EXHIBIT 10.06
STATE OF NEW YORK
SURROGATE'S COURT: NEW YORK COUNTY
______________________________ x
In the Matter of the Settlement of the :
First and Final Account of Proceedings : AGREEMENT SETTLING
of UNITED STATES TRUST COMPANY : FIRST AND FINAL
OF NEW YORK, as Trustee of the : ACCOUNT OF TRUSTEE
Deferred Compensation Trust created :
under Agreement dated March 22, 1995, as : File No.
amended. :
______________________________ x
THIS AGREEMENT, made as of the day of June, 2003, by
and among (1) UNITED STATES TRUST COMPANY OF NEW YORK, as resigning Trustee of a
trust known as the Grey Advertising Inc. Deferred Compensation Trust created
under a certain Trust Agreement dated March 22, 1995, as amended from time to
time (the "Trustee"); (2) GREY GLOBAL GROUP INC. (formerly Grey Advertising
Inc.) (the "Company"); (3) XXXXXX X. XXXXX (the "Executive") and (4) HSBC BANK
USA (the "Successor Trustee").
WI T N E S S E T H:
WHEREAS:
(1) By Trust Agreement dated March 22, 1995, between the
Company and the Trustee (the "Trust Agreement"), the Company established a trust
known as the Grey Advertising Inc. Deferred Compensation Trust for the benefit
of the Executive (the "Trust"), a copy of which is attached hereto as Exhibit A;
and
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(2) Section 12 of the Trust Agreement provides that the
Trust Agreement may be amended from time to time by a written instrument
executed by the Company and the Trustee with the consent of the Executive; and
(3) A First Amendment to the Trust Agreement was made by
the Company and the Trustee with the consent of the Executive as of February 26,
1996 (the "First Amendment"), a copy of which is attached hereto as Exhibit B;
and
(4) A Second Amendment to the Trust Agreement was made by
the Company and the Trustee with the consent of the Executive as of April 30,
1998 (the "Second Amendment"), a copy of which is attached hereto as Exhibit C;
and
(5) Pursuant to the authority of the Trustee and the
terms of the Trust Agreement, the First Amendment and the Second Amendment, the
Trustee has held and managed the assets comprising the trust fund, as
constituted from time to time, in certain separate trust accounts and
sub-accounts known as (i) Account No. 00000000 titled "UD GREY ADV DEF TRUST
UST"; (ii) Account No. 00000000 titled "UD GREY ADV DEF TR MISC"; (iii) Account
No. 00000000 titled "UD GREY ADV DCT CUST ACT G SACHS"; (iv) Account No.
00000000 titled "UD GREY ADV PEN SUB XXXXXXX" and (v) Account No. 00000000
titled "UD GREY ADV DCT PENSION SUB AC" (the "Five Trust Accounts"); and
(6) Pursuant to Sections 10 (b) and 11(a) of the Trust
Agreement, as amended, the Company with the consent of the Executive shall have
the right to (i) remove the Trustee on 30 days' notice or upon such shorter
notice accepted by the Trustee and (ii) appoint a successor corporate Trustee to
replace such removed
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Trustee, which appointment shall be effective when accepted in writing by such
successor Trustee; and
(7) By letter dated May 21, 2003, a copy of which is
attached hereto as Exhibit D, the Company, with the consent of the Executive,
removed the Trustee and appointed HSBC BANK USA as successor Trustee of the
Trust (previously referred to above as the "Successor Trustee"), effective as of
the close of business on June 30, 2003 or such other earlier date as shall be
mutually agreed by the Trustee and the Successor Trustee; and
(8) By letter dated May 23, 2003, a copy of which is
attached hereto as Exhibit E, HSBC BANK USA accepted its appointment to act as
successor Trustee of the Trust effective as of the close of business on June 30,
2003 or such other earlier date as shall be mutually agreed upon; and
(9) In accordance with Section 7 of the Trust Agreement,
as amended, the Company and the Executive have requested the Trustee to render
its account on an informal basis and based thereon the Trustee has annexed
Statements of Income and Principal Transactions for the Five Trust Accounts for
the period from March 22, 1995 through June 30, 2003 (the "Statements") as
follows:
(i) United States Trust Company of New York
ledger and cash statements reflecting principal and income transactions for
Account No. 00000000 titled "UD GREY ADV DEF TRUST UST" for the period from
March 22, 1995 through June 30, 2003 together with a statement of principal on
hand in such account as of June 30, 2003, attached hereto as Exhibit F ;
(ii) United States Trust Company of New York
ledger and cash statements reflecting principal and income transactions for
Account No. 00000000 titled "UD GREY ADV DEF TR MISC" for the period from March
22, 1995 through June 30, 2003 together with a statement of principal on hand in
such account as of June 30, 2003, attached hereto as Exhibit G;
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(iii) United States Trust Company of New York
ledger and cash statements reflecting principal and income transactions for
Account No. 00000000 titled "UD GREY ADV DCT CUST ACT X XXXXX" for the period
from March 22, 1995 through June 30, 2003 together with a statement of principal
on hand in such account as of June 30, 2003, attached hereto as Exhibit H;
(iv) United States Trust Company of New York
ledger and cash statements reflecting principal and income transactions for
Account No. 00000000 titled "UD GREY ADV PEN SUB XXXXXXX" for the period from
March 22, 1995 through June 30, 2003 together with a statement of principal on
hand in such account as of June 30, 2003, attached hereto as Exhibit I; and
(v) United States Trust Company of New York
ledger and cash statements reflecting principal and income transactions for
Account No. 00000000 titled "UD GREY ADV DCT PENSION SUB AC" for the period from
March 22, 1995 through June 30, 2003 together with a statement of principal on
hand in such account as of June 30, 2003, attached hereto as Exhibit J.
