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EXHIBIT 10.36
AGREEMENT AND DECLARATION OF TRUST
FOR SUPPLEMENTAL EMPLOYEE'S
RETIREMENT PLAN FOR CERTAIN SENIOR OFFICERS
THIS AGREEMENT, made as of the 1st day of January, 1990 by and between
Xxxxx Xxxxxx Group Inc. (hereinafter "Xxxxx Xxxxxx"), a corporation organized
and existing under the laws of the State of Delaware and having its principal
place of business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
Chase Manhattan Bank, N.A. (hereinafter the "Trustee"), a corporation organized
and existing under the laws of the United States of America and having a place
of business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
WITNESSETH
WHEREAS, Xxxxx Xxxxxx has, in accordance with a Supplemental Employee's
Retirement Plan duly adopted by Xxxxx Xxxxxx, entered into individual deferred
compensation contracts with certain key executives of its subsidiaries and
affiliates; and
WHEREAS, Xxxxx Xxxxxx desires to provide an orderly means of funding the
obligations under such
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contracts by means of an inter vivos trust which for income tax purposes shall
be a grantor trust within the meaning of Section 677 of the Internal Revenue
Code of 1986, as amended; and
WHEREAS, in accordance with said funding, Xxxxx Xxxxxx desires to provide
additional assurance to the aforesaid key executives that Xxxxx Xxxxxx'x
obligation under said deferred compensation contracts will be met when due in
accordance with their terms; and
WHEREAS, Xxxxx Xxxxxx desires to settle a trust for the purposes and in
accordance with the terms and conditions herein described; and
WHEREAS, Chase Manhattan Bank, N.A. has agreed to act as trustee, holding
in trust the contributions and assets herein provided, in accordance with the
terms and conditions set forth in this Agreement and Declaration of Trust;
NOW, THEREFORE, for the purpose of creating and settling the trust, Xxxxx
Xxxxxx hereby conveys to the Trustee legal title to the assets and funds
hereinafter provided TO BE HELD IN TRUST, NEVERTHELESS, in accordance with the
promises and mutual covenants herein contained, in consideration of which Xxxxx
Xxxxxx and the Trustee do hereby covenant and agree as follows, to wit:
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ARTICLE I
DEFINITIONS
For the purposes herein, and unless the context clearly requires otherwise, the
terms in this Agreement and Declaration of Trust, when capitalized, shall mean
as set forth below.
1.1 "Actuary/recordkeeper" shall mean any such person or organization as Xxxxx
Xxxxxx shall designate, from time to time, to act as such.
1.2 "Bankruptcy" of Xxxxx Xxxxxx or an "event of Bankruptcy" with respect to
Xxxxx Xxxxxx or "Bankrupt" as used with respect to Xxxxx Xxxxxx shall mean
Xxxxx Xxxxxx:
(a) voluntarily commences any proceeding or files any petition
seeking relief under Title 11 of the United States Code or any other
federal or state bankruptcy, insolvency or similar law,
(b) consents to the institution of, or fails to controvert in a
timely and appropriate manner, any such proceeding or the filing of any
such petition,
(c) applies for or consents to the appointment of a receiver or
trustee for Xxxxx Xxxxxx or for a substantial part of the property of
Xxxxx Xxxxxx,
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(d) makes a general assignment for the benefit of creditors,
(e) becomes unable or fails generally to pay its debts as they
become due,
(f) is the subject of an involuntary proceeding commenced in a court
of competent jurisdiction seeking:
(i) relief against Xxxxx Xxxxxx or all or a substantial part
of the property of Xxxxx Xxxxxx under Title 11 of the United States Code
or any other federal or state bankruptcy, insolvency or similar law,
(ii) the appointment of a receiver or trustee for Xxxxx Xxxxxx
or for a substantial part of the property of Xxxxx Xxxxxx, or
(iii) the winding-up or liquidation of Xxxxx Xxxxxx;
and such proceeding or petition continues undismissed for 60 days or an
order or decree approving or ordering any of the foregoing is entered.
1.3 "Code" shall mean the Internal Revenue Code of 1986, as amended (Title 26,
United States Code).
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1.4 "Investment Manager" shall mean the person or organization appointed from
time to time by Xxxxx Xxxxxx to manage the assets held in trust by the
Trustee or the person or organization appointed from time to time by a
cestui que trust pursuant to Section 5.3 hereof to manage the cestui que
trust's aliquot share of the trust estate, provided any such person or
organization shall be an investment advisor registered with the Securities
and Exchange Commission pursuant to the Investment Advisers Act of 1940.
1.5 "Plan" shall mean the Xxxxx Xxxxxx Group, Inc. Supplemental Employee's
Retirement Plan for Certain Senior Officers, as amended from time to time.
1.6 "Variable Annuity" means the arrangement, available at the election of the
cestui que trust, to self-direct the investment of his aliquot share of
the trust estate and have his benefit vary by the investment performance
related thereto, in accordance with the Plan.
