Exhibit 10.10
XXXXXXX INCORPORATED GRANTOR TRUST FOR NON-EMPLOYEE DIRECTOR PLANS
TRUST AGREEMENT
TRUST AGREEMENT
TRUST AGREEMENT made and entered into as of the 14th day of March, 2005, by
and between XXXXXXX INCORPORATED, a corporation organized under the laws of the
State of Connecticut (hereinafter referred to as the "Company") and THE BANK OF
NEW YORK, a New York banking corporation (hereinafter referred to as the
"Trustee").
WHEREAS, the Company has established the Plans (as defined below) as
unfunded plans maintained for the purpose of providing deferred compensation for
non-employee directors from time to time participating in any such Plan; and
WHEREAS, under the Plans, the Company is required to pay Benefits to the
Participants or their Beneficiaries; and
WHEREAS, the Company intends from time to time to contribute cash or other
property reasonably acceptable to the Trustee which cash or property will, as
and when received by the Trustee, constitute a trust fund to aid the Company in
meeting its obligations to make payments of Benefits to Participants and
Beneficiaries under the Plans and to assure that such obligations are met after
a Change of Control; and
WHEREAS, the establishment of this Trust shall not affect the Company's
continuing obligation to make payments to Participants and Beneficiaries under
each Plan except that the Company's liability thereunder shall be offset by
actual payments made on its behalf by the Trustee hereunder; and
WHEREAS, the Company intends that the Trust Fund shall be held by the
Trustee and invested, reinvested and distributed all in accordance with the
provisions of this Trust Agreement; and
WHEREAS, each Plan provides, and the Company intends, that the assets of
the Trust Fund shall be and remain subject to the claims of the Company's
creditors as herein provided and that such Plan not be deemed funded solely by
virtue of the existence of this Trust; and
WHEREAS, the Trust is intended to be a "grantor trust" with the result that
the corpus and income of the Trust are treated as assets and income of the
Company pursuant to Sections 671 through 679 of the Code; and
WHEREAS, the Company intends that no Plan be deemed funded within the
meaning of the Employee Retirement Income Security
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Act of 1974, as amended ("ERISA"), despite the existence of this Trust; and
WHEREAS, the Trust shall initially be revocable but shall become
irrevocable upon the occurrence of a Change of Control.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Company and the Trustee declare and agree as follows:
1. DEFINITIONS; ESTABLISHMENT OF TRUST
1.1 Definitions.
Whenever used in this Trust Agreement, unless otherwise provided or the
context otherwise requires:
(a) "Administrator" shall mean the individual, individuals or
committee appointed by the Board of Directors of the Company to control and
manage the operation and administration of the applicable Plan.
(b) "Affiliate" shall mean any person, corporation or other entity
which the Company shall have advised the Trustee in writing is a subsidiary or
affiliate of the Company or its successor or which owns 20% or more of the
voting securities of the Company.
(c) "Authorized Officer" shall mean the Chairman, President, any Vice
President, the Secretary or the Treasurer of the Company or any other person or
persons as may be designated by any such officer.
(d) "Beneficiary" shall mean the beneficiary of a Participant as set
forth on the Payment Schedule and in accordance with the applicable Plan or as
thereafter changed in accordance with this Trust Agreement and in accordance
with the applicable Plan and which is in effect on the date of the Participant's
death; provided that the Trustee shall have no duty or obligation to review any
Plan to identify any Beneficiary, and its duty to identify any Beneficiary shall
be based solely from a review of the Payment Schedule. If no designated
beneficiary survives the Participant or if no Beneficiary is designated as
provided herein, the legal representative of the Participant's estate shall be
the Beneficiary. If a designated beneficiary survives the Participant but dies
before payment in full of Benefits from the Trust has been made, the legal
representative of such
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beneficiary's estate shall become the Beneficiary. References to a Participant
in this Trust Agreement in connection with payments hereunder shall also refer
to such Participant's Beneficiary unless the context clearly requires otherwise.
(e) "Benefits" shall mean the payments required to be made to a
Participant or his Beneficiary pursuant to a Payment Schedule.
(f) "Change of Control" shall have the meaning assigned to such term
by Section 6.2 hereof.
(g) "Code" shall mean the Internal Revenue Code of 1986 as from time
to time amended.
(h) "Company" shall mean XXXXXXX INCORPORATED or its successors.
(i) "Final Determination" shall mean (i) an assessment of tax by the
Internal Revenue Service addressed to the Participant or his Beneficiary which
is not timely appealed to the courts; (ii) a final determination by the United
States Tax Court or any other Federal Court, the time for an appeal thereof
having expired or been waived; or (iii) an opinion by the Company's counsel,
addressed to the Company and the Trustee and in form and substance reasonably
satisfactory to the Trustee, to the effect that amounts held in the Trust are
subject to Federal income tax to the Participant or his Beneficiary prior to
payment. Notwithstanding the foregoing, no Final Determination shall be deemed
to have occurred until the Trustee has actually received a copy of the
assessment, court order or opinion which forms the basis thereof and such other
documents as it may reasonably request.
(j) "Incumbency Certificate" shall mean a certificate of the Secretary
or any Assistant Secretary of the Company identifying the Administrator (or
every member thereof if the Administrator consists of more than one person) and
each Authorized Officer, which certificate shall include the name, title and
specimen signature of each such person and any changes thereto.
(k) "Insolvent" with respect to the Company shall mean that (i) the
Company is unable to pay its debts generally as they come due and/or (ii) the
Company is subject to a pending proceeding as a debtor under the Federal
Bankruptcy Code or any successor statute.
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(l) "Participant" shall mean at the time of determination, a
non-employee member of the Board of Directors of the Company who is
participating in the applicable Plan and with respect to whom a Payment Schedule
is then in effect.
(m) "Payment Schedule" shall mean, collectively, the list of
Participants in the form of Exhibit A and the schedule of Benefits payable from
the Trust Fund to such Participants in the form of Exhibit A-1 or A-2, as
appropriate, or any amendment or substitution thereof as may be provided to the
Trustee by the Company prior to a Change of Control in accordance with Section
4.5 of this Trust Agreement.
(n) "Plan" (and collectively, "Plans") shall mean either of (i) the
Xxxxxxx Incorporated Amended and Restated Retirement Plan for Directors or (ii)
the Xxxxxxx Incorporated Amended and Restated Deferred Compensation Plan for
Directors, each as from time to time amended.
(o) "Plan Year" shall mean the fiscal year ending on the last day of
December.
(p) "Recordkeeper" shall mean the organization identified in
Section 3.1.
(q) "Reliable Source" shall mean (i) a report filed with the
Securities and Exchange Commission, (ii) a public statement issued by the
Company, The New York Times or The Wall Street Journal, or (iii) a certificate
of the Company signed by the Chief Executive Officer or by the Chairman of the
Board of Directors.
(r) "Termination" shall mean a Participant's retirement from or
separation from service on the Board of Directors of the Company.
(s) "Termination Affidavit" shall mean an affidavit of a Participant
in the form annexed hereto as Exhibit B-1 or B-2, as appropriate.
(t) "Trust" shall mean the Trust established under this Trust
Agreement.
(u) "Trust Agreement" shall mean this trust agreement as from time to
time amended.
(v) "Trust Fund" shall mean the trust fund held from time to time by
the Trustee hereunder consisting of all
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contributions received by the Trustee together with the investments and
reinvestments made therewith and all net profits and earnings thereon less all
payments and charges therefrom.
