EXHIBIT 10.3
TRUST AGREEMENT
BETWEEN
XXXXXXX MARITIME CORPORATION
AND
FIDELITY MANAGEMENT TRUST COMPANY
XXXXXXX MARITIME DEFERRED COMPENSATION PLAN
TRUST
DATED AS OF DECEMBER 31, 1996
TABLE OF CONTENTS
SECTION PAGE
------- ----
1 TRUST .................................................................. 2
(a) Establishment
(b) Grantor Trust
(c) Trust Assets
(d) Non-Assignment
2 PAYMENTS TO SPONSOR .................................................... 3
3 DISBURSEMENT ............................................................ 3
(a) Directions from Administrator
(b) Limitations
4 INVESTMENT OF TRUST .................................................... 3
(a) Selection of Investment Options
(b) Available Investment Options
(c) Investment Directions
(d) Mutual Funds
(e) Trustee Powers
5 RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED .............. 6
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 COMPENSATION AND EXPENSES .............................................. 7
7 DIRECTIONS AND INDEMNIFICATION ......................................... 8
(a) Identity of Administrator
(b) Directions from Administrator
(c) Directions from Participants
(d) Indemnification
(e) Survival
8 RESIGNATION OR REMOVAL OF TRUSTEE ...................................... 9
(a) Resignation
(b) Removal
9 SUCCESSOR TRUSTEE ...................................................... 9
(a) Appointment
(b) Acceptance
(c) Corporate Action
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
------- ----
10 TERMINATION ....................................................... 10
11 RESIGNATION, REMOVAL, AND TERMINATION NOTICES 10
12 DURATION .......................................................... 10
13 INSOLVENCY OF SPONSOR ............................................. 10
14 AMENDMENT OR MODIFICATION ......................................... 11
15 GENERAL ........................................................... 12
(a) Performance by Trustee, its Agent or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
16 GOVERNING LAW ..................................................... 13
(a) Massachusetts Controls
(b) Trust Agreement Controls
Schedules
A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Administrator's Authorization Letter
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TRUST AGREEMENT, dated as of the 31st day of December, 1996, between
XXXXXXX MARITIME CORPORATION, a California corporation, having an office at 000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Sponsor"), and FIDELITY MANAGEMENT
TRUST COMPANY, a Massachusetts trust company, having an office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Xxxxxxx Maritime Corporation
Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Sponsor has established an irrevocable trust and has
contributed to the trust assets that shall be held therein, subject to the
claims of Sponsor's creditors in the event of Sponsor's Insolvency, as herein
defined, until paid to Plan participants and their beneficiaries in such manner
and at such times as specified in the Plan; and
WHEREAS, it is the intention of the parties that this Trust shall continue
to constitute an unfunded arrangement and shall not affect the status of the
Plan as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"); and
WHEREAS, it is the intention of the Sponsor to make contributions to the
trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plan; and
WHEREAS, the Bank of New York has served as Trustee; and
WHEREAS, the Sponsor has appointed Trustee to serve as successor trustee
to the Bank of New York; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by the Sponsor; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan; and
WHEREAS, XXXXXXX Maritime Corporation (the "Administrator") is the
administrator of the Plan; and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the Sponsor and the Trustee agree as
follows:
SECTION 1. TRUST.
(a) Amendment and Restatement. The Sponsor hereby amends and restates
the Xxxxxxx Maritime Corporation Deferred Compensation Plan Trust (the "Trust"),
with the Trustee. The Trust shall consist of a transfer of money or other
property acceptable to the Trustee in its sole discretion, transferred from a
previous trustee under the Plan, such additional sums of money as shall from
time to time be delivered to the Trustee under the Plan, all investments made
therewith and proceeds thereof, and all earnings and profits thereon, less the
payments that are made by the Trustee as provided herein, without distinction
between principal and income. The Trustee hereby accepts the Trust on the terms
and conditions set forth in this Agreement. In accepting this Trust, the Trustee
shall be accountable for the assets received by it, subject to the terms and
conditions of this Agreement.
(b) Grantor Trust. The Trust is intended to be a grantor trust, of
which the Sponsor is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(c) Trust Assets. The principal of the Trust, and any earnings thereon
shall be held separate and apart from other funds of the Sponsor and shall be
used exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their beneficiaries shall
have no preferred claim on, or any beneficial ownership interest in, any assets
of the Trust. Any rights created under the Plan and this Trust Agreement shall
be mere
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unsecured contractual rights of Plan participants and their beneficiaries
against the Sponsor. Any assets held by the Trust will be subject to the claims
of the Sponsor's general creditors under federal and state law in the event of
Insolvency, as defined in Section 13(a).
(d) Non-Assignment. Benefit payments to Plan participants and their
beneficiaries funded under this Trust may not be anticipated, assigned (either
at law or in equity), alienated, pledged, encumbered, or subjected to
attachment, garnishment, levy, execution, or other legal or equitable process.
SECTION 2. PAYMENTS TO SPONSOR. Except as provided under Section 13, the Sponsor
shall have no right to retain or divert to others any of the Trust assets before
all payment of benefits have been made to the participants and their
beneficiaries pursuant to the terms of the Plan.
