EXHIBIT 10.1
X. X. XXXXX CORPORATION
SUPPLEMENTAL BENEFIT PLANS TRUST
(Effective as of September 1, 1995)
This Trust Agreement is hereby created effective as of September 1, 1995, by and
between X. X. Xxxxx Corporation ("Company") and Xxxxx Xxxxxx ("Trustee").
WITNESSETH:
WHEREAS, the Company has adopted and maintains the supplemental retirement
benefit plans as described in Appendix A to this Trust Agreement, which plans
are collectively referred to herein as the "Supplemental Plans";
WHEREAS, the Supplemental Plans are not tax-qualified plans under section 401 of
the Internal Revenue Code of 1986, and the applicable regulations thereunder, as
the same may be amended ("Code"), and the Supplemental Plans are designed to
provide supplemental retirement benefits ("Supplemental Benefits"), including
supplemental deferred compensation, supplemental retirement benefits, and a
restoration of benefits limited by Code limitations which are applicable to the
X. X. Xxxxx Corporation Salaried Employees' Pension Plan;
WHEREAS, the Company desires to establish a trust ("Trust" or "Trust Fund") and
to contribute to the Trust assets that shall be held therein, subject to the
claims of the Company's creditors in the event of the Company's Insolvency (as
herein defined) until paid to the participants and their beneficiaries under the
Supplemental Plans ("Trust Beneficiaries") in such manner and at such times as
specified in the Supplemental Plans;
WHEREAS, it is the intention of the parties that this Trust shall constitute an
unfunded arrangement and shall not affect the status of the Supplemental Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974, and the
applicable regulations thereunder, as the same may be amended ("ERISA");
WHEREAS, it is the intention of the Company to make, at its discretion,
contributions to the Trust to provide itself with a source of funds to assist it
in meeting its obligations under the Supplemental Plans; and
WHEREAS, the Trustee desires to accept the Trust established under this Trust
Agreement and to act as Trustee thereunder;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
ARTICLE I. ESTABLISHMENT OF TRUST
1.1 INITIAL TRUST DEPOSIT
Subject to the claims of its creditors as set forth in Article III, the Company
hereby deposits with the Trustee in trust Ten Dollars ($10.00) which shall
become part of the principal of the Trust to be held, administered and disposed
of by the Trustee as provided in this Trust Agreement.
1.2 PERMANENCE
The Trust hereby established is revocable by the Company; it shall become
irrevocable upon a Change of Control, as defined herein.
1.3 GRANTOR TRUST
The Trust is intended to be a grantor trust, of which the Company is the
grantor, within the meaning of subpart E, part I, subchapter 1, subtitle A of
the Code, and shall be construed accordingly. The Company agrees to report all
items of income and deduction of the Trust on its own income tax returns, and
shall have no right to any distributions from the Trust or any claim against the
Trust for funds necessary to pay any income taxes with respect to amounts so
reported.
1.4 EXCLUSIVE BENEFIT
The principal of the Trust and any earnings thereon shall be held separate and
apart from other funds of the Company and shall be used exclusively for the uses
and purposes herein set forth. Neither the Trust Beneficiaries nor the
Supplemental Plans shall have any preferred claim on, or any beneficial
ownership interest in, any assets of the Trust prior to the time such assets are
paid to the Trust Beneficiaries as provided in Article II, and all rights
created under the Supplemental Plans and this Trust Agreement shall be mere
unsecured contractual rights of the Trust Beneficiaries against the Company. Any
assets held by the Trust will be subject to the claims of the Company's general
creditors under Federal and state law in the event of Insolvency, as defined in
Section 3.1.
1.5 ADDITIONAL TRUST DEPOSITS
The Company may at any time, or from time to time, make additional deposits of
cash or other property in trust with the Trustee to augment the principal to be
held, administered and disposed of by the Trustee as provided in this Trust
Agreement. Unless there is a Change of Control, any such additional deposits
shall be made within the sole discretion of the Company. Neither the Trustee nor
any Trust Beneficiary shall have any right to compel such additional deposits.
