Exhibit 10.6 XXXXXXXX XXXXXX, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
DEFERRED COMPENSATION
This Agreement made this 1st day of July,
1999, by and between, XXXXXXXX XXXXXX, INC.
(Company) and UMB BANK, N.A. (Trustee).
WHEREAS, Company has adopted the Non-Qualified
Deferred Compensation Plan identified above
(hereinafter the "Plan"). WHEREAS, Company has
incurred or expects to incur liability under
the terms of such Plan with respect to the
individuals participating in such Plan.
WHEREAS, Company wishes to establish a trust
(hereinafter called "Trust") and to contribute
to the Trust assets that shall be held
therein, subject to the claims of Company's
creditors in the event of the Company's
Insolvency, as herein defined, until paid to
Plan participant and their beneficiaries in
such manner and at such times as specified in
the Plan.
WHEREAS, it is the intention of the parties
that this Trust shall constitute an unfunded
arrangement and shall not affect the status of
the Plan as an unfunded plan maintained for
the purpose of providing deferred compensation
for a select group of management or highly
compensated employees for purpose of Title I
of the Employee Retirement Income Security Act
of 1974.
WHEREAS, it is the intention of Company to
make contributions to the Trust to provide
itself with a source of funds to assist it in
the meeting of its liabilities under the Plan.
NOW, THEREFORE, the parties do hereby
establish the Trust and agree that the Trust
shall be comprised, held and disposed of as
follows:
SECTION 1. ESTABLISHMENT OF TRUST.
(a) Company hereby deposits with Trustee in
trust such case
and/or marketable securities, if any, listed
in Appendix A, which shall become the
principal of the Trust to be held,
administered and disposed of by Trustee as
provided in this Trust Agreement.
(b) The Trust hereby established shall be
irrevocable.
(c) The Trust is intended to be a grantor
trust, of which Company is the grantor,
within the meaning of subpart E, part I,
subchapter 1, chapter 1, subtitle A of
the Internal Revenue Code of 1986, as
amended, and shall be construed
accordingly.
(d) The principal of the Trust, and any
earnings thereon, shall be held separate
and apart from other funds of Company and
shall be used exclusively for the uses
and purposes of Plan participants and
general creditors as herein set forth.
Plan participants and their beneficiaries
shall have no preferred claim on, or any
beneficial ownership interest in, any
assets of the Trust. Any rights created
under the Plan and this Trust Agreement
shall be mere unsecured contractual
rights of Plan participants and their
beneficiaries against Company. Any
assets held by the Trust will be subject
to the claims of Company's general
creditors under federal and state law in
the
event of Insolvency, as defined in
Section
3(a) herein.
(e) Company, in its sole discretion, may at
any time, or from time to time, make
additional deposits of cash or other
property in trust with Trustee to augment
the principal to be held, administered
and disposed of by Trustee as provided in
this Trust Agreement. Neither Trustee nor
any Plan participant or beneficiary shall
have any right to compel such additional
deposits.
(f) Trustee shall have no duty or authority
to (i) require
any deposits to be made under the Plan or
to Trustee; (ii) compute any amount to be
deposited under the Plan to Trustee; or
(iii) determine whether amounts received
by Trustee comply with the Plan. Assets
of the Trust may be held, in Trustee's
discretion, in an account with an
affiliate of Trustee.
SECTION 2. PAYMENTS TO PLAN
PARTICIPANTS AND THEIR BENEFICIARIES.
(A) Company shall deliver to Trustee a
schedule (the "Payment Schedule") that
indicates the amounts payable in respect
of each participant (and his or her
beneficiaries), that provides a formula
or other instructions acceptable to
Trustee for determining the amounts so
payable, the form in which such amount is
to be paid (as provided for or available
under the Plan), and the time of
commencement for payment of such amounts.
Except as otherwise provided herein,
Trustee shall make payments to the Plan
participants and their beneficiaries in
accordance with such Payment Schedule.
The Trustee shall make provisions for the
reporting and withholding of any federal,
state or local taxes that may be required
to be withheld with respect to the
payment of benefits pursuant to the terms
of the Plan and shall pay amounts
withheld to the appropriate taxing
authorities or determine that such
amounts have been reported, withheld and
paid by Company.
(b) The entitlement of a Plan participant or
his or her beneficiaries to benefits
under the Plan shall be determined by
Company or such party as it shall
designate under the Plan, and any claim
for such benefits shall be considered and
reviewed under the procedures set out in
the Plan.
