Exhibit 10.37
TRUST UNDER XXXXXXXX CORPORATION MIRROR 401(K) AND DEFERRED COMPENSATION PLAN
This Agreement made this 1st day of November, 2003, by and between
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Xxxxxxxx Corporation (Company) and UMB Bank (Trustee).
WHEREAS, Company has adopted the nonqualified deferred compensation
Plan entitled "Xxxxxxxx Corporation Mirror 401(k) and Deferred Compensation
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 Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
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 purposes of Title I of the Employee Retirement Income Security
Act of 1974; and
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
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(a) Company hereby deposits with Trustee in trust one hundred
dollars ($100.00), 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 is revocable by Company, but
the Trust shall become irrevocable upon a Change of
Control, as defined herein.
(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 J, 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) Upon a Change of Control, Company shall, as soon as
possible, but in no event longer than fifteen (15) days
following the Change of Control, as defined herein, make
an irrevocable contribution to the Trust in an amount that
is sufficient to pay each Plan participant or beneficiary
the benefits to which Plan participants or their
beneficiaries would be entitled pursuant to the terms of
the Plan as of the date on which the Change of Control
occurred.
Section 2. Payments to Plan Participants and Their Beneficiaries
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(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect
of each Plan 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 provision
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.
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Section 3. Trustee Responsibility Regarding Payments to Trust
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Beneficiary When Company Is Insolvent
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(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 of the Company and the
Chief Executive Officer of Company 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 from 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 the 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
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aggregate amount of any payments made to Plan participants
or their beneficiaries by Company in lieu of the payments
provided for hereunder during any such period of
discontinuance.
Section 4. Payments to Company
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Except as provided in Section 3 hereof, after the Trust has become
irrevocable, 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 all
payment of benefits have been made to Plan participants and their
beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority
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(a) Trustee shall invest the principal of the Trust and any
earnings thereon in accordance with written directions
from Company. Such directions shall provide Trustee with
the investment discretion to invest the above-referenced
amounts within broad guidelines established by Trustee and
Company and set forth therein.
(b) Subject to Subsection (a), Trustee may
(1) invest and reinvest the amounts described in
Subsection (a) in any form of property not
prohibited by law, including, without limitation
on the amount which may be invested therein, any
mutual funds, money market funds, certificates of
deposit, life insurance policies, annuity
contracts, and other deposits yielding a
reasonable rate of interest; and
(2) hold cash uninvested in an amount considered
necessary and prudent for proper administration
of the Trust, or deposit the same with any
banking, savings, or similar financial
institution supervised by the United States or
any State, including Trustee's own banking
department.
(c) Trustee is expressly authorized and empowered to purchase
such insurance as it shall determine to be necessary or
advisable to best advance the purposes of the Trust and
the interests of a beneficiary, and Trustee shall purchase
such insurance as is required to satisfy the obligations
to a beneficiary under the Plan, to the extent such
insurance may be obtained from an insurance carrier of
adequate quality at reasonable rates.
(d) Notwithstanding the foregoing, in no event may Trustee
invest in securities (including stock or rights to acquire
stock) or obligations issued by Company, other than a de
minimis amount held in common investment vehicles in which
Trustee invests. All 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 the beneficiaries.
(e) 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.
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Section 6. Disposition of Income
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During the term of this Trust, all income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee
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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 and Trustee. Within sixty (60) days following the close of
each calendar year and within sixty (60) days after the removal or
resignation of Trustee, 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 8. Responsibility of Trustee
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(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 Trust and
is given in writing by Company. 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) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities
(including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for
such payments. If Company does not pay such costs,
expenses and liabilities in a reasonably timely manner,
Trustee may obtain payment from the Trust.
(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 advisors, financial consultants or other
professionals to assist it in performing any of its duties
or obligations hereunder.
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(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 conversion 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 8(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 9. Compensation and Expenses of Trustee
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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 10. Resignation and Removal of Trustee
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(a) Trustee may resign at any time by written notice to Company,
which shall be effective thirty (30) days after receipt of
such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on thirty (30) days notice
or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may
not be removed by Company for two (2) years.
