EXHIBIT 4.2
EXHIBIT 4.2
TRUST UNDER XXXXXX INTERNATIONAL, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Amended and Restated as of January 1, 1999)
This Trust Agreement made this 1st day of January, 1999, by and
between Xxxxxx Service Group, Inc. ("Xxxxxx Service Group"), Xxxxxx
International, Inc. ("Xxxxxx") and PRUDENTIAL TRUST COMPANY (hereinafter called
the "Trustee");
WHEREAS, the Xxxxxx International, Inc. Supplemental Executive
Retirement Plan (formerly known as the Xxxxxx Service Group, Inc. Supplemental
Executive Retirement Plan) (the "Plan") has been maintained by Xxxxxx Service
Group and certain of its subsidiaries prior to January 1, 1999 and, effective
January 1, 1999, is maintained by Xxxxxx for the benefit of eligible employees
of Xxxxxx and its subsidiaries listed on Appendix A hereto (Xxxxxx and those
entities listed on Appendix A hereto are referred to herein collectively as the
"Companies" and individually as a "Company");
WHEREAS, the Companies have established this Trust (hereinafter called
the "Trust") for the benefit of the Plan participants and their beneficiaries by
agreement made effective February 1, 1995, and Xxxxxx (or, prior to January 1,
1999, the Companies) has contributed or shall contribute to the Trust assets
that shall be held therein, subject to the claims of Xxxxxx'x creditors in the
event of Xxxxxx'x Insolvency, as herein defined, until paid to Plan participants
and their beneficiaries in such manner and at such times as specified in the
Plan;
(d) WHEREAS, Trustee is willing to accept appointment as successor
trustee under the Trust heretofore established and to hold and administer such
Trust assets pursuant to the terms of this Trust Agreement; 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 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,
as amended;
(f) WHEREAS, it is the intention of Xxxxxx 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 agree that the Trust shall be
comprised, held and disposed of as follows:
Section Establishment Of Trust
----------------------
There is hereby deposited with Trustee in trust an amount which shall
become the principal of the Trust to be held, administered and disposed of by
Trustee as provided in this Trust Agreement.
The Trust hereby established shall be irrevocable.
The Trust is intended to be a grantor trust, of which Xxxxxx 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.
The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Xxxxxx 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
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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 Xxxxxx.
Any assets held by the Trust will be subject to the claims of a Xxxxxx'x general
creditors under federal and state law in the event of Insolvency, as defined in
Section 3(a) herein.
Xxxxxx, 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.
Section Payments to Plan
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Participants and Their Beneficiaries.
------------------------------------
Xxxxxx 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. 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. Trustee shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported, withheld and paid
by Xxxxxx.
The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by Xxxxxx 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.
Xxxxxx may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan. Xxxxxx
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, Xxxxxx shall make the balance of each such payment as it falls due.
Trustee shall notify Xxxxxx where principal and earnings are not sufficient.
Section Trustee Responsibility Regarding Payments
-----------------------------------------
to Trust Beneficiary When Xxxxxx is Insolvent.
---------------------------------------------
Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if Xxxxxx is Insolvent. Xxxxxx shall be considered "Insolvent"
for purposes of this Trust Agreement if (i) Xxxxxx is unable to pay its debts as
they become due, or (ii) Xxxxxx is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
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 Xxxxxx under federal and state law as set forth
below.
The Board of Directors and the Chief Executive Officer of Xxxxxx shall
have the duty to inform Trustee in writing of Xxxxxx'x Insolvency. If a person
claiming to be a creditor of Xxxxxx alleges in writing to Trustee that Xxxxxx
has become Insolvent, Trustee shall determine whether Xxxxxx is Insolvent and,
pending such determination, Trustee shall discontinue payment of benefits to
Plan participants or their beneficiaries.
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Unless Trustee has actual knowledge of Xxxxxx'x Insolvency, or has
received notice from Xxxxxx or a person claiming to be a creditor alleging that
Xxxxxx is Insolvent, Trustee shall have no duty to inquire whether Xxxxxx is
Insolvent. Trustee may in all events rely on such evidence concerning Xxxxxx'x
solvency as may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Xxxxxx'x solvency.