1.2 Establishment and Title of the Trust.
The Company hereby establishes with the Trustee a trust to be known as the
"XXXXXXX INCORPORATED GRANTOR TRUST FOR NON-EMPLOYEE DIRECTOR PLANS", consisting
of such sums of money and other property reasonably acceptable to the Trustee as
from time to time shall be paid or delivered to the Trustee. The Trustee
acknowledges the receipt of $1,000.00 representing the initial contribution to
the Trust. The Trust Fund shall be held by the Trustee in trust and shall be
dealt with in accordance with the provisions of this Trust Agreement. The
Company shall at all times have the power to reacquire the Trust Fund by
substituting cash or readily marketable securities of equivalent value, net of
any costs of disposition (other than securities issued by the Company or any
Affiliate), and such other property shall, following such substitution,
constitute the Trust Fund.
1.3 Acceptance by the Trustee.
The Trustee accepts the Trust established hereunder on the terms and
conditions set forth herein and agrees to perform the duties imposed on it by
this Trust Agreement.
1.4 Incumbency Certificates.
The Secretary or any Assistant Secretary of the Company, pursuant to
authorization of the Board of Directors of the Company, will promptly deliver an
Incumbency Certificate to the Trustee with respect to the Administrator (or
every member thereof if the Administrator consists of more than one person) and
each Authorized Officer and any changes thereto. The Trustee shall be entitled
to rely on the identity of the Administrator and any Authorized Officer until it
receives written notice to the contrary.
1.5 Effective Date.
This Trust Agreement shall be effective as of the date and year first above
written.
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2. INVESTMENT AND ADMINISTRATION OF THE TRUST FUND
2.1 Powers and Duties of the Trustee.
In addition to every power and discretion conferred upon the Trustee by any
other provision of this Trust Agreement, the Trustee will have the following
express powers with respect to the Trust Fund:
(a) Subject to Section 2.2 hereof, to make investments and
reinvestments of the assets of the Trust Fund including investments which yield
little or no income and from time to time hold funds uninvested, without
distinction between principal and income; and in making and holding investments,
the Trustee will not be restricted to those investments which are authorized by
the law of the State of New York for the investment of trust funds, provided,
however, that no investment shall be made in any securities or other obligations
of the Company or of any Affiliate. The Trustee is further authorized and
empowered to invest and reinvest all or any part of such assets through the
medium of any common, collective or commingled trust fund or pool maintained by
it as the same may have heretofore been or may hereafter be established or
amended.
(b) To retain, to exchange for any other property, to sell in any
manner and at any time, any property, and to grant options to sell any such
property, without regard to restrictions (other than those imposed by applicable
law) and without the approval of any court.
(c) To vote personally or by proxy and to delegate power and
discretion to such proxy.
(d) To exercise subscription, conversion and other rights and options,
and to make payments from the Trust Fund in connection therewith.
(e) To take any action and to abstain from taking any action with
respect to any reorganization, consolidation, merger, dissolution,
recapitalization, refinancing and any other plan or change affecting any
property, and in connection therewith, to delegate its discretionary powers and
to pay assessments, subscriptions and other charges from the Trust Fund.
(f) In any manner, and to any extent, to waive, modify, reduce,
compromise, release, settle and extend the time of payment of any claim of
whatsoever nature in favor of or
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against the Trustee or all or any part of the Trust Fund and to commence or
defend suits or other legal proceedings in connection therewith.
(g) To make executory contracts and to grant options for any purposes,
and to make such contracts and options binding on the trust and enforceable
against any property of the Trust Fund.
(h) Upon any terms, to borrow money from any person (including, to the
extent permitted by applicable law, the Trustee in its individual capacity) and
to pledge assets of the Trust Fund as security for repayment. (i) To hold all or
any part of the Trust Fund in cash and without obligation to pay or earn
interest thereon.
(j) To hold assets in time or demand deposits (including deposits with
the Trustee in its individual capacity which pay a reasonable rate of interest).
(k) To employ agents, experts and counsel, to delegate discretionary
powers to, and rely upon information and advice furnished by, such agents,
experts and counsel and to pay their reasonable fees and disbursements.
(l) From time to time to register any property in the name of its
nominee or in its own name, or to hold it unregistered or in such form that
title shall pass by delivery or to cause the same to be deposited in a
depository or clearing corporation or system established to settle transfers of
securities and to cause such securities to be merged and held in bulk by the
nominee of such depository or clearing corporation or system.
2.2 Investment Directions and Guidelines.
(a) Investment Directions Prior to a Change of Control. Prior to a
Change of Control, in exercising its powers under Section 2.1 hereof, the
Trustee shall invest and reinvest the Trust Fund in accordance with the
investment directions delivered to the Trustee in writing by the Company. The
Company may from time to time prior to a Change of Control substitute new
investment directions in a writing signed by an Authorized Officer of the
Company. Until the Trustee receives new investment directions, the Trustee may
rely and shall be fully protected in relying on the last investment directions
it has received. The obligation to supply investment directions shall
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be solely on the Company and, except as provided in Section 2.2(b), the Trustee
shall have no obligation to invest the Trust Fund in the absence of directions.
(b) Investments On and After a Change of Control. On and after the
occurrence of a Change of Control (and prior to a Change of Control if the
Company has not delivered investment directions to the Trustee or there are no
such investment directions then in effect), in exercising its powers under
Section 2.1 hereof, the Trustee shall, consistent with the overall objective of
the Trust Fund which is the preservation of capital, invest and reinvest the
Trust Fund in short-term investments, including, without limitation, obligations
issued or guaranteed by the United States of America or any agency thereof,
proportionate interests in any such obligations held by any bank or trust
company organized under the laws of the United States of America or any state
thereof as a custodian, commercial paper rated A-1 by Standard & Poors
Corporation or P-1 by Xxxxx'x Investment Services, Master Notes of corporations
with commercial paper ratings of A-1 or P-1, time or savings deposits and
certificates of deposit.
3. ACCOUNTS; CONTRIBUTIONS
3.1 Trust Fund Accounting.
(a) All contributions received by the Trustee and all other receipts
of the Trustee, whether by way of dividends, interest or otherwise for the
account of the Trust Fund, may be commingled, held, invested and, with all
disbursements therefrom, accounted for by the Trustee as a single fund. All
recordkeeping or valuation of the accounts of individual participants shall be
the responsibility of a recordkeeper (the "Recordkeeper") appointed by the
Company. The Recordkeeper shall also perform such other functions as are
specified in this Agreement. The Company shall notify the Trustee of the
identity of the Recordkeeper upon the signing of this Agreement. Prior to a
Change of Control, the Company shall be solely responsible for the appointment
of a substitute Recordkeeper in the event that the Recordkeeper resigns or fails
to perform its duties hereunder. Following a Change of Control, the Trustee
shall be responsible for appointment of a Recordkeeper in the event that the
Recordkeeper resigns or, in the judgment of the Trustee and after notice to the
Participants known to it as of the Trustee's appointment of a new Recordkeeper,
the Recordkeeper fails to perform its duties hereunder, but, notwithstanding
anything in this Agreement to the contrary, the Trustee shall assume no
liability whatsoever on account of such appointment in good
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faith of a successor Recordkeeper, absent the Trustee's negligent appointment of
such successor Recordkeeper. The Trustee may rely conclusively on all
information received from the Recordkeeper.