(d) If Trustee resigns within two (2) years after a Change of
Control, as defined herein, Company shall apply to a court
of competent jurisdiction for the appointment of a
successor Trustee or for instructions.
(e) 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 ninety (90) days after receipt of
notice of resignation, removal or transfer, unless Company
extends the time limit.
(f) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the
effective date of resignation or removal under paragraphs
(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
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successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as
administrative expenses of the Trust.
Section 11. Appointment of Successor
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(a) If Trustee resigns or is removed in accordance with
Section 10(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 7 and 8 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 12. Amendment or Termination
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(a) This 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,
unless sooner revoked in accordance with Section 1(b)
hereof. 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 13. Miscellaneous
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(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.
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(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Missouri.
(d) For purposes of this Trust, Change of Control shall mean:
(1) The acquisition by any individual, entity or
group, or a Person (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") of
ownership of 20% or more of either (a) the then
outstanding shares of common stock of Company
(the "Outstanding Xxxxxxxx Common Stock") or (b)
the combined voting power of the then outstanding
voting securities of Company entitled to vote
generally in the election of directors (the
"Outstanding Xxxxxxxx Voting Securities"); or
(2) Approval by the stockholders of Company of a
reorganization, merger or consolidation, in each
case, unless, following such reorganization,
merger or consolidation, (a) more than 50% of,
respectively, the then outstanding shares of
common stock of the corporation resulting from
such reorganization, merger or consolidation and
the combined voting power of the then outstanding
voting securities of such corporation entitled to
vote generally in the election of directors is
then beneficially owned, directly or indirectly,
by all or substantially all of the individuals
and entities who were the beneficial owners,
respectively, of the Outstanding Xxxxxxxx Common
Stock and Outstanding Xxxxxxxx Voting Securities
immediately prior to such reorganization, merger
or consolidation in substantially the same
proportions as their ownership, immediately prior
to such reorganization, merger or consolidation,
of the Outstanding Xxxxxxxx Common Stock and
Outstanding Xxxxxxxx Voting Securities, as the
case may be, (b) no Person beneficially owns,
directly or indirectly, 20% or more of,
respectively, the then outstanding shares of
common stock of the corporation resulting from
such reorganization, merger or consolidation or
the combined voting power of the then outstanding
voting securities of such corporation, entitled
to vote generally in the election of directors
and (c) at least a majority of the members of the
board of directors of the corporation resulting
from such reorganization, merger or consolidation
were members of the Incumbent Board at the time
of the execution of the initial agreement
providing for such reorganization, merger or
consolidation; or
(3) Approval by the stockholders of Company of (a) a
complete liquidation or dissolution of Company or
(b) the sale or other disposition of all or
substantially all of the assets of Company, other
than to a corporation, with respect to which
following such sale or other disposition, (1)
more than 50% of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the
then outstanding voting securities of such
corporation entitled to vote generally in the
election of directors is then beneficially owned,
directly or indirectly, by
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all or substantially all of the individuals and
entities who were the beneficial owners,
respectively, of the Outstanding Xxxxxxxx Common
Stock and Outstanding Xxxxxxxx Voting Securities
immediately prior to such sale or other
disposition in substantially the same proportion
as their ownership, immediately prior to such
sale or other disposition, of the Outstanding
Xxxxxxxx Common Stock and Outstanding Xxxxxxxx
Voting Securities, as the case may be, (2) no
Person beneficially owns, directly or indirectly,
20% or more of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the
then outstanding voting securities of such
corporation entitled to vote generally in the
election of directors and (3) at least a majority
of the members of the board of directors of such
corporation were members of the Incumbent Board
at the time of the execution of the initial
agreement or action of the Board providing for
such sale or other disposition of assets of
Company.
Section 14. Effective Date
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The effective date of this Trust Agreement shall be November 1, 2003.
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XXXXXXXX CORPORATION
By /s/ X. X. Xxxxxxxxx
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"Company"
UMB BANK, N.A.
By /s/ V.P.
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"Trustee"
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