EXHIBIT 10.19
TRUST AGREEMENT FOR
THE XXXXXXXXX X. XXXXX RETIREMENT TRUST
This Trust Agreement (this "Agreement") is made and entered into as of
August 1, 1994 (the "Effective Date"), by and between The Xxxxxxx Xxxxxx
Company, a Massachusetts corporation (the "Company"), and Wachovia Bank of
Georgia, N.A. ("Wachovia"), and its successor or successors or assigns in the
Trust, as trustee (the "Trustee").
The Company desires to establish a trust (the "Trust") for the purpose
of accumulating assets to provide benefits to Xxxxxxxxx X. Xxxxx, XX
("Executive") under the Amended and Restated Supplemental Executive Retirement
Agreement entered into as of November 1, 1993 (the "SER Agreement") between the
Company and Executive, and to provide for the payment of expenses of the Trust.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings set forth below:
"AFTER-TAX BENEFIT" means, with respect to any amount to be paid to
Executive, the amount to be paid to the Executive less the Tax Cost of such
payment.
"CHANGE OF CONTROL" has the meaning given such term in the Employment
Agreement.
"CHANGE OF CONTROL FUNDING AMOUNT" means, as of the date of the
consummation of any transaction constituting a Change of Control, the actuarial
present value as of such date (computed using the assumptions set forth in
paragraph 19 of the SER Agreement) of (i) the Maximum Benefit (as adjusted in
accordance with the provisions of paragraph 13(a) of the SER Agreement assuming
Executive terminates his employment with the Company on the later to occur of
such date of consummation of such transaction or the date Executive attains age
60) payable in connection with an early commencement of benefits if Executive
were to commence receipt of benefits upon attaining age 60 (or, if later, the
date of such contribution) and (ii) the projected future cost of the Company's
obligations under paragraph 21 of the SER Agreement (assuming the Executive
commences receipt of benefits upon the later to occur of such date of
determination or the date Executive attains age 60) based on prevailing federal,
state and local tax rates.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMENCEMENT DATE" means the earlier of (i) the date that payment of
benefits provided for in this Agreement (excluding those described in paragraph
21 of the SER Agreement) commence and (ii) the date that Executive attains age
65.
"COMPANY" means The Xxxxxxx Xxxxxx Company and any successor by reason
of merger, consolidation, the purchase of all or substantially all of the assets
of the Company or otherwise.
"EMPLOYMENT AGREEMENT" means the Amended and Restated Employment
Agreement dated as of November 1, 1993 among Executive, the Company and Xxxxxx
Holdings Corp., a Massachusetts corporation.
"FULL FUNDING AMOUNT" means, as of any date of determination, the
actuarial present value as of such date (computed using the assumptions set
forth in paragraph 19 of the SER Agreement) of (i) the Maximum Benefit payable
under the Standard Form of Payment (as adjusted in accordance with the
provisions of paragraph 13(a) of the SER Agreement if Executive's employment has
terminated prior to such date) and (ii) the projected future cost of the
Company's obligations under paragraph 21 of the SER Agreement (assuming the
Executive commences receipt of benefits upon attaining age 65) based on
prevailing federal, state and local tax rates.
"INDEPENDENT CONSULTANT" means any accounting, actuarial, benefits,
tax or other consulting firm selected by the Company and reasonably acceptable
to Executive that is (a) competent to make the determination or determinations
required hereunder and (b) is not affiliated with, and has no pecuniary interest
in, either Executive or the Company (provided that such Independent Consultant's
right to receive payment for its services from the Company shall not constitute
a pecuniary interest in the Company).
"INITIAL POLICY AMOUNT" means an amount that, as of the Effective
Date, equals two-eighths (2/8) of the Full Funding Amount, determined as of the
Effective Date by the Company in its sole discretion.
"INSOLVENCY EVENT" means (i) the entry by a court having jurisdiction
over the matter of an order or decree for relief in respect of the Company in
any involuntary case under federal bankruptcy laws or other similar laws, of an
order or decree appointing a receiver, liquidator, custodian or trustee for the
Company or for all or substantially all of its assets or of an order or decree
of liquidation of the Company, which order or decree remains unstayed and in
effect for a period of 60 consecutive days, or (ii) the commencement by the
Company of a
- 2 -
voluntary case under federal bankruptcy laws or other similar laws or the
consent by the Company to the appointment of a receiver, liquidator, custodian
or trustee for the Company or for all or substantially all of its assets, or a
voluntary liquidation by the Company or a voluntary assignment by the Company of
all or substantially all of its assets for the benefit of its creditors.