SECTION 3. DISBURSEMENTS.
(a) Directions from Administrator. The Trustee shall disburse monies to
the Sponsor for benefit payments in the amounts that the Administrator directs
from time to time in writing. The Trustee shall have no responsibility to
ascertain any direction's compliance with the terms of the Plan or of any
applicable law. The Trustee shall not be responsible for making benefit payments
to participants under the Plan, nor shall the Trustee be responsible for any
Federal, State or local income tax reporting or withholding with respect to such
Plan benefits.
(b) Limitations. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. The Trustee shall not be required to make any
disbursement in cash unless the Administrator has provided a written direction
as to the assets to be converted to cash for the purpose of making the
disbursement.
SECTION 4. INVESTMENT OF TRUST.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
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(b) Available Investment Options. The Sponsor shall direct the Trustee
as to what investment options: (i) the Trust shall be invested in during the
period beginning on the initial transfer of assets to the Trust and ending on
the completion of the reconciliation of participant records (the "participant
recordkeeping reconciliation period"), and (ii) the investment options in which
Plan participants may invest in, subject to the following limitations. The
Sponsor may determine to offer as investment options only securities issued by
the investment companies advised by Fidelity Management & Research Company
identified on "Schedule A" attached hereto and the Barclays Masterworks Growth
Stock Fund (the "Mutual Funds"); provided, however, that the Trustee shall not
be considered a fiduciary with investment discretion. The Sponsor may add
additional investment options with the consent of the Trustee and upon mutual
amendment of this Trust Agreement and the Schedules thereto to reflect such
additions.
(c) Investment Directions. In order to provide for an accumulation of
assets comparable to the contractual liabilities accruing under the Plan, the
Sponsor may direct the Trustee in writing to invest the assets held in the Trust
to correspond to the hypothetical investments made for Participants under the
Plan. Such directions may be made by Plan participants by use of the telephone
exchange system maintained for such purposes by the Trustee or its agent. In the
event that the Trustee fails to receive a proper direction from the Sponsor or
from Participants, the assets in question shall be invested in Fidelity
Retirement Money Market Fund until the Trustee receives a proper direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has received
from the Trustee a copy of the prospectus for each Mutual Fund selected by the
Sponsor as a Plan investment option. Trust investments in Mutual Funds shall be
subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of Mutual
Funds (other than for Exchanges) shall be made on the date on which the Trustee
receives from the Sponsor in good order all information and documentation
necessary to accurately effect such purchases and sales (or in the case of a
purchase, the subsequent date on which the Trustee has received a wire transfer
of funds necessary to make such purchase). Exchanges of Mutual Funds shall be
made on the same business day that the Trustee receives a proper direction if
received before 4:00 p.m. eastern time; if the direction is received after 4:00
p.m. eastern time, the exchange shall be made the following day.
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(ii) Voting. At the time of mailing of notice of each annual or
special stockholders' meeting of any Mutual Fund, the Trustee shall send a copy
of the notice and all proxy solicitation materials to each Plan participant who
has shares of the Mutual Fund credited to the participant's accounts, together
with a voting direction form for return to the Trustee or its designee. The
participant shall have the right to direct the Trustee as to the manner in which
the Trustee is to vote the shares credited to the participant's accounts (both
vested and unvested). The Trustee shall vote the shares as directed by the
participant. The Trustee shall not vote shares for which it has received no
directions from the participant. During the participant recordkeeping
reconciliation period, the Sponsor shall have the right to direct the Trustee as
to the manner in which the Trustee is to vote the shares of the Mutual Funds in
the Trust. With respect to all rights other than the right to vote, the Trustee
shall follow the directions of the participant and if no such directions are
received, the directions of the Sponsor. The Trustee shall have no duty to
solicit directions from participants or the Sponsor.
(e) Trustee Powers. The Trustee shall have the following powers and
authority;
(i) Subject to paragraphs (b), (c) and (d) of this Section 4, to
sell, exchange, convey, transfer, or otherwise dispose of any property held in
the Trust, by private contract or at public auction. No person dealing with the
Trustee shall be bound to see to the application of the purchase money or other
property delivered to the Trustee or to inquire into the validity, expediency,
or propriety of any such sale or other disposition.
(ii) To cause any securities or other property held as part of the
Trust to be registered in the Trustee's own name, in the name of one or more of
its nominees, or in the Trustee's account with the Depository Trust Company of
New York and to hold any investments in bearer form, but the books and records
of the Trustee shall at all times show that all such investments are part of the
Trust.
(iii) To keep that portion of the Trust in cash or cash balances as
the Sponsor or Administrator may, from time to time, deem to be in the best
interest of the Trust.
(iv) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein granted.
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(v) To settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to commence or defend suits
or legal or administrative proceedings; to represent the Trust in all suits and
legal and administrative hearings; and to pay all reasonable expenses arising
from any such action, from the Trust if not paid by the Sponsor.