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ARTICLE II
CREATION OF TRUST
2.1 Xxxxx Xxxxxx hereby conveys to the Trustee such sums of money and such
property (other than money) as shall be delivered to the Trustee
simultaneously herewith to be held by the Trustee, in trust nevertheless,
together with the increase, earnings and profits thereon, and with such
subsequent sums of money and other property subsequently conveyed by Xxxxx
Xxxxxx to be held by the Trustee, in trust nevertheless, for the purposes
herein stated and for no other, in accordance with this Agreement and
Declaration of Trust. Any property (other than money) conveyed to the
Trustee by Xxxxx Xxxxxx pursuant to the Agreement and Declaration of Trust
shall only be held in trust if the property is acceptable to the Trustee.
All such money and other property, together with the increase, earnings
and profits thereon and less any disbursements disbursed free of the trust
to the time of reference, shall be and constitute the trust estate. All
such assets shall be held without distinction between corpus and earnings
thereon and the assets to be held in trust shall be accumulated until
distributed in accordance
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with the provisions of this Agreement and Declaration of Trust in such
manner that the trust created and existing hereby shall be an accumulation
trust. The assets held in trust shall be held by the Trustee as one
account, without any subaccounting whatsoever and without distinction,
separation or segregation by virtue of the interest of any particular
cestui que trust in or to the assets held in trust prior to their
distribution free of trust as hereinafter provided.
2.2 The Trustee shall hold, manage, administer and invest the assets held in
trust solely for the purposes and in accordance with the terms of this
Agreement and Declaration of Trust. The Trustee shall be under no
obligation to collect any money or other assets from Xxxxx Xxxxxx but
shall merely hold in trust such assets as are conveyed by Xxxxx Xxxxxx, as
aforesaid.
ARTICLE III
THE ACTUARY
3.1 Xxxxx Xxxxxx shall appoint an Actuary/recordkeeper with respect to this
Agreement and Declaration of
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Trust and shall, simultaneously with entering into this Agreement and
Declaration of Trust, advise the Trustee in writing of the name and
address of the Actuary/recordkeeper as appointed and of the authorized
signatories on behalf of the Actuary/recordkeeper. The Trustee shall be
entitled to rely upon such notification which shall be provided in
accordance with Section 16.7 hereof. Any such notification shall continue
to be valid until and unless amended, modified or revoked by Xxxxx Xxxxxx.
Xxxxx Xxxxxx reserves the right to so amend, modify or revoke at any time.
3.2 Whenever Xxxxx Xxxxxx shall convey title of any assets to the Trustee
(whether initially upon the inception of the trust or otherwise), the
Actuary/recordkeeper shall record the same on its books and records and
shall, on its books and records, cause a separate account to be opened in
the name of each cestui que trust. The Actuary/recordkeeper shall, in
connection with Xxxxx Xxxxxx, determine (solely for the subaccounting
records maintained by the Actuary/recordkeeper) the portion of each such
conveyance of assets that pertains to each cestui que trust. As of the
last
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business day of each calendar month, the Trustee shall render a monthly
statement which shall show the cash position of the trust at the beginning
of the month, assets conveyed by Xxxxx Xxxxxx to the Trustee to be held in
trust during the month, assets disbursed free of the trust to pay the
expenses of the Trust, assets distributed free of the trust to the cestuis
que trust, earnings and profits of the trust during the month and a
revaluation of the assets held as of the rendering of the statement. All
such statements shall be rendered in duplicate to Xxxxx Xxxxxx and the
Actuary/recordkeeper.
3.3 The Actuary/recordkeeper shall, as soon as practicable upon receipt of
such information, prepare a subaccounting record monthly with respect to
each cestui que trust showing that cestui que trust's subaccounting
balance on the books and records of the Actuary/recordkeeper at the
beginning of the month, assets conveyed into trust during the month
applicable to that cestui que trust, distributions of assets made by the
Trustee to the cestui que trust during the month free of trust, the cestui
que trust's aliquot share of the earnings and profits of the Trust and the
changes in value
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thereof caused by the Trustee's revaluation of the market value of the
assets held in trust. A copy of such record for each cestui que trust
shall be provided to Xxxxx Xxxxxx monthly and Xxxxx Xxxxxx shall promptly
furnish a copy of such record to the cestui que trust. Within sixty (60)
days after receiving such a record a cestui que trust may file written
objections thereto with the Actuary/recordkeeper. If no such objections
are filed during the sixty (60) day period or any such objections are
resolved to the satisfaction of both the cestui que trust and the
Actuary/recordkeeper, such record shall be deemed an account stated and
shall conclusively bind Xxxxx Xxxxxx, the Trustee, the
Actuary/recordkeeper and the cestui que trust.
3.4 Subject to the provisions of Article VIII hereof, the trust created hereby
is intended to fund and meet the obligations of Xxxxx Xxxxxx arising
pursuant to the individual deferred compensation agreements entered into
in accordance with the Plan and dated subsequent to January 1, 1990.