Evidence upon which Trustee may rely as aforesaid includes but is not limited to
written notice from any of Xxxxxx'x Board of Directors, Chief Executive Officer,
a Senior Vice President or General Counsel, its current independent accountant
or outside attorney, or an accountant or outside attorney employed by Trustee,
or written notice of the appointment of a receiver of any of Xxxxxx'x property
by any court in the United States.
If at any time Trustee has determined that Xxxxxx is Insolvent,
Trustee shall discontinue payments to Plan participants or their beneficiaries
and shall hold the assets of the Trust for the benefit of Xxxxxx'x general
creditors and, except as otherwise provided in Section 3(b)(4) below, Trustee
shall distribute the assets of the Trust only as directed by order of the
bankruptcy court or the court appointing the receiver aforesaid. 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 Xxxxxx
with respect to benefits due under the Plan or otherwise.
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 Xxxxxx is not Insolvent (or is no longer
Insolvent). Trustee may rely fully on any one of the following in determining
that Xxxxxx is not Insolvent (or is no longer Insolvent): a discharge of Xxxxxx
from federal bankruptcy proceedings; a written notice from Xxxxxx'x Board of
Directors, Chief Executive Officer, a Senior Vice President or General Counsel,
its current independent accountant or outside attorney or an accountant or
attorney employed by Trustee; or the termination of receivership referred to in
Section 3(b)(2) above.
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 Xxxxxx in lieu of the payments provided
for hereunder during any such period of discontinuance.
Section Payments to Xxxxxx.
-------------------
Except as provided in Section 3 hereof, Xxxxxx shall have no right or
power to direct Trustee to return to Xxxxxx 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 Investment Authority.
---------------------
Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by Xxxxxx. Notwithstanding the preceding, Trustee
shall purchase and sell securities or other obligations issued by Xxxxxx only as
from time to time directed by Xxxxxx. Except to the extent to which authority
with respect to the management of Trust assets has been allocated to others in
accordance with this Trust Agreement, 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 Xxxxxx. In this regard, the authority to direct investments may be allocated
to one or more investment advisers or to an investment committee pursuant to
Section 5(b) of this Trust Agreement and the authority to hold assets of the
Trust may be allocated to one or more custodians pursuant to Section 5(c) of
this Trust Agreement.
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Xxxxxx may from time to time appoint one or more professional
investment advisers other than Trustee or an investment committee established by
Xxxxxx to manage all or any portion of the assets of the Trust. Any such
appointment shall be in writing and shall delineate the duties,
responsibilities, and liabilities of the investment adviser or investment
committee. Xxxxxx shall direct Trustee to, and Trustee will, if so directed in
writing by Xxxxxx, segregate the portion of the Trust assets subject to
management by an investment adviser or investment committee. Upon written
notice to Trustee of the appointment of an investment adviser or investment
committee, the investment adviser or investment committee shall be authorized to
direct Trustee regarding the investment and reinvestment of the portion of the
assets of the Trust subject to management by the investment adviser or
investment committee and Trustee shall receive, hold and transfer assets
purchased or sold by the investment adviser or investment committee in
accordance with its directions. An investment adviser or investment committee
shall have complete investment responsibility with respect to the assets of the
Trust with respect to which it has been appointed as investment adviser or
investment committee, and, except as otherwise provided by law, Trustee shall
have no obligation as to the investment of such assets during the period they
are subject to management by an investment adviser or investment committee. The
appointment of an investment adviser or investment committee shall continue in
effect until Trustee receives written notice to the contrary from Xxxxxx or the
investment adviser or investment committee. An investment adviser may resign at
any time upon thirty days prior written notice to Xxxxxx and Trustee, and Xxxxxx
may remove an investment adviser at any time upon prior written notice to the
investment adviser and Trustee.
Xxxxxx may appoint one or more third parties, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as "custodian" of all or any portion of the assets of the Trust. In
such event, Xxxxxx shall direct Trustee to enter into an appropriate custodial
agreement with the third party appointed as custodian of the Trust assets and
delegating Trustee's powers with respect to the management of such assets to the
custodian. Upon such an appointment Trustee shall transfer appropriate assets
of the Trust to the custodian and the custodian shall have responsibility for
the holding and administration of such assets of the Trust, as agent for the
Trustee, until its employment as custodian is terminated, at which time the
custodian shall return all assets of the Trust to Trustee. Notwithstanding
anything to the contrary to this Section 5(c), the custodian shall hold and
administer such assets of the Trust subject to and in accordance with this Trust
Agreement and shall not deliver any Trust assets held in any custodial account
to any person except upon the express written direction of Trustee. Each
custodian shall maintain the records and accounts and shall submit to the
appropriate persons the periodic reports otherwise required of Trustee with
respect to the portion of the Trust held by the custodian.