"LC EXPIRY DATE" means the first to occur of (i) the date the Company
makes the last required Annual Contribution pursuant to Section 3.2 hereof, (ii)
the date the Company contributes the Change of Control Funding Amount to the
Trust pursuant to Section 3.3 hereof, (iii) the date that Executive's employment
with the Company is terminated for Cause (as defined in, and in accordance with
the procedures set forth in, the Employment Agreement), and (iv) the date the
undrawn Letter of Credit Amount is drawn in full by the Trustee.
"MAXIMUM BENEFIT" means that annual amount distributed by the Trust to
Executive after commencement of benefits under the SER Agreement which will
yield an annual After-Tax Benefit that is equal to the After-Tax Benefit that
would be realized by Executive if the Company were to pay Executive a
fully-taxable benefit of $385,000 a year during the same period in the Standard
Form of Payment. The Maximum Benefit payable under any other form of payment (or
with respect to any other beneficiary or beneficiaries) will be the amount which
is actuarially equivalent (determined based on the provisions of paragraph 19 of
the SER Agreement) to the Maximum Benefit payable under the Standard Form of
Payment.
"PERMITTED INVESTMENTS" means (i) obligations of the United States
government, (ii) certificates of deposit issued by a commercial bank having an
office or place of business in the United States and having combined capital,
surplus and undivided profits of at least $100,000,000 and (iii) commercial
paper rated no lower than "A-1" by Standard & Poor Corp. or "P-1" by Xxxxx'x
Investment Service, Inc., in each case, which have a maturity date of 270 days
or less from the date of investment.
"POLICY" means a life insurance contract on the life of Executive
which names the Trust as the sole beneficiary.
"STANDARD FORM OF PAYMENT" means the payments payable under a 50%
joint and survivor annuity based on (i) the life expectancies of Executive and
his spouse as of the date of this Agreement and (ii) the assumption that
Executive is continuously employed by the Company through age 65 and commences
receipt of benefits upon his attaining age 65.
"TAX COST" means, with respect to any amount received (or to be
received) by Executive in any taxable year, the aggregate amount of all foreign,
federal, state and local income
- 3 -
taxes and any related "payroll" taxes that would be payable by Executive as a
result of his receipt of such amount (assuming that such amount (or the portion
of the amount received that is taxable) would be taxed at the highest applicable
marginal foreign, federal, state and local income tax rates for ordinary income
in effect at the time specified in the following sentence). For purposes of
calculating the applicable Maximum Benefit to determine the amount of any
contribution to be made to the Trust under Article III, the relevant Tax Cost
shall be determined using income tax rates in effect at the time of (or for the
period covered by) the determination.
"TRUST FUND" means, as of any date of determination, all property of
every kind held by the Trustee in trust as of such date under the provisions of
this Agreement.
ARTICLE II
CREATION OF TRUST;
APPOINTMENT OF TRUSTEE
2.1 CREATION OF TRUST. The Company, as grantor, hereby declares and
establishes this trust (this "Trust") under the laws of the State of Georgia for
the purposes set forth in, and subject to the terms and conditions of, this
Agreement.
2.2 NAME OF TRUST. The Trust created by this Agreement shall be known
as "The Xxxxxxxxx X. Xxxxx Retirement Trust."
2.3 APPOINTMENT OF TRUSTEE. The Company hereby appoints Wachovia as
initial trustee of the Trust. By its execution of this Agreement, Wachovia
accepts the trust created by this Agreement and agrees to serve as trustee of
the Trust for the term of, and on the terms and conditions set forth in, this
Agreement.
2.4 IRREVOCABLE TRUST. The Trust established hereby, and the
contributions to the Trust made pursuant to Article III, shall be irrevocable.
Except as otherwise expressly provided in this Agreement or in the SER
Agreement, the Company shall have no right to, or claim against, the corpus or
income of the Trust Fund.
- 4 -
ARTICLE III
CONTRIBUTIONS TO THE TRUST
3.1 INITIAL CONTRIBUTION. On the Effective Date, the Company shall
contribute a Policy to the Trust with a cash surrender value that equals or
exceeds the Initial Policy Amount.