3.2 Contributions by the Company.
(a) The Trustee shall receive from the Company such amounts in cash or
other property reasonably acceptable to the Trustee as the Company may from time
to time determine. The Trustee shall be under no obligation to seek collection
of any contribution from the Company. All responsibility for the determination
of the amount, timing and type of payments made to the Trustee, or otherwise
establishing a funding policy consistent with the objectives of the applicable
Plan shall be on the Company or its designee.
(b) In addition to contributions made to the Trust pursuant to Section
3.2(a), the Company may from time to time deliver to the Trustee such other
amounts as the Company may consider necessary or appropriate to provide for the
payment of expenses of the Trust.
4. PAYMENT OF BENEFITS
4.1 Payments Prior to a Change of Control.
Prior to a Change of Control, solely out of the Trust Fund and with no
obligation otherwise to make any payment, the Trustee shall make such payments
as shall be directed by the Company in writing. The Trustee may rely and shall
be fully protected in relying on such directions.
4.2 Payments On and After Change of Control.
(a) On and after the occurrence of a Change of Control in the event of
a Participant's Termination, such Participant shall provide the Trustee with a
Termination Affidavit. If the Participant is deceased, the Termination Affidavit
shall be provided by the Beneficiary who shall also supply the Trustee with a
certified copy of the death certificate of the Participant (and, where the
Beneficiary is the legal representative of the estate of a Beneficiary who
survives the Participant but dies before all benefits have been paid, a
certified copy of the death certificate of such Beneficiary), an inheritance tax
waiver and such other documents as the Trustee may reasonably require
(including, without limitation, certified copies of letters testamentary).
Promptly
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upon receipt thereof, the Trustee shall mail a copy of the Termination Affidavit
to the Company. The Trustee, solely out of the Trust Fund and with no obligation
otherwise to make any payment, shall, as soon as administratively practicable
and in conformity with the instructions set forth in the Payment Schedule, make
payments to such Participant or Beneficiary at the times and in the manner set
forth in the Payment Schedule last received by the Trustee with respect to such
Participant or Beneficiary and consistent with the information set forth in the
Termination Affidavit. The Trustee may rely and shall be fully protected in
relying on the contents of a Termination Affidavit and all documentation and
other information provided to it by the Company or the Administrator for all
purposes under this Trust Agreement as if the applicable Plan were deemed funded
and the Company and the Administrator were "named fiduciaries" as such term is
defined in Section 402(a)(2) of ERISA.
(b) Payments to Participants shall be made in the order of the receipt
of Termination Affidavits. In the event that the Trustee receives more than one
Termination Affidavit on the same day and the Trust Fund is not sufficient to
make all of the payments otherwise required as a result of the receipt of such
Termination Affidavits, the Trustee, after the payment of all of its unpaid
compensation and expenses, shall distribute the balance of the Trust Fund to the
Participants who have submitted such Termination Affidavits on a pro rata basis.
4.3 Payments in the Event of a Final Determination.
Notwithstanding anything contained in Section 4 of this Trust Agreement to
the contrary, if at any time (i) a Final Determination is made that the income
of the Trust Fund is taxable to the Trust as an entity and not to the Company,
or (ii) if a tax, as a result of a Final Determination, is payable by one or
more Participants in respect of any interest in the Trust Fund prior to payment
of such interest to such Participant or Participants, then, (x) in case of the
occurrence of the event described in clause (i), the Trust shall terminate and
the assets thereof shall be paid to the Company, (y) in the event of the
occurrence of the event described in clause (ii), the Trustee, solely out of the
Trust Fund and with no obligation otherwise to make any payment, shall pay to
the affected Participant the amount of the tax so payable, and (z) in the event
of the occurrence of the events described in both clauses (i) and (ii), the
Trustee shall first pay to the affected Participant or Participants the amount
of tax so payable, and then the Trust shall terminate and the remaining assets
thereof shall be paid to the Company. Notwithstanding any other
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provision of this Trust Agreement, if any amounts held in the Trust are found in
a Final Determination to have been includable in gross income of a Participant
prior to payment of such amounts from the Trust, the Trustee shall, as soon as
practicable (but in no event later than ten (10) business days after receiving
notice of such Final Determination), pay such amounts to such Participant. For
purposes of this Section 4.3, the Trustee shall be entitled to rely on an
affidavit from a Participant (substantially in the form annexed hereto as
Exhibit C) to the effect that a Final Determination described in clause (ii)
above has occurred.
4.4 Rules Governing Payments.
The Trustee shall not make any payments to Participants or Beneficiaries
from the Trust Fund except as provided in Sections 4.1, 4.2 or 4.3 even though
it may be informed from another source that payments are due under any Plan. The
Trustee shall have no duty to determine the propriety or amount of such payments
or the rights of any person in the Trust Fund. The Company shall on a timely
basis provide the Trustee with written instructions for the reporting and
withholding of any federal, state and local taxes that may be required to be
reported and withheld with respect to any amount paid under Section 4.1, 4.2 or
4.3, and the Trustee shall comply with such written instructions and shall pay
any taxes withheld to the appropriate taxing authorities. The Trustee may rely
conclusively (and shall be fully protected in such reliance) on the written
instructions of the Company as to all tax reporting and withholding
requirements.
4.5 Payment Schedules.
Upon the execution of this Trust Agreement, the Company shall deliver to
the Trustee a list of current Participants substantially in the form of Exhibit
A and the initial Payment Schedules substantially in the form of Exhibits A-1
and A-2. The Company may from time to time add additional Payment Schedules to
the Trust Agreement and may from time to time amend the Payment Schedules then
in effect or substitute new Payment Schedules without the written consent of the
Participant or Participants to whom such Payment Schedules relate; provided,
however, that following a Change of Control the Company shall not have the power
to add or substitute Payment Schedules nor may the Company amend a Payment
Schedule without the written consent of the Participant to whom such Payment
Schedule relates. The Trustee may rely and shall be fully protected in relying
on the contents of a Payment Schedule for all purposes
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under this Trust Agreement without inquiry until it receives an amendment
thereto or a new Payment Schedule in substitution thereof to the extent
permitted hereunder.
4.6 Designation of Beneficiaries.
At the time that the Company first submits a Payment Schedule with respect
to a Participant, it shall ascertain from such Participant the identity of such
Participant's Beneficiary and shall identify such Beneficiary on the initial
Payment Schedule submitted to the Trustee with respect to such Participant. In
submitting a Payment Schedule with a Beneficiary designated thereon, the Company
shall be deemed to certify that such designation accurately reflects the
Participant's instructions to the Company. At any time, a Participant may revoke
or change a Beneficiary designation without the consent of any prior Beneficiary
by mailing or delivering a written Change or Revocation of Beneficiary
Designation substantially in the form annexed hereto as Exhibit D to the Trustee
at the address set forth in Section 8.3(b); provided, however, that no change or
revocation of a designation shall be valid unless it is actually received by the
Trustee during the Participant's lifetime.(1) The Trustee may rely and shall be
fully protected in relying on the last Beneficiary designation in its possession
as of the date of a Participant's death.
4.7 Company's Continuing Obligations.
Notwithstanding any provisions of this Trust Agreement to the contrary, the
Company shall remain obligated to pay the Benefits under any Plan. Nothing in
this Trust Agreement shall relieve the Company of its liabilities to pay the
Benefits except to the extent such liabilities are met by the application of
Trust Fund assets.