Nevertheless, the assets held in trust shall, until distributed to the
cestuis que trust, be considered for tax accounting purposes as part of
the assets of
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Xxxxx Xxxxxx. The deferred compensation contracts referred to in this
paragraph shall be deemed to refer also to deferred compensation contracts
within the meaning of paragraphs 6 through 8 of Accounting Principles
Board Opinion No. 12, issued in 1967. The assets herein provided shall be
held in trust for the sole use, enjoyment and benefit of the cestuis que
trust subject to the requirement of Article VIII hereof that no event of
Bankruptcy shall have occurred with respect to Xxxxx Xxxxxx prior to the
distribution of the assets to the cestuis que trust free of trust and
subject to forfeiture and reversion to Xxxxx Xxxxxx as hereinafter
provided. If Xxxxx Xxxxxx shall become Bankrupt prior to the assets being
distributed to the cestuis que trust free of trust, as hereinafter
provided, the assets shall be reverted for the benefit of Xxxxx Xxxxxx'x
creditors free of trust and the trust shall thereupon be discharged,
except as otherwise provided in Section 8.2 hereof. Furthermore, if the
amount held in trust for the benefit of a cestui que trust shall be
forfeited either because of termination of employment before vesting or
the application of the forfeiture provision with respect to competitive
employment,
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the assets with respect to that cestui que trust shall be reverted to
Xxxxx Xxxxxx upon receipt by the Trustee of a certificate of the Actuary/
recordkeeper so directing and identifying the amount to be so reverted.
3.5 The beneficial interest of each cestui que trust in the trust estate at
any time and from time to time shall be conclusively determined in
accordance with the subaccounting books and records maintained by the
Actuary/recordkeeper and Xxxxx Xxxxxx, the Trustee and each cestui que
trust shall be conclusively bound thereby.
ARTICLE IV
THE TRUST
4.1 The trust established hereby shall be irrevocable prior to the assets
being distributed to the cestuis que trust or the earlier occurrence of an
event of Bankruptcy with respect to Xxxxx Xxxxxx in accordance with
Article VIII hereof.
4.2 No part of the assets held in trust, other than for such expenses or taxes
as are properly charged to
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the trust, in accordance with the provisions of this Agreement and
Declaration of Trust, shall be used for or diverted to purposes other than
for the benefit of the cestuis que trust or, if an event of Bankruptcy has
occurred with respect to Xxxxx Xxxxxx, Xxxxx Xxxxxx and its creditors.
4.3 The primary obligation to provide benefits as specified in the Plan and
the deferred compensation agreements referred to in Section 3.4 hereof
shall be that of Xxxxx Xxxxxx. This Agreement and Declaration of Trust
shall discharge Xxxxx Xxxxxx'x obligation to provide benefits under the
Plan and such deferred compensation agreements to the extent, and only to
the extent, that the Plan participants, or their beneficiaries, actually
receive benefits from the trust created by this Agreement and Declaration
of Trust.
ARTICLE V
INVESTMENT AND ADMINISTRATION
5.1 As elected by Xxxxx Xxxxxx and communicated to the Trustee from time to
time in writing, the Trustee shall either (a) invest and reinvest the
assets then
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held in trust in accordance with the specific directions and instructions
of Xxxxx Xxxxxx in each case; or (b) invest and reinvest the assets held
in trust in accordance with the specific directions and instructions of
the Investment Manager appointed by Xxxxx Xxxxxx for this purpose.
However, after commencement of payments to a cestui que trust who elects a
Variable Annuity pursuant to Section 4.4(a) of the Plan, the Trustee shall
invest and reinvest the assets held in trust in accordance with the
specific written directions and instructions of the Actuary/recordkeeper
given to the Trustee pursuant to Section 5.3 of this Agreement and
Declaration of Trust with respect to the beneficial interest of the cestui
que trust. In any event, neither the Trustee nor the Actuary/recordkeeper
shall be responsible for making investment decisions with respect to the
assets held in trust and, if an investment direction is not timely
received by the Trustee, such portion of the assets shall be invested in a
money market fund provided by the Trustee for this purpose so as to
provide for daily accrual of interest.
5.2 If Xxxxx Xxxxxx elects that the investment of the assets held in trust be
made pursuant to the
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specific directions and instructions of Xxxxx Xxxxxx in each case, then
Xxxxx Xxxxxx shall certify to the Trustee the authorized signature or
signatures of the persons who shall be empowered to provide the specific
investment directions to the Trustee. Any such authorized signatory shall
continue to be authorized until the Trustee shall be actually advised by
Xxxxx Xxxxxx of any change thereto. Any person so authorized shall provide
a specimen signature to the Trustee and shall provide such additional
information as the Trustee shall reasonably require. Investment directions
shall be in writing, but if agreed to between the Trustee and the
authorized signatory may be oral, telegraphic or telephonic, subject to
later written confirmation.
5.3 If a cestui que trust upon commencement of a monthly retirement allowance
elects a Variable Annuity in accordance with the Plan and therefore elects
to make specific investment directions and instructions with respect to
the cestui que trust's aliquot share of the trust estate, then Xxxxx
Xxxxxx shall so advise the Actuary/recordkeeper and shall certify to the
Actuary/recordkeeper the name of such cestui que trust and shall provide
to the Actuary/recordkeeper
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a specimen signature of such cestui que trust. Xxxxx Xxxxxx and such
cestui que trust shall each provide such additional information as the
Actuary/recordkeeper shall reasonably require. The cestuis que trust shall
each rely conclusively (and be entitled to so rely) upon the last
certification of the Actuary/recordkeeper for determining the
proportionate aliquot share of the assets held in trust representing that
cestui que trust's beneficial interest in the totality of the assets held
in trust and the cestui que trust shall be entitled to direct the
Actuary/recordkeeper with respect to only that aliquot portion of the
trust estate so certified. The cestui que trust may appoint an Investment
Manager for this purpose. In such an event, the cestui que trust shall so
advise the Actuary/recordkeeper and provide a specimen signature of the
person or persons so authorized to act on behalf of the Investment
Manager. The cestui que trust and the Investment Manager shall each
provide such additional information as the Actuary/recordkeeper shall
reasonably require.