Upon a Change of Control, the Company shall, as soon as possible, but in no
event longer than 60 days following the Change of Control, as defined herein,
make an irrevocable contribution to the Trust in an amount that is sufficient to
pay each Trust Beneficiary the benefits to which Trust Beneficiaries would be
entitled pursuant to the terms of the Supplemental Plan(s) as of the date on
which the Change of Control occurred. The Trustee or any Trust Beneficiary shall
have the right to
compel such deposits immediately following a Change of Control or in subsequent
years, as described below.
Within 180 days following the end of each Plan Year following a Change of
Control, the Company shall be required to irrevocably deposit additional cash or
other property to the Trust in an amount sufficient to pay each Trust of
Beneficiary the benefits payable pursuant to the terms of the Supplemental
Plan(s) with respect to such Plan Year.
1.6 PAYMENT OF TAXES
The Company shall from time to time pay any and all taxes which at any time are
lawfully levied or assessed upon or become payable with respect to the Trust
Fund, the income or any property forming a part thereof, or any security
transaction pertaining thereto. The Company may contest the validity of any such
taxes.
1.7 STATUS OF SUPPLEMENTAL PLANS
The Supplemental Plans are intended to be "unfunded" and maintained "primarily
for the purposes of providing supplemental benefits for a select group of
management or highly compensated employees" for purposes of ERISA. As such, it
is intended that the Supplemental Plans are not to be subject to those
provisions of Title I of ERISA for which they are eligible for exemption due to
their status. The existence of this Trust is not intended to alter said
characterization of the Supplemental Plans.
1.8 ADDITIONAL PLANS
The Company may from time to time add other supplemental plans to the list of
plans intended to be covered by the Trust. The Company may also delete plans
from such list unless there has been a Change of Control, as defined herein. Any
such addition or deletion shall be made by an amendment to Appendix A, and the
plans so listed in Appendix A from time to time shall be the "Supplemental
Plans" as covered by this Trust Agreement.
ARTICLE II. PAYMENTS TO TRUST BENEFICIARIES WHEN THE COMPANY IS NOT INSOLVENT
2.1 SUPPLEMENTAL BENEFIT PAYMENTS
At all times when the Company is not Insolvent, the Trustee shall, upon the
direction of the Company, make payments of Supplemental Benefits to Trust
Beneficiaries from the assets of the Trust, if and to the extent such assets are
available for distribution, in accordance with the Supplemental Plans. The
Company may make payment of benefits directly to Trust Beneficiaries as they
become due under the terms of the Supplemental Plan(s). 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 Supplemental Plan(s),
the Company shall make the balance of each such payment as it falls due. The
entitlement of a Trust Beneficiary to Supplemental Benefits shall be determined
by
the Company or such party as it shall designate under the Supplemental Plans,
and any claim for such Supplemental Benefits shall be considered and reviewed
under the procedures set out in the Supplemental Plans.
2.2 INSUFFICIENT TRUST ASSETS
If the Trust assets are not sufficient to make payments of Supplemental Benefits
to the Trust Beneficiaries in accordance with the Supplemental Plans, the
Trustee shall so notify the Company. In such event, it is intended that the
Company will then make payments in accordance with the Supplemental Plans.
2.3 DISCHARGE OF PAYMENT OBLIGATION
Any payments made by the Trustee to the Trust Beneficiaries shall be in
discharge of the Company's obligations under the Supplemental Plans; provided,
however, that the Company shall remain liable to the Trust Beneficiaries for all
amounts due under the Supplemental Plans to the extent not paid by the Trustee.
ARTICLE III. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARIES
WHEN THE COMPANY IS INSOLVENT
3.1 INSOLVENCY
The Company shall be considered "Insolvent" for purposes of this Trust Agreement
if --
(a) the Company is unable to pay its debts as they become due, or
(b) the Company is the subject of a pending proceeding as a debtor under the
United States Bankruptcy Code (or any successor Federal statute).
At all times during the continuance of this Trust, the principal and income of
the Trust shall be subject to claims of general creditors of the Company under
federal and state law as set forth below.
3.2 DETERMINATION OF INSOLVENCY
The Board of Directors and the Chief Executive Officer of the Company shall have
the duty to promptly inform the Trustee in writing of the Company's Insolvency.