Trustee shall have the right and power at any time and from time to
time (i) to enter into one or more contracts with any one or more legal reserve
life insurance companies, (ii) to transfer to such insurance company such
portion of the Trust assets in accordance with the terms of any such contract,
and (iii) to hold any such contract as part of the Trust. Trustee shall have
the right and power at any time and from time to time, in its sole discretion,
to (i) request any information from any such insurance company necessary or
appropriate to perform its duties under this Trust Agreement, or (ii) amend,
modify or terminate any such contract. The Trustee shall not exercise any of
the foregoing powers, rights or privileges except at the direction of Xxxxxx.
In all respects any insurance company issuing any contract as described above
shall deal with the Trustee as the absolute owner of any such contract and shall
not be required to inquire as to the authority of the Trustee to act with regard
to such contract. Any such insurance company may accept and rely upon any
written notice, instruction, direction, certificate or other communication from
the Trustee which is signed by an officer of the Trustee.
Xxxxxx shall have the right and power at anytime 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 Xxxxxx in a non-fiduciary
capacity without the approval or consent of any person in a fiduciary capacity.
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Section Disposition of Income.
----------------------
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested.
Section Accounting by Trustee.
----------------------
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
Xxxxxx and Trustee. Within 30 days following the close of each calendar year
and within 30 days after the removal or resignation of Trustee, Trustee shall
deliver to Xxxxxx 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 Responsibility of Trustee.
--------------------------
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 Xxxxxx which is contemplated by, and in conformity with,
the terms of the Plan or this Trust and is given in writing by Xxxxxx event of a
dispute between Xxxxxx and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
With the prior written consent of Xxxxxx, Trustee may consult with
legal counsel (who may also be counsel for Xxxxxx generally) with respect to any
of its duties or obligations hereunder.
With the prior written consent of Xxxxxx, 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.
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.
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.
Indemnification. In consideration of Trustee's agreeing to enter into
---------------
this Trust Agreement, Xxxxxx hereby agrees to hold harmless Prudential Trust
Company, as Trustee under this Trust Agreement, and its directors, officers, and
employees, from and against all amounts, including without limitation taxes,
expenses (including reasonable counsel fees), liabilities, claims, damages,
actions, suits or other charges, incurred by or assessed against Prudential
Trust Company, as Trustee, or its directors, officers, or employees, (i) as a
direct or indirect result of anything done in good faith, or alleged to have
been done,
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by or on behalf of Prudential Trust Company in reliance upon the directions of
Xxxxxx, or any person or committee authorized to act on behalf of Xxxxxx, or
anything omitted to be done in good faith, or alleged to have been omitted, in
the absence of such directions or (ii) as a direct or indirect result of the
failure of Xxxxxx or any person or committee (other than the Trustee, its agents
or affiliates, or its or their employees, directors or officers) to adequately,
carefully or diligently discharge its responsibilities under the Plan, this
Trust Agreement, or applicable Department of Labor or Treasury regulations or
rulings. Xxxxxx further agrees that the undertakings made by it in this Section
8(f) shall be binding on its successors or assigns and shall survive
termination, amendment or restatement of this Trust Agreement, or the
resignation or removal of the Trustee.
Section Compensation and Expenses of Trustee.
-------------------------------------
Xxxxxx shall from time to time pay taxes of any and all kinds
whatsoever which at any time are lawfully levied or assessed upon or become
payable in respect of the Trust, the income or any property forming a part
thereof, or any security transaction pertaining thereto. To the extent that any
taxes lawfully levied or assessed upon the Trust are not paid by Xxxxxx, the
Trustee shall pay such taxes out of the Trust. The Trustee may contest the
validity of taxes, at the direction of, and in any manner deemed appropriate by,
Xxxxxx or its counsel, but only at Xxxxxx'x expense and only if the Trustee has
received an indemnity bond or other security satisfactory to it to pay such
expenses. Alternatively, Xxxxxx may contest the validity of any such taxes.