(vi) To employ legal, accounting, clerical, and other assistance as
may be required in carrying out the provisions of this Agreement and to pay
their reasonable expenses and compensation from the Trust if not paid by the
Sponsor.
(vii) To do all other acts although not specifically mentioned
herein, as the Trustee may deem necessary to carry out any of the foregoing
powers and the purposes of the Trust.
Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
The Sponsor shall provide the Trustee with an opinion of counsel whether an
annual fiduciary tax return should be filed for the Trust; in the absence of
such opinion, Trustee may consult with counsel to the extent it deems
appropriate on this issue, and any resulting counsel fees shall be charged to
the Trust to the extent not paid by the Sponsor.
SECTION 5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of the last day of
each fiscal quarter of the Plan and, if not on the last day of a fiscal quarter,
the date on which the Trustee resigns or is removed as provided in Section 8 of
this Agreement or is terminated as provided in Section 10 (the "Reporting
Date"). Within thirty
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(30) days following each Reporting Date or within sixty (60) days in the case of
a Reporting Date caused by the resignation or removal of the Trustee, or the
termination of this Agreement, the Trustee shall file with the Administrator a
written account setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date. Except as otherwise required under applicable law, upon the
expiration of six (6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or further accountability to
anyone with respect to the propriety of its acts or transactions shown in such
account, except with respect to such acts or transactions as to which the
Sponsor shall within such six (6) month period file with the Trustee written
objections.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to the termination of this
Agreement, by the Administrator or any person designated by the Administrator.
Upon the resignation or removal of the Trustee or the termination of this
Agreement, the Trustee shall provide to the Administrator, at no expense to the
Sponsor, in the format regularly provided to the Administrator, a statement of
each participant's accounts as of the resignation, removal, or termination, and
the Trustee shall provide to the Administrator or the Plan's new recordkeeper
such further records as are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. The Trustee's provision of the
recordkeeping and administrative services set forth in this Section 5 shall be
conditioned on the Sponsor delivering to the Trustee a copy of any amendment to
the Plan as soon as administratively feasible following the amendment's
adoption, and on the Administrator providing the Trustee on a timely basis with
all the information the Administrator deems necessary for the Trustee to perform
the recordkeeping and administrative services and such other information as the
Trustee may reasonably request.
(e) Returns Reports and Information. The Administrator shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide the
Administrator with such information as the Administrator may reasonably request
to make these filings. The Administrator shall also be responsible for making
any disclosures to participants required by law.
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SECTION 6. COMPENSATION AND EXPENSES. Within thirty (30) days of receipt of the
Trustee's xxxx, which shall be computed and billed in accordance with Schedule
"B" attached hereto and made a part hereof, as amended from time to time, the
Sponsor shall send to the Trustee a payment in such amount or the Sponsor may
direct the Trustee to deduct such amount from participants' accounts. All
expenses of the Trustee relating directly to the acquisition and disposition of
investments constituting part of the Trust, and all taxes of any kind whatsoever
that may be levied or assessed under existing or future laws upon or in respect
of the Trust or the income thereof, shall be a charge against and paid from the
appropriate Plan participants' accounts.
SECTION 7. DIRECTIONS AND INDEMNIFICATION.
(a) Identity of Administrator. The Trustee shall be fully protected in
relying on the fact that the Administrator under the Plan is the individual or
persons named as such above or such other individuals or persons as the Sponsor
may notify the Trustee in writing.
(b) Directions from Administrator. Whenever the Administrator provides
a direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction if the direction is contained
in a writing (or is oral and immediately confirmed in a writing) signed by any
individual whose name and signature have been submitted (and not withdrawn) in
writing to the Trustee by the Administrator in the form attached hereto as
Schedule "C", provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may be made via EDT in accordance with
procedures agreed to by the Administrator and the Trustee; provided, however,
that the Trustee shall be fully protected in relying on such direction as if it
were a direction made in writing by the Administrator. The Trustee shall have no
responsibility to ascertain any direction's (i) accuracy, (ii) compliance with
the terms of the Plan or any applicable law, or (iii) effect for tax purposes or
otherwise.
(c) Directions from Participants. The Trustee shall not be liable for
any loss which arises from any participant's exercise or non-exercise of rights
under this Section 4 over the assets in the participant's accounts.
(d) Indemnification. The Sponsor shall indemnify the Trustee against,
and hold the Trustee harmless from, any and all loss, damage, penalty,
liability, cost, and expense, including
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without limitation, reasonable attorneys' fees and disbursements, that may be
incurred by, imposed upon, or asserted against the Trustee by reason of any
claim, regulatory proceeding, or litigation arising from any act done or omitted
to be done by any individual or person with respect to the Plan or Trust,
excepting only any and all loss, etc., arising from the Trustee's negligence or
bad faith.
(e) Survival. The provisions of this Section 7 shall survive the
termination of this Agreement.
SECTION 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Resignation. The Trustee may resign at any time upon 180 days'
notice in writing to the Sponsor, unless a shorter period of notice is agreed
upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time upon sixty
(60) days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
SECTION 9. SUCCESSOR TRUSTEE.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, the Sponsor may in writing appoint a successor trustee under this
Agreement. The successor trustee shall have all of the rights, powers,
privileges, obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor trustee
shall not be liable for the acts or omissions of the other with respect to the
Trust.
