is no longer in the
business, or is actively in the process of
removing itself from the business, of acting as
trustee for employee benefit plans.
(b) The Trustee determines that a conflict
of interest exists which would prohibit it from
fulfilling its duties under this Agreement in an
ethically proper manner, and a law firm (appointed
by the President of the Association of the Bar of
the City of New York, or by the American
Arbitration Association, if the President of the
Association of the Bar of the City of New York
fails to so appoint within thirty days of a
request for such appointment, or notifies the
Trustee that it is unable to make such
appointment) concurs with the Trustee. The
Trustee shall use its best efforts to avoid the
creation of such a conflict. The decision of such
26
law firm shall be binding, but may be appealed in
the same manner, and under the same conditions, as
if it were made by an arbitrator. All costs
incurred by the Trustee in connection with
obtaining or appealing such a decision shall be
reimbursable expenses pursuant to Article VI
hereof.
(c) The assets of the Fund have been
exhausted or are insufficient to pay accrued and
reasonably anticipated fees and expenses of the
Trustee hereunder, the Company has refused
voluntarily to pay the Trustee's accrued fees and
expenses as required pursuant to Section 6.2 and
the Trustee has been unsuccessful in obtaining a
court order requiring the Company to make such
payments or has been unable to collect on a
judgment for such fees and expenses.
Notwithstanding the above, the Trustee may resign
for reasons set forth in (a) or (b) only if it has obtained
the agreement of a bank with assets in excess of $2 billion
and net worth in excess of $100 million to replace it as
trustee under the terms of this Agreement. The decision
rendered under (b), if that is the reason for the Trustee's
resignation, may expressly excuse the Trustee from this
requirement. In any event, the Trustee shall continue to be
custodian of the Trust assets until the new trustee is in
place, and the Trustee shall be entitled to expenses and
fees through the later of the effective date of its
resignation as Trustee and the end of its custodianship of
the assets of the Fund.
8.2 Prior to a Change in Control the Trustee may
be removed at any time by the Company, pursuant to a
resolution of the Board of Directors of the Company, upon
delivery to the Trustee of a certified copy of such
resolution and sixty (60) days' written notice of such
removal, unless such notice period is waived in whole or in
part by the Trustee. Following a Change in Control the
Trustee may be removed at any time by the affirmative vote
of two-thirds of the Contract Holders and Participants
voting together on a per capita basis who were Contract
27
Holders or Participants on the date of the occurrence of the
Change in Control, and sixty (60) days' written notice of
such removal, unless such notice period is waived in whole
or in part by the Trustee.
8.3 Upon the resignation or removal of the
Trustee, U.S. Trust Company shall be appointed as successor
trustee. In the event that U.S. Trust Company refuses to
accept its appointment as successor trustee pursuant to this
Section 8.3, a successor trustee shall be appointed pursuant
to Section 8.4. The appointment of a successor trustee
pursuant to this Section 8.3 shall take effect upon the
delivery to the Trustee of a written acceptance by such
successor trustee, duly executed thereby. Any successor
trustee shall have all the rights, powers and duties granted
the Trustee hereunder.
8.4 Subject to the provisions of Section 8.3,
prior to a Change in Control, upon the resignation or
removal of the Trustee, a successor trustee shall be
appointed by the Company. Subject to the provisions of
Section 8.3, following a Change in Control, upon the
resignation of the Trustee, a successor trustee shall be
appointed by the Trustee, and upon the removal of the
Trustee a successor trustee shall be appointed by the
affirmative vote of two-thirds of the Contract Holders and
Participants voting on a per capita basis who held Contracts
or participated in the Book Unit Plan or Deferred
Compensation Plan on the date of the occurrence of the
Change in Control. Any successor trustee appointed under
this Section 8.4 shall be chosen from the list of potential
successor trustees set forth in Exhibit C. In the event
that all of the potential successor trustees set forth in
Exhibit C refuse to accept an appointment as successor
trustee, then the successor trustee shall be appointed as
otherwise provided in this Section 8.4, and shall be a bank
or trust company established under the laws of the United
States or a State within the United States with assets in
excess of $2 billion and net worth in excess of $100
million. The appointment of a successor trustee pursuant to
this Section 8.4 shall take effect upon the delivery to the
Trustee of (a) a written appointment of such successor
trustee, duly executed by the Company, the Trustee, or two-
thirds of the Contract Holders and Participants, as provided
for in this Section 8.4, and (b) a written acceptance by
28
such successor trustee, duly executed thereby. Any
successor trustee shall have all the rights, powers and
duties granted the Trustee hereunder.
