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Exhibit 10(lxi)
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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 incurred and expects to continue to incur certain
unfunded retirement income liability to or with respect to certain management
employees pursuant to the terms of the Company's Supplemental Retirement Plan
("Retirement Plan") and the Company's Supplemental Employee Savings and
Investment Plan ("Savings Plan");
WHEREAS, the Company desires to provide additional assurance to some or
all such management employees (the "Participants") and their surviving spouses,
beneficiaries or estates (collectively, the "Beneficiaries") under the
Retirement Plan and the Savings Plan, respectively (hereinafter referred to as
the "Plans") that their unfunded retirement benefit rights under the Plans 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 Participants in the Plans as
determined by the Company prior to a Change in Control (as hereinafter defined
in Section 2.3(d) (iv))
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in order to provide a source of payments as such may be required under the
terms of such Plans;
WHEREAS, except as may be expressly provided in this Agreement, amounts
allocated to each separate Account or Accounts, 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 Participant in the Retirement Plan or Savings Plan
for whom such separate Account or Accounts 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 or
Accounts of an individual Participant in either of the Plans (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;
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WHEREAS, the Company intends that the existence of the Trust will not
alter the characterization of the Plans as "unfunded" and will not be construed
to provide taxable income to any participant under the Plans prior to actual
payment of benefits thereunder;
WHEREAS, the Trustee is not a party to the Plans and makes no
representations with respect thereto, and all representations and recitals with
respect to the Plans 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 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.
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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 or Accounts for each
Participant under the Plans in which it shall keep a separate record of the
amount of the fund allocated to such 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,
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(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,
(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.
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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 benefits 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 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
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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 pay benefits 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 the Plans 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 benefit obligations to
some or all of the Participants and their Beneficiaries under the Plans.
Contributions by the Company to the Trust shall be in amounts determined solely
by the Company and shall be in respect of only those Plan 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 benefits may be
payable under the Plans and as to which Plan Participants with an Account or
Accounts hereunder and their Beneficiaries may, by exercising the procedures
set forth herein, have access to some or all of their benefits as such become
due without having the payment of such benefits subject to the administrative
control of the Company unless the Company becomes insolvent as defined in
Section 2.1. The Company further represents that the Plans are unfunded
deferred compensation plans for a select group of management or highly
compensated employees and as such are exempt from the application of the
Employee Retirement Income Security Act of 1974 ("ERISA") except for parts 1
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and 5 of Title I thereof. The Company further represents that the Plans are
not qualified under Section 401(a) of the United States Internal Revenue Code
and therefore 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
under both Plans in respect of Participants and Beneficiaries for whom an
Account or 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 Participants or Beneficiaries).
Such a request shall be honored by the Trustee only if at the date of such
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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.
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;
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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
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)
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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 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.
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(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
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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.
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 Plan Participant records contemplated by this
Agreement, including the maintenance of the separate Account or Accounts of
each Participant under this Agreement, the maintenance of the General Account,
and the maintenance of Participants' interest under each of the Plans. All
such records shall be made available promptly on request of the Trustee or the
Company. In the event of a Change in Control, the Independent Contractor shall
also prepare and distribute Participants' statements and shall be responsible
for information with respect to payments, if any, to Participants and their
Beneficiaries 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 benefits payable to
or with respect to each Participant in both Plans, including any benefits
payable after the Participant's death and the recipient of same (hereinafter
referred to as the "Participant Data"). Notwithstanding the occurrence of a
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Change in Control, the Company shall regularly, at least annually, furnish
revised updated Participant Data to the Independent Contractor. Based on the
foregoing information the Independent Contractor shall prepare an annual
estimate of the accrued benefit for each Participant and its present value
under the Retirement Plan and shall furnish a copy of same to the Company. In
the event the Company refuses or neglects to provide updated 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 "Benefit
Certification") to the Trustee that a Participant's benefits under either of
the Plans have become payable. Notwithstanding any other provisions of this
Agreement, after a Change in Control upon the proper application of a
Participant or the Beneficiary of a deceased Participant, the Independent
Contractor shall, without direction from the Company, prepare a Benefit
Certification to the Trustee, based upon the most recent Participant Data
furnished to the Independent Contractor prior to the Change in Control and any
supplemental information furnished to the Independent Contractor by a
Participant or a Beneficiary upon which the Independent Contractor may
reasonably rely, that a Participant's benefits under either of the Plans have
become payable. In the event that the Trustee (a) suspends the payment of
benefits 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 Benefit Certification") of all amounts that would
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otherwise have been payable to each Participant or Beneficiary from the Fund
during such period of time as the Trustee suspended the payment of benefits
pursuant to Section 2.1. Each Benefit Certification and each Accrued Benefit
Certification shall include the amount of such benefits, the manner of payment
and the name, address and social security number of the recipient. Each
Benefit Certification shall be updated annually. The Trustee shall be entitled
to rely on any Benefit Certification or any Accrued Benefit Certification
provided by the Independent Contractor, and shall have no duty to verify the
accuracy thereof. Upon the receipt of a Benefit Certification or an Accrued
Benefit 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 Participant's Account established hereunder. The
Independent Contractor shall furnish a copy of each Benefit Certification and
each Accrued Benefit Certification to the Participant (or to the Beneficiary of
a deceased Participant) 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 Participant or
Beneficiary 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 Benefit Certification or any Accrued Benefit
Certification, the Trustee, if unable to resolve such disagreement with the
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Independent Contractor, may apply to a court of appropriate jurisdiction for
judicial review of such Benefit Certification or Accrued Benefit Certification.