(c) Company may make payment of benefits
directly to Plan participants or their
beneficiaries as they become due under
the terms of the Plan, Company shall
notify Trustee of its decision to make
payment of benefits directly prior to the
time amounts are payable to participants
or their beneficiaries. In addition, if
the principal of the Trust, and any
earnings thereon, are not sufficient to
make payments of benefits in accordance
with the terms of the Plan, Company shall
make the balance of each such payment as
it falls due. Trustee shall notify
Company where principal and earnings are
not sufficient.
(d) Trustee shall have no responsibility to
determine whether the Trust is sufficient
to meet the liabilities under the Plan,
and shall not be liable for payments or
Plan liabilities in excess of the value
of the Trust's assets.
(e) Trustee shall rely on instructions from
Company as to payments, both as to
entitlement and amounts, and as to any
required tax withholding. /trustee shall
be fully protected in its reliance upon
all such instructions.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING
PAYMENTS TO TRUST
BENEFICIARY WHEN COMPANY IS INSOLVENT
(A) Trustee shall cease payment of benefits
to Plan participants and their beneficiaries
if the Company is
"Insolvent". Company shall be considered
"Insolvent" for purposes of this Trust
Agreement if (i) Company is unable to pay
its debts as they become due, or (ii)
Company is subject to a pending
proceeding as a debtor under the United
States Bankruptcy Code.
(b) At all times during the continuance of
this Trust, as provided in Section 1(d)
hereof, the principal and income of the
Trust shall be subject to claims of
general creditors of Company under
federal and state law as set forth below:
(1) The Board of Directors and the Chief
Executive
Officer
of Company (or, if there is no Chief Executive
Officer, the highest ranking officer) shall
have the duty to inform Trustee in writing of
Company's Insolvency. If a person claiming to
be a creditor of Company alleges in writing to
Trustee that Company has become Insolvent,
Trustee shall determine whether Company is
Insolvent and, pending such determination,
Trustee shall discontinue payment of benefits
to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge
of Company's Insolvency, or has
received notice form Company or a
person claiming to be a creditor
alleging that Company is Insolvent,
Trustee shall have no duty to
inquire whether Company is
Insolvent. Trustee may in all events
rely on such evidence concerning
Company's solvency as may be
furnished to Trustee and that
provides Trustee with a reasonable
basis for making a determination
concerning Company's solvency.
(3) If at any time Trustee has determined
that
Company is Insolvent, Trustee shall
discontinue payments to Plan
participants or their beneficiaries
and shall hold the assets of the
Trust for the benefit of Company's
general creditors. Nothing in this
Trust Agreement shall in any way
diminish any rights of Plan
participants or their beneficiaries
to pursue their rights as general
creditors of Company with respect to
benefits due under the Plan or
otherwise.
(4) Trustee shall resume the payment of
benefits to
Plan participants or their
beneficiaries in accordance with
Section 2 of this Trust Agreement
only after Trustee has determined
that Company is not Insolvent (or is
no longer Insolvent).
(c) Provided that there are sufficient
assets, if Trustee discontinues the
payment of benefits from flit Trust
pursuant to Section 3(b) hereof and
subsequently resumes such payments, the
first payment
following such discontinuance shall
include the aggregate amount of all
payments due to Plan participants or
their beneficiaries
under the terms of the Plan for the
period of
such discontinuance, less the
aggregate amount of any payments
made to Plan participants of their
beneficiaries by Company in lieu of
the payments provided for hereunder
during any such period of
discontinuance; provided that
Company has given Trustee the
Information with respect to such
payments made during the period of
discontinuance prior to resumption
of payments by Trustee.
SECTION 4. PAYMENTS TO
Except as provided in Section 3 hereof,
since the Trust is irrevocable in
accordance with Section 1(h) hereof,
Company
shall have no right or power to direct
trustee to return to Company or to divert
to others any of the trust assets before
alt payment of benefits have been made to
Plan participants and their beneficiaries
pursuant to the terms of the Plan.
SECTION 5. INVESTMENT AUTHORITY
(a) Company shall direct the investment
of the assets in the Trust. Company
may establish diversification and
performance guidelines for the investment
of assets held in the Trust and shall
communicate these guidelines to Trustee.
In establishing these guidelines, Company
may take into consideration the
hypothetical investment alternatives that
Plan participants and beneficiaries have
selected for the purposes of determining
the amount of their benefits under the
Plan. In the administration of the
Trust, subject to any limitations stated
elsewhere in this Trust Agreement and the
diversification and performance
guidelines established by the Company,
Trustee shall have exclusive power in the
management and control of the assets in
the Trust, including the power to take
any action set forth below, provided that
the Trustee shall be subject to the
Company's direction with respect to the
investment of the assets.