4.8 Excess Amounts.
After all of the Benefits have been paid in full, the Trust shall terminate
and, after the payment of any unpaid expenses, the assets of the Trust Fund (if
any) shall be transferred to the Company.
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(1) In some cases, the laws of the jurisdiction in which the participant
resides may require spousal consent to a change in beneficiary.
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4.9. Company's Intent.
It is the intention of the Company to have the Trust Fund satisfy the
Company's legal liability under the applicable Plan, and to have the balance, if
any, in the Trust Fund revert to the Company after all of the Company's legal
liabilities with respect to Benefits under any Plan have been met. The Company,
therefore, agrees that all income, deductions and credits of the Trust Fund
belong to it as owner for income tax purposes and will be included on the
Company's income tax returns.
5. CONCERNING THE TRUSTEE
5.1 Notices to the Trustee.
Absent its own negligence or willful misconduct, the Trustee may rely on
the authenticity, truth and accuracy of, and will be fully protected in acting
upon:
(a) any notice, direction, certification, approval or other writing of
the Company, if evidenced by an instrument signed in the name of the Company by
an Authorized Officer; and
(b) any copy of a resolution of the Board of Directors of the Company,
if certified by the Secretary or an Assistant Secretary of the Company under its
corporate seal; or
(c) any notice, direction, certification, approval or other writing,
or other transmitted form of instruction received by the Trustee and believed by
it to be genuine and to be sent by or on behalf of the Administrator.
5.2 Expenses of the Trust Fund.
The Trustee is authorized to pay out of the Trust Fund: (a) all brokerage
fees and transfer tax expenses and other expenses incurred in connection with
the sale or purchase of investments; (b) all real and personal property taxes,
income taxes and other taxes of any kind at any time levied or assessed under
any present or future law upon, or with respect to, the Trust Fund or any
property included in the Trust Fund; (c) the Trustee's compensation and expenses
as provided in Section 5.3 hereof; and (d) all other reasonable expenses of
administering the Trust, unless promptly paid to the Trustee by the Company.
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5.3 Compensation of the Trustee.
The Company will pay to the Trustee such compensation for its services as
set forth on Exhibit E as from time to time amended by the Company and the
Trustee and will reimburse the Trustee for all reasonable expenses (including
reasonable attorneys' fees) incurred by the Trustee in the administration of the
Trust. If not promptly paid on request, the Trustee may charge such fees and
expenses to and pay the same from the Trust Fund. The compensation and expenses
of the Trustee shall constitute a lien on the Trust Fund.
5.4 Limitation of Liability.
The Trustee shall not be liable for any Losses (as defined below) or action
taken or omitted or for any loss or injury resulting from its actions or its
performance or lack of performance of its duties hereunder in the absence of
negligence or willful misconduct on its part. In no event shall the Trustee be
liable (i) for acting in accordance with instructions received in accordance
with the terms of this Trust Agreement from the Company, any Participant,
Beneficiary, Administrator, or the Recordkeeper, (ii) for special, consequential
or punitive damages, (iii) for the acts or omissions of its correspondents,
designees, agents or subcustodians, or (iv) for any Losses due to forces beyond
the control of the Trustee, including without limitation strikes, work
stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God, the insolvency of any non-affiliated party,
and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services.
5.5 Protection of the Trustee.
The Company shall pay and shall protect, indemnify and save harmless the
Trustee and its officers, employees and agents from and against any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, damages, costs and expenses (including, without limitation,
attorneys' fees and expenses) of any nature (collectively, "Losses") arising
from or relating to any action or any failure to act by the Company, its
officers, employees and agents or the transactions contemplated by this Trust
Agreement, including, but not limited to, any claim made by a Participant or his
beneficiary with respect to payments made or to be made by the Trustee, any
claim made by the Company or its successor, whether pursuant to a sale of
assets, merger, consolidation, liquidation or otherwise, that this Trust
Agreement is invalid or ultra
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xxxxx, except to the extent that any such Loss has been determined by a final
judgment of a court of competent jurisdiction to be solely the result of the
negligence or willful misconduct of the Trustee. To the extent that the Company
has not fulfilled its obligations under the foregoing provisions of this
Section, the Trustee shall be reimbursed out of the assets of the Trust Fund or
may set up reasonable reserves for the payment of such obligations. The Trustee
assumes no obligation or responsibility with respect to any action required by
this Trust Agreement on the part of the Company, the Administrator or the
Recordkeeper.
5.6 Duties of the Trustee.
The Trustee will be under no duties whatsoever, except such duties as are
specifically set forth as such in this Trust Agreement, and no implied covenant
or obligation will be read into this Trust Agreement against the Trustee. The
Trustee will not be compelled to take any action toward the execution or
enforcement of the Trust or to prosecute or defend any suit in respect thereof,
unless indemnified to its reasonable satisfaction against loss, cost, liability
and expense; and the Trustee will be under no liability or obligation to anyone
with respect to any failure on the part of the Company, the Administrator, the
Recordkeeper or a Participant to perform any of their respective obligations
under the applicable Plan. Nothing in this Trust Agreement shall be construed as
requiring the Trustee to make any payment in excess of the amounts held in the
Trust Fund at the time of such payment or otherwise to risk its own funds.
5.7 Pricing Services.
To the extent that the Trustee provides values of, and pricing information
with respect to, securities, the Trustee is authorized to utilize generally
recognized pricing services (including brokers, dealers and market makers). If
the Trustee utilizes such services, the Trustee shall not be liable or
responsible for or be under any duty to inquire into, nor be deemed to make any
assurances or warranties with respect to, the accuracy or completeness of such
values or information, even if the Trustee, in performing services for itself
and others, including services similar to those performed for the Company,
receives different valuations of the same or similar securities of the same
issuer. In the event such services are unable to provide a value of or pricing
information with respect to securities and the Trustee, nevertheless, provides
values and pricing information, the Trustee shall so advise the Company,
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but shall have no other obligation or liability with respect to such valuation
or pricing information.
5.8 Settlement of Accounts of the Trustee.
The Trustee shall keep or cause to be kept accurate and detailed accounts
of all investments, receipts, disbursements and other transactions hereunder.
Such accounts shall be open to inspection and audit at all reasonable times
during normal business hours by any person designated by the Company or the
Administrator. At least annually after the end of each Plan Year (and within
sixty (60) days thereafter), the Trustee shall file with the Company and the
Administrator a written account, listing the investments of the Trust Fund and
any uninvested cash balance thereof, and setting forth all receipts,
disbursements, payments and other transactions respecting the Trust Fund not
included in any such previous account. Any account, when approved by the Company
and the Administrator, will be binding and conclusive on the Company, the
Administrator and all Participants, and the Trustee will thereby be released and
discharged from any liability or accountability to the Company, the
Administrator and all Participants with respect to all matters set forth
therein. Omission by the Company or the Administrator to object in writing to
any specific items in any such account within ninety (90) days after its
delivery will constitute approval of the account by the Company and the
Administrator. No other accounts or reports shall be required to be given to the
Company, the Administrator or a Participant except as stated herein or except as
otherwise agreed to in writing by the Trustee. The Trustee shall not be required
to file, and no Participant or Beneficiary shall have right to compel, an
accounting, judicial or otherwise, by the Trustee.