Pending the resolution of any disagreement with the Independent Contractor with
regard to the accuracy or propriety of any Benefit Certification or any Accrued
Benefit Certification, the Trustee shall not distribute any amount from the
Fund pursuant to such Benefit Certification or Accrued Benefit 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 benefits payable from the Fund to a Participant or his
Beneficiary under the Retirement Plan shall be paid solely from the account of
such Participant established under such Retirement Plan. Benefits payable
under the Savings Plan shall be paid solely from the account of such
Participant established under the Savings Plan. Upon the satisfaction of all
Company liabilities under a Plan to a Participant and any Beneficiary 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 Participant's Account under the Plan. Such balance
from an account under the Retirement Plan shall be allocated first among
Participant Accounts under the Retirement Plan and, if the liability of the
Company to all Participants has been satisfied, the balance, if any, shall be
allocated among the Accounts of Participants under the Savings Plan.
Similarly, any balance from an Account under the Savings Plan shall be
allocated first among Participant Accounts under the Savings Plan and, if the
liability of the Company to all Participants under the Savings Plan has been
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satisfied, the balance, if any, shall be allocated among the Accounts of
Participants under the Retirement Plan. Such balance, whether from a
Retirement Plan Account or Savings Plan Account, shall be reallocated ratably
by the Independent Contractor (using the information set forth on the most
recent estimated benefits statement prepared by the Independent Contractor
pursuant to Section 3.3) to the Accounts of Participants and Beneficiaries
being continued under the Plan (including Accounts which may have previously
been reduced to a zero balance) in the ratio that liabilities in respect of
each such Participant and Beneficiary under each Plan bear to the total
liabilities to all such Participants and Beneficiaries under that Plan. Upon
the satisfaction of all liabilities of the Company under both of the Plans to
all Participants and Beneficiaries 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 certain
employment contracts to which the Company is a party and as amended with regard
to the Deferred Compensation Plan (the "Employment Contract Trust"). Provided,
however, that if the Employment Contract 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 Participant or Beneficiary
has died and shall be entitled to rely upon information furnished by the
Company.
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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 Participant for whom an Account or Accounts 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 Participant out
of the amounts allocated to his 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 Participant be credited to
his Account or Accounts under either of the Plans and shall be an additional
source of benefits, if any, payable to his Beneficiary.
3.8 Nothing provided in this Agreement shall relieve the Company of its
liabilities to pay benefits provided under the Plans except to the extent such
liabilities are met by application of Fund assets. It is the intent of the
Company to have each Account established hereunder treated as a separate trust
designed to satisfy in whole or in part the Company's legal liability under
either of the Plans in respect of the Participant for whom such Account has
been established. 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 tax returns.
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ARTICLE IV
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4.1 The Company shall provide the Trustee and the Independent Contractor
with a certified copy of the Plans and all amendments thereto and of the
resolutions of the Board of Directors of the Company approving the Plans 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
employees of the Company, their compensation and their rights and interests
under both of the Plans.
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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 Participants' Accounts, reporting thereon to
Participants, certifying benefit information to the Trustee, determining the
status of Accounts and benefits hereunder and otherwise carrying out its
obligations under this Agreement, other than those resulting from the
Independent Contractor's negligence or willful misconduct.
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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.
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
24
instrument or instruments establishing such trust fund or funds and with the
terms of such instrument or instruments, as from time to time amended, being
incorporated into this Agreement to the extent of the equitable share of the
Fund in any such common, collective or commingled trust fund;
(c) To retain any property at any time received by the Trustee;
(d) To sell or exchange any property held by it at public or
private sale, for cash or on credit, to grant and exercise options for the
purchase or exchange thereof, to exercise all conversion or subscription rights
pertaining to any such property and to enter into any covenant or agreement to
purchase any property in the future;
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan relating
to property held by it and to consent to or oppose any such plan or any action
thereunder or any contract, lease, mortgage, purchase, sale or other action by
any person;
(f) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary power thereto,
and to pay part of the expenses and compensation thereof and any assessments
levied with respect to any such property so deposited;
25
(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 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;
(1) 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;
26
(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 the credit of any Participant's Account in a commercial annuity,
27
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
28
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.
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
29
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 Independent Contractor and the 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
30
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.
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
31
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
32
such law firm shall be binding, but may be appealed in the same manner,
and under the same conditions, as if it were made by an arbitrator. All
costs incurred by the Trustee in connection with obtaining or appealing
such a decision shall be reimbursable expenses pursuant to Article VI
hereof.
(c) The assets of the Fund have been exhausted or are
insufficient to pay accrued and reasonably anticipated fees and expenses
of the Trustee hereunder, the Company has refused voluntarily to pay the
Trustee's accrued fees and expenses as required pursuant to Section 6.2
and the Trustee has been unsuccessful in obtaining a court order requiring
the Company to make such payments or has been unable to collect on a
judgment for such fees and expenses.
