Exhibit 10.2
EXECUTIVE DEFERRED COMPENSATION AGREEMENT BETWEEN
PEMCO AVIATION GROUP, INC. AND XXXXXX X. XXXXXXX
THIS AGREEMENT, hereby made and entered into this the 3rd day of May, 2002, is
between Pemco Aviation Group, Inc., a Delaware corporation (hereinafter referred
to as the "Company"), and Xxxxxx X. Xxxxxxx ("Executive"). For tax purposes and
for purposes of Title I of ERISA, this Agreement is an unfunded arrangement
maintained for the purpose of providing deferred compensation to Executive, who
is a member of a select group of management or highly compensated employees of
the Company.
ARTICLE I: DEFINITIONS
The following terms, when used anywhere in this Agreement, shall have the
respective meanings prescribed below in this Article I, unless the context
clearly indicates otherwise:
Section 1.01. Beneficiary. "Beneficiary" means the person designated by
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Executive in accordance with and for the purposes of Section 3.02.
Section 1.02. Board. "Board" means the Company's board of directors.
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Section 1.03. Cause. "Cause" means that the Company has cause to terminate
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Executive's Employment because the Company has determined in its good faith
judgment that Executive (i) has engaged in willful misconduct or breach of
fiduciary duty involving personal profit, (ii) has engaged in willful or
repeated failure to substantially perform the duties or obligations of his
Employment (other than due to physical or mental impairment), (iii) has been
convicted of, or has plead guilty or nolo contendere to, a felony, or (iv) has
engaged in a material breach of any of the covenants set forth in Sections 9(a)
or (c) of the Employment Agreement. The Company shall have the right to
terminate Executive's Employment at any time with or without Cause.
Section 1.04. Change of Control. "Change of Control" means a change of control
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that occurs if:
(a) the individuals who, as of December 1, 1999, constitute the Board
(hereinafter referred to as the "Incumbent Board"), cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to December 1, 1999 whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such an individual were a member of the Incumbent Board;
or
(b) any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended), other than any
such individual, entity or group which includes a member of the Incumbent Board,
acquires (directly or indirectly) the beneficial ownership (within the meaning
of Rule 13d-3 promulgated under such Act) of more than 50% of the voting power
of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (hereinafter referred to as "Voting
Power"); or
(c) consummation of a merger or consolidation involving the Company, or a
sale or disposition of all or substantially all of the Company's assets, or a
plan of liquidation or dissolution of the Company, other than (i) a merger or
consolidation in which the holders of the
voting securities of the Company outstanding immediately prior to the merger or
consolidation hold at least a majority of the Voting Power of the surviving
corporation immediately after such merger or consolidation, (ii) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) by which no person, other than any individual, entity or
group which includes a member of the Incumbent Board, acquires more than 50% of
the Voting Power of the Company, or (iii) a merger or consolidation in which the
Company is the surviving corporation and such transaction was determined not to
be a Change of Control, which transaction and determination was approved by a
majority of the Board in actions taken prior to, and with respect to, such
transaction.
Section 1.05. Claimant. "Claimant" means any person who applies for any payment
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under this Agreement.
Section 1.06. Claims Reviewer. "Claims Reviewer" means the Company.
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Section 1.07. Code. "Code" means the Internal Revenue Code of 1986, as amended
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or replaced from time to time.
Section 1.08. Company. "Company" means Pemco Aviation Group, Inc.
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Section 1.09. Employment. "Employment" means Executive's employment with the
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Company in accordance with the terms and provisions of the Employment Agreement.
Section 1.10. Employment Agreement. "Employment Agreement" means the Amended and
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Restated Employment Agreement by and between the Company and the Executive dated
as of January 1, 2000, as it may be amended from time to time and any successor
agreement thereto.
Section 1.11. ERISA. "ERISA" means the Employee Retirement Income Security Act
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of 1974, as amended or replaced from time to time.
Section 1.12. Good Reason. "Good Reason" means the occurrence of any of the
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following, without the express written consent of Executive, after the
occurrence of a Change of Control:
(a) the assignment to Executive of any duties inconsistent in any material
adverse respect with Executive's position, authority or responsibilities as set
forth in Section 3 of the Employment Agreement, or any other material adverse
change in such position, including titles, authority or responsibilities;
(b) any failure by the Company to comply with any of the provisions of
Section 5 of the Employment Agreement, other than an insubstantial or
inadvertent failure remedied by the Company promptly after receipt of notice
thereof given by Executive; or
(c) the Company's requiring Executive to be based, or to perform a
substantial portion of his duties with the Company, at any office or location
more than 20 miles from that location at which he performed his services
specified under the provisions of Section 3 of the Employment Agreement
immediately prior to the date of the Change of Control, except for travel
reasonably required in the performance of Executive's responsibilities.
Section 1.13. Trust. "Trust" means the trust agreement which is attached hereto
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as ATTACHMENT ONE, the terms and provisions of which are incorporated herein by
reference. The Trust shall be
established in the form commonly known as a "rabbi trust" and shall conform to
the terms of a model trust as described by the Internal Revenue Service in
Revenue Procedure 92-64. The Trust shall be irrevocable and shall be established
by the Company in order to provide itself with a source of funds to assist it in
meeting its payment obligations hereunder.