5.9 Right to Judicial Settlement.
Nothing contained in this Trust Agreement shall be construed as depriving
the Trustee of the right to have a judicial settlement of its accounts, and upon
any proceeding for a judicial settlement of the Trustee's accounts or for
instructions the only necessary parties thereto in addition to the Trustee shall
be the Company, in the case of a proceeding commenced prior to a Change of
Control, or the Company and the Participants to whom additional Benefits are
payable pursuant to a Payment Schedule then in effect (or, in the case of a
deceased Participant still entitled to Benefits from the Trust Fund, his
Beneficiary), in the case of a proceeding commenced on or after a Change of
Control.
16
5.10 Resignation or Removal of the Trustee.
The Trustee may at any time resign and may at any time be removed by the
Company upon thirty (30) days' notice in writing; provided, however, that
following a Change of Control, the Company shall have the right to remove the
Trustee only with the written consent of two-thirds of the Participants to whom
additional Benefits are payable pursuant to a Payment Schedule then in effect.
The Recordkeeper shall be solely responsible for obtaining and tabulating such
consents and the Trustee may rely conclusively on information received from the
Recordkeeper.
5.11 Appointment of Successor Trustee.
In the event of the resignation or removal of the Trustee, or in any other
event in which the Trustee ceases to act, a successor trustee may be appointed
by the Company by instrument in writing delivered to and accepted by the
successor trustee; provided, however, that following a Change of Control, the
designation of a successor trustee shall be approved in writing by two-thirds of
the Participants to whom additional Benefits are payable pursuant to a Payment
Schedule then in effect. The Recordkeeper shall be solely responsible for
obtaining and tabulating such approvals and the Trustee may rely conclusively on
information received from the Recordkeeper. Notice of such appointment and
approval, if applicable, will be given by the Recordkeeper to the retiring
trustee, and the successor trustee will deliver to the retiring trustee an
instrument in writing accepting such appointment. Notwithstanding the foregoing,
if no appointment and approval, if applicable, of a successor trustee is made by
the Company within a reasonable time after such a resignation, removal or other
event, any court of competent jurisdiction may appoint a successor trustee after
such notice, if any, solely to the Company and the retiring trustee, as such
court may deem suitable and proper.
In the event of such resignation, removal or other event, the retiring
trustee or its successors and assigns shall file with the Company a final
account to which the provisions of Section 5.8 hereof relating to annual
accounts shall apply.
In the event of the appointment of a successor trustee, such successor
trustee will succeed to all the right, title and estate of, and will be, the
Trustee; and the retiring trustee will after the settlement of its final account
and the receipt of any compensation or expenses due it, deliver the Trust Fund
to the successor trustee together with all such instruments of transfer,
conveyance, assignment and further assurance as the
17
successor trustee may reasonably require. The retiring trustee will retain a
lien upon the Trust Fund to secure all amounts due the retiring trustee pursuant
to the provisions of this Trust Agreement.
5.12 Merger or Consolidation of the Trustee.
Any corporation continuing as the result of any merger or resulting from
any consolidation to which merger or consolidation the Trustee is a party, or
any corporation to which substantially all the business and assets of the
Trustee may be transferred, will be deemed automatically to be continuing as the
Trustee.
6. ENFORCEMENT; CHANGE OF CONTROL; CREDITORS
6.1 Enforcement of Trust Agreement and Legal Proceedings.
The Company shall have the right to enforce any provision of this Trust
Agreement, and on or after a Change of Control, any Participant (or if such
Participant is deceased, his Beneficiary) shall have the right as a beneficiary
of the Trust to enforce any provision of this Trust Agreement that affects the
right, title and interest of such Participant in the Trust. Except as otherwise
provided in Sections 5.8 and 5.9 hereof, in any action or proceeding affecting
the Trust, the only necessary parties shall be the Company, the Trustee and the
Participants with an interest in the Trust Fund and, except as otherwise
required by applicable law, no other person shall be entitled to any notice or
service of process. Any judgment entered in such an action or proceeding shall,
to the maximum extent permitted by applicable law, be binding and conclusive on
all persons having or claiming to have any interest in the Trust.
6.2 Change of Control.
For purposes of this Section, "Change of Control" shall mean any one of the
following:
(1) Continuing Directors no longer constitute at least 2/3 of the
Directors;
(2) any person or group of persons (as defined in Rule 13d-5 under the
Securities Exchange Act of 1934), together with its affiliates, becomes the
beneficial owner, directly or indirectly, of 20% or more of the voting power of
the then outstanding securities of the Company entitled to vote for the election
of the Company's Directors; provided that this Section
18
6.2(2) shall not apply with respect to any holding of securities by (I) the
trust under a Trust Indenture dated September 2, 1957 made by Xxxxx X. Xxxxx,
(II) the trust under a Trust Indenture dated August 23, 1957 made by Xxxxxx
Xxxxxxx, and (III) any employee benefit plan (within the meaning of Section 3(3)
of ERISA) maintained by the Company or any affiliate of the Company;
(3) the consummation of a merger or consolidation of the Company with any
other corporation, the sale of substantially all of the assets of the Company or
the liquidation or dissolution of the Company, unless, in the case of a merger
or consolidation, the incumbent Directors in office immediately prior to such
merger or consolidation will constitute at least 2/3 of the Directors of the
surviving corporation of such merger or consolidation and any parent (as such
term is defined in Rule 12b-2 under the Securities Exchange Act of 1934) of such
corporation; or
(4) at least 2/3 of the incumbent Directors in office immediately prior to
any other action proposed to be taken by the Company's stockholders determine
that such proposed action, if taken, would constitute a change of control of the
Company and such action is taken.
For purposes of this Section, "Continuing Director" shall mean any
individual who is a member of the Company's Board of Directors on December 9,
1986 or was designated (before such person's initial election as a Director) as
a Continuing Director by 2/3 of the then Continuing Directors.
For purposes of this Section, "Director" means an individual who is a
member of the Company's Board of Directors on the relevant date.
Notwithstanding the foregoing definition of Change of Control, no Change of
Control shall be deemed to have occurred for purposes of this Trust Agreement
unless and until the Trustee receives a written notice of the existence of such
Change of Control from a person holding one or more of the following positions
with the Company immediately preceding the event giving rise to the Change of
Control: chairman of the board of directors, president, chief executive officer,
general counsel, chief financial officer, or treasurer. The Trustee may rely
conclusively upon such notice.
19
6.3 Insolvency of the Company.
(a) If at any time (i) the Company or a person claiming to be a
creditor of the Company alleges in writing to the Trustee that the Company has
become Insolvent, (ii) the Trustee is served with any order, process or paper
from which it appears that an allegation to the effect that the Company is
Insolvent has been made in a judicial proceeding or (iii) the Trustee has actual
knowledge of a current report or statement from a nationally recognized credit
reporting agency or from a Reliable Source to the effect that the Company is
Insolvent, the Trustee shall discontinue payment of Benefits under this Trust
Agreement, shall hold the Trust Fund for the benefit of the Company's creditors,
and shall resume payment of Benefits under this Trust Agreement in accordance
with Section 4 hereof only upon receipt of an order of a court of competent
jurisdiction requiring such payment or if the Trustee has actual knowledge of a
current report or statement from a nationally recognized credit reporting agency
or other Reliable Source (other than a Reliable Source described in clause (iii)
of the definition thereof) to the effect that the Company is not Insolvent;
provided, however, that in the event that payment of Benefits was discontinued
by reason of a court order or injunction, the Trustee shall resume payment of
Benefits only upon receipt of an order of a court of competent jurisdiction
requiring such payment. The Company and its Chief Executive Officer shall be
obligated to give the Trustee prompt written notice in the event that the
Company becomes Insolvent. The Trustee shall not be liable to anyone in the
event Benefits are discontinued pursuant to this Section 6.3.