Notwithstanding the above, the Trustee may resign for reasons set forth in
(a) or (b) only if it has obtained the agreement of a bank with assets in
excess of $2 billion and net worth in excess of $100 million to replace it as
trustee under the terms of this Agreement. The decisions 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
33
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 Participants voting on a per capita basis who were Participants in either
of the Plans on the date of the occurrence of the Change in Control, and sixty
(60) days' written notice of such removal, unless such notice period is waived
in whole or in part by the Trustee.
8.3 Upon the resignation or removal of the Trustee, U.S. Trust Company
shall be appointed as successor trustee. In the event that U.S. Trust Company
refuses to accept its appointment as successor trustee pursuant to this Section
8.3, 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
34
a successor trustee shall be appointed by the affirmative vote of two-thirds of
the Participants voting on a per capita basis who were Participants in either
of the Plans on the date of the occurrence of the Change in Control. Any
successor trustee appointed under this Section 8.4 shall be chosen from the
list of potential successor trustees set forth in Exhibit C. In the event that
all of the potential successor trustees set forth in Exhibit C refuse to accept
an appointment as successor trustee, then the successor trustee shall be
appointed as otherwise provided in this Section 8.4, and shall be a bank or
trust company established under the laws of the United States or a State within
the United States with assets in excess of $2 billion and net worth in excess
of $100 million. The appointment of a successor trustee pursuant to this
Section 8.4 shall take effect upon the delivery to the Trustee of (a) a written
appointment of such successor trustee, duly executed by the Company, the
Trustee, or two-thirds of the Participants in the Plans, 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.
35
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
Participants in either of the Plans 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 Participants in both of the Plans and their Beneficiaries.
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 Participants in the Plans and their Beneficiaries, the Company pursuant to
a resolution of its Board of Directors may terminate the Trust upon delivery to
the Trustee of (a) a certified copy of such resolution, (b) an original
certification of the Independent Contractor that all such liabilities have been
satisfied and (c) a written instrument of termination duly executed and
acknowledged in the same form as this Agreement.
9.2 Prior to a Change in Control, upon the termination of the Trust in
accordance with Section 9.1, the Trustee shall, after the acceptance and
approval of its 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
36
of the assets of the Fund to the Employment Contract Trust. Provided, however,
that if after a Change in Control the Employment Contract 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 Participant (or to the Beneficiary of any
deceased 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
Participant or Beneficiary so objecting to the amendment.
37
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 Plans 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 Participant under either of the Plans in
the Fund shall be transferable or assignable or shall be subject to alienation,
anticipation or encumbrance, and no right or interest of any Participant or
Beneficiary in the 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 benefit payable to any persons hereunder. If a dispute arises as to the
amounts or timing of any such benefits or the persons entitled thereto under
the Plans 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
38
proceedings shall be conclusive and shall not be subject to judicial review.
It is expressly understood that pending the resolution of any such dispute
payment of benefits shall be made and continued by the Trustee in accordance
with the certification of the Independent Contractor and that the Trustee and
the Independent Contractor shall have no liability with respect to such
payments. Provided, however, that the provisions of this Section 11.4 are
subject to the provisions of Section 3.5. The Company also agrees to pay the
entire cost of any arbitration or legal proceeding initiated by it including
the legal fees of the Trustee, the Independent Contractor and the Plan
Participant or the Beneficiary of any deceased Plan 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 Plan Participants or the
Beneficiaries of deceased participants to receive benefits hereunder.
39
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.
11.8 In the event any Participant or his Beneficiary is determined to be
subject to Federal income tax on any amount to the credit of any 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
Participant or Beneficiary. An amount to the credit of a Participant's Account
or Accounts 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 Participant or his Beneficiary 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
40
decisions or other substantial precedent, amounts to the credit of
Participant's Accounts 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 Participant,
his or her spouse or Beneficiary, 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 Participant, his or her spouse or Beneficiary 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
Participant or Beneficiary under this Section 11.8 shall be applied in an
equitable manner to reduce Company liabilities to such Participant and/or
Beneficiary under the Plans; provided, however, that in no event shall any
Participant, Beneficiary or estate of any Participant or Beneficiary have any
obligation to return all or any part of such distribution to the Company if
such distribution exceeds benefits payable under the Plans.
41
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
42
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 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
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 a Vice President
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
43
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 the Retirement Plan and the
USLIFE Corporation Supplemental Retirement Plan and the USLIFE Corporation
Supplemental Employee Savings and Investment 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 )
: 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 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 an
on behalf of said firm.
_____________________________________
Notary Public
44
EXHIBIT B
Buck Consultants, Inc.
Xxx Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
A. Xxxxxx Xxxxxxx & Co. Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxxx, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TPF&C/Towers Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Xxxxx Company
0000 'X' Xxxxxx XX
Xxxxxxxxxx, XX 00000
45
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 the USLIFE Corporation
Supplemental Retirement Plan and the Supplemental Employee Savings and
Investment 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.