(b) Acceptance. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action on the part
of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
be requested in writing by the Sponsor or the successor trustee to vest title to
all Trust assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
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(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through reorganization, consolidation, or
merger, or any similar transaction, shall, upon consummation of the transaction,
become the successor trustee under this Agreement.
SECTION 10. TERMINATION. This Agreement may be terminated at any time by the
Sponsor upon 180 days' notice in writing to the Trustee. On the date of the
termination of this Agreement, the Trustee shall forthwith transfer and deliver
to such individual or entity as the Sponsor shall designate, all cash and assets
then constituting the Trust. If, by the termination date, the Sponsor has not
notified the Trustee in writing as to whom the assets and cash are to be
transferred and delivered, the Trustee may bring an appropriate action or
proceeding for leave to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
SECTION 11. RESIGNATION, REMOVAL. AND TERMINATION NOTICES. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Xxxx X. Xxxxxxx,
Director, Compensation and Benefits, Maritime Xxxxxxx Corporation, 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 , and to the Trustee c/o Xxxx X. Xxxxxx,
Fidelity Investments, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to
such other addresses as the parties have notified each other of in the foregoing
manner.
SECTION 12. DURATION. This Trust shall continue in effect without limit as to
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
SECTION 13. INSOLVENCY OF SPONSOR.
(a) Trustee shall cease disbursement of funds for payment of benefits
to Plan participants and their beneficiaries if the Sponsor is Insolvent.
Sponsor shall be considered "insolvent" for purposes of this Trust Agreement if
(i) Sponsor is unable to pay its debts as they become due, or (ii) Sponsor is
subject to a pending proceeding as a debtor under the United States Bankruptcy
Code.
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(b) All times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Sponsor under federal and state law as set forth below.
(i) The Board of Directors and the Chief Executive Officer of the
Sponsor shall have the duty to inform Trustee in writing of Sponsor's
Insolvency. If a person claiming to be a creditor of the Sponsor alleges in
writing to Trustee that Sponsor has become Insolvent, Trustee shall determine
whether Sponsor is Insolvent and, pending such determination, Trustee shall
discontinue disbursements for payment of benefits to Plan participants or their
beneficiaries.
(ii) Unless Trustee has actual knowledge of Sponsor's Insolvency,
or has received notice from Sponsor or a person claiming to be a creditor
alleging that Company is Insolvent, Trustee shall have no duty to inquire
whether Sponsor is Insolvent. Trustee may in all events rely on such evidence
concerning Sponsor's solvency as may be furnished to Trustee and that provides
Trustee with a reasonable basis for making a determination concerning Sponsor's
solvency.
(iii) If any time Trustee has determined that Sponsor is Insolvent,
Trustee shall discontinue disbursements for payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the benefit of
Sponsor's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of Sponsor with respect to benefits due under the
Plan or otherwise.
(iv) Trustee shall resume disbursement for the payment of benefits
to Plan participants or their beneficiaries in accordance with Section 3 of this
Trust Agreement only after Trustee has determined that Sponsor is not Insolvent
(or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to (a) hereof and subsequently
resumes such payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Plan participants or their
beneficiaries under the terms of the Plan for the period of such discontinuance,
less the aggregate amount of any payments made to Plan participants or their
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beneficiaries by Sponsor in lieu of the payments provided for hereunder during
any such period of discontinuance.
SECTION 14. AMENDMENT OR MODIFICATION. This Agreement may be amended or modified
at any time and from time to time only by an instrument executed by both the
Sponsor and the Trustee. Notwithstanding the foregoing, to reflect increased
operating costs the Trustee may once each calendar year amend Schedule "B"
without the Sponsor's consent upon 180 days' written notice to the Sponsor.
SECTION 15. GENERAL.
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, including
Fidelity Investments Institutional Operations Company or its successor, and that
certain of such services may be provided pursuant to one or more other
contractual agreements or relationships.
(b) Entire Agreement. This Agreement contains all of the terms agreed
upon between the parties with respect to the subject matter hereof.
(c) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
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(f) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
SECTION 16. GOVERNING LAW.
(a) Massachusetts Law Controls. The validity, construction, effect, and
administration of this Agreement shall be governed by and interpreted in
accordance with the banking laws of the Commonwealth of Massachusetts to the
extent that they govern the activities of the Trustee and otherwise in
accordance with the law of the State of California, except to the extent those
laws are superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan,
and in the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
XXXXXXX MARITIME CORPORATION
By: Xxxx X. Xxxxxxx
-----------------------------
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: Xxxxxxx X. Xxxx By: Xxxxx X. Belikewicz
----------------------- -----------------------------
Assistant Clerk Vice President
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SCHEDULE "A"
RECORDKEEPING AND ADMINISTRATIVE SERVICES
Administration
- Establishment and maintenance of participant account and election
percentages.