If a person claiming to be a creditor of the Company alleges in writing to the
Trustee that the Company has become Insolvent, the Trustee shall independently
determine, within 60 days after receipt of such notice, whether the Company is
Insolvent. The Trustee may employ attorneys, accountants and other advisers to
make such determination and may rely conclusively on their conclusions. The
expenses of such determination shall be allowed as administrative expenses of
the Trust.
3.3 DISCONTINUANCE OF BENEFIT PAYMENTS
Upon written notification of the Company's Insolvency by the Board of Directors
and Chief Executive Officer of the Company pursuant to Section 3.2, or pending
its determination of whether the Company is Insolvent, the Trustee shall
discontinue payment of Supplemental Benefits to the
Trust Beneficiaries, and shall hold the Trust Fund for the benefit of the
Company's general creditors, after payment of amounts authorized in Article IX.
The Trustee shall continue the investment of the Trust Fund in accordance with
Article V, and shall make payments out of the Trust Fund to the Company's
general creditors only in accordance with instructions from a court of competent
jurisdiction or from a person appointed by such a court.
3.4 RESUMPTION OF BENEFIT PAYMENTS
The Trustee shall resume payments of Supplemental Benefits to the Trust
Beneficiaries in accordance with Article II of this Trust Agreement only after
the Trustee has determined that the Company is not Insolvent, the Trustee has
determined that the Company is no longer Insolvent, or a court of competent
jurisdiction orders the resumption of such payments. The Trustee shall have the
discretion to determine which of the above alternatives is appropriate to the
situation.
3.5 DUTY TO INQUIRE
Unless notified of the Company's Insolvency pursuant to Section 3.3, the Trustee
shall have no duty to inquire whether the Company is Insolvent. The Trustee may
in all events rely on such evidence concerning the Company's solvency as may be
furnished to the Trustee which will give the Trustee a reasonable basis for
making a determination concerning the Company's solvency. Nothing in this Trust
Agreement shall in any way diminish any rights of Trust Beneficiaries to pursue
their rights as general creditors of the Company with respect to Supplemental
Benefits or otherwise.
3.6 SUSPENDED PAYMENTS
If the Trustee discontinues payments of Supplemental Benefits from the Trust
pursuant to Section 3.3 and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate amount of all
payments which would have been made to the Trust Beneficiaries in accordance
with the Supplemental Plans during the period of such discontinuance, unless the
Company otherwise directs.
ARTICLE IV. PAYMENTS TO THE COMPANY
4.1 REVERSION AFTER SATISFACTION OF LIABILITIES
The Company shall have no right or power to direct the Trustee to return to the
Company or to divert to others any of the Trust assets before all payments of
Supplemental Benefits to the Trust Beneficiaries pursuant to the Supplemental
Plans. If it is determined through actuarial valuation that certain Trust assets
will clearly never be required to pay Supplemental Benefits to the Trust
Beneficiaries, the Trustee, upon written notification by the Company of such
determination, shall return such excess assets to the Company.
ARTICLE V. INVESTMENT OF TRUST FUND
5.1 TYPES OF INVESTMENTS
Except for money and other property subject to the investment responsibility of
an investment manager as provided in Section 5.4, and subject to Section 5.2,
the Trustee shall, in its discretion, invest and reinvest the assets of the
Trust, without distinction between principal and income, in any property, real,
personal or mixed, wherever situated, and whether or not productive of income,
including, without limitation, domestic or foreign, common and preferred stocks,
mutual funds, common trust funds, bonds, notes, debentures, securities
convertible into common stock, leaseholds, mortgages (including, without
limitation, any collective or part interest in any bond and mortgage or note and
mortgage), interest-bearing accounts and certificates of deposit (including
those within its own banking department or within a Federally insured
institution which may be affiliated with the Trustee), oil, mineral or gas
properties, royalties, interests or rights (including equipment pertaining
thereto), equipment trust certificates, investment trust certificates, savings
bank deposits, commercial paper, and insurance contracts (including those to
which amounts may be deposited and withdrawn). The Trustee shall, at the
direction of the Company, purchase life insurance and/or annuity contracts
including group annuity contracts providing flexible funding or similar vehicles
or for the investment of assets in separate accounts, invested in any securities
and other property including real estate, regardless of whether or not the
insurance carrier shall have assumed any contractual or other liability as to
the benefits to be provided thereunder, the value thereof, or the return
therefrom. Such life insurance and/or annuity contracts shall be considered
investments of the Trust Fund and, together with all rights, privileges, options
and elections contained therein, shall vest in the Trustee but shall be
exercised, assigned or otherwise disposed of as directed by the Company. The
insurance carrier under any such contract shall have full responsibility for the
management and control of the assets held thereunder.
