EXHIBIT 10.3
EXCESS BENEFIT AGREEMENT
THIS EXCESS BENEFIT AGREEMENT ("Agreement") is made and entered into as of the
_____ day of ___________, 2002, by and between DELTA AIR LINES, INC.
(hereinafter the "Company") and ______________ (hereinafter "Key Employee"):
WITNESSETH:
WHEREAS, the Company has restated the 1991 Delta Excess Benefit Plan as
the 2002 Delta Excess Benefit Plan and has restated the Delta Supplemental
Excess Benefit Plan as the 2002 Delta Supplemental Excess Benefit Plan (such
restated plans collectively referred to as the "Plans"); and
WHEREAS, in exchange for participation in the Plans, and on behalf of
himself or herself, and his or her beneficiaries and Eligible Family Members, by
execution of this Agreement, Key Employee agrees that this Agreement supersedes,
terminates and cancels any and all previous excess benefit agreements with the
Company he or she may have entered into; and
WHEREAS, Key Employee has been selected as a participant in the Plans
in accordance with their terms and has elected to participate in the restated
Plans; and
WHEREAS, Key Employee has rendered valuable service to the Company in
various executive capacities and the Company believes it is in the best interest
of the Company in seeking to assure itself of Key Employee's continued best
efforts in the future to provide for the payment of full retirement and other
benefits to or on behalf of Key Employee; and
WHEREAS, various sections of the Internal Revenue Code of 1986 (the
"Code"), including, but not limited to, Sections 79, 401(a)(4), 401(a)(17), 415,
and 505(b) restrict either: (i) compensation that may be taken into account in
determining benefits under a qualified pension plan; (ii) benefits that can be
paid from qualified pension plans; (iii) compensation that may be taken into
account in determining benefits for participants in a Voluntary Employee
Beneficiary Association ("VEBA") described in Section 501(c)(9) of the Code; or
(iv) restrict benefits that can be paid from a VEBA (such limitations
collectively or individually hereinafter referred to as the "Restrictions"); and
WHEREAS, the Company wishes to make up under nonqualified excess
benefit plans and/or this Agreement any reduction in Key Employee's retirement
income benefit, disability or survivor benefits under either the Delta
Family-Care Retirement Plan (the "Retirement Plan") or the Delta Family-Care
Disability and Survivorship Plan (the "Disability and Survivorship Plan") which
results from the Restrictions, or any other applicable laws, statutes, or
regulations which restrict in any way the benefits that can be paid from a VEBA
or qualified pension plan; and
WHEREAS, the Board of Directors of the Company has authorized
post-retirement life insurance benefits for senior officers in excess of the
coverage provided to other employees of the Company through the Basic Lump Sum
Death Benefit under the Disability and Survivorship Plan; and
WHEREAS, certain restrictions imposed by the Tax Equity and Fiscal
Responsibility Act of 1982 ("TEFRA") prohibit the Company from providing
post-retirement life insurance benefits to officers in excess of that provided
to other employees of the Company; and
WHEREAS, the Company wishes to make up any such loss of group life
insurance coverage for Key Employee which cannot be provided because of the
TEFRA restrictions; and
WHEREAS, to the extent Key Employee's benefits under this Agreement
exceed a threshold amount as provided in Section 10 hereof and Key Employee
establishes a grantor trust to which the Company makes contributions, the
Company wishes to provide for reduction of payments from the Plans to Key
Employee, his or her Eligible Family Members or Contingent Annuitant to account
for payments from such trust;
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Requirements Not Applicable. The parties specifically
acknowledge that this Agreement and Key Employee's participation in the 2002
Delta Supplemental Excess Benefit Plan is unfunded and exempt from certain
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA")
including, but not limited to, parts 2, 3 and 4 of Subtitle B of Title 1 of
ERISA, and is also subject to limited reporting and disclosure requirements of
part 1 of Subtitle B of Title 1 of ERISA. The parties further acknowledge that
the 2002 Delta Excess Benefit Plan is an "excess benefit plan" as defined in
section 3(36) of ERISA and is unfunded and not subject to any provision of
ERISA.
2. Incorporation of the Retirement Plan and the Disability and
Survivorship Plan. The terms of the Retirement Plan and the Disability and
Survivorship Plan (both as amended through July 1, 2002) are hereby incorporated
into this Agreement by reference, except that changes in those plans which
reduce benefits (other than changes as may be required by law and the reduction
or elimination of the right, if any, to receive post retirement benefit
increases from the Retirement Plan solely as the result of increases in the
qualified plan payment limit under Section 415(b) of the Code, whether such
increases are the result of cost of living adjustments or statutory change)
shall be incorporated as to Key Employee only if advance notice of such proposed
reduction is given to the Key Employee and the Key Employee agrees to an
amendment of this Agreement to incorporate the benefit reduction. The
incorporation of the Retirement Plan and the Disability and Survivorship Plan is
not intended to modify any provision of this Agreement, and the benefits
provided hereunder shall be governed only by the provisions hereof and the
Plans. Unless indicated otherwise, capitalized terms used in this Agreement
shall have the meaning given those terms in the Retirement Plan and Disability
and Survivorship Plan.
- 2 -
For purposes of this Agreement, "Committee" shall mean the Personnel and
Compensation Committee of the Company's Board of Directors.
3. Supplemental Retirement Income. Subject to Sections 8 and 18,
the Company agrees to pay Key Employee, or, in the event of Key Employee's
death, Key Employee's Spouse (or Contingent Annuitant, if applicable) at the
time and in the manner set forth below, supplemental retirement income
("Supplemental Retirement Income") equal to (a) minus (b) where
(a) equals the amount of Early, Normal or Deferred
Retirement income benefit or deferred vested pension
benefit (whichever is appropriate) payable in the
form provided under the Retirement Plan (but ignoring
any election of the Level Income Option provided
under the Retirement Plan) which Key Employee would
receive or survivor benefit which his or her Spouse
(or Contingent Annuitant, if applicable) would
receive under the Retirement Plan beginning on the
Benefit Commencement Date (as defined below in
Section 6) if the Restrictions as reflected in the
Retirement Plan and the Code were not in effect;
(b) equals the Early, Normal or Deferred Retirement
benefit, or deferred vested pension benefit
(whichever is appropriate) payable in the form
provided under the Retirement Plan (but ignoring any
election of the Level Income Option provided under
the Retirement Plan) which Key Employee actually
receives or survivor benefit which his or her Spouse
(or Contingent Annuitant, if applicable) actually
receives under the Retirement Plan beginning on the
Benefit Commencement Date;
For purposes of determining benefits under (a) and (b) above, any
Qualified Domestic Relations Order ("QDRO") will be taken into account, such
that the total benefits payable hereunder will not exceed those which would be
payable absent the QDRO.
The amount of Supplemental Retirement Income paid under this Agreement
prior to January 1, 2004 will be adjusted when and if the amount in (b) above
increases or decreases as a result of a change in the Restrictions, including
cost of living adjustments to such Restrictions.
If the Benefit Commencement Date with respect to the Supplemental
Retirement Income occurs prior to January 1, 2004, the Supplemental Retirement
Income will be paid as a monthly annuity in accordance with the Plans and the
Retirement Plan until January 1, 2004; provided, however, that regardless of the
Benefit Commencement Date, any Supplemental Retirement Income benefit paid on or
after January 1, 2004 will be paid in cash as a lump sum (the "SRI Lump Sum") as
soon as practicable following the first day of the first month immediately
following the later of (i) the month in which the termination of Key Employee's
employment occurs by retirement or otherwise, or (ii) the month in which Key
Employee's 52nd birthday occurs. If Key Employee terminates employment prior to
age 52, he or she shall not be eligible
- 3 -
for further increases in his or her Supplemental Retirement Income due to
increase in age past age 52. The SRI Lump Sum shall be the present value of the
remaining Supplemental Retirement Income. For purposes of determining the SRI
Lump Sum, the Committee will apply the following assumptions:
(1) a gender specific mortality factor using the 1994
Group Annuity Reserving Table which is the product of
the 1994 Group Annuity Valuation Table Task Force.
("GAR 94");
(2) an annual interest rate of 4.8%; and
(3) if Key Employee is married, the actual age of the
spouse, and if Key Employee selected a Contingent
Annuitant Option under the Retirement Plan, the
actual age of the contingent annuitant.