Notwithstanding the investment direction herein granted to each cestui que
trust, it is understood
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that his interest in the assets held in trust is contingent only and
subject to the occurrence of an event of Bankruptcy with respect to Xxxxx
Xxxxxx as provided in Article VIII hereof and that any direction to convey
legal title to any assets held in trust to the cestui que trust or any
other person free of the trust shall be invalid except to the extent that
such cestui que trust or other person is then entitled to a distribution
of legal title free of the trust in accordance with Article VII hereof.
If due to appreciation or depreciation of the assets of the trust since
the last certification by the Actuary/recordkeeper, Xxxxx Xxxxxx or any
cestui que trust believes that the last allocation by the
Actuary/recordkeeper is no longer valid, such person may request a new
interim allocation by the Actuary/recordkeeper and no further investment
direction may be accepted as valid until such new interim allocation is
certified by the Actuary/recordkeeper. The Actuary/recordkeeper shall, in
performing the interim allocation, reflect any asset change since the last
certification as is, in its opinion, fair and equitable, and any such
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interim allocation and certification shall be binding on all parties
hereto.
5.4 If Xxxxx Xxxxxx elects that the investment of the trust be made pursuant
to the specific directions and instructions of the appointed Investment
Manager in each case, then Xxxxx Xxxxxx shall certify to the Trustee the
name and address of the Investment Manager so designated and the
signatories who are authorized to act on behalf of such Investment
Manager. Any such Investment Manager shall continue to be authorized until
the Trustee shall be actually notified of any change thereto by Xxxxx
Xxxxxx and any such authorized signatory shall continue to be authorized
until the Trustee shall be actually notified of any change thereto by the
Investment Manager so authorized. Any person so authorized shall provide a
specimen signature to the Trustee and shall provide such additional
information as the Trustee shall reasonably require. Investment directions
shall be in writing, but if agreed to between the Trustee and the
authorized signatory may be oral, telegraphic or telephonic, subject to
later written confirmation.
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ARTICLE VI
POWERS OF TRUSTEE
6.1 The Trustee shall not be liable in discharging its duties hereunder,
including without limitation its duty to invest and reinvest the assets
held under trust, if it acts in good faith pursuant to the directions of
the Investment Manager, Xxxxx Xxxxxx or the Actuary/recordkeeper with
regard to matters in which, pursuant to the terms of this Agreement and
Declaration of Trust, such persons respectively have the power and
authority to direct the Trustee. The Trustee shall be required to act
strictly in accordance with any such direction.
6.2 Subject to Article V hereof regarding investment direction, the Trustee
shall have the power to invest and reinvest the assets held in trust to
the same extent as if the assets were owned outright by the Trustee and
more specifically:
(a) To invest and reinvest in any property, real, personal or mixed,
wherever situated and whether or not productive of income or
consisting of wasting assets, including without limitation, common
and preferred stocks, bonds,
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notes, debentures (including convertible stocks and securities but
not including any stock or security of the Trustee), leaseholds,
mortgages, certificates of deposit or demand or time deposits
(including any such deposits with the Trustee), shares of investment
companies and mutual funds, interests in partnerships and trusts,
insurance policies and annuity contracts, and oil, mineral or gas
properties, royalties, interests or rights, without being limited to
the classes of property in which trustees are authorized to invest
by any law or any rule of court of any state and without regard to
the proportion any such property may bear to the entire amount of
the trust estate; provided, further, the Trustee is specifically
authorized to receive and hold any stock or security of Xxxxx Xxxxxx
or the Trustee which is contributed by Xxxxx Xxxxxx to be held in
trust or to purchase such stock or securities on the open market
subject to applicable legal requirements.