(b) Trustee may invest in securities
(including stock or
rights to acquire stock) or
obligations issued by Company. An
rights associated with assets of the
Trust shall be exercised by Trustee
or the
person designated by Trustee, and
shall in no event be exercisable by
or rest with Plan participants,
except that voting rights with
respect to Trust assets will be
exercised by Company.
(c) Company shall have the right at any
time, and from time
to time in its sole discretion, to
substitute
assets of
equal fair market value for any asset
held by
the
Trust. This right is exercisable by
Company
in a
nonfiduciary capacity
without the approval or
consent of any person in a
fiduciary capacity.
(d) Trustee, or Trustee's
designee, is authorized
and empowered:
(1) To invest and reinvest Trust
assets, together with the income
therefrom, in common stock,
preferred stock, convertible
preferred stock, bonds, debentures,
convertible debentures and bonds,
mortgages, notes, commercial paper
and other evidences of indebtedness
(including those issued by
Trustee), shares of mutual funds,
guaranteed investment contracts,
bank investment contracts, other
securities, policies of life
insurance, annuity contracts,
options,
options to buy or sell securities
or other assets, and all other
property of any type (personal,
real or mixed, and tangible or
intangible);
(2) To depositor invest all or any part of
the assets of the Trust in savings
accounts or certificates of deposit
or other deposits in a bank or
savings and loan association or
other depository institution,
including Trustee or any of its
affiliates, provided with respect
to such deposits with Trustee or an
affiliate the deposits bear a
reasonable interest rate;
(3) To hold, manage, improve, repair and
control
all
property, real or personal, forming
part of the Trust; to sell, convey,
transfer, exchange, partition,
lease for any term, even extending
beyond the duration of this Trust,
and otherwise dispose of the same
from time to time;
(4) To hold in cash, without liability for
interest, such portion of the Trust
as is pending investment, or payment
of expenses, or the distribution of
benefits;
(5) To take such actions as may be necessary
or desirable to protect the Trust
from loss due to the default on
bonds and mortgages held in the
Trust including the appointment of
agents or trustees in such other
jurisdictions as may seem desirable,
to transfer property to such agents
or trustees, to grant to such agents
such powers as are necessary or
desirable to protect the Trust, to
direct such agent or trustee, or to
delegate such power to direct, and
to remove such agent or trustee;
(6) To settle, compromise or abandon all
claims and
demands
in favor of or against the Trust;
(7) To exercise all of the further
rights, powers,
options
and privileges granted, provided
for, or vested in Trustees generally
under the laws of the state in which
Trustee is incorporated as set forth
above, so that the powers conferred
upon Trustee herein shall not be in
limitation of any authority
conferred by law, but shall be in
addition thereto;
(8) To borrow money from any source and
to execute promissory notes,
mortgages or other obligations and
to pledge or mortgage any trust
assets as security; and
(9) To maintain accounts at and execute
transactions through any brokerage
or other firm,
including any firm which is an
affiliate of Trustee.
SECTION 6. ADDITIONAL POWERS OF TRUSTEE
To the extent necessary or which it deems
appropriate to implement its powers under
Section 5 or otherwise to fulfill
any of its duties and responsibilities as
Trustee of the Trust, Trustee shall have the
following additional powers and authority:
(a) To register securities, or any other
property, in its name or in the name
of any nominee, or to hold
securities in bearer form, provided
the books and records of Trustee
shall indicate at all times the true
ownership of such property, and to
deposit any securities or other
property in a depository or clearing
corporation;
(b) To designate and engage the services
of, and to delegate powers and
responsibilities to, such agents,
representatives, advisers, counsel
and accountants as Trustee considers
necessary or appropriate, any of
whom may be an affiliate of Trustee
or a person who renders services to
such an affiliate, and, as a pan of
its expenses under
this Trust Agreement, to pay their
reasonable expenses and
compensation;
(c) To make, execute and deliver, as Trustee,
any and all deeds, leases,
mortgages, conveyances, waivers,
releases or other instruments in
writing necessary or appropriate for
the accomplishment of any of the
powers listed in this Trust
Agreement; and
(d) Generally, to do all other acts which
Trustee deems necessary or
appropriate for the protection of
the Trust.
SECTION 7. DISPOSITION OF INCOME.
During the interim of this Trust, all income
received by the
Trust, net of expenses and taxes, shall be
accumulated and reinvested.