- Maintenance of [ 7 ] plan investment options:
- Fidelity Retirement Money Market Portfolio
- Fidelity U.S. Bond Index Portfolio
- Fidelity Puritan Fund
- Fidelity U.S. Equity Index
- Fidelity Growth & Income Portfolio
- Fidelity Contrafund
- Barclays Masterworks Growth Stock Fund
- Maintenance of [ 1 ] money classification:
- Employer contribution
- Processing of mutual fund trades.
- The Trustee will provide only the recordkeeping and administrative services
set forth on this Schedule "A" and no others.
Processing
- Monthly processing of contribution data.
- Daily processing of transfers and changes of future allocations.
- Monthly processing of withdrawals.
Other
- Monthly trial balance
- Quarterly administrative reports
- Quarterly participant statements
- Employee communications describing available investment options, including
multimedia informational materials and group presentations.
- Forms 1099-Div and 1099-B annual tax reporting to the plan sponsor for the
Fidelity mutual funds.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: Xxxx X. Xxxxxxx 12/27/96 By: Xxxxx X. Belikewicz 1/9/97
-------------------------------- ------------------------------
Date Vice President Date
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SCHEDULE "B"
FEE SCHEDULE
- Annual Participant Fee $5,000* annual administration fee billed
and payable quarterly.
- This fee will be imposed pro rata for each CALENDAR quarter, or any part
thereof, that it remains necessary to maintain a participant's account(s)
as part of the Plan's records, e.g., vested, deferred, forfeiture,
top-heavy and terminated participants who must remain on file through
calendar year-end for 1099-R reporting purposes.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxx 12/27/96 By: /s/ Xxxxx X. Belikewicz 1/9/97
-------------------------------- ---------------------------------
Date Vice President Date
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FIRST AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS FIRST AMENDMENT, dated as of the tenth day of April, 1997, by and
between Fidelity Management Trust Company (the "Trustee") and Xxxxxxx Maritime
Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31,1996, with regard to the Xxxxxxx Maritime
Corporation Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending and restating the list of money classifications on Schedule
"A" to read as follows:
* Maintenance of the following money classifications:
-1994 Vesting Schedule Source
-1997 Vesting Schedule Source
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this First
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By /s/ Xxxx X. Xxxxxxx 4/7/97 By /s/ Xxxxx X. Belikewicz 4/09/97
--------------------------- --------------------------------
Date Vice President Date
SECOND AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS SECOND AMENDMENT, dated as of the fifteenth day of February, 1999, by
and between Fidelity Management Trust Company (the "Trustee") and Xxxxxxx
Maritime Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31, 1996, with regard to the Xxxxxxx Maritime
Corporation Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending the "money classification" portion of Schedule "A" by
adding the following:
-1999 Vesting Schedule
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Second
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By /s/ Xxxx X. Xxxxxxx 2/9/99 By /s/ Xxxxxxx Xxxxxx 2/24/99
--------------------------- ------------------------------
Date Vice President Date
SECOND AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS SECOND AMENDMENT, dated as of the first day of December, 1998, by and
between Fidelity Management Trust Company (the "Trustee) and Xxxxxxx Maritime
Corporation (the Sponsor")
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31,1996,, with regard to the Xxxxxxx Maritime
Corporation Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof; .
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending Section 4(b), Available Investment Options, by redefining
"Mutual Funds" as follows:
securities issued by investment companies advised by Fidelity
Management & Research Company ("Fidelity Mutual Funds") and certain
securities issued by registered investment companies not advised by
Fidelity Management & Research Company ("Non-Fidelity Mutual
Funds") (collectively referred to as "Mutual Funds").
(2) Amending Section 4(d), Mutual Funds, by inserting the following
sentence before the first sentence:
All transactions involving Non-Fidelity Mutual Funds shall be done
in accordance with the Operational Guidelines for Non-Fidelity
Mutual Funds attached hereto as Schedule "D".
(3) Amending the "investment options" section of Schedule "A" by adding
the following:
- MAS Mid Cap Growth Portfolio
- UAM/FMA Small Company Portfolio
(4) Amending Schedule "B" by adding a new "Non-Fidelity Mutual Funds"
paragraph as follows:
Non-Fidelity Mutual Funds: .25% annual fee on all assets held in the
Barclay's Masterworks Growth Stock Fund.
.35% annual fee on the all Non-Fidelity Mutual
Fund assets. All Fees in this paragraph to be
paid by the Non-Fidelity Mutual Fund vendor.
(5) Adding Schedule "D", Operational Guidelines for Non-Fidelity Mutual
Funds, as attached.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Second
Amendment to be executed by their duly authorized officers effective as of the
day and year fast above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By /s/ Xxxx X. Xxxxxxx 11/30/98 By /s/ Xxxxxxx Xxxxxx 12/17/98
--------------------------- ------------------------------
Date Vice President Date
XXXXXXX MARITIME CORPORATION - DEFERRED COMP.