8.5 If, within sixty (60) days of the delivery of
the Trustee's written notice of resignation, a successor
trustee shall not have been appointed, the Trustee may apply
to any court of competent jurisdiction for the appointment
of a successor trustee.
8.6 Upon the resignation or removal of the
Trustee and the appointment of a successor trustee, and
after the acceptance and approval of its account, the
Trustee shall transfer and deliver the Fund to such
successor. Under no circumstances shall the Trustee
transfer or deliver the Fund to any successor which is not a
bank or trust company established under the laws of the
United States or a State within the United States with
assets in excess of $2 billion and net worth in excess of
$100 million.
ARTICLE IX
__________
9.1 Prior to a Change in Control, the Trust
established pursuant to this Agreement may only be
terminated by the affirmative vote of two-thirds of the
Contract Holders and Participants voting on a per capita
basis. Following a Change in Control, the Trust established
pursuant to this Agreement may not be terminated by the
Company prior to the satisfaction of all liabilities with
respect to all Contract Holders and Participants. Following
a Change in Control, upon receipt of a written certification
from the Independent Contractor that all liabilities have
been satisfied with respect to all Contract Holders and
Participants, the Company pursuant to a resolution of its
Board of Directors may terminate the Trust upon delivery to
the Trustee of (a) a certified copy of such resolution, (b)
an original certification of the Independent Contractor that
all such liabilities have been satisfied and (c) a written
instrument of termination duly executed and acknowledged in
the same form as this Agreement.
9.2 Prior to a Change in Control, upon the
termination of the Trust in accordance with Section 9.1, the
Trustee shall, after the acceptance and approval of its
29
account, distribute the Fund to the Company. After a Change
in Control, upon the termination of the Trust in accordance
with Section 9.1, the Trustee shall, after the acceptance
and approval of its account, transfer all of the assets of
the Fund to the SRIP Trust. Provided, however, that if
after a Change in Control the SRIP Trust has been
terminated, upon the termination of the Trust in accordance
with Section 9.1 the Trustee shall distribute the Fund to
the Company. Upon completing such distribution, the Trustee
shall be relieved and discharged. The powers of the Trustee
shall continue as long as any part of the Fund remains in
its possession.
ARTICLE X
_________
10.1 This Agreement may be amended, in whole or in
part, at any time and from time to time, by the Company,
pursuant to a resolution of the Board of Directors thereof
by delivery to the Trustee of a certified copy of such
resolution and a written instrument duly executed and
acknowledged in the same form as this Agreement, except that
the duties and responsibilities of the Trustee shall not be
increased without the Trustee's written consent; provided,
however, any such amendment affecting any Account or the
procedures for distribution thereof shall not become
effective until sixty (60) days after a copy of such
amendment has been delivered by registered mail by the
Company or the Independent Contractor to each Contract
Holder or Participant for whom an Account is maintained
under this Agreement. In the event the Company, Trustee or
Independent Contractor receives written objections to such
amendment from such person within such sixty (60) day
period, such amendment shall be ineffective and void in
respect of the Contract Holder or Participant so objecting
to the amendment.
30
ARTICLE XI
__________
11.1 This Agreement shall be construed and
interpreted under, and the Trust hereby created shall be
governed by, the laws of the State of New York insofar as
such laws do not contravene any applicable Federal laws,
rules or regulations. Nothing in this Agreement shall be
construed to subject either the Trust created hereunder or
the Contracts, the Book Unit Plan or the Deferred
Compensation Plan to the Employee Retirement Income Security
Act of 1974, as amended.