(b) To invest and reinvest all or any portion of assets held in trust
collectively through the medium of any common, collective or
commingled
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trust fund that may be established and maintained by the Trustee and
which may be authorized to accept such assets, subject to the
instrument or instruments establishing such trust fund or funds;
(c) To retain any property at any time received by the Trustee;
(d) To sell or exchange any property held by it at public or private
sale, for cash or on credit, to grant and exercise options for the
purchase or exchange thereof, to exercise all conversion or
subscription rights pertaining to any such property and to enter
into any covenant or agreement to purchase any property in the
future;
(e) To participate in any plan of reorganization, consolidation, merger,
combination, liquidation or other similar plan relating to property
held by it and to consent to or oppose any such plan or any action
thereunder or any contract, lease, mortgage, purchase, sale or other
action by any person;
(f) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary power
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thereto, and to pay part of the expenses and compensation thereof
and any assessments levied with respect to any such property so
deposited;
(g) To extend the time of payment of any obligation held by it;
(h) To hold uninvested any moneys received by it, without liability for
interest thereon, until such moneys shall be invested, reinvested or
disbursed;
(i) To exercise all voting or other rights with respect to any property
held by it and to grant proxies, discretionary or otherwise;
(j) For the purposes of the assets held in trust, to borrow money from
others including the Trustee, to issue its promissory note or notes
therefor, and to secure the repayment thereof by pledging any
property held by it;
(k) To manage, administer, operate, insure, repair, improve, develop,
preserve, mortgage, lease or otherwise deal with, for any period,
any real property or any oil, mineral or gas properties, royalties,
interests or rights held by it directly or through any corporation,
either alone or by joining with others, using other assets held in
trust for any such purposes, to
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modify, extend, renew, waive or otherwise adjust any provision of
any such mortgage or lease and to make provision for amortization of
the investment in or depreciation of the value of such property;
(1) To employ suitable agents and counsel, who may be counsel to Xxxxx
Xxxxxx or the Trustee, and to pay their reasonable expenses and
compensation from the assets held in trust to the extent not paid by
Xxxxx Xxxxxx;
(m) To cause any property held by it to be registered and held in the
name of one or more nominees, with or without the addition of words
indicating that such securities are held in a fiduciary capacity,
and to hold securities in bearer form;
(n) To settle, compromise or submit to arbitration any claims, debts or
damages due or owing to or arising from the assets held in trust,
respectively, to commence or defend suits or legal proceedings to
protect any interest with respect to assets held in trust, and to
undertake any and all legal action with respect to the assets held
in trust in any court or before any other body or tribunal;
provided,
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however, that the Trustee shall not be required to take any such
action unless it shall have been indemnified by Xxxxx Xxxxxx to its
reasonable satisfaction against liability or expenses it might incur
therefrom;
(o) To organize under the laws of any state a corporation or trust for
the purpose of acquiring and holding title to any property which it
is authorized to acquire hereunder and to exercise with respect
thereto any or all of the powers set forth herein; and
(p) Generally, to do all acts, whether or not expressly authorized, that
the Trustee may deem necessary or desirable for the protection of
the assets held in trust.
6.3 The powers herein provided shall be exercised by the Trustee only in
accordance with, and subject to, Article V hereof.
6.4 No person dealing with the Trustee shall be under any obligation to see to
the proper application of any money paid or property delivered to the
Trustee or to inquire into the Trustee's authority as to any transaction.
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ARTICLE VII
DISTRIBUTIONS
7.1 Upon the direction of Xxxxx Xxxxxx or upon proper application of a cestui
que trust (including a beneficiary of an original deceased cestui que
trust), the Actuary/recordkeeper shall determine the cestui que trust's
eligibility for benefits and calculate the amount thereof and shall
certify the same to the Trustee. Such certification shall include the
amount of such benefits, the date of payment, and the manner thereof, and
the name, address and social security number of the payee and shall be
updated annually and whenever the Actuary/recordkeeper shall determine
that any information set forth in a previous such notice needs to be
changed.
The determination of eligibility and calculation of amount of benefit
shall be made by the Actuary/recordkeeper in accordance with the terms and
provisions of the Plan and of the deferred compensation agreements issued
thereunder. Upon receipt of the aforesaid certified statement from the
Actuary/recordkeeper and appropriate federal,
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state and local tax withholding information, the Trustee shall liquidate
the assets so specified by Xxxxx Xxxxxx or the Investment Manager
appointed by Xxxxx Xxxxxx (as applicable) and shall convey title to the
proceeds thereof to the cestui que trust free of the trust or shall, if so
directed by Xxxxx Xxxxxx or the Investment Manager appointed by Xxxxx
Xxxxxx, convey title to those assets held in trust so designated by Xxxxx
Xxxxxx or such Investment Manager to the cestui que trust free of the
trust, provided that in the case of a cestui que trust who has elected a
Variable Anuity the assets to be liquidated or conveyed shall be specified
by the Actuary/recordkeeper. If the Actuary/recordkeeper shall so
indicate, such distributions shall be made periodically at the times and
in the frequencies indicated. Nevertheless, all such conveyances shall be
subject to the provisions of Article VIII hereof, and in the event Xxxxx
Xxxxxx becomes Bankrupt (notwithstanding anything to the contrary), the
estate shall be disposed of as provided by Article VIII.
Copies of the certification by the Actuary/recordkeeper to the Trustee
shall be
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provided by the Actuary/recordkeeper to the affected cestui que trust and
Xxxxx Xxxxxx
7.2 The Trustee shall withhold from such payments to each cestui que trust
such amounts as are certified to the Trustee by the Actuary/recordkeeper
in accordance with the election by the cestui que trust and applicable
legal requirements with respect to federal, state and local taxes. The
Trustee shall forward amounts so withheld, together with appropriate
documentation, to the Actuary/recordkeeper. The Actuary/recordkeeper
shall, on behalf of and as agent for Xxxxx Xxxxxx, remit to the taxing
authority the amounts so withheld as provided by law, together with such
forms and information as shall be required by law with respect thereto.