Section 1.14. Trust Balance. "Trust Balance" means the total cash amount and/or
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property held by the Trustee in the Trust on any date as of which the Trust
asset(s) is/are required to be determined under this Agreement.
Section 1.15. Trustee. "Trustee" means the person or entity named as trustee of
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the Trust pursuant to the provisions thereof.
Section 1.16. Window Period. "Window Period" means the 9-month period commencing
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upon the date of a Change of Control.
ARTICLE II: TRUST CONTRIBUTIONS AND INVESTMENT THEREOF
Section 2.01. Initial Contribution. Within the 5-day period that immediately
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follows the date first above written, the Company shall remit the lump sum
amount of $562,140.00 in cash to the Trustee to be held in the Trust by the
Trustee and to be invested by the Trustee under the terms of the Trust; however,
the payment required under this Section 2.01 shall be subject to the provisions
of Section 2.03(a).
Section 2.02. Calendar Year Contributions. In accordance with the immediately
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following schedule (but subject to the applicable provisions of Section 2.03),
the Company shall remit calendar year lump sum contributions in cash to the
Trustee to be held in the Trust by the Trustee and to be invested by the Trustee
under the terms of the Trust:
Lump Sum
Calendar Year Contribution Lump Sum Contribution Remittance Period
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2002 $287,820.00 January 1, 2003 through January 5, 2003
2003 $308,560.00 January 1, 2004 through January 5, 2004
2004 $296,000.00 January 1, 2005 through January 5, 2005
2005 $324,240.00 January 1, 2006 through January 5, 2006
The foregoing schedule was derived by the parties on the basis of the
assumptions and the objective summarized in ATTACHMENT TWO, which is attached
hereto; however, the terms and provisions of this Agreement (not ATTACHMENT TWO)
shall govern all matters related to the Trust and/or to this Agreement,
including, but not limited to, contributions to the Trust.
Section 2.03. Contributions Upon Termination Of Employment. Upon the termination
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of Executive's Employment on or after the date first above written and prior to
the close of business on December 31, 2005, the Company's Trust contribution
obligations under Sections 2.01 and 2.02 also shall be subject to the provisions
of the immediately following Paragraphs (a)-(d).
(a) Initial Contribution. If the Company lump sum contribution in cash
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required under Section 2.01 has not been remitted to the Trustee on or before
Executive's Employment termination date, such contribution shall nevertheless be
made within the 5-day period prescribed by Section 2.01.
(b) Calendar Year Contributions. If Executive's Employment continues until
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the close of business on the December 31 that precedes a lump sum contribution
remittance period under Section 2.02, then the Company shall make its lump sum
cash contribution under Section 2.02 during such contribution remittance period.
If Executive's Employment does not continue until the close of business on the
December 31 that precedes a lump sum contribution remittance period under
Section 2.02, then the Company, within the 5-day period immediately following
Executive's Employment termination date, shall remit to the Trustee a lump sum
Trust contribution in cash equal to (i) the amount of the Trust contribution
specified by Section 2.02 for the calendar year in which falls said Employment
termination date, multiplied by (ii) a fraction, the numerator of which shall
equal the number of days of Employment during such calendar year and the
denominator of which shall equal 365.
(c) Termination Without Cause. If Executive's Employment is terminated by
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the Company without Cause, the Company shall, within the 5-day period
immediately following Executive's Employment termination date, remit to the
Trustee a lump sum Trust contribution amount in cash equal to the lesser of (i)
the total amount of all Trust contributions that would have been made under
Article II had Employment continued on and after the Employment termination date
through December 31, 2005, or (ii) the total amount of all Trust contributions
that would have been made under Article II had Employment continued on and after
the Employment termination date for a 730-day period. To the extent that
contribution(s) are remitted to the Trustee in accordance with this Paragraph
(c), such contribution(s) shall satisfy the Company's Trust contribution
obligations under this Agreement and effectuate a release of the Company from
such Trust contribution obligations. Notwithstanding any provision(s) of this
Agreement to the contrary and upon the termination of Executive's Employment
with Cause, the Company shall be released and discharged from its Trust
contribution obligations hereunder.
(d) Change Of Control. If Executive voluntarily terminates his Employment
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for Good Reason within the Window Period, the Company shall, within the 5-day
period immediately following Executive's Employment termination date, remit to
the Trustee a lump sum Trust contribution amount in cash equal to the lesser of
(i) the total amount of all Trust contributions that would have been made under
Article II had Employment continued on and after the Employment termination date
through December 31, 2005, or (ii) the total amount of all Trust contributions
that would have been made under Article II had Employment continued on and after
the Employment termination date for a 730-day period. To the extent that
contribution(s) are remitted to the Trustee in accordance with this Paragraph
(d), such contribution(s) shall satisfy the Company's Trust contribution
obligations under this Agreement and effectuate a release of the Company from
such Trust contribution obligations.