11.2 Neither the gender nor the number (singular
or plural) of any word shall be construed to exclude another
gender or number when a different gender or number would be
appropriate.
11.3 No right or interest of any Contract Holder
or Participant in the Fund shall be transferable or
assignable or shall be subject to alienation, anticipation
or encumbrance, and no right or interest of any Contract
Holder in any Contract or any Participant under the Book
Unit Plan or the Deferred Compensation Plan, or in the Fund
shall be subject to any garnishment, attachment or
execution. Notwithstanding the foregoing, the Fund shall at
all times remain subject to claims of creditors of the
Company in the event the Company becomes insolvent as
provided in Section 2.1.
11.4 The Company agrees that by the establishment
of this Trust it hereby foregoes any judicial review of
certifications by the Independent Contractor as to the
amounts payable to any persons hereunder. If a dispute
arises as to the amounts or timing of any such payments or
the persons entitled thereto under the Contracts, the Book
Unit Plan, the Deferred Compensation Plan or this Agreement,
the Company agrees that such dispute shall be resolved by
binding arbitration proceedings initiated in accordance with
the rules of the American Arbitration Association and that
the results of such proceedings shall be conclusive and
shall not be subject to judicial review. It is expressly
understood that pending the resolution of any such dispute
31
payments shall be made and continued by the Trustee in
accordance with the certification of the Independent
Contractor and that the Trustee and the Independent
Contractor shall have no liability with respect to such
payments. Provided, however, that the provisions of this
Section 11.4 are subject to the provisions of Section 3.5.
The Company also agrees to pay the entire cost of any
arbitration or legal proceeding initiated by it including
the legal fees of the Trustee, the Independent Contractor
and the Contract Holder or Participant regardless of the
outcome of any such proceeding and until so paid the
expenses thereof shall be a charge on and lien against the
Fund.
11.5 This Agreement shall be binding upon and
inure to the benefit of any successor to the Company or its
business as the result of merger, consolidation,
reorganization, transfer of assets or otherwise and any
subsequent successor thereto. In the event of any such
merger, consolidation, reorganization, transfer of assets or
other similar transaction, the successor to the Company or
its business or any subsequent successor thereto shall
promptly notify the Trustee in writing of its successorship
and furnish the Trustee and the Independent Contractor with
the information specified in Section 4.1 of this Agreement.
In no event shall any such transaction described herein
suspend or delay the rights of Contract Holders or
Participants hereunder.
11.6 This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an
original, but all of which shall together constitute only
one Agreement.
11.7 Communications to the Trustee shall be sent
to it at its office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or to such other address as the Trustee may
specify in writing. No communication shall be binding upon
the Trustee until it is received by the Trustee.
Communications to the Company shall be sent to the Company's
principal offices or to such other address as the Company
may specify in writing.