5.2 INVESTMENT POLICIES
The Board of Directors of the Company shall have the right at any time and in
its discretion to formulate investment policies and standards for the investment
of the Trust Fund. Such policies and standards may include, among other things,
the percentage of the Trust Fund which may be invested in fixed income
securities, the percentage of the Trust Fund which may be invested in common
stocks, and the percentage of the Trust Fund which may be invested in the
securities of any one company. Such policies may be changed from time to time by
resolution of the Board, or by any committee or administrator acting with
respect to the Supplemental Plans, as designated by the Board. Any statement of
investment policies and standards promulgated by the Board of Directors shall be
provided in writing to the Trustee, and the Trustee may rely on such statement
until such time as it receives written notice of any change in such policies and
standards from the Company.
5.3 GENERAL POWERS OF THE TRUSTEE
The Trustee, in addition to and not in modification or limitation of all of its
common law and statutory authority, shall be authorized and empowered, in its
discretion (except as provided in
Section 5.4), to exercise any and all of the following rights, powers and
privileges with respect to any cash, securities or other properties held by the
Trustee in Trust hereunder:
(a) To sell any such property at such time and upon such terms and conditions
as the Trustee deems appropriate. Such sales may be public or private, for
cash or credit, or partly for cash and partly for credit, and may be made
without notice or advertisement of any kind.
(b) To exchange, mortgage, or lease any such property and to convey, transfer
or dispose of any such property on such terms and conditions as the
Trustee deems appropriate.
(c) To grant options for the sale, transfer, exchange or disposal of any such
property.
(d) To exercise all voting rights pertaining to any securities; and to consent
to or request any action on the part of the issuer of any such securities;
and to give general or special proxies or powers of attorney with or
without power of substitution.
(e) To consent to or participate in amalgamations, reorganizations,
recapitalizations, consolidations, mergers, liquidations, or similar
transactions with respect to any securities, and to accept and to hold any
other securities issued in connection therewith.
(f) To exercise any subscription rights or conversion privileges with respect
to any securities held in the Trust Fund.
(g) To collect and receive any and all money and other property of whatsoever
kind or nature due or owing or belonging to the Trust Fund and to give
full discharge thereof; and to extend the time of payment of any
obligation at any time owing to the Trust Fund, as long as such extension
is for a reasonable period, and continues at reasonable interest.
(h) To cause any securities or other property to be registered in, or
transferred to, the individual name of the Trustee or in the name of one
or more of its nominees, or one or more nominees of any system for the
centralized handling of securities, or it may retain them unregistered and
in form permitting transferability by delivery; but the books and records
of the Trust shall at all times show that all such investments are a part
of the Trust Fund.
(i) To organize under the laws of any state a corporation for the purpose of
acquiring and holding title to any property which it is authorized to
acquire under this Trust Agreement and to exercise with respect thereto
any or all of the powers set forth in this Trust Agreement.
(j) To manage, operate, repair, improve, develop, preserve, mortgage or lease
for any period any real property or any oil, mineral or gas properties,
royalties, interest or rights held by it directly or through any
corporation, either alone or by joining with others, using other Trust
assets for any of such purposes; to modify, extend, renew, waive or
otherwise adjust any or all of the provisions of any such mortgage or
lease; and to make provision for amortization of the investment in or
depreciation of the value of such property.
(k) To settle, compromise, or submit to arbitration any claims, debts or
damages due or owing to or from the Trust; to commence or defend suits or
legal proceedings whenever, in its judgment, any interest of the Trust
requires it; and to represent the Trust in all suits or legal proceedings
in any court of law or equity or before any other body or tribunal,
insofar as such suits or proceedings relate to any property forming part
of the Trust Fund or to the administration of the Trust Fund.