7.3 Any payments made to a cestui que trust shall only be charged against the
account of that cestui que trust on the books and records of the Actuary/
recordkeeper, but no individual accounts shall be maintained on the books
and records of the Trustee.
7.4 If a cestui que trust shall be entitled to an annuity (whether measured by
one or two lives), the
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Actuary/recordkeeper shall, at the time of eligibility for the first such
payment, instruct the Trustee to purchase a commercial annuity contract or
policy from a licensed insurance company or annuity company. The annuity
contract or policy shall be specifically identified in such direction and
shall be owned in trust by the Trustee and the Trustee shall be entitled
to all annuity and other payments therefrom, but the life or lives for
measuring the period of payments shall be as designated by the
Actuary/recordkeeper. This Section 7.4 shall not be applicable if the
cestui que trust shall elect to make investment directions after
commencement of the monthly retirement allowance pursuant to Section 5.3
hereof.
ARTICLE VIII
BANKRUPTCY
8.1 Notwithstanding any provision in this Agreement and Declaration of Trust
to the contrary, if at any time while the Trustee still holds assets in
trust Xxxxx Xxxxxx becomes Bankrupt, the Trustee shall, upon receipt of
written notice, court order or written allegations as provided in Section
8.2 hereof,
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suspend the payment of all benefits from the estate and shall thereafter
hold the estate in suspense for the benefit of Xxxxx Xxxxxx'x creditors
until it receives a court order directing the disposition of the estate;
provided, however, the Trustee may deduct or continue to deduct its fees
and expenses and other expenses of the Trustee acting as Trustee,
including taxes, pending the receipt of such court order.
8.2 Xxxxx Xxxxxx represents and agrees that it shall have the fiduciary duty
and responsibility on behalf of Xxxxx Xxxxxx'x creditors to give to the
Trustee prompt written notice in the event of Bankruptcy with respect to
Xxxxx Xxxxxx and the Trustee shall be entitled to rely thereon to the
exclusion of all directions or claims to pay benefits thereafter, other
than an order of a court of competent jurisdiction. Absent such notice,
the Trustee shall have no responsibility for determining whether or not an
event of Bankruptcy has occurred and shall be entitled to rely on there
being no event of Bankruptcy unless (a) the Trustee is served with a court
order showing that an event of Bankruptcy has occurred or (b) the Trustee
receives written
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allegations of an event of Bankruptcy from a third party considered by the
Trustee to be reliable and responsible. If after an event of Bankruptcy,
Xxxxx Xxxxxx later ceases to be Bankrupt without the entry of a court
order concerning the disposition of the estate, Xxxxx Xxxxxx shall by
written notice so inform the Trustee and the Trustee shall thereupon
resume all its duties and responsibilities under this Agreement and
Declaration of Trust without regard for this Article VIII until and unless
Xxxxx Xxxxxx again becomes Bankrupt. Distribution pursuant to Article VII
hereof shall be suspended during an event of Bankruptcy but shall be paid
retroactively (without interest) if Xxxxx Xxxxxx later ceases to be
Bankrupt without the entry of a court order concerning the disposition of
the estate.
ARTICLE IX
FUNDING
9.1 The Actuary/recordkeeper shall recommend to Xxxxx Xxxxxx amounts to be
conveyed to the Trustee to be held in trust hereunder so that, on an
actuarial basis, such amounts are sufficient to support the benefits under
the Plan and the deferred
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compensation agreements referred to in Section 3.4 hereof. Notwithstanding
anything to the contrary, however, the Trustee shall be under no
obligation to determine the appropriate amounts to be conveyed or enforce
any requirement of conveyance hereunder.
9.2 Xxxxx Xxxxxx intends that none of the benefit plans and arrangements
funded by the assets held in trust by the Trustee be qualified within the
meaning of Section 401 of the Code and that they therefore be exempt from
all such requirements and further intends that they be exempt from all of
the requirements of the Employee Retirement Income Security Act of 1974,
as amended (29 USC 1001 et seq), except for part 1 of Title I thereof, and
that Xxxxx Xxxxxx shall assume all responsibility for complying with part
1 of Title I thereof.
ARTICLE X
INDEMNIFICATION
10.1 Xxxxx Xxxxxx hereby agrees to indemnify and hold harmless the Trustee with
regard to the Trustee's acting in accordance with any direction of Xxxxx
Xxxxxx, the Investment Manager appointed by Xxxxx
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Xxxxxx or the Actuary/recordkeeper within the power and authority given
to any such person as aforesaid.
10.2 The Trustee hereby agrees to indemnify and hold harmless Xxxxx Xxxxxx with
regard to the Trustee's failure to act in accordance with any direction of
Xxxxx Xxxxxx, the Investment Manager appointed by Xxxxx Xxxxxx or the
Actuary/recordkeeper within the power and authority given to any such
person as aforesaid.