32
11.8 In the event any Contract Holder or
Participant is determined to be subject to Federal income
tax on any amount to the credit of his Account under this
Agreement prior to the time of payment hereunder, the entire
amount determined to be so taxable shall be distributed by
the Trustee to such Contract Holder or Participant. An
amount to the credit of a Contract Holder's or Participant's
Account shall be determined to be subject to Federal income
tax upon the earliest of: (a) a final determination by the
United States Internal Revenue Service addressed to the
Contract Holder or Participant which is not appealed to the
courts; (b) a final determination by the United States Tax
Court or any other Federal Court affirming any such
determination by the Internal Revenue Service; or (c) an
opinion by counsel chosen by the Company addressed to the
Company and the Trustee, that, by reason of Treasury
Regulations, amendments to the Internal Revenue Code,
published Internal Revenue Service rulings, court decisions
or other substantial precedent, amounts to the credit of the
Accounts of Contract Holders or Participants hereunder are
subject to Federal income tax prior to payment. The Company
shall undertake to defend, and bear the expense of, any tax
claims described herein which are asserted by the Internal
Revenue Service or by the taxing authorities of any State or
locality against any Contract Holder, Participant or his or
her spouse, including the expense of attorney fees and costs
of appeal, and shall have the sole authority to determine
whether or not to appeal any determination made by the
Internal Revenue Service or by any taxing authority of any
State or locality or by any court. The Company agrees to
reimburse any Contract Holder or Participant or his or her
spouse for any interest or penalties in respect of Federal,
state or local tax claims hereunder upon receipt of
documentation of same. Any distributions from the Trust
Fund to a Contract Holder or Participant under this Section
11.8 shall be applied in an equitable manner to reduce
Company liabilities to such Contract Holder or Participant;
provided, however, that in no event shall any Contract
Holder or Participant have any obligation to return all or
any part of such distribution to the Company if such
distribution exceeds the amount payable under the applicable
agreement between the Company and the Contract Holder or
under the Book Unit Plan or the Deferred Compensation Plan.
33
IN WITNESS WHEREOF, the parties hereto have caused
this Trust Agreement to be duly executed and their
respective corporate seals to be hereto affixed this 22nd
day of November, 1996.
Attest: THE CHASE MANHATTAN BANK
/s/ Xxxxx X. Xxxxxxx
____________________
Trust Officer
By /s/ Xxxxxxxxx X. Xxxxxx
________________________
Attest: USLIFE CORPORATION
By /s/ Xxxxxxxxxxx X. Xxxxx
________________________
/s/ Xxxxxxx X. Xxxx
___________________
Secretary Xxxxxxxxxxx X. Xxxxx
President and Chief
Operating Officer
34
EXHIBIT A
_________
ACKNOWLEDGEMENT
AND
ACCEPTANCE
The undersigned hereby acknowledges its receipt of
an agreement made as of the 22nd day of November, 1996
between the USLIFE Corporation and The Chase Manhattan Bank
relating to certain employment contracts and Key Exectuive
Employment Protection Agreements entered into between USLIFE
Corporation and a select group of its management employees,
the USLIFE Corporation Book Unit Plan and the USLIFE
Corporation Deferred Compensation Plan (the "Agreement").
In addition, the undersigned hereby accepts its appointment
as Independent Contractor under the terms set forth in the
Agreement.
Attest: KPMG PEAT MARWICK
By./s/ Xxxxxxxx Xxxxx
__________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 4th day of December, before me personally
came Xxxxxxxx Xxxxx, to me known, who, being by me duly
sworn, did depose and say that she is one of the partners of
the firm of KPMG Peat Marwick, the firm described in and
which executed the foregoing instrument, and that she signed
her name thereto for and on behalf of said firm.
/s/ Xxxxxx X. Xxxxxxx
_________________
Notary Public
00
XXXXX XX XXX XXXXXX )
: SS.:
COUNTY OF MONMOUTH )
On this 26th day of November, before me personally
came Xxxxxxxxxxx X. Xxxxx, to me known, who, being by me
duly sworn, did depose and say that he resides at 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx and that he is President and
Chief Operating Officer of USLIFE CORPORATION, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by
like order.
/s/ Xxxxx X. Xxxxxx
___________________
Notary Public
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
On this 24th day of January, 1997, before me
personally came Xxxxxxxxx X. Xxxxxx, to me, known, who,
being by me duly sworn, did depose and say that he resides
at 000 Xxxxxxxx, X.X., X.X., and that he is a Assistant Vice
President of The Chase Manhattan Bank, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instruments is such corporate seal;
that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by
like order.
/s/ Xxxxx X. Xxxxxx
_______________
Notary Public
36
EXHIBIT B
Buck Consultants Inc.
Xxx Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
A. Xxxxxx Xxxxxxx & Co. Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxxx, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TPF&C/Towers Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Xxxxx Company
0000 'X' Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
37
EXHIBIT C
Bankers Trust Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