(l) To borrow money from others for the purposes of the Trust, but the Trustee
shall not be authorized to borrow any money from its banking department or
from the Company or any subsidiary or associated company.
(m) To employ such agents and counsel, including attorneys, accountants,
actuaries, and investment managers, as may be reasonably necessary in
managing and protecting the Trust Fund and to pay them reasonable
compensation.
(n) To purchase, hold and sell interests or units of participation in any
collective or common trust fund established by the Trustee, including any
such funds which may be established in the future.
(o) Generally to do all acts, whether or not expressly authorized, which the
Trustee deems necessary or desirable, but acting at all times according to
the principles expressed in Articles V and VIII.
5.4 INVESTMENT RESPONSIBILITIES
The Company may (but need not) appoint an Investment Manager or Managers to
manage (including the power to acquire and dispose of) all or any of the assets
of the Trust Fund. In the event of any such appointment, the Company shall
establish the portion of the assets of the Trust Fund which shall be subject to
the management of the Investment Manager and shall so notify the Trustee in
writing. Likewise, the Company may establish that all or a portion of the assets
of the Trust Fund shall be subject to the investment jurisdiction of the Company
itself and shall advise the Trustee of such determination. With respect to such
assets over which either an Investment Manager or the Company has investment
responsibility, the Investment Manager or the Company shall possess all of the
investment and administrative power and responsibilities granted to the Trustee
hereunder, including the power to hold the indicia of ownership of any
investment in a collective trust fund, and the Trustee shall invest and reinvest
such assets pursuant to the written directions of the Investment Manager or the
Company. If the Company so directs, an Investment Manager shall have the power
to acquire and dispose of assets in the name of the Trust. The investment
jurisdiction of the Company may be exercised in any manner consonant with its
duties as a fiduciary, including --
(a) directing the Investment Manager or the Trustee that certain investments
or types of investments be made or liquidated;
(b) directing the Investment Manager or the Trustee that certain investments
or types of investments not be made; and
(c) requiring that the Trustee or the Investment Manager obtain approval prior
to acquiring or disposing of any asset.
The Trustee shall have no investment responsibility with respect to the assets
subject to the investment responsibility of an Investment Manager or the
Company, and shall have no duty to inquire into the direction of such Investment
Manager or the Company, to solicit such directions nor to review and follow the
investments made pursuant to any such direction, other than to the extent
provided by law.
5.5 COMPANY STOCK
The Company may from time to time contribute its common stock or other
securities to be held in the Trust. The Trustee may invest in securities or
obligations issued by the Company. All rights associated with any such Company
stock or securities shall be exercised by the Trustee at the direction of the
Company.
ARTICLE VI. DISPOSITION OF INCOME
6.1 TRUST INCOME
During the term of this Trust, all income received by the Trust, net of any
expenses and taxes properly paid from the Trust Fund, shall be accumulated and
reinvested.
ARTICLE VII. ACCOUNTING BY THE TRUSTEE
7.1 MAINTENANCE OF TRUST RECORDS
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be done,
including all such specific records as shall be agreed upon in writing between
the Company and the Trustee. All such accounts, books and records shall be open
to inspection and audit at all reasonable times by any person designated by the
Company. Within 60 days following the close of each calendar year and within 60
days after the removal or resignation of the Trustee, the Trustee shall deliver
to the 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 show
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.
ARTICLE VIII. RESPONSIBILITY OF THE TRUSTEE
8.1 STANDARD OF CARE
The Trustee shall act with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a 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 the Trustee shall incur no
liability to anyone for any action taken pursuant to a direction, request, or
approval given by the Company which is contemplated by, and in conformity with,
the terms of the Supplemental Plans or this Trust Agreement, and to that extent
shall be relieved of the prudent man rule for investments.
8.2 DUTY AS TO LITIGATION
The Trustee shall not be required to undertake or to defend any litigation
arising in connection with this Trust Agreement, unless it be first indemnified
by the Company against its prospective costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses) relating thereto,
and the Company hereby agrees to indemnify the Trust Fund for such costs,
expenses and liability.