SECOND AMENDMENT
2
SCHEDULE "D"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
PRICING
By 7:00 p.m. Eastern Time ("ET") each Business Day, the Non-Fidelity Mutual Fund
Vendor (Fund Vendor) will input the following information ("Price Information")
into the Fidelity Participant Recordkeeping System ("FPRS") via the remote
access price screen that Fidelity Investments Institutional Operations Company,
Inc. ("FIIOC"), an affiliate of the Trustee, has provided to the Fund Vendor:
(1) the net asset value for each Fund at the Close of Trading, (2) the change in
each Fund's net asset value from the Close of Trading on the prior Business Day,
and (3) in the case of an income fund or funds, the daily accrual for interest
rate factor ("mil rate"). FIIOC must receive Price Information each Business Day
(a "Business Day" is any day the New York Stock Exchange is open). If on any
Business Day the Fund Vendor does not provide such Price Information to FIIOC,
FIIOC shall pend all associated transaction activity in the Fidelity Participant
Recordkeeping System ("FPRS") until the relevant Price Information is made
available by Fund Vendor.
TRADE ACTIVITY AND WIRE TRANSFERS
By 7:00 a.m. ET each Business Day following Trade Date ("Trade. Date plus One"),
FIIOC will provide, via facsimile, to the Fund Vendor a consolidated report of
net purchase or net redemption activity that occurred in each of the Funds up to
4:00 p.m. ET on the prior Business Day. The report will reflect the dollar
amount of assets and shares to be invested or withdrawn for each Fund. FIIOC
will transmit this report to the Fund Vendor each Business Day, regardless of
processing activity. In the event that data contained in the 7:00 a.m. ET
facsimile transmission represents estimated trade activity, FII0C shall provide
a final facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any
resulting adjustments shall be processed by the Fund Vendor at the net asset
value for the prior Business Day.
The Fund Vendor shall send via regular mail to FII0C transaction confirms for
all daily activity in each of the Funds. The Fund Vendor shall also send via
regular mail to FIIOC, by no later than the fifth Business Day following
calendar month close, a monthly statement for each Fund. FII0C agrees to notify
the Fund Vendor of any balance discrepancies within twenty (20) Business Days of
receipt of the monthly statement.
XXXXXXX MARITIME CORPORATION - DEFERRED COMP.
SECOND AMENDMENT
3
For purposes of wire transfers, FIIOC shall transmit a daily wire for aggregate
purchase activity and the Fund Vendor shall transmit a daily wire for aggregate
redemption activity, in each case including all activity across all Funds
occurring on the same day.
PROSPECTUS DELIVERY
FIIOC shall be responsible for the timely delivery of Fund prospectuses and
periodic Fund reports ("Required Materials") to Plan participants, and shall
retain the services of a third-party vendor to handle such mailings. The Fund
Vendor shall be responsible for all materials and production costs, and hereby
agrees to provide the Required Materials to the third-party vendor selected by
FIIOC. The Fund Vendor shall bear the costs of mailing annual Fund reports to
Plan participants. FIIOC shall bear the costs of mailing prospectuses to Plan
participants.
PROXIES
The Fund Vendor shall be responsible for all costs associated with the
production of proxy materials. FIIOC shall retain the services of a third-party
vendor to handle proxy solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly to the Fund Vendor by the
third-party vendor.
PARTICIPANT COMMUNICATIONS
The Fund Vendor shall provide internally prepared fund descriptive information
approved by the Funds' legal counsel for use by FIIOC in its written
participant communication materials. FIIOC shall utilize historical performance
data obtained from third-party vendors (currently Morningstar, Inc., FACTSET
Research Systems and Lipper Analytical Services) in telephone conversations
with Plan participants and in quarterly participant statements. The Sponsor
hereby consents to FIIOC's use of such materials and acknowledges that FIIOC is
not responsible for the accuracy of such third-party information. FIIOC shall
seek the approval of the Fund Vendor prior to retaining any other third-party
vendor to render such data or materials under this Agreement.
COMPENSATION
FIIOC shall be entitled to fees as set forth in a separate agreement with the
Fund Vendor.
XXXXXXX MARITIME CORPORATION - DEFERRED CORP.
SECOND AMENDMENT
4
THIRD AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS THIRD AMENDMENT, dated as of the fifteenth day of May, 1999, by and
between Fidelity Management Trust Company (the "Trustee") and Xxxxxxx Maritime
Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31, 1996, with regard to the Xxxxxxx Retirement Income
System Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Adding a new Section 15, Electronic Services, as follows, and
renumbering all subsequent subsections accordingly:
SECTION 15. ELECTRONIC SERVICES.
(a) The Trustee may provide communications and services via
electronic medium ("Electronic Services"), including, but not
limited to, Fidelity Plan Sponsor WebStation, Client Intranet,
Client e-mail, interactive software products or any other
information provided in an electronic format. The Sponsor, its
agents and employees agree to keep confidential and not publish,
copy, broadcast, retransmit, reproduce, commercially exploit or
otherwise redisseminate the data, information, software or services
without the Trustee's written consent.