(b) If the Trustee discontinues payment of Benefits pursuant to
Section 6.3(a) and subsequently resumes such payment, the first payment to a
Participant following such discontinuance shall include an aggregate amount
equal to the difference between the payments which would have been made to such
Participant under this Trust Agreement but for Section 6.3(a) and the aggregate
payments actually made to such Participant by the Company (as certified to the
Trustee by the Participant in writing) during any such period of discontinuance,
plus interest on such amount at a rate equivalent to the net rate of return
earned by the Trust Fund during the period of such discontinuance.
(c) In the event that at any time any amount is paid from the Trust
Fund to creditors of the Company, the Company shall upon demand by the Trustee
deposit into the Trust Fund a sum equal to the amount paid by the Trust Fund to
such
20
creditors. The Trustee shall be under no obligation to collect any such deposit.
7. AMENDMENT, REVOCATION AND TERMINATION
7.1 Amendment.
(a) Prior to the occurrence of a Change of Control, the Company may
from time to time amend in writing, in whole or in part, any or all of the
provisions of this Trust Agreement with the written consent of the Trustee but
without the consent of any Participant.
(b) At any time upon or after the occurrence of a Change of Control,
the Company may from time to time amend in writing, in whole or in part, any or
all of the provisions of this Trust Agreement with the written consent of the
Trustee and two-thirds of the Participants to whom additional Benefits are
payable pursuant to a Payment Schedule then in effect. The Recordkeeper shall be
solely responsible for obtaining and tabulating such consents and the Trustee
may rely conclusively on information received from the Recordkeeper. In
addition, the Trust Agreement may be amended by the Company at any time with the
written consent of the Trustee, but only to the extent such amendment is
required by law or is necessary or desirable to prevent adverse tax consequences
to Participants. In the event that the Company proposes to adopt an amendment to
the Trust Agreement pursuant to the preceding sentence, the Company shall
provide the Trustee with an opinion of counsel reasonably acceptable to the
Trustee and in form and substance satisfactory to the Trustee to the effect that
such amendment is required by law or is necessary or desirable to prevent
adverse tax consequences to Participants. The Trustee may rely and shall be
fully protected in relying on such opinion without inquiry.
7.2 Revocability.
Prior to a Change of Control, the Trust shall be revocable by the Company,
all or any part of the Trust Fund shall be recoverable by the Company and the
Participants shall have no right to any part of the Trust Fund. Upon a Change of
Control, the Trust shall become irrevocable, and shall be held for the exclusive
purpose of providing the Benefits to Participants and their beneficiaries and
defraying expenses of the Trust in accordance with the provisions of this Trust
21
Agreement. Once the Trust has become irrevocable, no part of the income or
corpus of the Trust Fund shall be recoverable by the Company, except as provided
otherwise in Section 4.8 of this Trust Agreement. Notwithstanding anything in
this Trust Agreement to the contrary, the Trust Fund shall at all times be
subject to the claims of creditors of the Company as provided in Section 6.3 of
this Trust Agreement.
7.3 Termination.
(a) Prior to a Change of Control, the Company may revoke and terminate
the Trust at any time, in its sole discretion, without the approval of any
Participant, upon notice in writing to the Trustee. As soon as practicable
following the Trustee's receipt of such notice, the Trustee shall settle its
final accounts in accordance with Section 5.8 hereof and, after the receipt of
any unpaid fees and expenses, shall distribute the balance of the Trust Fund as
directed by the Company.
(b) Following a Change of Control the Trust shall terminate after the
Trustee shall have made all payments required by Section 4, and, after the
Trustee's final accounts have been settled in accordance with Section 5.8 hereof
and after the receipt of any unpaid fees and expenses, the Trustee shall
distribute the balance of the Trust Fund as directed by the Company.
8. MISCELLANEOUS PROVISIONS
8.1 Successors.
This Trust Agreement shall be binding upon and inure to the benefit of the
Company and the Trustee and their respective successors and assigns.
8.2 Nonalienation.
Except insofar as applicable law may otherwise require, (a) no amount
payable to or in respect of any Participant at any time under the Trust shall be
subject in any manner to alienation by anticipation, sale, transfer, assignment,
bankruptcy, pledge, attachment, charge or encumbrance of any kind, and any
attempt to so alienate, sell, transfer, assign, pledge, attach, charge or
otherwise encumber any such amount, whether presently or thereafter payable,
shall be void; and (b) the Trust Fund shall in no manner be liable for or
subject to the debts or liabilities of any Participant.
22
8.3 Communications.
(a) Communications to the Company shall be addressed to the Company at
000 Xxxxx Xxxxxxx Xxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxx 00000-0000, Attn:
General Counsel; provided, however, that upon the Company's written request,
such communications shall be sent to such other address as the Company may
specify.
(b) Communications to the Trustee shall be addressed to the Trustee at
The Bank of New York, Xxx Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Division Head, Domestic/Custody Division; provided, however, that upon the
Trustee's written request, such communications shall be sent to such other
address as the Trustee may specify.
(c) No communication shall be binding on the Trustee until it is
received by the officer of the Trustee having primary responsibility for this
Trust, and no communication shall be binding on the Company until it is received
by the Company.
8.4 Headings.
Titles to the Sections of this Trust Agreement are included for convenience
only and shall not control the meaning or interpretation of any provision of
this Trust Agreement.
8.5 Third Parties.
A third party dealing with the Trustee shall not be required to make
inquiry as to the authority of the Trustee to take any action nor be under any
obligation to follow the proper application by the Trustee of the proceeds of
sale of any property sold by the Trustee or to inquire into the validity or
propriety of any act of the Trustee.
8.6 Governing Law; Jurisdiction; Certain Waivers.
(a) This Trust Agreement shall be interpreted and construed in
accordance with the internal substantive laws (and not the choice of law rules)
of the State of New York. All actions and proceedings brought by the Trustee
relating to or arising from, directly or indirectly, this Agreement may be
litigated in courts located within the State of New York. The Company hereby
submits to the personal jurisdiction of such courts; hereby waives personal
service of process upon it and consents that any such service of process may be
made by
23
certified or registered mail, return receipt requested, directed to the Company
at its address last specified for notices hereunder, and service so made shall
be deemed completed five (5) days after the same shall have been so mailed; and
hereby waives the right to a trial by jury in any action or proceeding with the
Trustee. All actions and proceedings brought by the Company against the Trustee
relating to or arising from, directly or indirectly, this Trust Agreement shall
be litigated only in courts located within the State of New York.
(b) To the extent that, in any jurisdiction, the Company has or
hereafter may acquire, or is or hereafter may be entitled to claim, for itself
or its assets, immunity (sovereign or otherwise) from suit, execution,
attachment (before or after judgment) or any other legal process, the Company
irrevocably agrees not to claim, and hereby waives, such immunity. The
invalidity, illegality or unenforceability of any provision of this Trust
Agreement shall in no way affect the validity, legality or enforceability of any
other provision; and if any provision is held to be unenforceable as a matter of
law, the other provisions shall not be affected thereby and shall remain in full
force and effect.