8.3 RETENTION OF COUNSEL
The Trustee may consult with legal counsel (who may also be counsel for the
Trustee generally, or for the Company) with respect to any of its duties or
obligations hereunder, and shall be fully protected in acting or refraining from
acting in accordance with the advice of such counsel.
8.4 EXTENT OF TRUSTEE'S POWERS
The 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, the Trustee shall
have no power, except as otherwise provided herein, 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 the Trustee, or to
loan to any person the proceeds of any borrowing against such policy. General
powers of the Trustee are described in Section 5.3.
8.5 INDEMNIFICATION
The Trustee shall be indemnified and held harmless by the Company against and
from any and all loss, cost, liability, or expense (including any attorneys'
fees and court costs) that may be imposed upon or reasonably incurred by the
Trustee in connection with or resulting from any claim, action, suit, or
proceeding to which the Trustee may be a party or in which the Trustee may be
involved by reason of any action taken or failure to act under this Trust and
against and from any and all amounts paid by the Trustee in settlement (with the
Company's written approval) or paid by the Trustee in satisfaction of a judgment
in any such action, suit, or proceeding. The foregoing provision shall not be
applicable to any Trustee if the loss, cost, liability, or expense is due to
such Trustee's willful misconduct. Such indemnity shall include all claims and
liabilities arising from any breach of fiduciary responsibility by a fiduciary
other that the Trustee, unless the Trustee --
(a) knowingly participates in, or knowingly undertakes to conceal, an act or
omission of such other fiduciary, knowing such act or omission is a
breach;
(b) by its failure to act in accordance with 8.1 in the administration of its
specific responsibilities which give rise to its status as a fiduciary,
has enabled such other fiduciary to commit a breach; or
(c) has knowledge of a breach by such other fiduciary, unless it makes
reasonable efforts under the circumstances to remedy the breach.
The performance by the Trustee of trades, custody, reporting, recording and
bookkeeping with respect to assets managed by another fiduciary shall not be
deemed to give rise to any participation or knowledge on the part of the
Trustee. Such indemnification shall survive the amendment or termination of the
Trust Agreement or the resignation or removal of the Trustee and shall be
construed as a contract between the Company and the Trustee under the laws of
the State of Ohio.
8.6 LIMITATION OF POWERS
Notwithstanding any powers granted to the Trustee pursuant to this Trust
Agreement or under applicable law, the 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 Code.
8.7 ACTION BY THE TRUSTEE
When more than one individual and/or entity serves as Trustee, action by the
trustees shall be determined by the majority of the trustees. Such action shall
be binding upon all parties at interest. The individuals and/or entities who
collectively act as Trustee may act by vote at a meeting or by writing without a
meeting. Any act of more than one individual or entity serving as Trustee shall
be sufficiently evidenced if certified to by one of the individuals or entities
serving as Trustee, and, if there is more than one individual and/or entity
serving as Trustee, one of the trustees may be given authority to perform all
administrative and ministerial duties. Any individual who serves as Trustee
hereunder may be an employee of the Company.
ARTICLE IX. COMPENSATION AND EXPENSES OF THE TRUSTEE
9.1 COMPENSATION AND EXPENSES
The Trustee, unless such Trustee is also an employee of the Company, shall be
entitled to receive such reasonable compensation for its services as shall be
agreed upon by the Company and the Trustee. The Trustee shall also be entitled
to receive its reasonable expenses incurred with respect to the administration
of the Trust, including fees incurred by the Trustee pursuant to Article VIII of
this Trust Agreement. Such compensation and expenses shall be payable by the
Company, but if not paid by the Company, shall constitute a charge against the
Trust and shall be withdrawn by the Trustee from the Trust.
ARTICLE X. RESIGNATION AND REMOVAL OF TRUSTEE
10.1 RESIGNATION OR REMOVAL
The Trustee may be removed at any time upon 30 days' written notice by the
Company. The Trustee may resign at any time, upon 30 days' written notice to the
Company. Such advance notification may be accepted within a shorter time period
as agreed to by the parties.