(b) The Sponsor shall be responsible for installing and
maintaining all Electronic Services on its computer network and/or
Intranet upon receipt in a manner so that the information provided
via the Electronic Service will appear in the same form and content
as it appears on the form of delivery, and for any programming
required to accomplish the installation. Materials provided for Plan
Sponsor's intranet web sites shall be installed by the Sponsor and
shall be clearly identified as originating from Fidelity. The
Sponsor shall promptly remove Electronic Services from its computer
network and/or Intranet, or replace the Electronic Service with an
updated service provided by the Trustee, upon written notification
(including written notification via facsimile) by the Trustee.
(c) All Electronic Services shall be provided to the Sponsor
without any express or implied legal warranties or acceptance of
legal liability by the Trustee relative to the use of material or
Electronic Services by the Sponsor. No rights are conveyed to any
property, intellectual or tangible, associated with the contents of
the Electronic Services and related material.
(d) To the -extent that any Electronic Services utilize
Internet services to transport data or communications, the Trustee
will take, and Plan Sponsor agrees to follow, reasonable security
precautions; however, the Trustee disclaims any liability for
interception of any such data or communications. The Trustee shall
not be responsible for, and makes no warranties regarding access,
speed or availability of Internet or network services. The Trustee
shall not be responsible for any loss or damage related to or
resulting from any changes or modifications to the electronic
material after delivering it to the Plan Sponsor.
(2) Amending the "investment options" section of Schedules "A" and "C"
by adding the following:
- Fidelity Diversified International Fund
(3) Amending Schedule "B" by restating the first bullet point as
follows:
- Other Fees: separate charges for optional non-discrimination
testing, extraordinary expenses resulting from large numbers of
simultaneous manual transactions, from errors not caused by
Fidelity, reports not contemplated in this Agreement, or
extraordinary and/or duplicative expenses associated with electronic
services. The Administrator may withdraw reasonable administrative
fees from the Trust by written direction to the Trustee.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Third
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By /s/ Xxxx X. Xxxxxxx 1/12/99 By /s/ Xxxxxxx Xxxxxx 5/20/99
--------------------------- ------------------------------
Date Vice President Date
XXXXXXX MARITIME CORPORATION 2
THIRD AMENDMENT
FOURTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS FOURTH AMENDMENT, dated as of the twenty-ninth day of March, 2000, by
and between Fidelity Management Trust Company (the "Trustee") and Xxxxxxx
Maritime Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31,1996, with regard to the Xxxxxxx Maritime
Corporation Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending the "money classification" portion of Schedule "A" by
adding the following:
- 2000 Vesting Schedule
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fourth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By /s/ Xxxx X. Xxxxxxx 4/5/00 By /s/ Xxxxxxx Xxxxxx 5/2/2000
--------------------------- ------------------------------
Date Vice President Date
FIFTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS FOURTH AMENDMENT, dated as of the thirtieth day of April, 2001, by
and between Fidelity Management Trust Company (the "Trustee") and Xxxxxxx
Maritime Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31, 1996, with regard to the Xxxxxxx Maritime
Corporation Deferred Compensation Plan, (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending the "money classification" portion of Schedule "A" by
adding the following:
- 2001 Vesting Schedule
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fourth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By /s/ Xxxx X. Xxxxxxx 04/23/01 By /s/ Xxxxxxx Xxxxxx 5/18/2001
----------------------------- ------------------------------
Date Vice President Date
Fourth Amendment
Core - NQ
April 30, 2001
SIXTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
XXXXXXX MARITIME CORPORATION
THIS SIXTH AMENDMENT, dated as of the first day of August, 2001, by and
between Fidelity Management Trust Company (the "Trustee") and Xxxxxxx Maritime
Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated December 31, 1996, with regard to the Xxxxxxx Maritime
Corporation Deferred Compensation Plan, (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Adding the following paragraph to Section 7 (d) ("Indemnification")
Special Indemnification for Fidelity PortfolioPlanner(SM). The
Trustee shall indemnify the Sponsor against and hold the Sponsor
harmless from any and all such loss, damage, penalty, liability,
cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed
upon, or asserted against the Sponsor solely as a result of a) any
defects in the investment methodology embodied in the target asset
allocation or model portfolio provided through Fidelity
PortfolioPlanner, except to the extent that any such loss, damage,
penalty, liability, cost or expense arises from information provided
by the Participant, the Sponsor or third parties; or b) any
prohibited transactions resulting from the provision by Fidelity of
Fidelity PortfolioPlanner.
(2) Amending Schedule "A" ("Recordkeeping and Administrative Services")
to add the following section:
Communication Services
* Provide employee communications describing available
investment options, including multimedia informational
materials and group presentations.
* Fidelity PortfolioPlanner(SM), an Internet-based educational
service for Participants that generates target asset
allocations and model portfolios customized to investment
options in the Plan(s) based upon methodology provided by
Strategic Advisers, Inc., an affiliate of the Trustee. The
Sponsor acknowledges that it has received the ADV Part II for
Strategic Advisers, Inc. more than 48 hours prior to executing
the Trust.