8.7 Adverse Tax Consequences.
The Company and not the Trustee shall bear the responsibility, if any, in
the event that this Trust Agreement gives rise to adverse tax consequences to
any Participant, Beneficiary or the Company.
8.8 Counterparts.
This Trust Agreement may be executed in any number of counterparts, each of
which shall be deemed to be the original although the others shall not be
produced.
24
IN WITNESS WHEREOF, this Trust Agreement has been duly executed by the
parties hereto as of the day and year first above written.
XXXXXXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
ITS: Vice President, General Counsel
and Secretary
Attest
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
ITS: Vice President
and Treasurer
THE BANK OF NEW YORK, as TRUSTEE
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx, VP
Attest
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, VP
25
STATE OF CONNECTICUT )
ss.: ORANGE
COUNTY OF NEW HAVEN )
On this 11th day of March, 2005, before me personally came XXXXXXX X.
XXXXXX, to me known, who, being by me duly sworn, said that he resides at 00
XXXXXXX XXXXXX XXXX, XXXXXXXX, XXXXXXXXXXX 00000; that he is a VICE PRESIDENT of
XXXXXXX INCORPORATED, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation; and that he signed his name
thereto by like order.
/s/ Xxxx X. Rising
-------------------------------
Notary Public
Commission Expires: 11/30/07
STATE OF NEW YORK )
ss.: NEW YORK
COUNTY OF NEW YORK )
On this 14th day of March, 2005, before me personally came XXXX X.
XXXXXXXXX, to me known, who, being by me duly sworn, said that he/she resides at
0 XXXX XXXXXX, XXX XXXX, XX 00000; that he is a VICE PRESIDENT of THE BANK OF
NEW YORK, the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation; and that he signed his name thereto by
like order.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------
Notary Public
Commission Expires: 10/31/05
Exhibit A
FORM OF LIST OF PARTICIPANTS
----------------------------
Pursuant to Section 4.5 of the Xxxxxxx Incorporated Grantor Trust For
Non-Employee Director Plans Trust Agreement, dated as of March 14, 2005,
between XXXXXXX INCORPORATED (the "Company") and The Bank of New York as
Trustee, the Company provides the following list of Participants in the Plans:
Dated: ____________, 20__
XXXXXXX INCORPORATED
By:
-------------------------------------
Authorized Officer
X-0
Xxxxxxx X-0: Dir. Ret. Plan
FORM OF PAYMENT SCHEDULE
_____________, 20__
Pursuant to Section 4.5 of the Xxxxxxx Incorporated Grantor Trust For
Non-Employee Director Plans Trust Agreement, dated as of March 14, 2005,
between XXXXXXX INCORPORATED (the "Company") and The Bank of New York as
Trustee, the Company provides a Payment Schedule with respect to the following
Participant:
PARTICIPANT: _______________________
ADDRESS: _______________________
_______________________
SOCIAL SECURITY NUMBER: _______________________
(1) In the event that the Termination Affidavit provides that the
Participant is entitled to (whether in the future or is, as of the date hereof,
receiving payment of) an Early Retirement Benefit, a Normal Retirement Benefit
or a Special Retirement Benefit, the Participant shall receive a lump sum
payment of $_________ (equal to the actuarial present value of such Benefit),
payable on the thirtieth (30th) day after the later to occur of (a) the date of
the Change of Control Transaction (as such term is defined in Section 12.2(c) of
the Amended and Restated Retirement Plan for Directors (the "Director Plan"))
and (b) the date the Participant retires from or otherwise separates from
service on the Board of Directors of the Company (the "Board").
(2) In the event that the Termination Affidavit provides that the
Participant is entitled to (whether in the future or is, as of the date hereof,
receiving payment of) an Early Retirement Benefit, a Normal Retirement Benefit
or a Special Retirement Benefit, the Participant shall receive monthly payments
of $_________, payable (if not already being paid) commencing on the later to
occur of (a) the Participant's seventieth (70th) birthday and (b) the date the
Participant retires from or otherwise separates from service on the Board;
provided that if the Participant elects to receive an Early Retirement Benefit
(as defined in Section 5.4 of the Director Plan), such benefit shall commence on
the fifteenth (15th) day of the month following the Participant's seventieth
(70th)
A-1-1
birthday, and shall terminate on the fifteenth (15th) day of the month in which
the Participant dies.
Dated: ____________, 20__
XXXXXXX INCORPORATED
By:
-------------------------------------
Authorized Officer
THE PARTICIPANT MUST SIGN THE FOLLOWING CONSENT IF THIS IS AN AMENDMENT OR
SUBSTITUTION OF A PAYMENT SCHEDULE AFTER A CHANGE OF CONTROL
The undersigned Participant to whom this Payment Schedule relates consents
to the amendment of or substitution for the Payment Schedule heretofore on file
with the Trustee with respect to him, by the form set forth above.
Dated:______________, 20__
----------------------------------------
Participant's Signature
X-0-0
Xxxxxxx X-0: Dir. Def. Comp. Plan
FORM OF PAYMENT SCHEDULE
_____________, 20__
Pursuant to Section 4.5 of the Xxxxxxx Incorporated Grantor Trust For
Non-Employee Director Plans Trust Agreement, dated as of March 14, 2005,
between XXXXXXX INCORPORATED (the "Company") and The Bank of New York as
Trustee, the Company provides a Payment Schedule with respect to the following
Participant:
PARTICIPANT: _______________________
ADDRESS: _______________________
_______________________
SOCIAL SECURITY NUMBER: _______________________
NAME OF BENEFICIARY: _______________________
RELATIONSHIP: _______________________
ADDRESS: _______________________
_______________________
SOCIAL SECURITY NUMBER: _______________________
(1) In the event that the Termination Affidavit provides that the
Participant is entitled to receive a lump sum payment of $_________, such
payment shall be made upon the earlier to occur of (a) thirty (30) days after
the date of the Participant's retirement from or separation from service on the
Board of Directors of the Company (the "Board") if such retirement or separation
occurs on or after January 1 but prior to November 1 of any calendar year and
(b) the first day of the calendar year following the Participant's retirement
from or separation from service on the Board if such retirement or separation
occurs on or after November 1 but prior to January 1 of any two consecutive
calendar years.
(2) In the event that the Termination Affidavit provides that the
Participant is entitled to receive payment in equal annual installments of
$_________, such installments shall commence upon the earlier to occur of (a)
thirty (30) days after the date of the Participant's retirement from or
separation from
A-2-1
service on the Board if such retirement or separation occurs on or after January
1 but prior to November 1 of any calendar year and (b) the first day of the
calendar year following the Participant's retirement from or separation from
service on the Board if such retirement or separation occurs on or after
November 1 but prior to January 1 of any two consecutive calendar years, and
shall end at such time as the last annual installment is to be paid pursuant to
the Participant's election (as set forth in the Termination Affidavit), unless
the Participant dies prior to receipt of such final installment payment, in
which case the Beneficiary shall continue to receive such installment payments
in the same manner as the Participant would have received such installments had
he or she lived (or otherwise pursuant to Section 4.2 of the Amended and
Restated Deferred Compensation Plan for Directors).
Dated: ____________, 20__
XXXXXXX INCORPORATED
By:
-------------------------------------
Authorized Officer
THE PARTICIPANT MUST SIGN THE FOLLOWING CONSENT IF THIS IS AN AMENDMENT OR
SUBSTITUTION OF A PAYMENT SCHEDULE AFTER A CHANGE OF CONTROL
The undersigned Participant to whom this Payment Schedule relates consents
to the amendment of or substitution for the Payment Schedule heretofore on file
with the Trustee with respect to him, by the form set forth above.