If the Internal Revenue Service (the "IRS") discontinues using GAR 94
to determine the present value of benefits under Section 417(e)(3) of the Code,
the Committee may, in its sole discretion, substitute the mortality table
selected by the IRS to determine such value in place of GAR 94. The Committee
may, in its sole discretion, revise in a reasonable manner the interest rate
assumption in (2) above if substantial increases or decreases (e.g. - 150 basis
points) with respect to commonly used benchmarking rates (e.g. - municipal
bonds) have occurred since the date of this Agreement).
In addition, the amount of any Supplemental Retirement Income, and
following January 1, 2004, the amount of any SRI Lump Sum, will be reduced by
the Offset Amount. For purposes of this Agreement, the "Offset Amount" shall
mean an amount, calculated as of the date of payment, equal to (A) divided by
(B) where
(A) equals the actual balance in Key Employee's Employee
Grantor Trust (as such trust is described in Section
10) as of such payment date, and
(B) equals (i) 1 minus (ii) the applicable Post
Retirement Tax Rate for Key Employee as described in
Section 10.
For this purpose, the balance in Key Employee's Employee Grantor Trust shall be
the actual amount in such trust; provided however, if the amount in the trust is
reduced as the result of payment of a QDRO, or if Key Employee has at any time
made a withdrawal or received a distribution from such trust other than a Tax
Distribution Withdrawal (as defined in Section 10), or a Special Distribution
pursuant to Section 2.4 of Key Employee's Grantor Trust Agreement (a "Special
Distribution"), then the balance in Key Employee's Employee Grantor Trust shall
be deemed to be the sum of (x) the actual amount in such trust, (y) the amount
of any withdrawal from such trust, other than a Tax Distribution Withdrawal or a
Special Distribution, and (z) all Deemed Earnings (as defined in Section 10)
with respect to any particular distribution or withdrawal other than a Tax
Distribution Withdrawal or Special Distribution. In the event of a
- 4 -
Tax Distribution Withdrawal, a Special Distribution or the reduction of the
Trust Balance (as defined in Key Employee's Grantor Trust Agreement) as the
result of payment of any Trustee fees, the balance in Key Employee's Grantor
Trust shall in no event be deemed to include the amount of such distributions or
payment.
4. Supplemental Disability Income. Subject to Sections 8 and 18,
the Company agrees to pay Key Employee at the time set forth below a
supplemental monthly disability income ("Supplemental Disability Income") equal
to (a) minus (b), where
(a) equals the monthly disability benefit which the Key
Employee would receive under the Disability and
Survivorship Plan beginning on the Benefit
Commencement Date (as defined below in Section 6) if
the Restrictions were not in effect and taking into
account his or her elections under the Delta Air
Lines, Inc. DELTAFLEX Plan; and
(b) equals the monthly disability benefit which the Key
Employee actually receives from the Disability and
Survivorship Plan beginning on the Benefit
Commencement Date, taking into account his or her
elections under the Delta Air Lines, Inc. DELTAFLEX
Plan.
The amount of Supplemental Disability Income paid under this Agreement
will be adjusted as permitted under the Plan and if the amount in (b) above
increases or decreases as a result of a change in the Restrictions.
In addition, on the first day of the first month following or
coincident with the earlier of Key Employee's retirement or 62nd birthday, the
amount of any Supplemental Disability Income payment will be reduced by the
Offset Amount as of the date of payment; provided, however, that if the
remaining Offset Amount is greater than the amount of the next Supplemental
Disability Income payment, then the next and all subsequent payments of
Supplemental Disability Income (if any) shall not be paid until the sum of such
payments exceeds the Offset Amount.
5. Supplemental Monthly Survivor Income. Subject to Sections 8
and 18, the Company agrees to pay to Eligible Family Member(s) (as defined in
the Disability and Survivorship Plan) of Key Employee at Key Employee's death a
supplemental monthly survivor income ("Supplemental Survivor Income") equal to
(a) minus (b), where
(a) equals the monthly survivor benefit which the
Eligible Family Member(s) of Key Employee would
receive under the Disability and Survivorship Plan
beginning on the Benefit Commencement Date (as
defined below) as if the Restrictions were not in
effect; and
- 5 -
(b) equals the monthly survivor benefit to which the
Eligible Family Member(s) of Key Employee actually
receives under the terms of the Disability and
Survivorship Plan.
The amount of Supplemental Survivor Income paid under this Agreement
will be adjusted as permitted under the Plan and the Code to account for, inter
alia, changes in the number of Eligible Family Members.
If Key Employee's death occurs prior to retirement, the amount of any
Supplemental Survivor Income payment will be reduced by the Offset Amount as of
the date of payment; provided, however, that if the remaining Offset Amount is
greater than the amount of the next Supplemental Survivor Income payment, then
the next and all subsequent payments of Supplemental Survivor Income (if any)
shall not be paid until the sum of such payments exceed the Offset Amount. If
Key Employee's death occurs after retirement, the Supplemental Monthly Survivor
Income will be reduced by 50% of the Supplemental Retirement Income, determined
prior to conversion of the Supplemental Retirement Income into the SRI Lump Sum.
6. Benefit Commencement Date; Cessation of Benefits. Subject to
Section 18, the Company shall commence payment of the Supplemental Retirement
Income as of the Benefit Commencement Date under the Retirement Plan and the
Supplemental Disability or Survivor Income as of the Benefit Commencement Date
under the Disability and Survivorship Plan. Subject to Section 18, Benefit
Commencement Date under this Agreement shall mean the day that the retirement
income benefit, disability benefit or survivor benefit, as the case may be,
commences under the Retirement Plan or Disability and Survivorship Plan with
respect to Key Employee or his or her Spouse, or Eligible Family Member(s).
If payment of Supplemental Retirement Income to Key Employee has
commenced prior to January 1, 2004, and prior to such Supplemental Retirement
Income being paid as a SRI Lump Sum, the last of Key Employee or, if applicable,
his or her Spouse or contingent annuitant dies, or if changes in the
Restrictions permit the full benefit due under the Retirement Plan to be paid
from the Retirement Plan and the Retirement Plan assumes such full payment, or
if full payment of retirement or retirement benefits due hereunder have already
been made, the Supplemental Retirement Income will cease at such time.
Supplemental Disability Income will cease if the full benefit due under
the Disability and Survivorship Plan may be paid from that Plan and the
Disability and Survivorship Plan assumes such full payment or when the Key
Employee is no longer eligible for disability benefits under that Plan.
Supplemental Survivor Income will cease if the full benefit due under
the Disability and Survivorship Plan may be paid from that plan, and the
Disability and Survivorship Plan assumes full payment of the benefit amount or
when there are no remaining Eligible Family Member(s) under that Plan. Subject
to Section 18, all benefits payable hereunder may cease pursuant to Section 8 at
any time.
- 6 -
7. Supplemental Lump Sum Death Benefit. Subject to Sections 8 and
18, the Company agrees to pay to the named beneficiary (as designated by Key
Employee for the Basic Life Benefit under the Disability and Survivorship Plan)
of Key Employee at Key Employee's death, a supplemental lump sum death benefit
in the amount necessary to provide a total lump sum death benefit of $50,000
when combined with the Basic Life Benefit actually provided by the Disability
and Survivorship Plan.
8. Certain Restrictions. Subject to Section 18, or unless waived
by the Committee under circumstances the Committee deems appropriate, if a Key
Employee terminates active employment with the Company prior to his or her
Normal Retirement Date and within two years of such termination directly or
indirectly provides management or executive services (whether as a consultant,
advisor, officer or director) to any Person (as defined in Section 18) who is in
direct and substantial competition with the air transportation business of the
Company or any of its subsidiaries, then
(a) if benefits under this Agreement shall have not yet
commenced, no benefits shall be paid under this
Agreement to such Key Employee, his or her Spouse,
Eligible Family Member or beneficiary;
(b) if benefits under this Agreement have commenced, no
further benefits under this Agreement shall be paid;
(c) if benefits under this Agreement shall have not yet
commenced, and if the Key Employee has established an
Employee Grantor Trust, within 30 days after the
Committee makes a determination hereunder, the Key
Employee, or his or her Spouse, shall repay the
Company in cash an amount equal to the Liquidated
Damages (as defined below); and
(d) if benefits under this Agreement have commenced, and
if the Key Employee has established an Employee
Grantor Trust, within 30 days after the Committee
makes a determination hereunder, the Key Employee, or
his or her Spouse, shall repay the Company in cash an
amount equal to the Liquidated Damages less the
present value as of the date of repayment of the
benefits already paid under this Agreement.