(10) Pursuant to Section 9 of the Trust Agreement, as
amended, the Company shall be responsible for the payment of all administrative
and Trustee's fees and expenses; and
(11) The Trustee is owed the sum of $45,711, on account of
its unpaid annual commissions calculated for the period from January 1, 2003
through June 20, 2003 in connection with its services as Trustee of the Trust.
The Trustee is also owed additional estimated annual commissions in the amount
of $2,200 calculated for the period from June 21, 2003 through June 30, 2003,
representing the balance of the Trustee's unpaid annual commissions in
connection with such services, which amount shall be finally determined by the
Trustee as soon as practicable after the date of this Agreement and thereupon
promptly paid by the Company; and
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(12) The firm of Skadden, Arps, Slate, Xxxxxxx and Xxxx
LLP is owed the sum of $5,000 as and for its fee for legal services rendered in
connection with the preparation of this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained and for other good and valuable
consideration, the parties hereto agree as follows:
FIRST: The Company and the Executive have examined the
Statements and they are each satisfied that the Statements contain in all
respects full, true and complete statements of the acts and proceedings of
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee of the Trust for the period
from March 22, 1995 through June 30, 2003 in connection with the administration
of the Trust, and that there is no error or omission in the Statements, to the
prejudice of their rights.
SECOND: The Company and the Executive acknowledge and agree
that the Trustee has made full and complete disclosure to each of them of all of
its acts and proceedings as Trustee of the Trust for the period from March 22,
1995 through June 30, 2003 and that it has put at their disposal all information
in any way related to or connected with its acts and proceedings as Trustee of
the Trust during such period.
THIRD: The Company and the Executive (i) accept the Statements
in lieu of a formal accounting listing all income and principal transactions by
schedule (ii) acknowledge and agree that the Statements shall have the same
force and effect as a formal accounting; (iii) ratify, approve and confirm the
Statements
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and each and every act, doing, proceeding, collection and disbursement of the
Trustee set forth therein and (iv) waive any right to enforce the judicial
settlement of any account of the Trustee for the period from March 22, 1995
through June 30, 2003, it being the purpose and intent of the parties hereto
that the release, discharge and hereinafter given and granted in Article SEVENTH
of this Agreement shall be accepted by the Trustee, and shall be binding upon
the Company and the Executive and each of them in all respects as though an
account had been rendered in the course of a judicial proceeding and had
thereupon been settled and allowed, as presented and filed, by a judgment,
decree or order of a court of competent jurisdiction.
FOURTH: Notwithstanding any contrary provision of this
Agreement, the Trustee may at any time, and without notice of any kind to the
Company or the Executive, record or file this Agreement and the annexed
Statements, or any of them, in accordance with the provisions of any existing
law, statute or rule of the courts of the State of New York or of any other
state, as an instrument settling the first and final account of the Trustee, if,
in the discretion of the Trustee, it shall be deemed advisable to do so, and the
Trustee may institute and conduct any legal proceedings or obtain a judicial
settlement of such account, without further notice to the Company or the
Executive.
FIFTH: The Company and the Executive agree that upon execution
of this Agreement, the Company shall pay (i) the Trustee (a) the sum of $45,711
on account of the Trustee's unpaid annual commissions calculated for the period
from January 1, 2003 through June 20, 2003 in connection with its services as
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Trustee of the Trust and (b) the balance of the Trustee's unpaid annual
commissions calculated for the period from June 21, 2003 through June 30, 2003
in connection with such services, which amount has been estimated by the Trustee
to be $2,200, and which amount shall be finally determined by the Trustee as
soon as practicable after the date of this Agreement and thereupon promptly paid
by the Company and (ii) the firm of Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP
the sum of $5,000, as and for its fee for legal services rendered in connection
with the preparation of this Agreement.