Dated:______________, 20__
----------------------------------------
Participant's Signature
X-0-0
Xxxxxxx X-0: Dir. Ret. Plan
FORM OF TERMINATION AFFIDAVIT
I, _________________, under penalties of perjury, do hereby solemnly swear
(i) that, pursuant to Section 4.1 of the Xxxxxxx Incorporated Grantor Trust For
Non-Employee Director Plans Trust Agreement between The Bank of New York (the
"Trustee") and Xxxxxxx Incorporated (the "Company"), dated as of March 14, 2005
(the "Trust Agreement"), I am providing this Termination Affidavit to the
Trustee and the Company in order to secure the benefits to which I am entitled
under such Trust Agreement and the Amended and Restated Retirement Plan for
Directors (the "Plan"); (ii) that a Termination (within the meaning of the Trust
Agreement) occurred on _________ __, 20__; (iii) that I am entitled to a [Normal
Retirement Benefit] [Early Retirement Benefit] [Special Retirement Benefit]; and
(iv) that I am entitled to [a lump sum payment] [monthly payments] of my
Benefits (as defined in the Trust Agreement).
----------------------------------------
Participant's Signature(1)
STATE OF )
------------------
ss.:
COUNTY OF )
-----------------
On this ___ day of ____________, 20__, before me personally came
_________________, to me known, who, being by me duly sworn, said that he\she
resides at __________________________ ____________________________ and that the
statements herein are all true and correct.
----------------------------------------
Notary Public
Commission Expires:
---------------------
(1) If the Affidavit is being made by a Beneficiary, a statement of the
date of death of the Participant (and the Beneficiary in the case of the death
of the Beneficiary receiving payments) must be added.
X-0-0
Xxxxxxx X-0: Dir. Def. Comp. Plan
FORM OF TERMINATION AFFIDAVIT
I, _________________, under penalties of perjury, do hereby solemnly
swear (i) that, pursuant to Section 4.1 of the Xxxxxxx Incorporated Grantor
Trust For Non-Employee Director Plans Trust Agreement between The Bank of New
York (the "Trustee") and Xxxxxxx Incorporated (the "Company"), dated as of March
14, 2005 (the "Trust Agreement"), I am providing this Termination Affidavit to
the Trustee and the Company in order to secure the benefits to which I am
entitled under such Trust Agreement and the Amended and Restated Deferred
Compensation Plan for Directors (the "Plan"); (ii) that a Termination (within
the meaning of the Trust Agreement) occurred on _________ __, 20__; (iii) that I
am entitled to the payment of my Accounts (as defined in the Plan); and (iv)
that I am entitled to [a lump sum payment] [monthly payments] of my Benefits (as
defined in the Trust Agreement). In addition, in the event that I am entitled to
receive annual payments of my Benefits, the final installment of my annual
payments shall be paid on _________ __, 20__.
----------------------------------------
Participant's Signature(1)
STATE OF )
------------------
ss.:
COUNTY OF )
-----------------
On this ___ day of ____________, 20__, before me personally came
_________________, to me known, who, being by me duly sworn, said that he\she
resides at __________________________ ____________________________ and that the
statements herein are all true and correct.
----------------------------------------
Notary Public
Commission Expires:
---------------------
(1) If the Affidavit is being made by a Beneficiary, a statement of the
date of death of the Participant (and the Beneficiary in the case of the death
of the Beneficiary receiving payments) must be added.
B-2-1
Exhibit C
FORM OF AFFIDAVIT WITH RESPECT TO FINAL DETERMINATION
--------------------------
I, _______________________, under penalties of perjury, do hereby solemnly
swear (i) that I make this affidavit in order to induce The Bank of New York, as
Trustee under the Xxxxxxx Incorporated Grantor Trust For Non-Employee Director
Plans Trust Agreement, dated as of March 14, 2005, between Xxxxxxx Incorporated
(the "Company") and The Bank of New York as Trustee (the "Trust Agreement"), to
pay me the benefits to which I am entitled under such Trust Agreement, and (ii)
that a Final Determination (within the meaning of Sections 1.1(j) and 4.3 of the
Trust Agreement) has occurred with respect to my interest in the Trust Fund on
_________ __, 20__.
----------------------------------------
Participant's Signature(1)
STATE OF )
------------------
ss.:
COUNTY OF )
-----------------
On this ___ day of ____________, 20__, before me personally came
_________________, to me known, who, being by me duly sworn, said that he\she
resides at __________________________ ____________________________ and that the
statements herein are all true and correct.
----------------------------------------
Notary Public
Commission Expires:
C-1
Exhibit D
FORM OF CHANGE OR REVOCATION OF BENEFICIARY DESIGNATION
Pursuant to Section 4.6 of the Section 4.1 of the Xxxxxxx Incorporated
Grantor Trust For Non-Employee Director Plans Trust Agreement, dated as of March
14, 2005, between Xxxxxxx Incorporated (the "Company") and The Bank of New York
as Trustee (the "Trust Agreement"), I hereby revoke all prior beneficiary
designations and designate the following Beneficiary of any payments to which my
Beneficiary is entitled under the Trust Agreement.
I hereby reserve the right to change or revoke this beneficiary designation
without notice to any beneficiary.
---------------------------- ------------ -------------------
Name of Beneficiary (Primary) Relationship Social Security No.
--------------------------------------------------------------------------------
Address
I understand that to be effective, any change or revocation must be
received by the Trustee during my life at the address set forth below or at such
other address as may from time to time be specified by the Trustee for notices
to it under the Trust Xxxxxxxxx.Xxxx
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Participant's Signature
Return this form to: The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Division Head
Domestic/Custody Division
D-1
Exhibit E
TRUSTEE'S FEE SCHEDULE
X-0
Xxx Xxxx xx Xxx Xxxx
Retirement Services Division
Rabbi Trust and Recordkeeping Services
Schedule of Fees
For
Xxxxxxx Incorporated
The following schedule of fees would apply to each trust.
Market Value Fee:
1/10 of 1% of assets with a minimum of $25,000.
Special Asset Fee:
$3,000 per annum for the first passive, commingled investment fund, mutual fund,
insurance carrier, and company stock account held as an asset per issuer.
$500 per annum for each additional special asset held in an account.
$5,000 per annum for each actively managed account.
Recordkeeping Fees:
Outside agent retained by Bank at fair market rate.
Transaction Fees:
Security Transaction $15.00 per security transaction
Lump Sum/Expense Payments $13.00 per check, plus postage
Wire Transfers $15.00 per transfer
Mailings $ .50 each
Special Transaction Fees:
Change of Control $25,000 per event
Insolvency $25,000 per event
Termination of the Trust $ 5,000 per event
Tax Form Preparation $150 per hour as incurred
Convert to Pay Status $100 per participant
Proxy Services As Incurred
Legal Fees/Out-of-Pocket Expenses As Incurred
Fees as quoted above do not include any direct out-of-pocket or legal expenses
which would become payable in accordance with the rabbi trust agreement. There
are no initial set-up fees, except legal fees, incurred with the conversion of
the trust to The Bank of New York, including modification to our standard
documentation.
Fees outstanding more than 90 days will be automatically debited to the Trust.
E-2