Section 2.04. Forfeiture Upon Termination For Cause. If Executive's Employment
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is terminated by the Company for Cause, (i) neither Executive nor his designated
Beneficiary shall be entitled to any payment of the Trust Balance under Article
III of this Agreement, (ii) the Trust shall terminate, and (iii) the entire
Trust Balance shall revert to the Company upon the termination of the Trust.
Section 2.05. Tax Payments And Contributions. To the extent permitted and/or
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required by applicable laws or regulations, the Company (not the Trustee) shall
timely and directly pay any and all tax(es) upon the Trust, including, but not
limited to, any tax(es) upon the assets held in the Trust and/or upon any income
received by the Trust. To the extent that any such tax, under applicable laws or
regulations, must be paid from the Trust, the Company shall, within the 5-day
period immediately following such a tax payment from the Trust, remit a lump sum
Trust contribution in cash to the Trustee that is equal to the total amount of
such tax payment.
Section 2.06. Trust Asset Report. In accordance with the reasonable request(s)
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of Executive made on or after the date first above written and prior to the
close of business on December 31, 2005, the Company (or the Trustee at the
Company's direction) shall provide one or more written report(s) to
Executive that provide an itemization and valuation of the assets held in the
Trust as of the date on which such report is provided to Executive.
ARTICLE III: DISTRIBUTION OF TRUST BALANCE
Section 3.01. Distribution To Executive. Following the Company's payment of any
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remaining Trust contributions that are due to be made under Article II, the
entire Trust Balance shall be distributed to Executive as soon as is
administratively practicable following the termination of his Employment (but no
earlier than the 31st day immediately following such Employment termination and
no later than the 45th day immediately following such Employment termination).
(a) Property Distribution. With respect to each type or class of non-cash
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property held in the Trust on or after Executive's date of Employment
termination, Executive shall have the right to elect in writing to receive the
distribution of all or part of such property. To the extent that Executive has
not so elected to receive distribution of all or part of such property by the
30th day immediately following his date of Employment termination, all such
property shall be liquidated by the Trustee and the cash liquidation amount
thereof shall be distributed in accordance with this Section 3.01.
(b) Trust Asset Report. In accordance with the reasonable request(s) of
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Executive made after his date of Employment termination, the Company (or the
Trustee at the Company's direction) shall provide one or more written report(s)
to Executive that provide an itemization and valuation of the assets held in the
Trust as of the date on which such report is provided to Executive.
Section 3.02. Distribution To Beneficiary. If Executive dies prior to receiving
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payment of the entire Trust Balance in accordance with Section 3.01, then such
Trust Balance shall be paid to Executive's designated Beneficiary (or such
Beneficiary's estate or Executive's estate, if applicable) in accordance with
the immediately following Paragraphs (a)-(c).
(a) Beneficiary Designation And Payment. Executive may designate in writing
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one (1) Beneficiary. Executive may revoke and/or change his written Beneficiary
designation at any time; provided, however, that a Beneficiary designation
automatically shall be revoked when the designated Beneficiary predeceases
Executive. If there is an effective Beneficiary designation and payment is due
to be made to the Beneficiary hereunder, then any non-cash assets held in the
Trust shall be liquidated by the Trustee and the entire Trust Balance shall be
paid in cash to the Beneficiary as soon as is administratively practicable
following the Company's payment of any remaining Trust contributions that are
due to be made under Article II (but no later than the 60th day immediately
following Executive's date of death).
(b) Payment To Estate. If there is no effective Beneficiary designation
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upon Executive's death prior to receiving payment of the entire Trust Balance
under Section 3.01, then any non-cash assets held in the Trust shall be
liquidated by the Trustee and the entire Trust Balance shall be paid to
Executive's estate as soon as is administratively practicable following the
Company's payment of any remaining Trust contributions that are due to be made
under Article II (but no later than the 60th day immediately following
Executive's date of death). If both Executive and his Beneficiary die and it is
not possible through the exercise of reasonable diligence to determine whether
the Beneficiary predeceased Executive, then any non-cash assets held in the
Trust shall be liquidated by the Trustee and the entire Trust Balance shall be
paid to the Beneficiary's estate in cash as soon as is administratively
practicable following the Company's payment of any remaining Trust contributions
that are due to be made under Article II (but no later than the 60th day
immediately following the Beneficiary's date of death).
(c) Minor Beneficiary. In the event a payment is to be made hereunder to a
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minor
Beneficiary, then the Claims Reviewer may direct that such distribution be paid
to a custodian for such minor's benefit under the applicable Uniform Transfer to
Minors Act, said custodian being the person so designated in Executive's will
or, if none, designated by the personal representative of Executive's estate.
Section 3.03. Application For Payment. A Claimant shall apply in writing to the
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Claims Reviewer for the payment of any amount under this Agreement.
(a) Submission Of Additional Information. The Claims Reviewer may require
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any Claimant to furnish such information as may reasonably be needed by the
Claims Reviewer to process the Claimant's application and reach a decision upon
such application.