10.2 CHANGE OF CONTROL
Notwithstanding any Trust provisions to the contrary, upon a Change of Control,
as defined herein, Trustee may not be removed by Company for five years. If
Trustee resigns or is removed within five years of a Change of Control, as
defined herein, Trustee shall select a successor Trustee in accordance with the
provisions of Section 10.4(b) hereof prior to the effective date of Trustee's
resignation or removal.
10.3 SETTLEMENT OF TRUST ACCOUNTS
Upon its resignation or removal, the Trustee, with the written consent of the
Company, may reserve such amounts as it deems necessary for the payment of any
outstanding taxes or other liabilities of
the Trust Fund and its reasonable fees and expenses in connection with the
settlement of its accounts. Any balance of such reserve remaining after the
payment of such taxes, liabilities, fees, and expenses shall be paid over to the
successor Trustee within 60 days after receipt of notice of resignation,
removal, or transfer, unless the Company extends the time limit.
10.4 APPOINTMENT OF SUCCESSOR
(a) If the Trustee resigns or is removed in accordance with Section 10.1
hereof, the Company may appoint any one or more individuals or third
parties as a successor to replace the Trustee upon resignation or removal.
If no such appointment has been made, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for instructions.
All expenses of the Trustee in connection with the proceeding shall be
allowed as administrative expenses of the Trust. 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 the Company or the successor Trustee
to evidence the transfer.
(b) If the Trustee resigns or is removed pursuant to the provisions of Section
10.2 hereof and selects a successor Trustee, the Trustee 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 long as such
successor is independent and not subject to the control of the Company.
The appointment of a successor Trustee shall be effective when accepted in
writing by the new Trustee. The new Trustee shall have all the rights and
powers of the former Trustee, including ownership rights in Trust assets.
The former Trustee shall execute any instrument necessary or reasonably
requested by the successor Trustee to evidence the transfer.
10.5 ACTS OF PRIOR TRUSTEE
The successor Trustee need not examine the records and acts of any prior Trustee
and may retain or dispose of existing Trust assets, subject to the provisions
herein. The successor Trustee shall not be responsible for any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
ARTICLE XI. AMENDMENT OR TERMINATION OF TRUST AGREEMENT
11.1 AMENDMENT OR TERMINATION
This Trust Agreement may be amended any time and in any manner by a written
instrument executed by the Trustee and the Company. Notwithstanding the
foregoing, no such amendment shall alter Section 11.2, conflict with the terms
of the Supplemental Plans, or make the Trust revocable after it has become
irrevocable in accordance with Section 1.2 hereof. In addition, Sections 1.5,
1.8, 10.2, and 10.4 of this Trust Agreement may not be amended by the Company
for five years following a Change of Control, as defined herein.
11.2 LIMITATION ON TERMINATION
The Trust shall not terminate prior to the time that all Supplemental Benefits
have been paid under the Supplemental Plans.
11.3 REMAINING TRUST ASSETS
Upon termination of the Trust as provided in Section 11.2, any assets remaining
in the Trust shall be returned to the Company.
ARTICLE XII. SEVERABILITY AND ALIENATION
12.1 SEVERABILITY
If any provision of this Trust Agreement is, becomes, or is deemed invalid or
unenforceable in any jurisdiction, such provision shall be deemed amended to
conform to applicable law as to be valid, legal and enforceable in any
jurisdiction so deeming. The validity, legality and enforceability of such
provision shall not in any way be affected or impaired in any other
jurisdiction; if such provision cannot be so amended without materially altering
the intention of the parties, it shall be stricken and the remainder of this
Trust Agreement shall remain in full force and effect.
12.2 ALIENATION
To the extent permitted by law, Supplemental Benefits payable to Trust
Beneficiaries under the Supplemental Plans and this Trust Agreement may not be
assigned (either at law or in equity), alienated, or subject to attachment,
garnishment, levy, execution or other legal or equitable process. A Trust
Beneficiary may not assign or transfer any interest in the Supplemental Benefits
due hereunder and shall have no direct interest in or to any Trust asset unless
and until paid to such Trust Beneficiary.
ARTICLE XIII. MISCELLANEOUS
13.1 GOVERNING LAW
This Trust Agreement shall be governed by and construed in accordance with the
laws of Ohio.