Sixth Amendment
Core - NQ
August 1, 2001
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Sixth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
XXXXXXX MARITIME CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By /s/ Xxxx X. Xxxxxxx 07/11/01 By /s/ Xxxxxxx Xxxxxx 8/10/01
------------------------------ ------------------------------
Date Vice President Date
Sixth Amendment
Core - NQ
August 1, 2001
2
10.10 Xxxxxxx Maritime Corporation 2001 Management Incentive Plan
XXXXXXX MARITIME CORPORATION
2001 MANAGEMENT INCENTIVE PLAN
(AS ADOPTED AND EFFECTIVE DECEMBER 13, 2001)
1. PURPOSE
The purpose of this Plan is to motivate and reward eligible employees for good
performance by making a proportion of their compensation dependent on the
achievement of certain Performance Goals related to the performance of Xxxxxxx
Maritime Corporation (the "Company") and its operating units, as the case may
be. This Plan is designed to ensure that the cash bonus incentives and awards
under the Company's Deferred Compensation Plan (DCP) paid hereunder to executive
officers of the Company are deductible under Section 162(m) of the Internal
Revenue Code of 1986, as amended, and the regulations and interpretations
promulgated thereunder (the "Code").
2. PARTICIPANTS
The participants in this Plan shall be employees of the Company, as determined
by the Committee.
3. THE COMMITTEE
The Committee shall consist of at least two outside directors of the Company
that satisfy the requirements of Code Section 162(m). The Committee shall have
the sole discretion and authority to administer and interpret this Plan in
accordance with Code Section 162(m). Unless the Board of Directors ("Board")
provides otherwise, the Compensation Committee shall be the Committee.
4. AMOUNT OF BONUS AND/OR DCP AWARD
A participant's bonus payment and/or DCP award, if any, is based on (i) an
individual target set by the Committee in writing with respect to the
Performance Period and (ii) the Performance Goal or Goals for the Performance
Period (increased or decreased, in each case in accordance with factors adopted
by the Committee with respect to the Performance Period that relate to unusual
items). The Committee may also reduce an individual's maximum bonus calculated
under the preceding formula in its sole discretion. This Plan's Performance
Goals may include: (i) operating income as a percentage of revenue; (ii)
earnings before interest and taxes; (iii) earnings before interest, taxes,
depreciation and amortization; (iv) net income; (v) operating cash flow; (vi)
return on assets; (vii) return on equity; (viii) return on sales; and (ix)
revenue, each with respect to the Company and/or any operating unit(s) of the
Company, as determined by the Committee in its sole discretion. The Committee
may also establish additional individual Performance Goals. A "Performance
Period" shall be with respect to a participant, any fiscal period of the Company
not exceeding thirty-six (36) months, as determined by the Committee in its sole
discretion. Bonuses to be paid to participants who are not subject to the
limitations of Section 162(m) may take into account other factors. The
Committee, in its sole discretion, may permit a participant to defer receipt of
cash that would otherwise be delivered to the participant under this Plan. Any
such deferral elections shall be subject to such rules and procedures as
determined by the Committee in its sole discretion. The selection and adjustment
of applicable
Performance Goals, and the establishment of targets, shall occur in compliance
with the rules of Code Section 162(m).
5. PAYMENT OF BONUS AND/OR DCP AWARD
Subject to the Committee's discretion, the payment of a bonus and/or DCP award
generally requires that the participant be on the Company's payroll as of the
date the bonus is to be paid. The Committee may make exceptions to this
requirement in the case of retirement, death or disability, as determined by the
Committee in its sole discretion. Bonus payments may be made in cash. DCP awards
shall be made in conformity with the Deferred Compensation Plan. No bonus or DCP
award shall be paid unless and until the Committee certifies in writing the
extent to which the Performance Goal(s) applicable to a participant have been
achieved or exceeded. The Committee may establish different Performance Periods
for different participants, and the Committee may establish concurrent or
overlapping Performance Periods.
6. AMENDMENT AND TERMINATION
The Board of Directors reserves the right to amend or terminate this Plan at any
time with respect to future services of covered individuals. Plan amendments
will require stockholder approval only to the extent required by applicable law.
7. LEGAL CONSTRUCTION
Except where otherwise indicated by the context, any masculine term used herein
also shall include the feminine; the plural shall include the singular and the
singular shall include the plural. In the event any provision of this Plan shall
be held illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of this Plan, and this Plan shall be construed
and enforced as if the illegal or invalid provision had not been included. The
granting of awards under this Plan shall be subject to all applicable laws,
rules and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. This Plan and all awards shall
be construed in accordance with and governed by the laws of the State of
California, but without regard to its conflict of law provisions. Captions are
provided herein for convenience only, and shall not serve as a basis for
interpretation or construction of this Plan.
8. EXECUTION
IN WITNESS WHEREOF, Xxxxxxx Maritime Corporation, by its duly authorized
officer, has executed the Plan as the date indicated below.
XXXXXXX MARITIME CORPORATION
By /s/ Xxxxx Love
---------------------------------
Its Secretary
Dated: Dec. 13, 2001
---------------------------
2
10.11 Individual Executive Benefit Agreement between Xxxxxxx Maritime
Corporation and Xxxxxx X. Xxxxxxx