(b) Written Notice. Within 10 days of receipt of the Claimant's application
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for a payment under this Agreement, if the Claims Reviewer renders an adverse
determination with respect to all or part of the application, the Claims
Reviewer shall furnish a written notice to the Claimant setting forth (i) the
specific reason(s) for such adverse determination with specific reference to
pertinent provisions of this Agreement and/or Trust provisions on which the
denial is based, (ii) an explanation of the procedures for review of such
adverse determination under Section 3.04 and the time limits applicable to such
procedures (including a statement of the Claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit determination
upon review under Section 3.04), and (iii) a description of any additional
material or information necessary for the Claimant to perfect the application
for the payment and an explanation of why such material or information is
necessary.
Section 3.04. Review Of Adverse Determination. Within 60 days of the Claimant's
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receipt of an adverse determination under Section 3.03 as to the Claimant's
application for payment hereunder, the Claimant may request that the Claims
Reviewer review such adverse determination under this Section 3.04.
(a) Document Inspection And Scope Of Review. In conducting a review
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requested under this Section 3.04, the Claims Reviewer shall allow the Claimant
the opportunity to submit written comments, documents, records, and other
information relating to the application for payment hereunder, and the Claims
Reviewer shall take into account all comments, documents, records, and other
information submitted by the Claimant relating to such application, regardless
of whether such information was submitted or considered in making the initial
determination on such application under Section 3.03. Upon request and free of
charge, the Claimant shall be provided reasonable access to, and copies of, all
documents, records, and other information relevant to the Claimant's application
for payment hereunder, provided that a document, record, or other information
shall be considered "relevant" to such application if such document, record, or
other information (i) was relied upon in making the adverse determination, (ii)
was submitted, considered, or generated in the course of making the adverse
determination, without regard to whether such document, record, or other
information was relied upon in making such determination, or (iii) demonstrates
compliance with the third sentence of Section 4.01 in making the adverse
determination.
(b) Written Decision. To the extent the Claims Reviewer makes an adverse
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determination under this Section 3.04 with respect to the Claimant's application
for payment hereunder, the Claims Reviewer, not later than 10 days after the
request for review is received, shall render a written decision and furnish a
copy of the decision to the Claimant. The Claims Reviewer's decision shall be
written in a manner calculated to be understood by the Claimant, include
specific reason(s) for such adverse determination and specific references to the
pertinent provisions of this Agreement and/or the Trust upon which such adverse
determination is based, and contain a statement of the Claimant's right to bring
a civil action under ERISA Section 502(a). Such decision also shall contain a
statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the Claimant's application for
payment hereunder, provided that a document, record, or other information shall
be considered "relevant" to such application if such document, record, or other
information (i) was relied upon in making the adverse determination, (ii) was
submitted, considered, or generated in the course of making the adverse
determination, without regard to whether such document, record, or other
information was relied upon in making such determination, or (iii) demonstrates
compliance with the third sentence of Section 4.01 in making the adverse
determination.
Section 3.05. Interest. If payment of all or part of the Trust Balance is not
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made on or before the latest date on which payment thereof is due to be made
under Article III, then such unpaid amount shall bear interest from the latest
date by which it was due to be paid under Article III through the date payment
actually is made. The interest rate for the purposes of this Section 3.05 shall
be two percent (2%) above the rate of interest designated by AmSouth Bank (or
its successor) from time to time as its "prime rate."
Section 3.06. Receipt And Release For Payments. Any payment to the Executive,
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his Beneficiary, or a legal representative, guardian, or committee appointed for
Executive or his Beneficiary in accordance with the provisions of this
Agreement, shall, to the extent thereof, be in full satisfaction of all claims
hereunder against the Trustee, the Company, and the Claims Reviewer. A payee, as
a condition precedent to such payment, may be required to execute a receipt and
release of the Trustee, the Company, and the Claims Reviewer in such form as
shall be determined by the Trustee, the Company, and the Claims Reviewer in
their reasonable discretion.
Section 3.07. Code Sections 280G And 4999. To the extent that Executive or his
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Beneficiary (or Executive's estate or the Beneficiary's estate, as applicable)
with respect to any payment of the Trust Balance under Article III will be
obligated to pay any tax(es) under Code Sections 280G and 4999 and/or under any
other federal, state, or local laws or regulations (other than such laws or
regulations pertaining to income taxes, estate taxes, and/or gift taxes), then
the Company, at the time of such payment of the Trust Balance, shall pay to the
Trust Balance recipient a lump sum contribution in cash sufficient to satisfy
all such tax(es) and to satisfy any income taxes due from such recipient solely
with respect to the lump sum payment made under this Section 3.07. For the
purposes of this Section 3.07, tax liability under Code Sections 280G and 4999
shall be determined by allocating the "base amount" computed under Code Section
280G to the total payment(s) of the Trust Balance under Article III (the portion
of the base amount so allocated shall be an amount which bears the same ratio to
the base amount as the present value of such total Trust Balance payment(s)
bears to the aggregate present value of all "parachute payments" under Code
Section 280G). A lump sum payment due to be made to Executive or his Beneficiary
(or Executive's estate or the Beneficiary's estate, as applicable) under this
Section 3.07 shall be computed in accordance with the Code, applicable
regulations issued under the Code, any applicable guidelines issued by the
Internal Revenue Service, and any other applicable laws or regulations.