ARTICLE XI
LIQUIDATION OF TRUST
11.1 The Trust established hereby is irrevocable and may not be terminated by
Xxxxx Xxxxxx or otherwise prior to the satisfaction of all liabilities to
the cestuis que trust under the Plan and deferred compensation agreements
referred to in Section 3.4 hereof or the occurrence of an event of
Bankruptcy with respect to Xxxxx Xxxxxx in accordance with Article VIII
hereof. The estate shall terminate when all of the assets thereof shall be
distributed to the cestuis que trust or reverted to Xxxxx Xxxxxx or its
creditors. If all of the obligations under
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the Plan and the deferred compensation agreements referred to in Section
3.4 hereof shall be met and a portion of the estate shall remain, then the
Actuary/recordkeeper shall certify to the Trustee instructions to
distribute that remainder to Xxxxx Xxxxxx. The Trustee shall convey such
assets free of the trust as certified by the Actuary/recordkeeper and,
when all of the assets thereof shall be distributed, the estate shall
terminate.
11.2 The estate created in accordance with this Agreement and Declaration of
Trust shall continue for such time as may be necessary to accomplish the
purposes for which it was created, notwithstanding the rules against
perpetuities or accumulations, it being exempt therefrom in accordance
with the New York Estates, Powers and Trusts Law Section 9-1.6.
ARTICLE XII
FEES AND EXPENSES
12.1 Any federal, state or local taxes on the assets held in trust, or any part
thereof, or any income thereon shall be paid by the estate, provided that
any taxes
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assessed against Xxxxx Xxxxxx as grantor shall be paid by Xxxxx Xxxxxx. In
the event any such taxes payable by the estate are attributable to a
particular investment thereof (for example, a transfer tax on the transfer
of a particular security), the Trustee shall maintain such records as may
be necessary to permit the proper allocation of such taxes.
12.2 Xxxxx Xxxxxx shall pay to the Trustee its reasonable expenses for managing
and administering the assets held in trust, including without limitation
reasonable expenses of counsel and other agents employed by the Trustee
and reasonable compensation for its services as Trustee hereunder as shall
be agreed to between Xxxxx Xxxxxx and the Trustee from time to time. Such
expenses, fees and compensation shall be a charge on the estate and shall
constitute a lien in favor of the Trustee until paid by Xxxxx Xxxxxx.
ARTICLE XIII
ACCOUNTING
13.1 The Trustee shall maintain true and correct records with respect to the
assets held in trust that show
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all its receipts and disbursements hereunder and the market value of the
estate on the date of valuation. The records of the Trustee with respect
to the assets held in trust shall be open to inspection by Xxxxx Xxxxxx,
or its representatives, at all reasonable times during normal business
hours of the Trustee and may be audited not more frequently than once each
calendar year by an independent certified public accountant engaged by
Xxxxx Xxxxxx; provided, however, the Trustee shall be entitled to
additional compensation from Xxxxx Xxxxxx in respect of audits or
auditors' requests which exceed the ordinary course of the usual scope of
such examinations of its records.
13.2 As promptly as practicable following termination of the duties of the
Trustee hereunder or the resignation or removal of the Trustee, but in no
event later than sixty (60) days after such termination or the notice of
resignation or removal pursuant to Article XIV hereof, the Trustee shall
prepare and deliver to Xxxxx Xxxxxx a statement of transactions reflecting
its acts and transactions as Trustee during the last calendar year, or
during such period from the close of the last calendar year
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or last statement period to the termination of the Trustee's duties,
including a statement of the then current value of the estate. Any such
statement shall be deemed an account stated and accepted and approved by
Xxxxx Xxxxxx, and the Trustee shall be relieved and discharged as if such
account had been settled and allowed by a judgment or decree of a court of
competent jurisdiction, unless protested by written notice to the Trustee
within sixty (60) days of receipt thereof by Xxxxx Xxxxxx.
The Trustee shall have the right to apply at any time to a court of
competent jurisdiction for judicial settlement of any account of the
Trustee not previously settled as herein provided or for the determination
of any question of construction or for instructions. In any such action or
proceeding it shall be necessary to join as parties only the Trustee and
Xxxxx Xxxxxx (although the Trustee may also join such other parties as it
may deem appropriate), and any judgment or decree entered therein shall be
conclusive.
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ARTICLE XIV
RESIGNATION AND REMOVAL
14.1 The Trustee may resign at any time by delivering written notice thereof to
Xxxxx Xxxxxx; provided, however, that no such resignation shall take
effect until the appointment of a successor trustee.
14.2 The Trustee may be removed at any time by Xxxxx Xxxxxx, pursuant to a
resolution of the Board of Directors of Xxxxx Xxxxxx, upon delivery to the
Trustee of a certified copy of such resolution and sixty (60) days'
written notice, unless such notice period is waived in whole or in part by
the Trustee.
14.3 Upon the resignation or removal of the Trustee, a successor trustee shall
be appointed by Xxxxx Xxxxxx. Such successor trustee shall be a bank or
trust company which is established under the laws of the United States of
America or a State within the United States of America. Such appointment
shall take effect upon the delivery to the Trustee of (a) a written
appointment of such successor trustee, duly executed by Xxxxx Xxxxxx, and
(b) a written acceptance by such successor trustee, duly executed
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thereby. Any successor trustee shall have all the rights, powers and
duties granted the Trustee hereunder.
14.4 If, within sixty (60) days of the delivery of the Trustees written notice
of resignation, a successor trustee shall not have been appointed, the
Trustee may apply to any court of competent jurisdiction for the
appointment of a successor trustee.