Xxxxxx shall pay all administrative and Trustee's fees and expenses,
including without limitation fees for services provided by persons appointed or
hired pursuant to Section 5, Section 8(b) or Section 8(c) above. If not so
paid, the fees and expenses shall be paid from the Trust.
Section Resignation and Removal of Trustee.
-----------------------------------
Trustee may resign at any time by written notice to Xxxxxx, which
shall be effective 30 days after receipt of such notice unless Xxxxxx and
Trustee agree otherwise.
Trustee may be removed by Xxxxxx on one days notice or upon shorter
notice accepted by Trustee.
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 10 days after receipt of notice of
resignation, removal or transfer, unless Xxxxxx extends the time limit.
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 successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
Section Appointment of Successor.
-------------------------
If Trustee resigns or is removed in accordance with Section 10(a) or
(b) hereof, Xxxxxx 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 Xxxxxx or the successor Trustee to evidence the
transfer.
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Section Amendment or Termination.
-------------------------
This Trust Agreement may be amended by a written instrument executed
by Trustee and Xxxxxx. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plan or shall make the Trust revocable.
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 Xxxxxx.
Section Miscellaneous.
--------------
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.
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.
This Trust Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
Any action with respect to the Plan or this Trust required or
permitted to be taken by Xxxxxx shall be by resolution of its Board of
Directors, by a duly authorized committee of its Board of Directors, or by a
person or persons authorized by resolution of its Board of Directors or such
Committee.
Until further notice from either party hereto, any notices delivered
pursuant to this Trust Agreement and all other communications shall be in
writing and shall be delivered, sent or transmitted to the persons at the
addresses and facsimile numbers set forth hereunder. All notices and other
communications shall be effective when received. The party seeking to rely on
notice having been given under this paragraph shall be responsible for
ascertaining its receipt.
For a Company or the Companies:
Xxxxxx International, Inc.
Attn: Corporate Secretary
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
Facsimile No. 000-000-0000
For Trustee:
Prudential Trust Company
Attn: Assistant Secretary
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.
This Trust Agreement between Xxxxxx Service Group, Xxxxxx and Trustee
contains the entire understanding between the parties with respect to its
subject matter and, as of the effective date of this Trust Agreement, it
supersedes and entirely replaces any and all prior agreements between Xxxxxx
Service Group and Trustee with respect to the subject matter of this Trust
Agreement.
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This Trust Agreement shall be binding upon and inure to the benefit of
the parties hereof and their heirs, successors, and assignees. This Trust
Agreement is not assignable by any party without the express written consent of
the other party.
Titles and captions used in this Trust Agreement are included for
convenience of reference only and in no way define or delimit any provisions or
otherwise alter the construction or effect.
Where the context permits, words in the masculine gender shall include
the feminine and neuter genders, the singular shall include the plural, and the
plural shall include the singular.
Each of the parties to this Trust Agreement hereby represents and
warrants that it is duly authorized and empowered to execute, deliver, and
perform this Trust Agreement.
This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all counterparts shall,
together, constitute only one agreement.
Section Effective Date.
--------------
The effective date of this Trust Agreement shall be January 1, 1999.
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IN WITNESS WHEREOF, Trustee, Xxxxxx Service Group and Xxxxxx have caused
this agreement to be signed by each of their duly authorized
representatives, as of the day and year first above written.
ATTEST XXXXXX SERVICE GROUP, INC.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------- ---------------------------------
Its: Secretary Its: Sr. Vice President - Finance
------------------------ --------------------------------
ATTEST XXXXXX INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------- ---------------------------------
Its: Secretary Its: Sr. Vice President - Finance
------------------------ --------------------------------
ATTEST PRUDENTIAL TRUST COMPANY,
as Trustee
/s/ Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------- ---------------------------------
Its: V.P. & Assistant Secretary Its: VP & Comptroller
----------------------------- -----------------
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Appendix A to
Trust under Xxxxxx International, Inc.
Supplemental Executive Retirement Plan
--------------------------------------
BT, Inc.
Xxxxxx Technology Solutions, Inc.
Xxxxxx Airport Services, Inc.
Xxxxxx Services, Inc.
Xxxxxx Service Group, Inc.
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