SECTION 8. ACCOUNTING BY TRUSTEE
(A) Trustee shall keep accurate and
detailed records of all investments,
receipts, disbursements, and all
other transactions required to be
made, including such specific
records as shall be agreed upon in
writing between Company ad Trustee,
within 60 days following the close
of each calendar year and within 30
days after removal or resignation of
Trustee, shall deliver to Company a
written account of its
administration of the Trust during
such year or during the period from
the close of the last preceding year
to the date of such removal or
resignation, setting forth all
investments, receipts, disbursements
and other transactions effected by
it, including a description of all
securities and investments purchased
and sold with the cost or net
proceeds of such purchases or sales
(accrued interest paid or receivable
being shown separately), and showing
all cash, securities and other
property held in the Trust at the
end of such year or as of the date
of such removal or resignation, as
the case may be.
SECTION 9. RESPONSIBILITY AND INDEMNITY
OF TRUSTEE.
(a) Trustee shall act with the care,
skill, prudence and diligence under
the circumstances then prevailing
that a prudent person acting in like
capacity and familiar with such
matters would use in the conduct of
an enterprise of a like character
and with like aims, provided,
however, that Trustee shall incur no
liability to any person for any
action taken pursuant to a
direction, request or approval given
by Company which is contemplated by,
and in conformity with, the terms of
the Plan or this "frost and is given
in writing by Company. Trustee
shall also incur no liability to any
person for any failure to act in the
absence of direction, request or
approval from Company which is
contemplated by, and in conformity
with, the terms of this Trust. In
the event of a dispute between
Company and a party, Trustee may
apply to a court of competent
jurisdiction to resolve the dispute.
(b) Company agrees to indemnify and save
harmless the
Trustee against any and all claims,
losses, damages, expenses and
liabilities the Trustee may incur in
the exercise and performance of the
Trustee's powers and duties
hereunder, unless the same are
determined to be due to gross
negligence or willful misconduct,
(c) Trustee may consult with legal
counsel (who may also be counsel for
Company generally) with respect to
any of its duties or obligations
hereunder.
(d) Trustee may hire agents,
accountants, actuaries, investment
advisers, financial consultants or
other professionals to assist it in
performing any of its duties or
obligations hereunder.
(e) Trustee shall have, without
exclusion, all powers conferred on
Trustees by applicable law, unless
expressly provided otherwise herein,
provided, however, that if an
insurance policy is held as an asset
of the Trust, Trustee shall have no
power to name a beneficiary of the
policy
other than the Trust, to assign the
policy (as distinct from conversation of
the policy to a different form) other
than to a successor Trustee, or to loan
to any person the proceeds of any
borrowing against such policy.
(f) However, notwithstanding the
provisions of Section 9(e) above,
Trustee may loan to Company the
proceeds of any borrowing against an
insurance policy held as an asset of
the Trust.
(g) Notwithstanding any powers granted
to Trustee pursuant
to this Trust Agreement or to
applicable law, Trustee shall not
have any power that could give this
Trust the objective of carrying on a
business and dividing the gains
therefrom, within the meaning of
section 301.7701-2 of the Procedure
and Administrative Regulations
promulgated pursuant to the Internal
Revenue Code.
SECTION 10. COMPENSATION AND EXPENSES OF
TRUSTEE.
Company shall pay all administrative and
Trustee's fees and expenses. If not so
paid, the fees and expenses shall be
paid from the Trust.
SECTION 11. REGISTRATION AND REMOVAL OF
TRUSTEE.
(a) Trustee may resign at any time by
written notice to
Company, which shall be effective 30
days after receipt of such notice
unless Company and Trustee agree
otherwise.
(b) Trustee may be removed by Company on
30 days notice or
upon shorter notice accepted by Trustee.
(c) Upon resignation or removal of
Trustee and appointment
of a successor Trustee, all assets
shall subsequently be transferred to
the successor Trustee. The transfer
shall be completed within 60 days
after receipt of notice of
resignation, removal or transfer,
unless Company extends the time
limit.
(d) If Trustee resigns or is removed, a
successor shall be appointed, in
accordance with Section 12 hereof,
by the effective date of resignation
or removal under paragraph(s) (a) or
(b) of this section. If no such
appointment has been made, Trustee
may apply to a court of competent
jurisdiction for appointment of a
successor or for instructions. All
expenses of Trustee in connection
with the proceeding shall be allowed
as administrative expenses of the
Trust.