3.2 ANNUAL CONTRIBUTIONS. Subject to the other provisions of this
Agreement (including Section 3.3 hereof) and of the SER Agreement, the Company
shall make annual cash contributions to the Trust on or before December 31 of
each calendar year ending after January 1, 1994 with the last contribution to be
made to the Trust on or before December 31, 1999 (each, an "Annual
Contribution") in an amount equal to the product of (i) the difference of (A)
the Full Funding Amount as of the date of contribution LESS (B) the amount or
market value of the assets comprising the Trust Fund as of such date MULTIPLIED
BY (ii) a fraction, the numerator of which is the difference of 8 MINUS the
number of remaining Annual Contributions to be made to the Trust pursuant to
this Section 3.2 (excluding the Annual Contribution for which such determination
is being made), and the denominator of which is 8.
3.3 CONTRIBUTION UPON CHANGE OF CONTROL. Notwithstanding Section 3.2,
in the event of a Change of Control prior to the Executive's termination of
employment, the Company shall contribute to the Trust as of the closing date of
such transaction an amount in cash that as of such date, equals the difference
of (i) the Change of Control Funding Amount, LESS (ii) the amount or market
value of the assets comprising the Trust Fund. Once the Company has made the
contribution required by this Section 3.3 (or the Trustee has made a draw
against the Letter of Credit in respect of the Company's contribution obligation
under this Section 3.3), the Company shall have no further obligation to make
contributions to the Trust.
3.4 SUPPLEMENTAL CONTRIBUTIONS. The Company may contribute amounts to
the Trust in addition to those required by the other Sections of this Article
III at such times and in such amounts as the Company determines in its sole
discretion.
3.5 DETERMINATION OF CONTRIBUTION. The amount of any contribution to
be made to the Trust under Section 3.2 or 3.3 shall be determined by an
Independent Consultant, which shall be retained by the Company and shall report
its determination in writing to the Company and Executive not later than fifteen
(15) days prior to the date by which the Annual Contribution is to be made, or
the date upon which the transaction constituting a Change of Control is to be
consummated, as applicable and which determination shall be final and binding
upon the Company and the Executive. To the extent the Independent Consultant
determines
- 5 -
that at any time or for any period for which the Company would otherwise be
required to make a contribution to the Trust, no contribution is required based
on such actuarial determination, the Company shall not, subject to the terms
below, be required to make an contribution to the Trust at such time or for such
period. Not later than fifteen (15) days prior to the date by which the Annual
Contribution is to be made, or the date upon which the transaction constituting
a Change of Control is to be consummated, as applicable, the Company shall cause
the Independent Consultant to give the Trustee written notice (which, if the
Company's contribution obligation is triggered by a Change of Control
transaction, shall include a brief description provided by the Company of the
transaction and the expected closing date of such transaction) setting forth the
Independent Consultant's determination of the amount of the contribution
required by Section 3.2 or 3.3, as applicable, upon the date of the Annual
Contribution or the consummation of such Change of Control transaction, as
applicable.
3.6 SECURITY FOR MANDATORY CONTRIBUTIONS.
(a) Beginning on the Effective Date and ending on the LC Expiry Date,
the Company shall continuously maintain an irrevocable letter of credit in favor
of the Trust (the "Letter of Credit") substantially in the form of EXHIBIT A
attached hereto and initially drawable by the Trustee for an amount not less
than an amount (the "Letter of Credit Amount") equal to the result of (i) the
greater of the Full Funding Amount or the Change of Control Funding Amount as of
the date of issuance of such Letter of Credit PLUS (ii) the aggregate amount of
all contributions actually made by the Company to the Trust during the preceding
twelve months MINUS (iii) the amount or fair value of the assets comprising the
Trust Fund as of the date of issuance of such Letter of Credit. The Company
shall cause an Independent Consultant to determine the Letter of Credit Amount
with respect to any such Letter of Credit which Independent Consultant shall
report its determination in writing to the Company and the Executive at least 30
days prior to the expiration of any existing Letter of Credit. In the event that
the Independent Consultant fails to report its determination prior to such date,
the then existing Letter of Credit shall continue to be renewed at the then
existing Letter of Credit Amount until such time as such determination is made
and a replacement Letter of Credit is issued.
(b) The Company shall notify the Trustee promptly of the occurrence of
an Insolvency Event or a Change of Control. Upon receipt of written notice of a
Change of Control or an Insolvency Event from the Company prior to the LC Expiry
Date, the Trustee shall promptly draw against the Letter of Credit the undrawn
portion of the Letter of Credit Amount (or such lesser amount to which the
Executive may consent, in writing) and apply such amount as provided in Article
IV hereto.
- 6 -
(c) If, with respect to any Letter of Credit due to expire prior to
the LC Expiry Date, the Company has not delivered to the Trustee a renewal
Letter of Credit meeting the requirements of Section 3.6 (a) at least ten (10)
business days prior to the expiration of the existing Letter of Credit, the
Trustee shall promptly draw against the Letter of Credit the undrawn portion of
the Letter of Credit Amount and apply such amount as provided in Article IV
hereto.
