STATE OF NORTH CAROLINA
TRUST AGREEMENT
COUNTY OF MECKLENBURG
This Trust Agreement is made this 14th day of June, 1999, by and
between XXXXXXXX INDUSTRIES, INC., a Delaware corporation with its principal
office at Charlotte, North Carolina, hereafter referred to as XXXXXXXX, and
FIRST CITIZENS BANK & TRUST CO. of Raleigh, North Carolina, hereafter referred
to as TRUSTEE.
W I T N E S S E T H
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WHEREAS, XXXXXXXX has entered into a Deferred Compensation Agreement
with XXXXX X. XxXXXXXX (the "EXECUTIVE") dated June 14, 1999, providing for
certain benefits as provided in such agreement, a copy of which is annexed as
Exhibit "A";
NOW, THEREFORE, the parties agree as follows:
1. New Policies.
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A. A new life insurance policy, naming the TRUSTEE as owner
and beneficiary, will be delivered to the TRUSTEE by Manulife Insurance Company
on the date of the execution of this Agreement, as follows:
INSURED EXECUTIVE INSURER POLICY #
----------------- ------- --------
Xxxxx X. XxXxxxxx Manulife 00-000-000
X. XXXXXXXX agrees to make all premium payments required to
maintain the new life insurance policy in full force and effect for as long as
the EXECUTIVE remains in the employ of XXXXXXXX.
2. Retirement.
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In accordance with paragraph 2 of Exhibit "A", if the EXECUTIVE
continues in the employment of XXXXXXXX until he attains the age of sixty-five
(65) (or earlier retirement age if approved in writing by XXXXXXXX), then the
TRUSTEE will surrender the policy, when the EXECUTIVE so retires, to the
insurance company for the cash value thereof. The TRUSTEE will invest the
proceeds and make the payments, from either the principal or income thereof, as
provided in paragraph 2 of said Agreement. If the proceeds of the said policy,
along with the income arising therefrom, are not sufficient to comply with the
terms of the said paragraph 2, then XXXXXXXX will pay to the TRUSTEE such
amounts as may be required to fulfill the terms of paragraph 2 as and when
needed by the TRUSTEE for the above purpose. If the proceeds of the insurance
policy and all income arising therefrom exceed the amounts provided for in
paragraph 2, then any balance remaining will be paid to XXXXXXXX at the
conclusion of the term provided in paragraph 2. However, if XXXXXXXX is
no longer in existence, then such balance will be paid to the EXECUTIVE, or his
beneficiary or executor if he is deceased, at the conclusion of the fifteen (15)
year term provided in said paragraph 2.
3. Death.
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If the EXECUTIVE dies while employed by XXXXXXXX but before age
sixty-five (65) (or earlier retirement approved by SPEIZMAN in writing), then
the TRUSTEE will collect the proceeds of the policy on the life of the deceased,
invest same, and make the payments from either principal or interest, provided
for in paragraph 3 of Exhibit "A". If the proceeds of the policy and all income
arising therefrom exceed the amounts provided for in paragraph 3, then any
balance shall be paid to XXXXXXXX. However, if XXXXXXXX is no longer in
existence, then such balance shall be paid to the EXECUTIVE's beneficiary or
executor, if he is deceased, at the conclusion of the fifteen (15) year term
provided in said paragraph 3.
4. Disability.
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The TRUSTEE will not be required to make any payments whatsoever with
reference to disability as provided in paragraph 4 of Exhibit "A". The
CORPORATION will make such disability payments. However, if the EXECUTIVE
attains age sixty-five (65) (or if XXXXXXXX, in writing, approves of earlier
retirement), while the EXECUTIVE is disabled, then the TRUSTEE will comply with
the provisions of paragraph 2 of this Agreement. If the EXECUTIVE dies between
the time he becomes disabled and the date he reaches age sixty-five (65), then
the TRUSTEE will comply with the provisions of paragraph 3 of this Agreement.
5. Termination of Agreement.
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With reference to paragraph 5 of Exhibit "A", it is understood:
A. If the EXECUTIVE voluntarily resigns, or is discharged for
fraudulent actions before his date of retirement as provided in the first
sentence of said paragraph 5, then the policy on the life of such EXECUTIVE will
be reassigned by the TRUSTEE to XXXXXXXX.
B. If employment is terminated under circumstances provided in
the remainder of paragraph 5 of Exhibit "A", then the TRUSTEE will surrender the
life insurance policy to the insurance company, receive and invest the proceeds,
and from principal or income make the severance payments provided in the
schedule of severance payments, including death benefits, as provided in
paragraph 5 of Exhibit "A", whichever is applicable, and to the extent that
funds are available from the above source. If funds are insufficient then
XXXXXXXX will pay the remainder of the required payments. Any funds remaining
from the above source, after compliance with such schedule, will be returned to
XXXXXXXX, and if XXXXXXXX is no longer in existence, then any balance will be
paid to EXECUTIVE, or his beneficiary or executor if he is deceased.
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6. Trustee's Responsibilities.
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A. The TRUSTEE has no responsibility or liability whatsoever
to anyone with reference to the type and plan of life insurance issued by
Manulife Insurance Company.
B. The TRUSTEE has no responsibility or liability whatsoever
to anyone for any damage or loss whatsoever arising out of the investments made
in or by the insurer or its successors.