ARTICLE IV: ADMINISTRATION
Section 4.01. Powers And Duties Of The Company. The Company shall administer and
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manage the operation of this Agreement in accordance with its terms and shall
take such action as is necessary or appropriate to accomplish the Company's
duties under this Agreement, including, but not limited to, the powers (i) to
appoint attorneys, accountants, investment managers, agents, advisers, and other
specialists and their agents incident to the exercise of its duties under the
Agreement and (ii) to maintain all necessary records for the administration of
the Agreement. Notwithstanding the foregoing provisions of this Section 4.01,
the Company's exercise of its powers and fulfillment of its duties and
responsibilities hereunder shall be subject to the terms and provisions of the
Trust and to the duties and responsibilities assigned hereunder to the Claims
Reviewer. The Company shall establish administrative processes and
safeguards designed to ensure and to verify that determinations on Claimant
applications for payment hereunder are made in accordance with this Agreement,
and Sections 3.03 and 3.04 shall not be administered in a way that unduly
inhibits or hampers the initiation or processing of Claimant applications for
payment hereunder. The Company shall be responsible for preparing and
distributing all benefit payment application forms, election forms, election
change forms, Beneficiary designation forms, and all other administrative forms
and materials necessary for the administration and operation of the terms and
provisions of this Agreement.
Section 4.02. Payment Of Expenses And Fees. Notwithstanding any provision(s) of
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this Agreement and/or the Trust to the contrary, (i) all expenses of
administration of this Agreement, (ii) all expenses of administration of the
Trust, and (iii) all Trustee fees and expenses and other expenses related to the
Trust shall be solely and directly paid by the Company. Such expenses and fees
shall include any expenses and fees incident to the Company's and/or Trustee's
performance of its duties and responsibilities under this Agreement and/or the
Trust, or any person or persons retained or appointed by the Company or the
Trustee incident to the exercise of duties under this Agreement and/or the
Trust, including, but not limited to, fees of accountants, counsel, investment
managers, agents, advisers, and other specialists and their agents and other
costs of administering this Agreement and/or the Trust.
Section 4.03. Amendment. This Agreement may be amended as provided by the
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immediately following Paragraphs (a)-(d).
(a) By Agreement Of The Parties. This Agreement may be amended by the
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Company at any time, provided that such an amendment shall be void and without
effect unless Executive specifically has consented in writing to such amendment
in advance of the effective date thereof.
(b) Unilateral Amendment. This Agreement unilaterally may be amended by the
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Company, either retroactively or prospectively, solely for the purpose of
ensuring this Agreement's compliance with applicable laws and regulations
(including, but not limited to the Code, ERISA, and applicable regulations
issued under the Code or ERISA) that govern the Agreement's status as an
unfunded arrangement maintained for the purpose of providing deferred
compensation to a member of a select group of management or highly compensated
employees of the Company. If the Agreement is amended pursuant to this Paragraph
(b), Company shall provide notice to Executive of such amendment prior to the
effective date thereof.
(c) Amendment Procedure. The Board shall by resolution approve each
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amendment to this Agreement made pursuant to either Section 4.03(a) or Section
4.03(b), and, on or after the date of such approval, direct that an approved
amendment be executed by the appropriate officer of the Company. An amendment to
this Agreement shall become effective as provided therein upon its execution.
Unless otherwise provided by the terms of the Trust, no amendment to this
Agreement shall be effective if it (i) authorizes or permits any part of the
Trust to be used for or diverted to any purpose other than for the exclusive
benefit of Executive or his Beneficiary, and/or (ii) causes any retroactive
reduction in the amount of the Trust Balance. Any amendment which affects the
rights, duties or responsibilities of the Trustee may only be made with the
Trustee's written consent.
(d) Trustee. The Company shall be responsible for providing to the Trustee
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a copy of any amendment to or restatement of this Agreement within ten (10) days
after the adoption and execution of the same.
Section 4.04. Termination. This Agreement shall terminate as of the date the
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Trust is terminated in accordance with its terms and provisions. The Company
shall be responsible for notifying the Trustee of
its intent to terminate this Agreement (and the Trust established hereunder) at
least forty-five (45) days in advance of the effective date of such termination.
ARTICLE V: MISCELLANEOUS
Section 5.01. Alienation. Except as otherwise provided by the terms of the
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Trust, no amount payable hereunder by the Trustee from the Trust and/or by the
Company to any person shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same shall be void.
Section 5.02. Applicable Law. This Agreement shall be construed and enforced
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according to the laws of the State of Delaware (other than laws respecting
choice of law), except to the extent such laws are preempted by ERISA.
Section 5.03. Singular And Plural Forms. Whenever any words are used herein in
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the singular or plural form, they shall be construed as though they were also
used in the other form in all cases where they would so apply.