(d) If the Company fails to make any Annual Contribution when due, the
Trustee shall promptly draw against the Letter of Credit the amount of the
Annual Contributions then due and apply such amount as provided in Article IV
hereto, based on the amount of the contribution specified in the notice
delivered to the Trustee pursuant to Section 3.5 regarding such Annual
Contribution; PROVIDED, that if no such notice has been delivered the Trustee
shall promptly draw against the Letter of Credit an amount equal to the prior
year's Annual Contribution.
3.7 INSUFFICIENT FUNDS FOR PREMIUM PAYMENTS. Except as otherwise
expressly provided herein, the Trustee shall have no obligation to pay premiums
due and payable under the Policy or to notify any person of the non-payment of
such premiums. In the event that (a) the Trustee receives written notice from
the person issuing the Policy that the premiums owing under the Policy are in
default and (b) the amounts otherwise available to the Trustee pursuant to this
Article III are insufficient to cure such default, then the Trustee will give
the Company written notice of such default and, unless the Company otherwise
directs in writing, (i) the Trustee shall apply any income of this Trust and, if
necessary, principal of this Trust to the payment of such premiums and (ii) if
the income and principal of this Trust are insufficient for this purpose, the
Trustee is then authorized to apply any dividends received on the Policy to the
payment of premiums thereon, to borrow against the Policy for the payment of
premiums due thereon, or to exercise any other rights, powers, options or
privileges available under the Policy, or to take any other action the Trustee
may deem necessary in the interest of, and consistent with the purposes of, the
Trust.
ARTICLE IV
INVESTMENT OF TRUST FUND ASSETS
4.1 REPLACEMENT OF POLICY. The Company may, at any time and in its
discretion, give the Trustee written direction to (a) exchange any existing
Policy for a different Policy or Policies on the Executive's life or (b) cash
in, in whole or in part, the existing Policy and purchase a different Policy or
Policies on the Executive's life. If the Trustee is so directed, the Company
shall identify the type of Policy, determine the
- 7 -
level of benefits to be purchased, and specify the insurance provider from which
the Trustee is to purchase the Policy . Any such replacement Policy shall have a
cash value and death benefit equal to or exceeding those of the existing Policy
and shall be issued by a company with an A.M. Best rating equal to or exceeding
that of the insurer issuing the existing Policy as of the date of this
Agreement.
4.2 INVESTMENT RESTRICTIONS. Subject to the terms and conditions of
this Agreement, and unless otherwise directed by the Company, the Trustee shall
invest any cash contribution received from the Company (or any amount drawn
against the Letter of Credit) first to pay Policy premiums due at the time the
contribution is received and then to prepay future premiums to become due on the
Policy; PROVIDED, HOWEVER, that the Trustee will not make any payment of Policy
premiums to the extent that such amount, together with all other premium
payments made prior thereto, would equal or exceed an amount that would cause
the Policy to fail the 7-Pay Test of Section 7702A (b) of the Code. All such
amounts which are not invested to pay or prepay Policy premiums ("Excess Funds")
will be invested by the Trustee pursuant to the Company's written direction. Any
unvested Excess Funds may be invested by the Trustee in Permitted Investments
pending the Trustee's receipt of investment instructions from the Company.
ARTICLE V
DISTRIBUTION OF TRUST FUND ASSETS
5.1 BENEFIT PAYMENTS. Subject to the following provisions of this
Article V, as of the commencement date of any benefits (as determined under
Section 5.2) payable under the SER Agreement, the Trustee shall commence
distribution of such benefits in such form and in such amount as the Company
directs is payable to the Executive or his beneficiaries, and:
(a) the Trustee shall make no distribution to Executive or his
beneficiaries in excess of the amount which the Company directs is payable to
Executive or his beneficiaries; PROVIDED, HOWEVER, that in the event that
Executive contends that additional amounts are due under the SER Agreement,
Executive may, within thirty (30) days after receipt of any distribution,
require the Company to retain an Independent Consultant to determine whether
additional amounts are owed, and the Independent Consultant's determination
(which shall be delivered in writing to the Company, Executive and the Trustee)
shall be final and binding;
(b) the Trustee shall have no responsibility to inquire as to whether
a payee is entitled to the payment, or as
- 8 -
to whether a payment is proper, and shall have no liability for a payment made
in good faith without actual notice or knowledge of the changed condition or
status of the payee;
(c) if any check for any payment directed to be made from the Trust
Fund has been mailed by the Trustee, by regular United States mail, to the last
address of the payee furnished to the Trustee and is returned unclaimed, the
Trustee shall notify the Company of that fact and re-invest the unclaimed
payment as if it were Excess Funds (and in no event shall the Trustee be liable
or responsible for unclaimed payments); and
(d) the Trustee shall have no responsibility to determine any taxes
which may be payable from any payments made by the Trustee and shall be entitled
to rely on the Company's determination; the Trustee shall not be required to
reserve any amount from any payment to pay any estate, inheritance, income or
other tax, charge or assessment attributable to any payment unless so directed
by the Company; however it may require such indemnity from the intended payee as
the Trustee shall deem necessary for its protection.