C. In addition to all powers granted by law, including those
powers granted to trustees in North Carolina general statutes, ss. 32-27 (except
G.S. ss. 32-27(29)), in effect at the signing of this Agreement, which powers
are herein incorporated by reference, the TRUSTEE and any successor will have
broad powers, without resort to any court for further order or authority, to
invest in all forms of assets that are suitable for a reasonably prudent
trustee, subject to the approval of the EXECUTIVE and of XXXXXXXX. In addition
to and not in limitation of those powers, the TRUSTEE is authorized to determine
what is principal, and what is income, and allocate receipts and expenditures as
between principal and income in its discretion, regardless of whether any
receipt is credited or expenditure charged contrary to the provisions of Chapter
37 of the general statutes, and to determine whether or not to establish
depreciation or amortization reserves.
D. If the TRUSTEE stops payments to the EXECUTIVE pursuant to
SPEIZMAN's instructions under paragraph 11C of Exhibit A, then it will resume
such payments only upon written instructions from XXXXXXXX, or from a court of
competent jurisdiction.
7. Compensation.
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As compensation for its services, the TRUSTEE will receive the
commissions stipulated in its regularly adopted schedule of compensation in
effect and applicable at the time of the performance of such services. The
TRUSTEE's minimum annual charge will be $100 for services pursuant to this
Agreement. Such compensation will be paid by XXXXXXXX; however, if XXXXXXXX
fails to pay it, then the TRUSTEE will be entitled to draw its commission from
proceeds of policies and funds held by it for the benefit of the EXECUTIVE.
XXXXXXXX agrees to indemnify TRUSTEE and hold TRUSTEE harmless against any and
all losses, claims, damages, liabilities, and expenses, including reasonable
costs of investigation and counsel fees incurred by the TRUSTEE, in connection
with its acceptance of its appointment as TRUSTEE hereunder.
8. Discontinuance of Xxxxxxxx.
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If XXXXXXXX is ordered liquidated through bankruptcy or receivership,
or if XXXXXXXX ceases doing business, or if XXXXXXXX notifies the TRUSTEE that
it is no longer financially able to pay the premiums on the life insurance
policy on the life of the EXECUTIVE, then in any such event, the TRUSTEE will
surrender the policy to the insurer and make payments to the EXECUTIVE as
provided in paragraph 5B above.
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9. Protection of Trustee.
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In performing any of its duties hereunder, the TRUSTEE will not incur
any liabilities to anyone for any damage, losses, or expenses, except for
willful default or negligence, and it will accordingly not incur any such
liabilities with respect (i) to any action taken or omitted in good faith upon
advice of counsel satisfactory to it given with respect to any questions
relating to the duties and responsibilities of the TRUSTEE under this Agreement,
or (ii) to any action taken or omitted in reliance upon any instrument, not only
as to its due execution and the validity and effectiveness of its provisions,
but also as to the truth and accuracy of any information contained therein,
which the TRUSTEE will in good faith believe to be genuine, to have been signed
or presented by a proper person or persons and to conform with the provisions of
this Agreement.
10. Arbitration.
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In the event of any dispute between the parties hereto or with a
beneficiary, the TRUSTEE will take no action with regard to the matter thus
disputed until final determination thereof shall have been made, and the parties
and any beneficiary will proceed expeditiously to arrive at a final
determination of such dispute. If the parties and any beneficiaries are unable
to resolve any dispute arising from the construction of this Agreement and its
performance, then it is understood and agreed that any party hereto or a
beneficiary may submit such dispute for arbitration by the American Arbitration
Association, and the arbitration award will be binding upon all parties and
beneficiaries. The TRUSTEE's share of any arbitration expenses will be paid from
the fund in its possession that arises from surrender of the policy on the life
of EXECUTIVE which may be involved in this dispute. If any insurance policy or
annuity contract on the life of the EXECUTIVE involved in a dispute has not been
surrendered, then the TRUSTEE's share of arbitration costs shall be paid by
XXXXXXXX.
00. Notices.
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All notices, requests and other communications hereunder will be in
writing and will be delivered by hand or mailed by first class registered or
certified mail, return receipt requested,
A. To XXXXXXXX:
XXXXXXXX INDUSTRIES, INC.
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxxx, President
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B. To the TRUSTEE:
FIRST CITIZENS BANK & TRUST COMPANY
Corporate Trust Department
CTW09
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
ATTN: ___________________________
Any party may change the address to which notices are to be sent to it by giving
written notice of such change of address to the other party in the manner above
provided for giving notice.
12. Indemnification.
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XXXXXXXX, and its successors and assigns, does hereby agree to
indemnify and save the TRUSTEE harmless from any liability it may incur by
reason of its entering into this Trust Agreement, and further, XXXXXXXX and its
successors and assigns, does hereby agree to indemnify and save the TRUSTEE
harmless from any liability arising out of the administration of the Trust
pursuant to the terms of the Deferred Compensation Agreement. However, such duty
of indemnity will not arise in the case of willful misconduct or gross
negligence of the TRUSTEE.
13. Construction.
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No modification or waiver of the provisions of this Agreement will be
effective unless made in writing and signed by the party to be charged
therewith, nor will any waiver be applicable except in the specific instance for
which given. This Agreement is binding upon and will inure to the benefit of the
parties hereto, their successors and assigns, and the EXECUTIVE, his heirs,
assigns and personal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement pursuant
to authority duly given.
(CORPORATE SEAL) XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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ATTEST: XXXXXX X. XXXXXXXX
President
Xxxx Xxxxxxx
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Assistant Secretary
(CORPORATE SEAL) FIRST CITIZENS BANK & TRUST CO.
By: /s/ Xxxxx X. Xxxxx
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ATTEST:
Title: Vice President
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(Illegible) trustee
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Secretary
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