Exhibit 10.8
FORM OF
TRUST UNDER CH2M HILL COMPANIES, LTD.
AFTER-TAX DEFERRED COMPENSATION PLAN
(a) This Agreement made this _____ day of __________, 1999, by and between
CH2M HILL Companies, Ltd. ("Company") and ________________________ ("Trustee");
(b) WHEREAS, Company has adopted the CH2M HILL Companies, Ltd. After-Tax
Deferred Compensation Plan (the "Plan");
(c) WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
(d) 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; and
(e) 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;
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 $1 in cash, which shall
become the principal of the Trust to be held, administered and disposed of by
Trustee as provided in this Agreement.
(b) The Trust hereby established shall be revocable by Company.
(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 earnings (if any) 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 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 may at any time, or from time to time, make additional
deposits of cash or shares of common stock of Company ("Common Stock") in trust
with Trustee to augment the principal to be held, administered and disposed of
by Trustee as provided in this Agreement. Trustee shall not have any right to
compel such additional deposits.
(f) When Company deposits cash or Common Stock with Trustee, Company shall
inform Trustee in writing of the Plan participant with respect to whom such
deposit is made. Trustee shall establish and maintain a separate recordkeeping
account in the name of each Plan participant and shall credit that recordkeeping
account with a number of units (referred to as "Share Value Equivalent Units,"
or "SVEUs") equal to the number of shares of Common Stock deposited by Company
with Trustee with respect to that Plan participant. Trustee shall also credit
the recordkeeping account maintained in the name of each Plan participant with
the amount of cash deposited by Company with Trustee with respect to that Plan
participant. Trustee shall also credit the recordkeeping account maintained in
the name of each Plan participant with an amount equal to earnings (if any) of
the Trust on any assets credited to the recordkeeping account maintained in the
name of that Plan participant, other than cash dividends paid with respect to
the Common Stock (which shall be paid over to Company in accordance with Section
5). When Trustee uses cash credited to a recordkeeping account maintained in the
name of a Plan participant to purchase shares of Common Stock, the recordkeeping
account maintained in the name of that Plan participant shall be reduced to
reflect the amount of cash used to purchase the shares of Common Stock and the
recordkeeping account maintained in the name of that Plan participant shall be
credited with a number of SVEUs equal to the number of shares of Common Stock so
purchased.
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 amount 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. The Payment Schedule may be modified
from time to time by Company. Except as otherwise provided herein, Trustee shall
make payments to the Plan participants and their beneficiaries in accordance
with such Payment Schedule. 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
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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 earnings (if any) thereon, are not
sufficient to make payment 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 when assets of the Trust are not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARIES
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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 Agreement if (1) Company is unable to pay its
debts as they become due, or (2) 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
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 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.
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(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this 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 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
INVESTMENT AUTHORITY
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(a) Trustee shall, to the maximum extent practicable, invest all assets of
the Trust in Common Stock. Trustee shall retain Common Stock deposited by
Company with Trustee. Trustee shall use cash deposited by Company with Trustee
or earned by the Trust to purchase Common Stock as soon as reasonably
practicable after such cash is received by Trustee. Common Stock shall be
purchased in the internal market maintained by Company or directly from Company.
(b) 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 Plan participants, except that voting rights and
dividend rights with respect to Trust assets will be exercised by Company.
SECTION 5
DISPOSITION OF INCOME
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During the term of this Trust, all income (if any) received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested to the maximum
extent practicable in Common Stock, except that cash dividends (if any) paid to
the Trust with respect to Common Stock shall be paid to Company immediately upon
receipt by Trustee.
SECTION 6
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 forty-five (45) days following the close of each
calendar year and within forty-five (45) 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
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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 7
RESPONSIBILITY OF TRUSTEE
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(a) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(b) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein.
(c) Notwithstanding any powers granted to Trustee pursuant to this
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 8
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 9
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 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 thirty (30) 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 10 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 successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
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SECTION 10
APPOINTMENT OF SUCCESSOR
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(a) If Trustee resigns or is removed in accordance with Section 9(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
Section 4 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 11
AMENDMENT OR TERMINATION
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(a) This Agreement may be amended by a written instrument executed by
Trustee and Company.
(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.
SECTION 12
MISCELLANEOUS
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(a) Any provisions of this 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 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 of Colorado.
SECTION 13
EFFECTIVE DATE
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The effective date of this Trust Agreement shall be January 1, 2000.
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CH2M HILL COMPANIES, LTD.
By:_________________________
TRUSTEE
By:_________________________
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