For purposes of this Section 8, "Liquidated Damages" shall mean the sum
of (A) and (B) where
(A) equals the sum of (x) all contributions (if any) made
by the Company to such trust, and (y) all related
amounts with respect to such contributions withheld
by the Company for the purpose of satisfying tax
withholding requirements; and
- 7 -
(B) equals the amount that would have been earned with
respect to such contributions had such amounts been
invested in an interest-bearing account, compounded
annually, using an annual interest rate equal to the
sum of (i) the prime rate as published in the Wall
Street Journal on the date such contribution was made
to the trust and (ii) 2%.
Because of the broad and extensive scope of the Company's air
transportation business, the restrictions contained in this provision are
intended to extend to management or executive services which are directly
related to the provision of air transportation services into, within or from the
United States, as no smaller geographical restriction will adequately protect
the legitimate business interest of the Company.
Key Employee acknowledges and agrees that the above provisions and the
measure of Liquidated Damages are both fair and reasonable with respect to both
parties to this Agreement and are not in the nature of a penalty.
9. Funding of Benefit. Subject to Section 18 and the offsets
described in this Agreement of amounts, if any, in Key Employee's Employee
Grantor Trust, the benefits provided by this Agreement shall be paid, to the
extent they become due, from the Company's general assets or by such other means
as the Company deems advisable, including a trust or trusts established by the
Company, provided, however, if such trusts are established, benefits shall be
payable from such trusts only as and to the extent provided therein. To the
extent Key Employee acquires the right to receive payments from the Company
under this Agreement, such right shall be no greater than that of a general
creditor of the Company. In the event that the Company in its sole discretion
establishes a reserve or bookkeeping account for the benefits payable under this
Agreement, the Key Employee shall have no proprietary or security interest in
any such reserve or account.
10. Employee Grantor Trust. If, as of January 1, 2002, or any
January 1 thereafter, Key Employee's accrued vested Supplemental Retirement
Income payable at age 62 exceeds the sum of $10,000 per year, the Company may,
in the sole discretion of the Committee, contribute cash payments to a "grantor
trust" (as such trust is described in Subpart E of Part I of Subchapter J of
Chapter 1 of Subtitle A of the Code) established by Key Employee (an "Employee
Grantor Trust"). The Company will make such contributions to such Employee
Grantor Trust only if Key Employee enters into an Employee Grantor Trust
Enrollment Agreement with the Company and executes an Employee Grantor Trust
Agreement, a Beneficiary Designation, and a Spousal Consent (each substantially
in the form attached to this Agreement as Exhibit A, B, C, and D, respectively
and collectively the "Trust Enrollment Documents").
Notwithstanding anything contained herein to the contrary, in the event
that on or prior to April 1, 2002 Key Employee and the Company enter into the
Trust Enrollment Documents, the Company shall
- 8 -
(a) on or before May 1, 2002, contribute to Key
Employee's Employee Grantor Trust an amount in cash
equal to 60% of the After-Tax Present Value (as
defined below) of Key Employee's accrued and vested
SRI Lump Sum, as of January 1, 2002, less amounts
withheld under tax withholding requirements;
(b) on or before April 1, 2003, contribute to Key
Employee's Employee Grantor Trust an amount in cash
equal to 80% of the After-Tax Present Value of Key
Employee's accrued and vested SRI Lump Sum as of
January 1, 2003, less amounts withheld under tax
withholding requirements, less the balance of the
value of the assets held by Key Employee's Employee
Grantor Trust as of January 1, 2003; and
(c) on or before April 1, 2004, contribute to Key
Employee's Employee Grantor Trust an amount in cash
equal to 100% of the After-Tax Present Value of Key
Employee's accrued and vested SRI Lump Sum as of
January 1, 2004, less amounts withheld under tax
withholding requirements, less the balance of the
value of the assets held by Key Employee's Employee
Grantor Trust as of January 1, 2004.
Key Employee shall have the right to withdraw some or all of any amount
contributed by the Company to his or her Employee Grantor Trust during the 10
(ten) business day period immediately following the date of contribution.
Thereafter, Key Employee shall have no right to withdraw all or part of any
contribution, except for a Tax Distribution Withdrawal, as defined later in this
paragraph, or a Special Distribution, as defined in Section 2.1 of the Employee
Grantor Trust Agreement. If during such 10 day period, Key Employee actually
withdraws some or all of the amounts contributed, other than for purposes of
either paying applicable taxes resulting from such contributions or earnings on
such contributions (a "Tax Distribution Withdrawal") or for a Special
Distribution, the Company shall not be obligated to make any more contributions
to such Employee Grantor Trust under paragraphs (b) and/or (c) above of this
Section 10, and for purposes of determining the Offset Amount in accordance with
Sections 3, 4 and 5 of this Agreement, the amounts withdrawn shall be deemed to
have remained in the trust and to have been invested in an interest-bearing
account, compounded annually, using an annual interest rate equal to the sum of
(i) the prime rate as published in the Wall Street Journal on the date such
contribution was made to the trust and (ii) 2% (such amount shall be referred to
as the "Deemed Earnings").
For purposes of this Section 10, "After-Tax Present Value" shall mean
(A) divided by (B) where
(A) equals the present value of the after-tax value of
the Supplemental Retirement Income payable to Key
Employee as if he were to retire on the first day of
the first month immediately following the month in
which his or her 62nd birthday occurs, using the
assumptions stated in Section 3 (as
- 9 -
they may be revised from time to time) and an
aggregate tax rate equal to 38.9% if Key Employee's
estimated Final Average Earnings at retirement will
equal or exceed $307,050 (indexed in the same manner
as are the federal marginal individual income tax
rates) and 37.02% if Key Employee's estimated Final
Average Earnings at retirement will not exceed that
amount, as so indexed (the "Post Retirement Tax
Rate"); and
(B) equals (i) 1 minus (ii) the sum of (x) the highest
marginal rate of federal individual income tax in
effect in the calendar year in which this calculation
is to be made, (y) the highest marginal rate of
individual income tax in effect in the state and
locality of Key Employee's residence (as evidenced by
the state and locality used by the Company for
withholding with respect to Key Employee's wages) in
the calendar year in which this calculation is to be
made, net of any federal tax benefits, and (z) the
"hospital insurance" component of the Federal
Insurance Contributions Act (currently 1.45%) under
Section 3101(b) of the Code ("Medicare tax").
The Committee may appropriately revise such tax rates if the applicable
federal, state or local or Medicare tax rates change.
11. Nonassignability of Benefits. No benefit payable under this
Agreement may be assigned, transferred, encumbered or subjected to legal process
for the payment of any claim against Key Employee, his or her Spouse, Eligible
Family Member, or beneficiary.
12. No Right to Continued Employment. Nothing in this Agreement
shall be deemed to give Key Employee the right to be retained in the service of
the Company or to deny the Company any right it may have to discharge Key
Employee at any time, subject to the Company's obligation to provide benefits
and amounts as may be required hereunder.
13. Arbitration. The parties acknowledge that any claims or
controversy arising out of this Agreement are subject to arbitration in
accordance with the Plans.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without regard to
its conflict of laws rules.
15. Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of the parties hereto.
16. Amendment. This writing, including any terms or documents
incorporated herein by reference, supersedes and cancels any previous excess
benefit agreement between Key Employee and the Company. This Agreement may not
be modified orally, but only by writing signed by the parties hereto.
- 10 -
17. Notice. All notices, requests, demands and other
communications under this Agreement, shall be in writing and shall be delivered
personally (including by courier) or mailed by certified mail, return receipt
requested. Refusal to acknowledge receipt of such notice shall constitute
receipt of such notice upon the date it is returned to the sender. Any notice
under this Agreement shall be sent, as the case may be, to Key Employee, his or
her Spouse (or contingent annuitant, if applicable), Eligible Family Member or
beneficiary at the last known address of such person as reflected in the
Company's records. Notice to the Company or the Committee shall be sent to:
Delta Air Lines, Inc.
Law Department
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention:Senior Vice President - General Counsel
18. Change In Control. Notwithstanding anything in this Agreement
to the contrary, in the event a Change In Control (as defined below) occurs, the
Company shall, as of the date of such Change In Control, promptly cause to be
irrevocably deposited in Key Employee's Employee Grantor Trust all amounts
otherwise required to be contributed to such trust on or before April 1, 2004 in
accordance with Section 10.