5.2 COMMENCEMENT DATE. The date upon which payment of benefits will
commence, and the form and amount of payment from the Trust of Executive's
benefits with respect to the SER Agreement shall be determined by the Company in
accordance with the terms of the Employment Agreement and the SER Agreement. The
Company shall direct the Trustee when Executive's benefits must commence under
the SER Agreement.
5.3 EXECUTIVE'S INCOME TAXES. In accordance with the terms of the SER
Agreement, the Company may direct the Trustee to distribute funds from the Trust
to the Executive from time to time prior to the Commencement Date for the
purpose of satisfying the Company's obligations under paragraph 21 of the SER
Agreement. The form, amount, and timing of payments made pursuant to this
paragraph shall be determined by the Company in accordance with the terms of the
SER Agreement.
5.4 SOURCE OF FUNDS DISTRIBUTED. Funds distributed pursuant to
Sections 5.1 and 5.3 shall be withdrawn from Trust assets in the following
order: first, from cash or Permitted Investments; second, from other Excess
Funds invested pursuant to the Company's direction; third, from the Policy as
withdrawals to the extent of available adjusted basis; fourth, from the Policy
as loans against the Policy.
5.5 REVERSION OF OVERFUNDING.
(a) Upon the expiration of one year after full payment to or with
respect to Executive of all payments required to be made under the SER Agreement
to or with respect to Executive, the Trustee shall return all residual assets of
the Trust Fund to the
- 9 -
Company; PROVIDED that no such distribution shall be made unless and until the
Company obtains a written determination from an Independent Consultant that all
such payments have been made and delivers such written determination to the
Executive (or his beneficiaries, as applicable). Notwithstanding anything herein
to the contrary, if an Insolvency Event occurs during the one-year period set
forth above, then the Trustee shall withhold from any assets distributed to the
Company an amount not less than the aggregate payments made by the Company to or
with respect to Executive during the one-year period immediately preceding the
Insolvency Event.
(b) In addition, the Company, may at any time direct the Trustee to
return to the Company any amount of actuarial overfunding in the Trust
(regardless of whether Executive is then entitled to commence receipt of
benefits under the SER Agreement). For purposes of this paragraph, actuarial
overfunding shall be deemed to exist only if the value of the assets in the
Trust exceed the sum of (i) all amounts necessary to satisfy all amounts payable
to or with respect to Executive under the SER Agreement and (ii) the aggregate
amount of all contributions, if any, made by the Company during the preceding
twelve months. The Company shall retain an Independent Consultant to determine
the amount of actuarial overfunding, and such Independent Consultant's
determination of the amount of actuarial overfunding shall be delivered in
writing to the Company, the Executive and the Trustee and shall be final and
binding.
5.6 BENEFITS MAY NOT BE ASSIGNED OR ALIENATED. The interests of
Executive or his beneficiaries under the Trust may not be voluntarily or
involuntarily assigned, alienated or encumbered.
5.7 DISTRIBUTIONS OF NET INCOME. Except as and to the extent expressly
required by the provisions of this Agreement, the Trustee shall not be required
to make periodic distributions of net income derived from the Trust. Without
limiting the foregoing, the Trustee shall not be subject to the requirements of
Section 00-00-000 (c) of the Official Code of Georgia Annotated, or any
successor provision, or any similar common law duty.
ARTICLE VI
TAX MATTERS
6.1 TRUST TAX LIABILITY. The Trust shall be liable for all taxes owed
as a result of the income earned by the Trust Fund.