(e) Upon settlement of the account and
transfer of the
Trust assets to the successor
Trustee, all rights and privileges
under this Trust Agreement shall
vest in the successor Trustee and
all responsibility and liability of
Trustee with respect to the Trust
and assets thereof shall terminate
subject only to the requirement that
Trustee execute all necessary
documents to transfer the Trust
assets to the successor Trustee.
SECTION 12. APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns or is removed in
accordance with
Section 11(a) or (b) hereof, Company
may appoint any third party, such as
a bank trust department or other
party that may be granted corporate
trustee powers under state law, as
a successor to replace Trustee upon
resignation or removal. The
appointment shall be effective when
accepted in writing by the new
Trustee, who shall have all of the
rights and powers of the former
Trustee, including ownership rights
in the Trust assets. The former
Trustee shall execute any instrument
necessary or reasonably requested by
Company or the successor Trustee to
evidence the transfer.
(b) The successor Trustee need not
examine the records and
acts of any prior Trustee and may
retain or dispose of existing Trust
assets, subject to Sections 8 and 9
hereof. The successor Trustee shall
not be responsible for and Company
shall indemnify and defend the
successor Trustee from any claim or
liability resulting from any action
or inaction of any prior Trustee or
from any other past event, or any
condition existing at the time it
becomes successor Trustee.
SECTION 13. AMENDMENT OR TERMINATION
(a) The Trust Agreement may be Amended
by a written instrument executed by
Trustee and Company. Notwithstanding
the foregoing, no such amendment
shall conflict with the terms of the
Plan or shall make the Trust
revocable after it has become
irrevocable in accordance with
Section
1(b) hereof.
(b) The Trust shall not terminate until
the date on which
Plan participants and their
beneficiaries are no longer entitled
to benefits pursuant to the terms of
the Plan.
Upon termination of the Trust, any
assets remaining in the Trust shall
be returned to Company.
(c) Upon written approval of
participants or beneficiaries
entitled to payment of benefits
pursuant to the terms of the Plan,
Company may terminate this Trust
prior to the time all benefit
payments under the Plan have been
made. All assets in the Trust at
termination shall be returned to
Company.
SECTION 14. MISCELLANEOUS
(a) Any provision of this Trust
Agreement prohibited by law shall be
ineffective to the extent of any
such prohibition,
without invalidating the remaining
provisions hereof. (b) Benefits payable
to Plan participants and their
beneficiaries under this Trust
Agreement may not be anticipated,
assigned (either at law or in
equity), alienated, pledged,
encumbered or subjected to
attachment, garnishment, levy,
execution or other legal or
equitable process.
(c) This Trust Agreement shall be
governed by and construed
in accordance with the laws of the
state in which Trustee is
incorporated as set forth above.
(d) The provisions of Sections 2(d),
3(b)(3) and 9(b) of
this Agreement shall survive
termination of this Agreement.
(e) The rights, duties,
responsibilities, obligations and
liabilities of Trustee are as set
forth in this Trust Agreement and no
provision of the Plan or any other
documents shall affect such rights,
responsibilities, obligations and
liabilities. If there is a conflict
between provisions of the Plan and
this Trust Agreement with respect to
any subject involving Trustee,
including but not limited to the
responsibility, authority or powers
of Trustee, the provisions of this
Trust Agreement shall be
controlling.
SECTION 15. EFFECTIVE DATE.
The effective date of this Trust
Agreement shall be July 1,
1999.
IN WITNESS WHEREOF, the parties have
hereunto caused this
Trust Agreement to be duly executed.
Company: XXXXXXXX XXXXXX, INC.
------------------------
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By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name/Title: Director of Human
Resources
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Trustee: UMB BANK, N/A.
-------------------------
By: /s/ Xxxxxxx X'Xxxxxx
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(Signature)
Exhibit 10.8
XXXXXXXX XXXXXX, INC.
SUMMARY OF XXXXXXXX XXXXXX, INC.
BONUS PLAN FOR FISCAL YEAR ENDING JUNE 30, 2000
The Board of Directors has adopted a
bonus plan for executive officers and
key employees for fiscal year 2000.
Under the
bonus plan for executive
officers and key employees for
fiscal 2000, if consolidated pretax
income exceeds 90% of the amount
specified in the 2000 financial
plan, an amount equal to 10% of that
excess (up to the plan amount),
will be available for the payment of
bonuses; and if pretax income is
greater than the plan amount, an
amount equal to 20% of that excess
will be added to the bonus pool. The
bonus amount payable to each of the
executive officers and key
employees will be determined by the
President and Chief Executive
Officer of the Company.