For purposes of this Agreement, "Change In Control" means, and shall be
deemed to have occurred upon, the first to occur of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such
Person, Beneficial Ownership of securities
representing 20% or more of the combined voting power
of the Voting Stock then outstanding, unless such
Person acquires Beneficial Ownership of 20% or more
of the combined voting power of the Voting Stock then
outstanding solely as a result of an acquisition of
Voting Stock by the Company which, by reducing the
Voting Stock outstanding, increases the proportionate
Voting Stock beneficially owned by such Person
(together with all Affiliates and Associates of such
Person) to 20% or more of the combined voting power
of the Voting Stock then outstanding; provided, that
if a Person shall become the Beneficial Owner of 20%
or more of the combined voting power of the Voting
Stock then outstanding by reason of such Voting Stock
acquisition by the Company and shall thereafter
become the Beneficial Owner of any additional Voting
Stock which causes the proportionate voting power of
Voting Stock beneficially owned by such Person to
increase to 20% or more of the combined voting power
of the Voting Stock then outstanding, such Person
shall, upon becoming the Beneficial Owner of such
additional Voting Stock, be deemed to have become the
Beneficial Owner of 20% or more of
- 11 -
the combined voting power of the Voting Stock then
outstanding other than solely as a result of such
Voting Stock acquisition by the Company;
(b) During any period of two consecutive years (not
including any period prior to the Effective Date),
individuals who at the beginning of such period
constitute the Board (and any new Director, whose
election by the Board or nomination for election by
the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in
office who either were Directors at the beginning of
the period or whose election or nomination for
election was so approved), cease for any reason to
constitute a majority of Directors then constituting
the Board;
(c) A reorganization, merger or consolidation of the
Company is consummated, in each case, unless,
immediately following such reorganization, merger or
consolidation, (i) 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 of the Voting Stock outstanding
immediately prior to such reorganization, merger or
consolidation, (ii) no Person (but excluding for this
purpose any Excluded Person and any Person
beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or
indirectly, 20% or more of the voting power of the
outstanding Voting Stock) 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 (iii) 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 Board at
the time of the execution of the initial agreement
providing for such reorganization, merger or
consolidation; or
(d) The shareholders of the Company approve (i) a
complete liquidation or dissolution of the Company or
(ii) the sale or other disposition of all or
substantially all of the assets of the Company, other
than to any corporation with respect to which,
immediately following such sale or other disposition,
(A) 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
- 12 -
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 of the Voting Stock outstanding immediately
prior to such sale or other disposition of assets,
(B) no Person (but excluding for this purpose any
Excluded Person and any Person beneficially owning,
immediately prior to such sale or other disposition,
directly or indirectly, 20% or more of the voting
power of the outstanding Voting Stock) beneficially
owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common
stock of such corporation 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 such
corporation were members of the 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 the Company.
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Key Employee, if Key Employee is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as in effect
on the Effective Date, which consummates the Change in Control transaction. In
addition, for purposes of the definition of "Change in Control" a Person engaged
in business as an underwriter of securities shall not be deemed to be the
"Beneficial Owner" of, or to "beneficially own," any securities acquired through
such Person's participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such acquisition.
As used in the above definition, "Person" shall mean an individual,
corporation, partnership, association, trust or any other entity or
organization. "Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan of the
Company, any of its Subsidiaries or a Holding Company; or (v) any Person
organized, appointed or established by the Company, any of its Subsidiaries or a
Holding Company for or pursuant to the terms of any plan described in clause
(iv). "Affiliate" and "Associate" have the respective meanings accorded to such
terms in Rule 12b-2 under the Exchange Act as in effect on the Effective Date. A
Person shall be deemed the "Beneficial Owner" of, and shall be deemed to
"beneficially own," securities pursuant to Rule 13d-3 under the Exchange Act as
in effect on August 1, 1997. "Voting Stock" means securities of the Company
entitled to vote generally in the election of members of the Board. "Board"
means the Board of Directors of the Company. "Exchange Act" means the Securities
Exchange Act of 1934, as amended. "Holding Company" means an entity that becomes
a holding company for the Company or its businesses as a part of any
reorganization, merger, consolidation or other transaction, provided that the
outstanding shares of common stock of such entity and the combined voting power
of the then outstanding voting securities of such entity entitled to vote
generally in the election of directors is, immediately after such
reorganization, merger,
- 13 -
consolidation or other transaction, beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Voting Stock outstanding immediately
prior to such reorganization, merger, consolidation or other transaction in
substantially the same proportions as their ownership, immediately prior to such
reorganization, merger, consolidation or other transaction, of such outstanding
Voting Stock.
19. Waiver of Certain Increases in Restrictions. In exchange for
receiving the SRI Lump Sum, Key Employee, on behalf of himself or herself, his
or her Spouse, and if applicable, his or her Contingent Annuitant hereby waives
any and all rights, if any, to any increase in benefits following the later of
January 1, 2004 or Key Employee's retirement that would otherwise be payable
from the Retirement Plan as the result of any changes in the limits contained in
Section 415(b) of the Code, which section contains limits on the benefits that
can be paid from tax-qualified defined benefit plans, whether such increases
occur as the result of cost-of-living adjustments or statutory changes. Key
Employee acknowledges that unless such rights, if any, are waived, he or she
will be overpaid and receive a windfall from the Retirement Plan since the SRI
Lump Sum will be determined based on the Section 415(b) limits in effect at the
time of payment of the SRI Lump Sum, without any allowance for increase in such
limits. Section 11 hereof notwithstanding, if for any reason this waiver is held
to be invalid, Key Employee agrees to pay to the Company an amount equal to any
such increase in benefits under the Retirement Plan to recover this overpayment.
SIGNATURES APPEAR ON NEXT PAGE.
- 14 -
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
on the date(s) shown below.
DELTA AIR LINES, INC.
By:
---------------------------------------
Xxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
Date:
---------------------------------------
---------------------------------------
KEY EMPLOYEE
Date:
---------------------------------------
- 15 -
EXHIBIT A
EMPLOYEE GRANTOR TRUST ENROLLMENT AGREEMENT
This Employee Grantor Trust Enrollment Agreement is made and entered
into as of the ____ day of ___________, 2002 (this "Agreement"), between
______________ (the "Employee"), the person, if any, to whom the Employee is
legally married (the "Employee's Spouse"), and Delta Air Lines, Inc., a Delaware
corporation ("Delta" or "Company").
WITNESSETH
WHEREAS, the Company has established and maintains the 2002 Delta
Excess Benefit Plan and the 2002 Delta Supplemental Excess Benefit Plan (the
"Excess Benefit Plans"), which are designed to provide benefits supplemental to
those provided under the tax-qualified retirement plans maintained by the
Company (the "Qualified Plans"); and
WHEREAS, the Employee is entitled to certain benefits under one or more
of the Excess Benefit Plans; and
WHEREAS, in accordance with the terms and conditions of the Excess
Benefit Plans, the Employee and the Company have entered into an Excess Benefit
Agreement, dated as of ______________, 2002 (the "Employee's Excess Benefit
Agreement") for the purpose of providing benefits under the Excess Benefit
Plans; and
WHEREAS, the Employee's Excess Benefit Agreement permits the Employee
to establish a "grantor trust" [as such trust is described in Subpart E of Part
I of Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of
1986, as amended (the "Code")], and the Employee wishes to establish such
"Employee Grantor Trust"; and
WHEREAS, the Employee and the Company desire to enter into this
Agreement pursuant to which the Employee directs the Company to deposit certain
cash payments on behalf of the Employee directly into the Employee Grantor Trust
to be established and maintained by the Employee, the payments from which will
reduce all or some of the benefits payable under the Excess Benefit Plans;
NOW, THEREFORE, in consideration of their mutual undertakings, the
Company, the Employee, and the Employee's Spouse agree as follows:
1. Establishment and Maintenance of Grantor Trust.
1.1 The Employee agrees to establish and maintain an irrevocable
grantor trust (the "Trust") in the form attached to the Employee's Excess
Benefit Agreement as Exhibit B for the purpose of receiving and holding the cash
deposits made pursuant to this Agreement and any interest or other earnings on
the outstanding balances in the Trust.
1.2 The Employee and the Employee's Spouse agree that they (a)
will not contribute any funds to the Trust other than those contributions to be
made, directly or indirectly, by the
A-1
EXHIBIT A
Company to the Trust in accordance with the Employee's Excess Benefit Agreement;
and (b) other than during the 10-day period immediately following the date the
Company makes a contribution to the Trust, will withdraw funds from the Trust
only in accordance with the payment provisions of the Employee's Excess Benefit
Agreement, except to the extent that Trust withdrawals are necessary to pay
taxes on Trust earnings or cash deposits or pursuant to Section 2.4 of the Trust
Agreement.