- 10 -
6.2 WITHHOLDING REQUIREMENTS. The Trustee shall withhold Federal,
state and local taxes which are required to be withheld with respect to amounts
paid to or on account of the Executive at such rate as may be determined by the
Company. The Company's determination of the amount of withholding, either as the
appropriate rate under applicable laws, or such larger amounts as may be
requested by the Executive, shall be conclusive and may be relied on by the
Trustee. The Trustee shall transmit the amount withheld to the Company, who
shall transmit the amount withheld to the applicable taxing authority. The
Trustee shall furnish to the Company, which shall transmit to the Executive (or
his beneficiaries, as applicable) all withholding and benefit payment
information as soon as practicable after the end of each calendar year. The
Company shall provide the Trustee with all necessary information in order for
the Trustee to comply with this Section 6.2.
ARTICLE VII
RECORDS AND ACCOUNTING
7.1 RECORDS. The Trustee shall maintain records with respect to the
Trust Fund that show all its receipts and disbursements hereunder. The records
of the Trustee with respect to the Trust Fund shall be open to inspection by the
Company, the Executive or their respective representatives, at all reasonable
times during normal business hours of the Trustee and may be audited not more
frequently than once each fiscal year by an independent certified public
accountant engaged by the Company; PROVIDED, HOWEVER, the Trustee shall be
entitled to additional compensation from the Company in respect of audits or
auditors' requests which the Trustee determines to exceed the ordinary course of
the usual scope of such examinations of its records.
7.2 ACCOUNTING BY TRUSTEE. 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 and Executive 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
Trust Fund. In the preparation of its statement to the Company, the Trustee
shall be entitled to rely on the report of any investment manager for an
accounting of funds in the custody of such investment manager and shall not be
required to make independent investigation of the transactions underlying such
report. Any such statement shall be deemed an account stated and accepted and
approved by the Company, and the Trustee shall be relieved and
- 11 -
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 questions
of construction or for instructions. In any such action or proceeding it shall
be necessary to join as parties only the Trustee and the Company (although the
Trustee may also join such other parties as it may deem appropriate), and any
judgment or decree entered therein shall be conclusive.
7.3 TRUST TAX RETURNS. For each taxable year of the Trust, the Trustee
shall timely file the applicable income tax returns (and all other forms, if
any, to governmental agencies required to be made) with respect to the Trust and
shall promptly provide the Company and Executive with copies of such income tax
returns (and other forms).
ARTICLE VIII
THE TRUSTEE
8.1 GENERAL POWERS AND DUTIES. Subject to the limitations imposed by
Article IV and the other provisions of this Agreement with respect to the Trust
Fund, the Trustee shall have the following powers, rights and duties in addition
to those provided elsewhere in this Agreement or by law:
(a) to receive and hold all contributions paid to it under the SER
Agreement;
(b) to deposit any part or all of the cash and other property of this
Trust in any common trust fund or other collective investment fund maintained by
the Trustee for trust investment purposes;
(c) to invest and reinvest the Trust Fund in property of any kind,
real or personal;
(d) to manage, operate, sell, contract to sell, convey, exchange,
partition, transfer, abandon and otherwise deal with all property, real or
personal, in such manner, for such considerations, and on such terms and
conditions as the Trustee shall decide;
(e) to retain in cash (pending investment, reinvestment or payment of
benefits) any reasonable portion of the Trust
- 12 -
Fund and to deposit cash in any depository, including the banking department of
any bank acting as Trustee;
(f) to compromise, contest, arbitrate, settle or abandon claims and
demands;
(g) to begin, maintain or defend any litigation necessary in
connection with the administration of the Trust;
(h) to have all rights of an individual owner, including the power to
give proxies, to vote stocks, to join in or oppose (alone or jointly with
others) voting trusts, mergers, consolidations, foreclosures, reorganization,
recapitalizations or liquidations, and to exercise or sell stock subscription or
conversion rights;
(i) to hold securities or other property in the name of the Trustee or
any nominee or nominees of the Trustee, or in such other form as the Trustee
shall determine, with or without disclosing the Trust relationship, provided
that the records of the Trustee shall indicate the actual ownership of such
securities or other property;
(j) to deposit securities with a corporate depository, in which event
the certificates representing securities, including those in bearer form, may be
held in bulk form with, and may be merged into, certificates of the same class
of the same issuer which constitute assets of other accounts or owners, without
certification as to the ownership attached; provided that the Trustee shall at
all times maintain a separate and distinct record of the securities owned by the
Trust Fund;
(k) to participate in and use a book-entry system for the deposit and
transfer of securities;
(l) to retain any funds or property subject to any dispute without
liability for the payment of interest, or to decline to make payment or delivery
thereof until final adjudication is made by a court of competent jurisdiction;
(m) to employ agents, attorneys, investment counsel, accountants or
other persons for such purposes as the Trustee considers desirable;
(n) to furnish the Company a report, no less frequently than annually,
regarding the fair market value of the Trust Fund and the earnings and losses
for the reporting period and with such information in the Trustee's possession
as the Company may need for tax or other purposes; and
(o) to perform any and all other acts which are, in the Trustee's
judgment, necessary or appropriate for the proper
- 13 -
and advantageous management, investment and distribution of the Trust Fund.