Section 5.04. Headings. The headings and subheadings of this Agreement have been
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inserted for convenience of reference and are to be ignored in any construction
of the provisions hereof.
Section 5.05. Severability. In case that any provision(s) of this Agreement
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shall be held illegal or invalid for any reason, including, without limitation,
that it should be against public policy, such illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if such illegal and invalid provisions had never been
inserted herein.
Section 5.06. Successors. This Agreement may and shall be assigned or
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transferred to, and shall be binding upon and shall inure to the benefit of, any
successor of the Company, and any such successor shall be deemed substituted for
all purposes of the "Company" under the terms of this Agreement. As used in this
Section 5.06, the term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase or otherwise,
acquires all or substantially all of the assets or the business of the Company.
Notwithstanding such assignment, the Company shall remain, with such successor,
jointly and severally liable for all its obligations under this Agreement.
Failure of the Company to obtain the agreement of any successor to be bound,
directly or indirectly, by the terms of this Agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall require (i) the distribution of the Trust Balance under Article III as if
Employment were terminated without Cause and (ii) payment by the Company of a
lump sum amount equal to the total Trust contributions that would have been due
under Article II had Employment continued until the close of business on
December 31, 2005 (such lump sum shall be paid by the Company in accordance with
the provisions of Article III, including but not limited to Sections 3.05 and
3.07, as if it were part of the Trust Balance and as if the Company were the
Trustee). Except as herein provided, this Agreement may not otherwise be
assigned by the Company (other than to a subsidiary or affiliate) without the
prior written consent of Executive.
Section 5.07. Notices. All notices or other communications that are required or
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permitted hereunder shall be given in writing in accordance with those
Employment Agreement provisions that govern the giving of notices or other
communications under the Employment Agreement.
Section 5.08. Waiver. No waiver by either party hereto at any time of any breach
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by the other party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time.
Section 5.09. Entire Agreement. No agreements or representations, oral or
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otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
This Agreement sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto in respect of such subject matter. Any prior agreement of
the parties hereto in respect of the subject matter contained herein is hereby
terminated and canceled.
Section 5.10. Survival Of Rights And Obligations. The respective rights and
----------------------------------
obligations of the parties hereunder of this Agreement shall survive Executive's
termination of Employment and the termination of this Agreement to the extent
necessary for the intended preservation of such rights and obligations.
Section 5.11. Validity. The invalidity or unenforceability of any provision or
--------
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above on Page 1 hereof.
COMPANY: EXECUTIVE:
PEMCO AVIATION GROUP, INC.
By: /s/ X.X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
----------------------------- ---------------------------
Name: H.T. "Skip" Bowling Name: XXXXXX X. XXXXXXX
Title: Vice Chairman, Director
ATTACHMENT ONE
TRUST UNDER THE EXECUTIVE DEFERRED COMPENSATION AGREEMENT
BETWEEN PEMCO AVIATION GROUP, INC. AND XXXXXX X. XXXXXXX
(a) This Agreement made this 3rd day of May, 2002 by and between Pemco
Aviation Group, Inc. ("Company") and AmSouth Bank ("Trustee");
(b) WHEREAS, Company has adopted and executed the Executive Deferred
Compensation Agreement Between Pemco Aviation Group, Inc. and Xxxxxx X. Xxxxxxx
("Deferred Compensation Agreement") as of the day of May, 2002;
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(c) WHEREAS, Company has incurred or expects to incur liability under the
terms of the Deferred Compensation Agreement with respect to the individual
participating in the Deferred Compensation Agreement;
(d) WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Company's creditors in the event of Company's
Insolvency, as herein defined, until paid to the Deferred Compensation Agreement
participant and his beneficiary in such manner and at such times as specified in
the Deferred Compensation Agreement;
(e) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Deferred Compensation Agreement as an unfunded arrangement maintained for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees for tax purposes and for purposes of Title I of the
Employee Retirement Income Security Act of 1974;
(f) WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Deferred Compensation Agreement;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment Of Trust
(a) Company shall deposit with Trustee in trust, at the time(s) required by
the Deferred Compensation Agreement, such amounts as are required to be so
deposited under the Deferred Compensation Agreement, which amounts shall become
part of the principal of the Trust to be held, administered and disposed of by
Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as
Page A1 -- 1
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of the Deferred Compensation Agreement participant and
general creditors as herein set forth. The Deferred Compensation Agreement
participant and his beneficiary shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any rights created
under the Deferred Compensation Agreement and this Trust Agreement shall be mere
unsecured contractual rights of the Deferred Compensation Agreement participant
and his beneficiary against Company. Any assets held by the Trust will be
subject to the claims of Company's general creditors under federal and state law
in the event of Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with Trustee to
augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Deferred Compensation
Agreement participant or beneficiary shall have any right to compel such
additional deposits.
(f) Company shall be responsible for complying with all applicable federal,
state and local laws applicable to the Agreement, including, but not limited to,
all applicable ordinances and regulations. Company also shall be responsible for
the filing of necessary returns, registrations, reports and other filings with
all governmental agencies, for preparing and filing any required "top-hat"
filing with the Department of Labor, and for complying with any applicable
securities law registration requirements and filings.