2. Payments to Trust.
2.1 The Company agrees to contribute to the Trust all amounts
required to be contributed in accordance with the terms and conditions of the
Employee's Excess Benefit Agreement. The Employee agrees that the Company shall
(a) deduct federal, state and local income and employment taxes from any
contribution made to the Trust and remit such taxes to the appropriate
authorities; and (b) pay the remainder of such contribution into the Trust in
cash.
2.2 The Company may, in its sole discretion and from time to time,
make additional contributions to the Trust in addition to the contributions
required by Section 2.1 hereof. The Employee directs the Company to (a) deduct
federal, state and local income and employment taxes from such additional
contributions and remit such taxes to the appropriate authorities; and (b) pay
the remainder of such additional contributions into the Trust.
2.3 During the 10 (ten) business day period immediately following
the date the Company makes a contribution to the Trust, the Employee may, in his
or her sole discretion, withdraw from the Trust some or all of such
contribution.
3. Distributions from Trust, Benefit Payments.
3.1 The Employee and the Employee's Spouse agree that any amounts
paid from the Trust, including any Trust earnings and Deemed Earnings (as
defined in the Employee's Excess Benefit Agreement) (other than any amounts
distributed to pay taxes on Trust earnings and any Special Distribution as
defined in Section 2.4 of the Trust Agreement), shall offset the benefits
otherwise payable to them under the Excess Benefit Plans or the Employee's
Excess Benefit Agreement. The amount otherwise payable under the Excess Benefit
Plans at the relevant time to the Employee or his or her Beneficiary(ies) and
the amount of the offset will be determined in accordance with the terms and
conditions of the Employee's Excess Benefit Agreement.
3.2 The Employee and the Employee's Spouse understand and agree
that to the extent funds in the Trust are distributed to either of them in
amounts greater than, or at times earlier than, those contemplated by the
benefit payment provisions of the Excess Benefit Plans or the Employee's Excess
Benefit Agreement and by Section 3.1 hereof (a) the offsets against any amounts
otherwise payable under the Excess Benefit Plans or the Employee's Excess
Benefit Agreement will be calculated in the manner set forth in the Employee's
Excess Benefit Agreement as if the amounts so distributed had remained in the
Trust, accumulated earnings as described in the Employee's
A-2
EXHIBIT A
Excess Benefit Agreement, and been distributed at the proper time; and (b) such
offsets will discharge the Company's liability in the same manner as set forth
in such Section 3.1 hereof.
4. Tax Payments With Respect to Trust Earnings.
The Company may make payments on behalf of the Employee [or his or her
Beneficiary(ies)] to tax authorities to pay the federal, state and local income
taxes with respect to any earnings of the Trust and any income and employment
taxes as a result of the Company's payment of the Employee's taxes under this
Article 4. To the extent that the Company does not make payments sufficient to
pay such taxes, Trust income will be distributed to provide any additional
amounts required for such purpose.
5. Appointment of Delta as Agent and Administrator.
5.1 The Employee appoints Delta and such persons as Delta may
designate to act on behalf of Delta as his or her duly authorized agent for the
following purposes: (a) providing, in accordance with the duties of the
"Administrator" as set forth in the form of Trust Agreement attached to the
Employee's Excess Benefit Agreement as Exhibit B, investment guidelines and
other information and direction to the trustee of the Trust; (b) removing the
trustee and appointing a successor trustee of the Trust; (c) examining the books
and records of the Trust; and (d) amending the Trust to the extent permitted in
the Trust Agreement.
5.2 The Employee's appointment of Delta as his or her agent is
based on the Employee's special trust and confidence in Delta and its
management. In the event of a Change In Control (as defined in Section 8.5
hereof) of Delta, the Employee (or if applicable, his or her Beneficiary(ies)
may remove Delta (or its successor) and any designee of Delta as the duly
authorized agent for purposes of carrying out the actions set forth in Section
5.1 hereof by delivering to both Delta (or its successor) and the trustee of the
Trust written notice of such removal. The trustee may rely upon any notice of
removal received from the Employee without further inquiry or verification,
unless Delta (or its successor) provides to the trustee and the Employee (within
ten (10) days following the trustee's receipt of the notice of removal from the
Employee) written notice certifying that no Change In Control of Delta has
occurred, in which case the trustee will obtain, at the Company's expense, an
opinion of counsel, selected by the Employee, as to whether a Change In Control
has occurred. Following receipt of such opinion, the trustee shall determine
whether a Change In Control occurred, and the decision of the trustee in such
case shall be final. In the event of a Change In Control, the Employee may
appoint another agent to carry out the actions set forth in Section 5.1, or
assume such responsibilities and obligations himself. From and after the date on
which Delta (or its successor) ceases to serve as the duly authorized agent, the
offsets against the Company's obligations to the Employee and the Employee's
Spouse or Beneficiary(ies) under the Excess Benefit Plans shall be determined by
assuming (a) that the value of Trust assets last reported by the trustee to
Delta (or its successor) prior to such date is accumulated with earnings at a
rate equal to the interest rate then in effect
A-3
EXHIBIT A
pursuant to Section 3 of the Employee's Excess Benefit Agreement, and (b) that
all subsequent distributions from the Trust occur at the proper times and in the
proper amounts.
5.3. Delta agrees to serve as Administrator of the Trust pursuant
to Section 1.4 of the Trust Agreement attached to Employee's Excess Benefit
Agreement as Exhibit B, subject to all terms and provisions of such section and
shall pay all fees and expenses of the Trustee arising from the Trust.
6. Attachment of Trust Assets.
6.1 The Employee understands and agrees that in the event all or a
portion of the funds in the Trust are attached by court order or other legal
process or are otherwise alienated, the offset against any amounts otherwise
payable under the Excess Benefit Plans will be calculated in accordance with the
Employee's Excess Benefit Agreement as if the amount so alienated had been
withdrawn from the Trust by the Employee. To the extent that for any calendar
year or portion thereof no assets remain in the Trust, the amounts so alienated
shall be deemed to earn interest at the interest rate used to determine the
Deemed Earnings under the Employee's Excess Benefit Agreement. The Employee
agrees that the value of any amounts so alienated, and the earnings that would
have accumulated thereon, shall be offset against a like amount of benefit, and
shall discharge the Company's liability to the Employee to the extent of the
corresponding benefit otherwise payable to the Employee or his or her
Beneficiary(ies) under the Excess Benefit Plans.
6.2 The Employee's Spouse understands and agrees that should any
amounts under the Trust be assigned to her under a domestic relations order or
otherwise, the offset against any amounts otherwise payable under the Excess
Benefit Plans will be calculated in the manner set forth in Section 6.1 hereof
as if the amount so alienated had remained in the Trust, accumulated earnings,
and been distributed at the proper time. The Employee's Spouse agrees that if he
or she also claims entitlement to benefits under the Excess Benefit Plans, the
value of the amount alienated under the Trust, and the earnings that would have
accumulated thereon absent such alienation, shall be offset against a like
amount of benefit as determined in accordance with the Employee's Excess Benefit
Agreement, and shall discharge the Company's liability to the Employee and the
Employee's Spouse to the extent of the corresponding pre-tax benefit otherwise
payable to the Employee or the Employee's Spouse under the Excess Benefit Plans.
7. Termination.
7.1 This Agreement shall terminate 30 days after the date the
Trust terminates.
8. Miscellaneous.
8.1 Nothing in this Agreement shall be construed to confer upon
the Employee the right to continue in the employment of the Company, or to
require the Company to continue the employment of the Employee.
A-4
EXHIBIT A
8.2 This Agreement shall be binding upon and inure to the benefit
of the Company, its successors and assigns and the Employee or his or her
Beneficiary(ies) and the Employee's Spouse and their heirs, executors, other
successors in interest, administrators, and legal representatives.
8.3 The validity and interpretation of this Agreement shall be
governed by the laws of the State of Georgia without regard to its conflict of
laws rules.
8.4 The Employee's Beneficiary(ies) shall be determined in
accordance with the terms of the Trust Agreement pursuant to which the Trust is
maintained.