8.2 LIABILITY OF TRUSTEE. The Trustee shall not be liable for any act
or failure to act under this Agreement unless such action or failure to act was
negligent, in bad faith, or constituted willful misconduct and, in any event,
the Trustee shall not be liable to the beneficiaries of the Trust or to any
other party for any losses due to the Trustee's failure to observe the "prudent
person" standard of Section 53-8-2 of the Official Code of Georgia Annotated, or
any successor or similar standard arising hereafter under Georgia law, with
respect to any act or omission in (i) determining whether any Policy is or
remains a proper investment, (ii) exercising policy options available under any
Policy, or (iii) diversifying any Policy. This Section 8.2 shall not in any way
restrict the exercise of the powers given to the Trustee with respect to the
Policy or limit the Trustee's liability for breach of trust arising out of the
Trustee's failure to perform any express duties imposed on it pursuant to
Article III or IV of this Agreement or pursuant to any other provision of this
Agreement with respect to the Policy or the Trust Fund.
8.3 COMPENSATION AND EXPENSES. All reasonable costs, charges and
expenses incurred by the Trustee in connection with the administration of the
Trust, including such reasonable compensation of the Trustee as may be agreed
upon from time to time between the Company and the Trustee, shall be paid from
the Trust Fund unless paid or advanced by the Company. The Trustee shall also
pay such expenses in connection with the administration of the SER Agreement as
may be directed by the Company and shall be fully protected in making such
payments from the assets of the Trust Fund pursuant to written direction from
the Company.
8.4 INDEMNIFICATION. To the extent permitted by law and except as
provided in paragraph 8.2, no person (including the Trustee, any former or
future Trustee, and any present, former or future director, officer, or employee
of the Company or a Trustee) shall be personally liable for any act done or
omitted to be done in good faith in the administration of the SER Agreement or
this Agreement or the investment of the Trust Fund. To the extent permitted by
law, each present, former or future director, officer, or employee of the
Company or a Trustee and each present or former Trustee shall be indemnified and
saved harmless by the Company (to the extent not indemnified or saved harmless
under any liability insurance or other indemnification arrangement with respect
to the SER Agreement or this Trust) from and against any and all claims of
liability to which they are subjected by reason of any act done or omitted to be
done in good faith in connection with the administration of the SER Agreement or
this Trust or the investment of the Trust Fund, including all expenses
reasonably incurred in their defense if the Company fails to provide such
defense; provided, that no present, former
- 14 -
or future Trustee which is not an individual shall be indemnified and saved
harmless by the Company with respect to claims of liability which are based on
or caused by such Trustee's negligence, bad faith or willful misconduct.
8.5 RESIGNATION OR REMOVAL OF TRUSTEE. A Trustee may resign at any
time by giving thirty (30) days' advance written notice to the Company, and the
Company may remove any Trustee by giving thirty (30) days' advance written
notice to the Trustee.
8.6 APPOINTMENT OF SUCCESSOR TRUSTEE. In the event of the resignation
or removal of a Trustee, a successor Trustee shall be appointed by the Company
as soon as practicable. Notice of any such appointment shall be given by the
Company to the retiring Trustee and the successor Trustee.
8.7 DUTIES OF RETIRING AND SUCCESSOR TRUSTEE. In the event of the
resignation or removal of a Trustee, the retiring Trustee shall promptly furnish
to the Company and the successor Trustee a final account of his administration
of the Trust. A successor Trustee shall succeed to the right and title of the
predecessor Trustee in the assets of the Trust Fund, and the retiring Trustee
shall deliver the property comprising the Trust Fund to the successor Trustee
together with any instruments of transfer, conveyance, assignment and further
assurance as the successor trustee may reasonably require. Each successor shall
have all the powers, rights and duties conferred by this Agreement as if
originally named a Trustee. To the extent permitted by law, no successor Trustee
shall be personally liable for any act or failure to act of a predecessor
Trustee. A successor Trustee shall not have any duty that may otherwise be
imposed by law to pursue any claim against any predecessor Trustee for loss
arising from such predecessor's failure to observe the "prudent person" standard
of Section 53-8-2 of the Official Code of Georgia Annotated, or any successor or
similar standard arising hereafter under Georgia law, with respect to any act or
omission in (i) determining whether any Policy acquired or maintained by the
predecessor trustee was or remained a proper investment, (ii) exercising policy
options available under any such Policy, or (iii) diversifying any such Policy
(in each case, to the extent that this Agreement exculpates the predecessor
Trustee from liability in respect of such act or omission), and a successor
Trustee shall not be personally liable to the beneficiaries of the Trust or to
any other party for any loss resulting from a failure to pursue any such claim.