14.5 Upon the resignation or removal of the Trustee and the appointment of a
successor trustee, and after the acceptance and approval of its account,
the Trustee shall transfer and convey title to all of the assets held in
trust to such successor and, to the extent the Trustee shall have physical
custody of such assets, shall deliver such custody to such successor.
Under no circumstances shall the Trustee transfer custody, or deliver
custody of any assets held in trust to any successor which is not a bank
or trust company as aforesaid.
ARTICLE XV
AMENDMENT
This Agreement and Declaration of Trust may be amended, in
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whole or in part, by written agreement between Xxxxx Xxxxxx and the Trustee,
provided, however, that no such amendment shall adversely affect the rights of
any person to receive the benefits that have accrued under the Plan or such
person's deferred compensation agreement prior to the date of such amendment.
ARTICLE XVI
MISCELLANEOUS
16.1 The Chief Executive Officer of Xxxxx Xxxxxx shall provide to the Trustee,
in writing, a statement as to the Xxxxx Xxxxxx officers who may provide
directions, orders and instructions to the Trustee as provided in this
Agreement and Declaration of Trust, including any changes in such
officers. Any such writing may be relied upon by the Trustee until a new
statement is received by the Trustee.
16.2 This Agreement and Declaration of Trust shall be construed and interpreted
under, and the trust hereby created shall be governed by, the laws of the
State of New York and, to the extent applicable, the laws of the United
States of America.
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16.3 Neither the gender nor the use of the singular or the plural of any word
shall be construed to exclude another gender or number when a different
gender or number would be appropriate.
16.4 No right or interest of any cestui que trust in or to the estate or any
income of the estate shall be transferable or assignable or shall be
subject to alienation, anticipation or encumbrance, and no right or
interest of any cestui que trust shall be subject to any garnishment,
attachment or execution. Notwithstanding the foregoing, the estate shall
at all times remain subject to claims of creditors of Xxxxx Xxxxxx in the
event Xxxxx Xxxxxx becomes Bankrupt as provided herein, and in that event,
except to the extent otherwise provided in Section 8.2 hereof, the cestuis
que trust shall have no claims to the assets held in trust superior to
that of any other unsecured creditor.
16.5 This Agreement and Declaration of Trust shall be binding upon and inure to
the benefit of any successor to Xxxxx Xxxxxx or its business as the result
of merger, consolidation, reorganization, transfer of assets or otherwise
and any subsequent
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successor thereto. In the event of any such merger, consolidation,
reorganization, transfer of assets or other similar transaction, the
successor to Xxxxx Xxxxxx or its business or any subsequent successor
thereto shall promptly notify the Trustee in writing of its successorship
and furnish the Trustee with the information specified in Section 16.1 of
this Agreement and Declaration of Trust. In no event shall any such
transaction described herein suspend or delay the rights of any cestui que
trust to receive benefits hereunder.
16.6 This Agreement and Declaration of Trust may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which shall together constitute only one indenture.
16.7 Communications to the Trustee shall be sent to: Chase Manhattan Bank,
N.A., Trust and Estates Management Division, 1211 Avenue of the Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to such other address as the
Trustee may specify in writing. Communications to Xxxxx Xxxxxx shall be
sent to:
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Xx. Xxxxxx X. Xxxxxxxx
Director, Human Resources and
Executive Vice President
1285 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000,
or to such other address as Xxxxx Xxxxxx may specify in writing. No
communication shall be binding upon a party until it is received by that
party.
16.8 In the event any cestui que trust is determined to be subject to federal
income tax on any amount to his credit then held in trust under this
Agreement and Declaration of Trust prior to the time of payment hereunder,
the entire amount determined to be so taxable shall be immediately
distributed by the Trustee to such cestui que trust, subject to
withholding with respect to federal, state and local taxes in accordance
with the provisions of Section 7.2 hereof. Such distribution shall be at
the direction of the Actuary/recordkeeper. Any such amount shall be deemed
to be subject to federal income tax upon the earliest of: (a) a final
determination by the United States Internal Revenue Service addressed to
the cestui que trust which is not appealed to the courts; (b) a final
determination by the United States Tax Court or any other Federal Court
affirming any such determination by the Internal Revenue Service; or (c)
an opinion
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by an attorney for Xxxxx Xxxxxx, addressed to Xxxxx Xxxxxx, the Trustee
and the Actuary/recordkeeper, that, by reason of Treasury Regulations,
provisions of the Internal Revenue Code, published Internal Revenue
Service rulings, court decisions or other substantial precedent, amounts
to the credit of cestuis que trust hereunder are subject to federal income
tax prior to payment.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this 20th
day of December, 1990.
Attest: Xxxxx Xxxxxx Group Inc.
/s/ Xxxxx X. Xxxxxxxx, Xx. /s/ Xxxxxx X. Xxxxxx
-------------------------- --------------------------
Xxxxx X. Xxxxxxxx, Xx. Xxxxxx X. Xxxxxx
Secretary Chairman of the Board of
Directors and
Chief Executive Officer
Attest: Chase Manhattan Bank, N.A.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Barbeoson
-------------------------- ------------------------
Xxxx X. Xxxxxx
Title: Vice President Title: VICE PRESIDENT
BLE/251