13.2 EMPLOYMENT CONTRACT
This Trust Agreement does not constitute a contract of employment, and it does
not give any Trust Beneficiary the right to be retained in the employ of the
Company or any affiliate.
13.3 TAX WITHHOLDING
The Trustee shall withhold all amounts required by law to be withheld from any
payments made pursuant to this Trust Agreement, including any or all amounts
required to be withheld by the Code, the Federal Insurance Contribution Act, any
state income or other tax act, any applicable city, county or municipality's
earnings or income tax act. The Trustee shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld, and paid by the Company.
13.4 REFERENCE TO COMPANY
Where appropriate, all references to Company shall refer to any subsidiary or
affiliate of the Company designated as a participating employer under any
Supplemental Plan; provided, however, that only the Company shall be permitted
to amend or terminate the Trust Agreement and to provide any directions to the
Trustee as provided herein.
13.5 DESIGNATION OF AUTHORIZED PARTIES
The Board of Directors of the Company, or such committee as may properly act on
its behalf, may from time to time designate a person, persons or committee to
act on its behalf under this Trust Agreement, particularly as regards investment
directions and directions regarding the payment of Supplemental Benefits. The
Board shall instruct the Trustee in writing as regards any such designation,
including the designee's scope of authority to act on its behalf. The Trustee
shall be able to rely on the acts of such designated party, provided such
reliance is in good faith.
13.6 SUCCESSORS
This Trust Agreement shall be binding upon the Company and any successor, direct
or indirect, of the Company whether such succession results from a merger,
consolidation, liquidation, purchase of securities, acquisition of assets or
otherwise.
13.7 TRUSTEE
For purposes of this Trust Agreement, the Trustee shall not be deemed an agent,
receiver or an assignee of the Company.
13.8 CHANGE OF CONTROL
For purposes of this Trust, Change of Control shall mean any of the following
events:
(a) Any person, entity, or group of persons, within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934 ("Act"), or any
comparable successor provisions, purchases or otherwise acquires
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Act) of 20 percent or more of either the outstanding shares of common
stock or the combined voting power of the Company's then outstanding
voting securities entitled to vote generally;
(b) The stockholders of the Company approve a reorganization, merger, or
consolidation, in each case, with respect to which persons who were
stockholders of the Company immediately prior to such reorganization,
merger, or consolidation do not, immediately thereafter, own more than 50
percent of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged, or consolidated
Company's then outstanding securities, or the Company is liquidated or
dissolved or all or substantially all of the Company's assets are sold; or
(c) Individuals who constitute the board of directors of the Company on the
date hereof (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election
by the Company's shareholders, was approved by a vote of at least three
quarters of the directors comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for director, without objection to
such nomination) shall be, for purposes of this clause (c), considered as
though such person were a member of the Incumbent Board.
Notwithstanding anything in the foregoing to the contrary, no Change of Control
shall be deemed to have occurred for purposes of this Trust Agreement by virtue
of any transaction which results in a Participant or group of Participants
acquiring, directly or indirectly, 20 percent or more of the combined voting
power of the Company's voting Securities.
* * * * * * * * * *
IN WITNESS WHEREOF, the Company has caused this Trust Agreement to be executed
by its duly authorized officers and the Trustee, to evidence its acceptance of
the Trust, has caused this Trust Agreement to be executed effective as of
September 1, 1995.
COMPANY:
X. X. XXXXX CORPORATION
By /s/ Xxxxx Xxxxxx
------------------------------------------------
Vice President of Human Resources
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Senior Vice President of Finance and Treasurer
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Vice President of Finance
and Assistant Treasurer
TRUSTEE:
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
APPENDIX A TO THE
X. X. XXXXX CORPORATION SUPPLEMENTAL BENEFIT PLANS TRUST
The following supplemental retirement benefit plans of X. X. Xxxxx Corporation
are intended to be covered under the Trust Agreement for the above-referenced
Trust:
X. X. Xxxxx Corporation Supplemental Retirement Plan
(As established effective as of January 1, 1978)
X. X. Xxxxx Corporation Restoration Plan
(As established effective as of January 1, 1994)
X. X. Xxxxx Corporation Deferred Compensation Plan
(As established effective as of September 1, 1995)