The preceding sentence shall not in any way restrict a successor Trustee's power
or a beneficiary's right to pursue any such claim against a predecessor Trustee.
- 15 -
ARTICLE IX
AMENDMENT AND TERMINATION
9.1 AMENDMENT. This Agreement may be amended from time to time by the
Company with the consent of the Executive; PROVIDED, HOWEVER, that the Trustee's
duties, obligations, rights and liabilities under this Agreement may not be
adversely affected thereby without the Trustee's prior written consent.
9.2 TERMINATION. The Agreement shall not terminate until the date on
which all benefits payable under the Trust and all expenses have been paid. If
the SER Agreement is terminated, all of the provisions of the Trust evidenced by
this Agreement, as applied to the SER Agreement, nevertheless shall continue in
effect until the Trust Fund has been distributed in full by the Trustee.
ARTICLE X
MISCELLANEOUS
10.1 DISAGREEMENT AS TO ACTS. If there is a disagreement between the
Trustee and anyone as to any act or transaction reported in any accounting, the
Trustee shall have the right to have its account settled by a court of competent
jurisdiction.
10.2 PERSONS DEALING WITH TRUSTEE. No person dealing with the Trustee
shall be required to see to the application of any money paid or property
delivered to the Trustee or to determine whether or not the Trustee is acting
pursuant to any authority granted under this Agreement.
10.3 EVIDENCE. Evidence required of anyone under this Agreement may be
by certificate, affidavit, document or other instrument which the person acting
in reliance thereon considers pertinent and reliable, and signed, made or
presented by the proper party.
10.4 WAIVER OF NOTICE. Any notice required under this Agreement may be
waived by the person entitled thereto.
10.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and no other
counterpart need be produced.
10.6 GOVERNING LAW. This Agreement shall be construed and administered
according to the laws of the State of Georgia.
- 16 -
10.7 SUCCESSORS, ETC. The provisions of this Agreement shall be
binding on the Company and the Trustee and its successors and on all persons
entitled to benefits under the SER Agreement or the Trust and their respective
heirs and legal representatives.
10.8 SERVICE OF LEGAL PROCESS. If a Trustee receives service of
summons, subpoena or other legal process of any court with respect to any action
relating to the SER Agreement or this Agreement, it shall, as soon as
practicable, inform the Company of such service and, at the request of the
Company, the Trustee shall promptly provide the Company with a copy of the
document served.
10.10 ACTION BY COMPANY. Any action taken by the Company in accordance
with the terms of this Agreement shall be by resolution of the Board of
Directors of the Company or any person or persons authorized by resolution of
the Board of Directors of the Company.
10.11 DIRECTIONS TO TRUSTEE. Directions to the Trustee from the
Company shall be in writing signed by any of the persons authorized by the Board
of Directors of the Company to administer the SER Agreement covered by the
Agreement, or any persons to whom authority is in writing delegated by such
appointed persons.
10.12 ARBITRATION. Any dispute under this Agreement that the parties
are unable to resolve themselves, shall be submitted for binding arbitration
pursuant to the rules, as may be amended or restated from time to time, of the
American Arbitration Association except as modified below. The Company and
Executive shall each select one arbitrator. The two arbitrators so selected
shall select a third. No arbitrator may be related to, employed by or otherwise
associated with the Company or Executive. The decision of the arbitrators shall
be final and not subject to review by any court.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
- 17 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE XXXXXXX XXXXXX COMPANY
By: /s/ [ILLEGIBLE]
---------------------------------
Its: Chairman
--------------------------------
WACHOVIA BANK OF GEORGIA, N.A.,
as Trustee
By:
---------------------------------
Its:
--------------------------------
Xxxxxxx X. Xxxxx
Vice President - Investment
Manager
- 18 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE XXXXXXX XXXXXX COMPANY
By:
---------------------------------
Its:
--------------------------------
WACHOVIA BANK OF GEORGIA, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Its: VP & Investment Manager
--------------------------------
Xxxxxxx X. Xxxxx
Vice President - Investment
Manager
- 18 -