8.5 Change In Control. For the purpose of this Agreement, a
"Change In Control" shall mean, and shall be deemed to have occurred upon, the
first to occur of any of the following events:
(a) Any Person (other than an Excluded Person)
acquires, together with all Affiliates and Associates of such
Person, Beneficial Ownership of securities representing 20% or
more of the combined voting power of the Voting Stock then
outstanding, unless such Person acquires Beneficial Ownership
of 20% or more of the combined voting power of the Voting
Stock then outstanding solely as a result of an acquisition of
Voting Stock by the Company which, by reducing the Voting
Stock outstanding, increases the proportionate Voting Stock
beneficially owned by such Person (together with all
Affiliates and Associates of such Person) to 20% or more of
the combined voting power of the Voting Stock then
outstanding; provided, that if a Person shall become the
Beneficial Owner of 20% or more of the combined voting power
of the Voting Stock then outstanding by reason of such Voting
Stock acquisition by the Company and shall thereafter become
the Beneficial Owner of any additional Voting Stock which
causes the proportionate voting power of Voting Stock
beneficially owned by such Person to increase to 20% or more
of the combined voting power of the Voting Stock then
outstanding, such Person shall, upon becoming the Beneficial
Owner of such additional Voting Stock, be deemed to have
become the Beneficial Owner of 20% or more of the combined
voting power of the Voting Stock then outstanding other than
solely as a result of such Voting Stock acquisition by the
Company;
(b) During any period of two consecutive years
(not including any period prior to January 1, 2002),
individuals who at the beginning of such period constitute the
Board (and any new Director, whose election by the Board or
nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the Directors
then still in office who either were Directors at the
beginning of the period or whose election or nomination for
election was so approved), cease for any reason to constitute
a majority of Directors then constituting the Board;
A-5
EXHIBIT A
(c) A reorganization, merger or consolidation of
the Company is consummated, in each case, unless, immediately
following such reorganization, merger or consolidation, (i)
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 of the Voting Stock outstanding
immediately prior to such reorganization, merger or
consolidation, (ii) no Person (but excluding for this purpose
any Excluded Person and any Person beneficially owning,
immediately prior to such reorganization, merger or
consolidation, directly or indirectly, 20% or more of the
voting power of the outstanding Voting Stock) 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 (iii) 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 Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation; or
(d) The shareholders of the Company approve (i)
a complete liquidation or dissolution of the Company or (ii)
the sale or other disposition of all or substantially all of
the assets of the Company, other than to any corporation with
respect to which, immediately following such sale or other
disposition, (A) 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 all or substantially all of the individuals
and entities who were the beneficial owners of the Voting
Stock outstanding immediately prior to such sale or other
disposition of assets, (B) no Person (but excluding for this
purpose any Excluded Person and any Person beneficially
owning, immediately prior to such sale or other disposition,
directly or indirectly, 20% or more of the voting power of the
outstanding Voting Stock) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of such corporation 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 such corporation were members of the
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 the Company.
A-6
EXHIBIT A
Notwithstanding the foregoing, in no event shall a "Change In Control" be deemed
to have occurred (i) as a result of the formation of a Holding Company, or (ii)
with respect to Key Employee, if Key Employee is part of a "group," within the
meaning of Section 13(d)(3) of the Exchange Act as in effect on August 1, 1997,
which consummates the Change In Control transaction. In addition, for purposes
of the definition of "Change In Control" a Person engaged in business as an
underwriter of securities shall not be deemed to be the "Beneficial Owner" of,
or to "beneficially own," any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
As used in the above definition, "Person" shall mean an individual, corporation,
partnership, association, trust or any other entity or organization. "Excluded
Person" means (i) the Company; (ii) any of the Company's Subsidiaries; (iii) any
Holding Company; (iv) any employee benefit plan of the Company, any of its
Subsidiaries or a Holding Company; or (v) any Person organized, appointed or
established by the Company, any of its Subsidiaries or a Holding Company for or
pursuant to the terms of any plan described in clause (iv). "Affiliate" and
"Associate" have the respective meanings accorded to such terms in Rule 12b-2
under the Exchange Act as in effect on August 1, 1997. A Person shall be deemed
the "Beneficial Owner" of, and shall be deemed to "beneficially own," securities
pursuant to Rule 13d-3 under the Exchange Act as in effect on August 1, 1997.
"Voting Stock" means securities of the Company entitled to vote generally in the
election of members of the Board. "Board" means the Board of Directors of the
Company. "Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holding Company" means an entity that becomes a holding company for the Company
or its businesses as a part of any reorganization, merger, consolidation or
other transaction, provided that the outstanding shares of common stock of such
entity and the combined voting power of the then outstanding voting securities
of such entity entitled to vote generally in the election of directors is,
immediately after such reorganization, merger, consolidation or other
transaction, beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Voting Stock outstanding immediately prior to such
reorganization, merger, consolidation or other transaction in substantially the
same proportions as their ownership, immediately prior to such reorganization,
merger, consolidation or other transaction, of such outstanding Voting Stock.
A-7
IN WITNESS WHEREOF, the Employee, the Employee's Spouse, and Delta have caused
this Agreement to be executed as of the day and year first above written.
------------------------------------------
Signature of Employee
------------------------------------------
Signature of Employee's Spouse
Delta Air Lines, Inc.
By:
---------------------------------------
A-8
EXHIBIT B
EMPLOYEE GRANTOR TRUST AGREEMENT
THIS TRUST AGREEMENT is made and entered into as of the _____ day of
___________, 2002, (this "Trust Agreement"), between ________________________
(hereinafter the "Grantor") and SunTrust Bank (hereinafter the "Trustee").
WITNESSETH
WHEREAS, the Grantor desires to establish and maintain a trust to hold
certain cash payments actually or constructively received by the Grantor in lieu
of certain future payments the Grantor would otherwise be entitled to receive
from Delta Air Lines, Inc. (hereinafter referred to as "Delta" or "Company")
pursuant to the terms of the nonqualified supplemental benefit plans (or their
successors) specified in Schedule A annexed hereto (hereinafter referred to as
the "Plans") and the Excess Benefit Agreement between the Grantor and Delta
dated _________________(or its successor)(the "Excess Benefit Agreement");
WHEREAS, the trust established by this Trust Agreement is intended to
be an irrevocable grantor trust established by the Grantor, with the result that
the corpus and income of such trust will be treated for tax purposes as assets
and income of the Grantor pursuant to Sections 671 through 679 of the Internal
Revenue Code of 1986, as amended (the "Code");
WHEREAS, the Grantor has entered into certain agreements with the
Company specifying the manner and extent to which amounts he or she will receive
as payments from the Trust Fund (as defined below) reduce the payments he or she
would otherwise be entitled to receive pursuant to the terms of the Plans or
from other arrangements with the Company; and
WHEREAS, the Grantor has appointed Delta to act as his or her agent in
connection with certain matters pertaining to the administration of the Trust
Fund;
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the Grantor hereby conveys and assigns to the Trustee, and the
successors or assigns of the Trustee, the sum of one dollar ($1.00), the receipt
of which is hereby acknowledged by the Trustee, to have and to hold the said sum
together with any additions thereto upon the following express trust and with
the powers, authorities and discretions hereinafter conferred:
ARTICLE 1
ESTABLISHMENT OF TRUST
1.1 Establishment of Trust. The Grantor hereby establishes with
the Trustee an irrevocable (except as set forth in Section 1.3 hereof) grantor
trust (the "Trust") from which payments will be made to the Grantor. The trust
so established shall be governed by the terms and conditions of this Trust
Agreement. The Trust evidenced by this Trust Agreement may be referred to as the
"________________ Employee Grantor Trust."
B-1
EXHIBIT B
1.2 The Trust Fund. The Trust Fund shall consist of such sums of
money and other property acceptable to the Trustee as from time to time shall be
paid or delivered to or held by the Trustee. Neither the Company nor the Grantor
shall have any right to direct the Trustee to return or divert any assets of the
Trust Fund before the payment of all Trust obligations with respect to the
Grantor. The Trust Fund shall be held by the Trustee and shall be dealt with in
accordance with the provisions of this Trust Agreement. All money and other
property delivered to the Trustee, all investments and reinvestments made
therewith or proceeds thereof, and all earnings and profits thereon, less all
payments and charges authorized herein are herein referred to as the "Trust
Fund." In addition, as of any date, the Trust Fund shall mean all property held
as of such date by the Trustee under this Trust Agreement.
1.3 Status of the Trust. The Trust shall be irrevocable until such
time as the Grantor (or, in the event of the Grantor's death, the Grantor's
Beneficiaries, as defined in Section 6.8 hereof) and the Administrator provide
written certification to the Trustee that all obligations of the Company to the
Grantor and his or her Beneficiaries under the Excess Benefit Agreement have
been satisfied. The Trust is intended to constitute a grantor trust under which
the Grantor is treated as grantor and owner pursuant to Sections 671 through 679
of the Code, and shall be construed accordingly. Neither the Company nor any
person other than the Grantor and, in the event of the Grantor's death, the
Grantor's Beneficiaries, and the Trustee acting as such, have any right, title
or interest in the assets of the Trust Fund. The assets of the Trust Fund shall
at no time be subject to the rights of creditors of the Company.