Section 2. Payments to Deferred Compensation Agreement Participant and His
Beneficiary.
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of the Deferred Compensation
Agreement participant (and his or her beneficiary), that provides a formula or
other instructions acceptable to Trustee for determining the amounts so payable,
the form in which such amount is to be paid (as provided for or available under
the Deferred Compensation Agreement), and the time of commencement of payment of
such amounts. Except as otherwise provided herein, Trustee shall make payments
to the Deferred Compensation Agreement participant and his beneficiary in
accordance with such Payment Schedule. The Company shall be responsible for
withholding and transmitting to the appropriate taxing authorities all required
or elected taxes and for furnishing to the Deferred Compensation Agreement
participant and/or his beneficiary evidence of the payment of such taxes and the
amounts thereof.
(b) The entitlement of the Deferred Compensation Agreement participant or
his or her beneficiary to benefits under the Deferred Compensation Agreement
shall be determined by Company or such party as it shall designate under the
Deferred Compensation Agreement, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Deferred
Compensation Agreement.
(c) Company may make payment of benefits directly to the Deferred
Compensation Agreement participant or his beneficiary as they become due under
the terms of the Deferred Compensation Agreement. Company shall notify Trustee
of its decision to make payment of benefits
Page A1 -- 2
directly prior to the time amounts are payable to the participant or his
beneficiary. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Deferred Compensation Agreement, Company shall make the balance of
each such payment as it falls due. Trustee shall notify Company where principal
and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary
When Company Is Insolvent.
(a) Trustee shall cease payment of benefits to the Deferred Compensation
Agreement participant and his beneficiary if the Company is Insolvent. Company
shall be considered "Insolvent" for purposes of this Trust Agreement if (i)
Company is unable to pay its debts as they become due, or (ii) Company is
subject to a pending proceeding as a debtor under the United States Bankruptcy
Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of Company
shall have the duty to inform Trustee in writing of Company's Insolvency.
(2) Unless Trustee has actual knowledge of Company's Insolvency, or
has received notice from Company or a person claiming to be a creditor alleging
that Company is Insolvent, Trustee shall have no duty to inquire whether Company
is Insolvent. Trustee may in all events rely on such evidence concerning
Company's solvency as may be furnished to Trustee.
(3) Upon receiving notification of the Company's Insolvency, Trustee
shall discontinue payments to the Deferred Compensation Agreement participant or
his beneficiary and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of the Deferred Compensation Agreement participant or his
beneficiary to pursue their rights as general creditors of Company with respect
to benefits due under the Deferred Compensation Agreement or otherwise.
(4) Trustee shall resume the payment of benefits to the Deferred
Compensation Agreement participant or his beneficiary in accordance with Section
2 of this Trust Agreement only after Trustee has been notified in writing that
the Company is no longer Insolvent.
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to the
Deferred Compensation Agreement participant or his beneficiary under the terms
of the Deferred Compensation Agreement for the period of such discontinuance,
less the aggregate amount of any payments made to the Deferred Compensation
Agreement participant or his beneficiary by Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Page A1 -- 3
Company shall have no right or power to direct Trustee to return to Company
or to divert to others any of the Trust assets before all payment of benefits
have been made to the Deferred Compensation Agreement participant and his
beneficiary pursuant to the terms of the Deferred Compensation Agreement.
Section 5. Investment Authority.
Subject to the funding policy established by the Company and/or to
direction by the Company, the Trustee is expressly granted the right to manage
(including the power to acquire and dispose of), invest and reinvest Trust
assets and may from time to time invest and reinvest any cash principal and any
income received or held by it in such securities and other property, real or
personal, it may deem advisable, whether or not productive of income.
(a) The Trustee may invest in securities, including common and preferred
stocks and bonds, other evidences of indebtedness, covered call options, and
real property. Further, the Trustee shall not purchase stock or securities of
the Trustee or its affiliates.
(b) The Trustee may invest in certificates of deposit, in variable demand
notes, and in demand or time deposits (including any such notes and deposits of
AmSouth Bank bearing a reasonable rate of interest).
(c) The Trustee may invest in shares of open-end management type investment
companies as defined in the Investment Company Act of 1940 (i.e., mutual funds),
and is specifically authorized to invest in the AmSouth Bank Mutual Funds for
which the Trustee serves as investment advisor.
(d) The Trustee may, pursuant to the terms of the Deferred Compensation
Agreement, invest in and dispose of individual life insurance and annuity
contracts issued on the life of the Deferred Compensation Agreement participant.
The Trustee may, as general investments of the Trust, invest in and dispose of
group annuity and group investment contracts.
(e) The Trustee may invest in obligations issued or guaranteed by banks,
insurance companies, or other corporations. Such obligations shall include, but
not be limited to, guaranteed investment contracts and bank investment
contracts.
