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Exhibit 10(lx)
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THIS AGREEMENT, made as of the 1st day of March, 1994, among USLIFE
Corporation, a New York corporation (the "Company"), Chemical 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 (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 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 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 Deferred Compensation
Plan;
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
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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 or the
Deferred Compensation Plan and makes no representations with respect thereto,
and all representations and recitals with respect to the Contracts 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:
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
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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:
(a) the L/C shall expire no sooner than one (1) year from the
date of issuance,
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(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,
(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,
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(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 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
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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 and Chairman of the
Board and Chief Executive Officer, 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 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 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 under the Contracts 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 nor the Deferred Compensation Plan are part of and do not constitute a
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qualified plan under Section 401(a) of the United States Internal Revenue Code
and therefore the Contracts 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 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.
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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 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
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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 the occurrence of either (1)
a transaction which has required the affirmative vote of holders of at
least 80% of the outstanding shares of capital stock of the Company
regularly entitled to vote in the election of the directors of the
Company by reason of Article Seven of the Company's Certificate of
Incorporation, or (2) the acquisition by any person, partnership,
corporation or other organization, or by any group of two or more
thereof who are affiliates (as defined by Rule 405 under the
Securities Act of 1933) or who are acting in concert in respect of
such acquisition of more than 25% of such outstanding shares of such
capital stock, if the Company has opposed an acquisition of shares of
the Company by such person, partnership, corporation or other
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organization or group before any insurance regulatory authority whose
approval of such acquisition was required. Provided, however, that an
event described in (1) or (2) 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 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.
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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
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.
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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 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
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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 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
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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 and, if the liability of the Company
to all Participants has been satisfied, the balance, if any, shall be allocated
among the Contract Holders' Accounts. 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. Such
balance, whether divided among the Contract Holders or the Participants, 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 or under the Deferred Compensation Plan prepared by the Independent
Contractor pursuant to Section 3.3) to the Accounts of Contract Holders or
Participants who at such time have Contracts in effect or interests in the
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 Deferred
Compensation Plan bear to the total liabilities to all such Contract Holders or
Participants. Upon the satisfaction of
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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 of the insured
Contract Holder be credited to the General Account. The proceeds of any life
insurance policy on a Participant in the Deferred Compensation Plan shall be
distributed to Participant's beneficiary to the extent of any Company liability
under 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 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
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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
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 and 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 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 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
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employees of the Company, their compensation and their rights and interests
under the Contracts 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 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
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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.
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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
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
19
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;
(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
20
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;
(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
21
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.
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.
22
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 Company, the
23
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.
24
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 law
25
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 Holders or Participants on the date of the
26
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, Chase Manhattan Bank, N.A. shall be appointed as successor trustee.
In the event that Chase Manhattan Bank, N.A. 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 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
27
Company, the Trustee, or two-thirds of the Contract Holders, as provided for in
this Section 8.4, and (b) 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.
8.5 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
28
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 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 so objecting to the
amendment.
29
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 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 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 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 payments shall be made and continued
by the Trustee in accordance with the certification of the Independent
Contractor and that the
30
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.
31
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 Deferred Compensation Plan.
32
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 day of , .
Attest:
_____________________________ CHEMICAL BANK
Trust Officer
By: /s/ Xxxxxxx Xxxxxxxx
____________________
Xxxxxxx Xxxxxxxx
Vice President
Attest: USLIFE CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxx
_____________________________ ________________________
Secretary Xxxxxxxxxxx X. Xxxxx
Vice Chairman and Chief
Administrative Officer
33
EXHIBIT A
_________
ACKNOWLEDGEMENT
AND
ACCEPTANCE
The undersigned hereby acknowledges its receipt of an agreement made
as of the day of between the USLIFE
Corporation and Chemical Bank relating to certain employment contracts entered
into between USLIFE Corporation and a select group of its management employees
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 ______________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of , before me personally came
, 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.
________________________________
Notary Public
34
STATE OF )
: SS.:
COUNTY OF )
On this day of , before me
personally came , to me known,
who, being by me duly sworn, did depose and say that he resides at
, and that he is
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.
_______________________________
Notary Public
STATE OF )
: SS.:
COUNTY OF )
On this day of , 199 , before me
personally came , to me,
known, who, being by me duly sworn, did depose and say that he resides at
, and that he is a
of Chemical 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.
_______________________________
Notary Public
35
Amendment
_________
Amendment, effective January 23, 1996, to Trust Agreement dated March 1,
1994, among USLIFE Corporation, Chemical Bank and KPMG Peat Marwick LLP (as
Independent Contractor) establishing a trust to fund certain employment
contracts and the USLIFE Corporation Deferred Compensation Plan.
In accordance with the provisions contained in Section 10.1 of the
Agreement, the language in Section 2.3(d) (iv) is deleted in its entirety and
replaced with the following language:
"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 Sections
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 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 purpose of the Agreement.