1.4 The Administrator. Delta shall be the "Administrator" for
purposes of this Trust and shall have certain powers, rights and duties under
this Trust Agreement as described below; provided that, Delta may from time to
time designate a person or persons to act as the Administrator on its behalf or
to carry out certain duties of the Administrator. Delta will certify in writing
to the Trustee from time to time the person or persons authorized to act on
behalf of Delta as the Administrator. The Trustee may rely on the latest
certificate received without further inquiry or verification. Notwithstanding
any provision herein, in the event of a Change In Control of Delta (as defined
in the most recently executed Employee Grantor Trust Enrollment Agreement
entered into by Delta or the Company and the Grantor), the Grantor may remove
Delta (or its successor) and any designee of Delta as Administrator by
delivering to both Delta (or its successor) and the Trustee written notice of
such removal. The Trustee may rely upon any notice of removal received from the
Grantor without further inquiry or verification, unless Delta (or its successor)
provides to the Trustee (within ten (10) days following the Trustee's receipt of
the notice of removal from the Grantor) written notice certifying that no Change
In Control of Delta has occurred, in which case the Trustee will obtain, at the
Company's expense, an opinion of counsel, selected by the Grantor, as to whether
a Change In Control has occurred. Following receipt of such opinion, the Trustee
shall determine whether a Change In Control occurred, and the decision of the
Trustee in such case shall be final. In the event the Grantor removes Delta as
Administrator, the Grantor shall appoint a successor Administrator, who may be
the Grantor, a committee of persons including the Grantor, or such other person
or persons as shall be reasonably acceptable to the Trustee, and shall notify
the Trustee of the appointment. In such
B-2
EXHIBIT B
event, the Grantor shall also have the authority to, from time to time, remove
the person or persons so appointed and appoint such other person or persons as
shall be reasonably acceptable to the Trustee.
1.5 Acceptance. The Trustee accepts the Trust Fund established
under this Trust Agreement, agrees to discharge and perform fully and faithfully
all of the duties and obligations of the Trustee hereunder, agrees to accept
funds delivered to it on behalf of the Grantor, and agrees to hold such funds
(and any proceeds from the investment of such funds) in trust in accordance with
this Trust Agreement; provided that the Trustee reserves the right to determine
whether to accept the transfer of any property other than cash proposed to be
transferred to it.
ARTICLE 2
DISTRIBUTION OF THE TRUST FUND
2.1 Payment.
(a) The Trustee shall hold, manage, invest and reinvest the Trust
Fund, shall collect the income therefrom and, after deducting all proper
charges, shall pay or apply to or for the benefit of the Grantor (or, in the
event of the Grantor's death, the Grantor's Beneficiaries) the net income and
principal of the Trust Fund as set forth in Section 2.1(b) and 2.1(c) below.
(b) If either (i) Grantor retires or dies prior to January 1,
2004, or (ii) Grantor's employment is terminated prior to January 1, 2004 by
reason other than retirement or death, and Grantor is at least age 52 at the
time of termination, or will reach age 52 by January 1, 2004, then through
January 1, 2004, the Trustee shall make payments from the Trust in accordance
with a schedule of payments provided to the Trustee by the Administrator at the
time of Grantor's retirement, death or termination of employment which schedule
shall be the monthly annuity, determined on an after tax basis, referenced in
either Section 3 or 5 , as applicable, of the Excess Benefit Agreement. As soon
as practicable after January 1, 2004, the remaining principal of the Trust Fund,
together with any undistributed income on hand and accrued income, (such total
amount referred to as the "Trust Balance") shall be distributed in one lump sum
to the Grantor, if he or she is then living, or to the Beneficiaries if the
Grantor's death occurs prior to that date. If Grantor terminates employment with
the Company prior to January 1, 2004 for reasons other than death or retirement,
and Grantor will not reach his 52nd birthday by January 1, 2004, the Trustee
shall pay the Trust Balance to Grantor (or his Beneficiary, in the event of
Grantor's death after termination of employment, but prior to his 52nd birthday)
in one lump sum as soon as practicable after his 52nd birthday, (or the date he
would have reached age 52).
(c) If Grantor is still employed with the Company on January 1,
2004, Trustee shall pay the Trust Balance in one lump sum to the Grantor, or his
or her Beneficiaries, as the case may be, at the earlier of (a) or (b), where
(a) is the date of the Grantor's death, and (b) is the later of either (i) the
date of the Grantor's retirement or other termination of employment with the
Company on
B-3
EXHIBIT B
or after age 52; or (ii) if the Grantor's employment with the Company terminates
prior to age 52, the Grantor's 52nd birthday.
(d) The Administrator shall notify the Trustee of the Grantor's
retirement from the Company. The Administrator shall be responsible for
providing the Trustee with all necessary information as to the Grantor's current
address, beneficiary designations, and the form in which payments are to be
made. The Trustee shall incur no liability to the Grantor or any other person
interested in the Trust Fund for any action or any omission in reliance upon
information provided by the Administrator.
2.2 Tax Distributions. The Trustee shall also distribute to the
Grantor at least annually such amount(s), if any, as the Administrator may
certify to the Trustee is (are) necessary to pay tax obligations of the Grantor
resulting from earnings on the Trust Fund or from additional amounts actually or
constructively received by the Grantor from the Company and contributed to the
Trust Fund. All income not so paid or applied shall be accumulated and added to
principal of the Trust Fund.
2.3 Withdrawal of Company Contributions. The Grantor may, within
ten (10) business days of any contribution to the Trust by the Company, make
demand upon the Trustee to distribute to the Grantor all or part of such
contribution. If such demand is made, Trustee shall make such distribution
within three business days, and pay such amounts as directed by the Grantor.
2.4 Special Distribution. If (i) any contribution to the Trust is
avoided under any provision of the federal Bankruptcy Code; (ii) return of such
amount is demanded of Grantor by the bankruptcy trustee; and (iii) Grantor is
legally required to pay such amount, then the Trustee shall make a distribution
to Grantor or pay the bankruptcy trustee on behalf of the Grantor an amount
equal to the amount required to be paid by Grantor.
2.5 Termination. The Trust shall terminate as of the date all
Trust Fund assets have been distributed in accordance with Section 2.1 hereof.
2.6 Notice of Dispute. The Trustee shall make payments pursuant to
Section 2.1 hereof. If the Grantor or his or her estate or beneficiary does not
receive a payment to which such party believes he, she, or it is entitled under
the Trust, such party shall notify the Trustee, in writing, of such entitlement.
The Trustee shall, within ten (10) days after receipt of such notice, forward a
copy of such notice to the Administrator and the Company. If neither the
Administrator nor the Company notifies the Trustee within ten (10) days after
the Trustee's receipt of such notice that the party disputes the claim, the
Trustee shall make payment under the terms of the Trust as soon as practicable
and, in any event, within thirty (30) days after the expiration of said ten (10)
day notice period. The Trustee shall provide the parties with written
confirmation of the fact and amount of such payment after it is made.
B-4
EXHIBIT B
2.7 Resolution of Disputes. If the Administrator or the Company
notify the Trustee within said ten (10) day notice period that the party
disputes the claim, then, within thirty (30) days after receipt by the Trustee
of such notice, the Trustee shall commence an action or proceeding in a court of
competent jurisdiction in the nature of an interpleader so that the dispute may
be resolved. Such action or proceeding shall be commenced in the federal or
state court at the situs of the Trust Fund, subject to removal by any party in
accordance with the rules of practice applicable thereto.
ARTICLE 3
THE TRUSTEE
3.1 Successor. Any corporation resulting from any merger,
conversion, reorganization or consolidation to which any corporation acting as
Trustee hereunder shall be a party, or any corporation to which shall be
transferred all or substantially all of any such corporation's trust business,
shall be the successor of such corporation as Trustee hereunder, without the
execution or filing of any instrument or the performance of any further act and
shall have the same powers, authorities and discretions as though originally
named in this Trust Agreement.