(f) In no event may Trustee invest in securities (including stock or rights
to acquire stock) or obligations issued by Company, other than a de minimis
amount held in common investment vehicles in which Trustee invests. All rights
associated with assets of the Trust shall be exercised by Trustee or a person
designated by Trustee, and shall in no event be exercisable by or rest with the
Deferred Compensation Agreement participant.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust shall be
accumulated and reinvested. Company shall be responsible for the direct payment
of expenses and taxes in accordance with the terms and provisions of the
Deferred Compensation Agreement.
Page A1 -- 4
Section 7. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 60 days following the close of each calendar year
and within 30 days after the removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall incur
no liability to any person for any action taken pursuant to a direction, request
or approval given by Company which is contemplated by, and in conformity with,
the terms of the Deferred Compensation Agreement or this Trust and is given in
writing by Company.
(b) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(c) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in performing any of
its duties or obligations hereunder.
(d) Trustee shall have, without exclusion, all powers conferred on Trustees
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor Trustee, or to loan to any person the proceeds
of any borrowing against such policy.
(e) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
(f) The Trustee shall have no responsibility to the Company or any other
person or entity for any loss and/or tax consequence that may result from acting
in accordance with the Deferred Compensation Agreement and shall be indemnified
by the Company for any and all losses, expenses, penalties or taxes, including
but not limited to, those arising from reliance on the Company's interpretations
and clarifications of Deferred Compensation Agreement provisions and from
failing to act in the absence of directions for matters not specifically
undertaken hereunder. Without limiting the generality of the foregoing, said
indemnity to Trustee shall include all costs and expenses of defending,
investigating and pursuing any claim, demand, suit, litigation, administrative
proceeding or investigation
Page A1 -- 5
arising out of such action or failure to act, including without limitation
reasonable attorney's fees. This Section 8(f) shall survive the termination or
amendment of the Deferred Compensation Agreement and/or this Trust.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all administrative expenses and Trustee's fees and
expenses in accordance with the terms and provisions of the Deferred
Compensation Agreement.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company, which
shall be effective 30 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 days notice or upon shorter
notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 30 days after receipt of notice of
resignation, removal or transfer, unless Company extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraph(s) (a) or (b) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
Section 11. Appointment of Successor.
If Trustee resigns or is removed in accordance with Section 10(a) or (b)
hereof, Company may appoint any third party, such as a bank trust department or
other party that may be granted corporate trustee powers under state law, as a
successor to replace Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have all of
the rights and powers of the former Trustee, including ownership rights in the
Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by Company or the successor Trustee to evidence the
transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed by
Trustee and Company. Notwithstanding the foregoing, no such amendment (or the
adoption thereof) shall conflict with the terms of the Deferred Compensation
Agreement or shall make the Trust revocable after it has become irrevocable in
accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which the Deferred
Compensation Agreement participant and his beneficiary are no longer entitled to
benefits pursuant to the terms of the Deferred Compensation Agreement.
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(c) Upon written approval of the participant or beneficiary entitled to
payment of benefits pursuant to the terms of the Deferred Compensation
Agreement, Company may terminate this Trust prior to the time all benefit
payments under the Deferred Compensation Agreement have been made. All assets in
the Trust at termination shall be returned to Company.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to the Deferred Compensation Agreement participant and
his beneficiary under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the state of Delaware to the extent not preempted by the
Employee Retirement Income Security Act of 1974, as amended or replaced from
time to time.
Section 14. Effective Date.
The effective date of this Trust Agreement shall be the date first above
written in this Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement,
each by a duly authorized officer thereof, as of the date first above written in
this Trust Agreement.
PEMCO AVIATION GROUP, INC. AMSOUTH BANK
By: By:
------------------------------- --------------------------------
Name: Name:
----------------------------- ------------------------------
Title: Title:
---------------------------- ------------------------------
Page A1 -- 7
ATTACHMENT TWO
$ ASSUMPTIONS
Executive's Annual Salary Increase: 10%
Executive's Applicable Tax Rate For
Lump Sum Trust Balance Distribution: 40%
Annual Investment Return On Trust Contributions: 8%
$ OBJECTIVE
Based on the foregoing Assumptions and the following Table, the liquidation
and distribution of the Trust Balance as of January 6, 2005 would produce,
after payment of applicable taxes from such distributed Trust Balance, a
lump sum sufficient to thereafter yield an annual investment return of at
least $85,000.
Monthly Interest Annual Total
Date Monthly Aggregate Annual Required Income Contr. Contr.
-------- ------- --------- -------- ---------- -------- -------- ----------
12/31/00 $1,075 $1,075 $ 12,900 $ 160,000 -- $267,000 $ 267,000
12/31/01 $1,238 $2,313 $ 27,756 $ 350,000 $ 21,360 $295,140 $ 583,500
12/31/02* $1,353 $3,666 $ 43,992 $ 550,000 $ 46,680 $287,820 $ 918,000
12/31/03* $1,538 $5,204 $ 62,448 $ 780,000 $ 73,440 $308,560 $1,300,000
12/31/04* $1,876 $7,074 $ 84,888 $1,060,000 $104,000 $296,000 $1,700,000
12/31/05* $1,981 $9,001 $108,012 $1,350,150 $136,000 $324,240 $2,160,240
*Estimated
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