SIXTH: The Successor Trustee hereby acknowledges receipt from
the Trustee of the assets described in the Statements attached hereto as
Exhibits F through J, being the aggregate of income and principal assets of the
Trust and hereby agrees to refund, upon demand, any amount found to be in excess
of the amount properly payable to the Successor Trustee and any amounts
necessary to pay any debts, taxes or other charges or expenses of any kind
which, if charged to the Trustee prior to distribution would be a proper charge
against the Trust, not to exceed, however, an amount equal to the value of the
property distributed to the Successor Trustee from the Trust as hereinabove set
forth.
SEVENTH: The Company and the Executive each release and
discharge the Trustee, and its legal representatives, successors and assigns, as
Trustee, of and from any and all manner of action or actions, cause or causes of
action, suits, debts, sums of money, damages, claims and demands whatsoever
which the Company and the Executive may now have or hereafter may have against
the Trustee for or by reason of any act or omission, collection or disbursement,
cause,
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matter or thing whatsoever, recited, contained, appearing or set forth in the
Statements or this Agreement or reasonably to be inferred from anything therein
contained, or for or by reason of anything done or omitted to be done by the
Trustee in the administration of the Trust during the period from March 22, 1995
through June 30, 2003. The Company further agrees, to indemnify and hold
harmless the Trustee from all liabilities, claims, losses, damages or demands,
which the Trustee may sustain or incur at any time by reason of any act or thing
connected with the Trust or the administration and distribution thereof, up to
but not exceeding an amount equal to the aggregate value on the date or dates of
distributions of the property distributed to the Successor Trustee as
hereinabove set forth.
EIGHTH: The parties agree that the Successor Trustee shall be
relieved of any and all responsibility and accountability whatsoever to the
Company or to the Executive for or by reason of any act or omission, collection
or disbursement, cause, matter or thing whatsoever, recited, contained,
appearing, or set forth in the Statements or this Agreement or reasonably to be
inferred from anything therein contained, or for or by reason of anything done
or omitted to be done by the Trustee in the administration of the Trust during
the period from March 22, 1995 through June 30, 2003 and that the accountability
and liability of the Successor Trustee shall be limited solely to those assets
or properties delivered into his possession as successor Trustee of the Trust.
NINTH: The Company and Executive and each of them represent,
certify and warrant that he or it has not transferred, assigned or encumbered,
in any
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way, either voluntarily or involuntarily, his or its interest in the Trust, or
any part of such Trust.
TENTH: This Agreement shall inure to the benefit of the
Trustee, and its legal representatives, successors and assigns, and shall be
binding on the Company and the Executive, and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
ELEVENTH: This Agreement may be executed in counterparts and
as so executed shall have the same force and effect as if one document had been
executed by all of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their
respective hands as of the day and year first above written.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Attest: Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
GREY GLOBAL GROUP INC., Company
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Attest: Name:
Title:
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/s/ Xxxxxx X. Xxxxx
---------------------------------------
XXXXXX X. XXXXX, Executive
HSBC BANK USA, Successor Trustee
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Attest: Name: Xxxxx Xxxxxxxx
Title: Vice President
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 24 day of June, 2003, before me personally came , to
me known who duly swore to the foregoing instrument and who did say that (s)he
resides at 0 Xxxxxx Xxxx, Xxxxxxxx, XX ; that (s)he is a Senior Vice President
of UNITED STATES TRUST COMPANY OF NEW YORK, the
corporation described in and which executed the foregoing instrument; that (s)he
knows the seal of said corporation; that the seal affixed to such instrument is
such corporate seal, that it was so affixed by order of the Board of Directors
of UNITED STATES TRUST COMPANY OF NEW YORK and that (s)he signed his/her name
thereto by like authority.
/s/ Xxxxx X. Xxxxx
--------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 21st day of July, 2003, before me personally came
Xxxxxx X. Xxxxxxx, to me known who duly swore to the foregoing instrument and
who did say that (s)he resides at 000 Xxxxx Xxx, XX, XX 00000 ; that (s)he is a
Vice Chairman of GREY GLOBAL GROUP INC., the corporation
described in and which executed the foregoing instrument; that (s)he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal, that it was so affixed by order of the Board of Directors of
GREY GLOBAL GROUP INC. and that (s)he signed his/her name thereto by like
authority.
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Notary Public
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STATE OF New York )
: ss.:
COUNTY OF New York )
On this 21st day of July , 2003, before me, a Notary Public in
and for the State of New York , personally appeared XXXXXX X. XXXXX, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 25th day of June , 2003, before me personally
came , to me known who duly swore to the foregoing instrument and who did say
that (s)he resides at 0 Xxxx Xxxxx, Xxxxxx Xxxxxx, XX ; that (s)he is a
Vice President of HSBC
BANK USA, the corporation described in and which executed the foregoing
instrument; that (s)he knows the seal of said corporation; that the seal affixed
to such instrument is such corporate seal, that it was so affixed by order of
the Board of Directors of HSBC BANK USA and that (s)he signed his/her name
thereto by like authority.
/s/ Xxxxxxxx Xxxxxxx
---------------------------------------
Notary Public
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