3.2 Resignation; Removal. The Trustee may resign by giving ninety
(90) days' advance written notice to the Grantor and the Administrator. The
Administrator, as agent for the Grantor, may remove a Trustee by giving ninety
(90) days' advance written notice to the Trustee and the Grantor. The
Administrator may appoint a successor Trustee by written notice signed by the
Administrator and delivered to the Trustee and the Grantor (or, in the event of
the Grantor's death, his or her Beneficiaries). If a successor Trustee is not
appointed within ninety (90) days of the Trustee's resignation, the Trustee may
apply to a court of competent jurisdiction for the appointment of a successor.
3.3 Compensation. The Trustee shall be entitled to such
compensation for its services in any fiduciary capacity hereunder as the
Administrator, as agent for the Grantor, or the Grantor, and the Trustee may
from time to time agree, including minimum fees and additional compensation for
special investments and services, notwithstanding that such stipulated
compensation shall be no greater than that now in effect or than that provided
from time to time under applicable law, and such compensation and reimbursement
for reasonable expenses may be paid at any time without court approval. Such
compensation shall be paid from the Trust Fund to the extent that it is not paid
by the Administrator or the Grantor.
3.4 No Security. No bond or other security shall be required of
any trustee in any jurisdiction, whether for the faithful performance of duties,
to secure payment of commissions in advance or otherwise, and if,
notwithstanding this express direction, any such bond or security shall be
required by any law, statute or rule of court, no surety shall be required
thereon.
B-5
EXHIBIT B
ARTICLE 4
TRUSTEE REPORTING
4.1 Reports. The Trustee shall furnish the Administrator with
statements of transactions in the Trust and statements of the market value of
the Trust Fund at least monthly, and the Administrator and the Grantor with a
statement of trust investments including the market value thereof at least
annually. The failure of both the Grantor and the Administrator to object to any
matter contained in such statements by written notice signed by either the
Grantor or the Administrator within ninety (90) days after receipt of the same
shall constitute the Grantor's assent to such statements and shall be final and
binding as to all matters contained in such statements upon the Grantor, the
Administrator as agent for the Grantor, and all persons, whether or not in
being, interested in the Trust Fund. In addition, the Grantor may execute a
release, with or without an account, approving the administration of the Trust.
A release shall discharge the Trustee from any accountability and liability to
the Grantor, the Grantor's legal representatives, or any persons, whether or not
in being, interested in the Trust Fund, with the same effect as if the account
of the Trustee were judicially settled and allowed.
4.2 Information. The Trustee shall also furnish the Administrator
or the Grantor with such other information relating to the actual or estimated
income of the Trust Fund, including the character of such income, and to
estimated taxes resulting from such income as the Trustee and the Administrator
may from time to time agree is necessary or desirable to assure appropriate
reporting and payment of taxes by or on behalf of the Grantor.
4.3 Right to Examine. The Grantor and the Administrator, or such
persons as may be designated by them, shall at any time upon five (5) days'
advance written notice to the Trustee have the right to examine, during the
normal business hours of the Trustee, all books and records of the Trustee
pertaining to the Trust Fund.
ARTICLE 5
INVESTMENT AND ADMINISTRATIVE AUTHORITY
5.1 Powers. In addition to any powers conferred by law, the
Trustee shall have the following powers, authorities and discretions with
respect to any property, real or personal, at any time held under any provision
hereof and may exercise the same with sole and absolute discretion and without
the order or approval of any court, and the Grantor intends that such powers,
authorities and discretions (including the following) be construed in the
broadest possible manner:
(a) To retain any such property without regard to the
proportion any such property or similar property held may bear to the
entire amount held and without any obligation to diversify the same,
whether or not the same is of the kind in which fiduciaries are
authorized by law or any rule of court to invest funds;
B-6
EXHIBIT B
(b) To sell, transfer or exchange any such property upon
such terms and conditions as may be deemed advisable, at public or
private sale, for cash or on credit for such period of time as may be
deemed advisable, or partly for cash and partly on credit, and with or
without security, without obligation to "test the market" by soliciting
offers from a third party or to obtain an appraisal to establish the
value thereof; and the purchaser of such property shall have no
obligation to inquire as to the use or application of the proceeds of
sale; to exchange any property held hereunder upon such terms and
conditions as may be deemed advisable; and to grant warranties,
guaranties, indemnities or options with respect to any of the foregoing
without regard to the duration of any trust or any time limitation
imposed by law;
(c) To invest and reinvest in and to acquire, by
purchase, exchange or otherwise, property of any character whatsoever,
foreign or domestic, or interests or participations therein, including
by way of illustration and not of limitation: real property, mortgages,
bonds, notes, debentures, certificates of deposit, options, puts,
calls, warrants, partnerships, common and preferred stocks, shares or
interests in investment trusts, mutual funds or common trust funds
(including, without limitation, common trust funds maintained by a
corporate fiduciary and other trusts or funds with respect to which the
Trustee or its affiliates acts as investment advisor or custodian or
provides other services), annuity contracts, futures contracts, forward
contracts, short sales and swap contracts; provided such investments
may be made without regard to the proportion any such property or
similar property held may bear to the entire amount held and without
any obligation to diversify, whether or not the same is of the kind in
which fiduciaries are authorized by law or any rule of court to invest
funds;
(d) To participate in and to consent to any plan of
reorganization, recapitalization, consolidation, merger, combination,
dissolution, liquidation or other similar plan and any action
thereunder, including by way of illustration and not of limitation to
receive and retain property under any such plan whether or not the same
is of the kind in which fiduciaries are authorized by law or any rule
of court to invest funds;
(e) To deposit any Trust Fund property with any
protective, reorganization or similar committee, to delegate
discretionary power to any such committee, and to pay part of the
expenses and compensation of any such committee and any assessments
levied with respect to any property so deposited;
(f) To commence or defend suits or legal proceedings and
to represent the Trust in all suits or legal proceedings and to settle,
compromise, or submit to arbitration and claims, debts, or damages due
or owing to or from the Trust;
(g) To exercise all conversion, subscription, voting and
other rights of whatsoever nature pertaining to any such property and
to grant proxies, discretionary or otherwise, with respect thereto; to
appoint voting trustees under voting trust agreements
B-7
EXHIBIT B
and to delegate to such voting trustees the power to vote and all other
powers, authorities and discretions usually conferred upon trustees
under voting trust agreements;
(h) To borrow such sums of money at any time and from
time to time for such periods of time upon such terms and conditions
from such persons or corporations (including any fiduciary hereunder)
for such purposes as may be deemed advisable, and to secure such loans
by the pledge or hypothecation of any property held hereunder; and the
lender shall have no obligation to inquire as to the application of the
sums loaned or as to the necessity, expediency or propriety of the loan
and with respect to financial instruments and any group or index of
securities (or any interest therein based upon the value thereof), to
deposit any property as collateral with any agent and to grant security
interests in such collateral;
(i) To register and hold any property of any kind,
whether real or personal, at any time held hereunder in the name of a
nominee or nominees and to hold any such personal property in any
State; and to receive and keep any stocks, bonds or other securities
unregistered or in such condition that title thereto will pass by
delivery;
(j) To distribute (including in satisfaction of any
pecuniary disposition) any property in kind at market value unless
otherwise directed herein or in cash, or partly in kind and partly in
cash, and, without the consent of any beneficiary, to allocate among
the recipients the property distributed in kind (including in
satisfaction of any pecuniary disposition) in divided or undivided
interests and without any obligation to make proportionate
distributions or any obligation to distribute to all recipients
property having an equivalent Federal income tax cost;
(k) To allocate to principal all dividends and
distributions payable in property or in stocks, bonds or other
securities whether of the disbursing company or another company;
(l) After the termination of the Trust hereunder to
exercise all the powers, authorities and discretions herein conferred
until the complete distribution of the property held hereunder;
(m) To accept additional property transferred on behalf
of the Grantor;
(n) To remove all or any part of the assets of or the
situs of administration of the Trust hereunder from one jurisdiction to
another jurisdiction, either within or without the United States of
America, at any time or from time to time;
(o) To employ investment counsel, accountants,
depositories, custodians, brokers, consultants, agents, attorneys and
other employees, irrespective of whether any person or entity so
employed shall be a fiduciary hereunder or shall be a corporate
affiliate of a fiduciary hereunder and irrespective of whether any
entity so employed shall
B-8
EXHIBIT B
be one in which a fiduciary hereunder shall be a partner, stockholder,
director, officer or corporate affiliate or shall have any interest,
and to pay the usual compensation for such services out of principal or
income as may be deemed advisable; and such compensation may be paid
without diminution of or charging the same against the commissions or
compensation of any fiduciary hereunder; and any fiduciary who shall be
a partner, stockholder, director, officer or corporate affiliate in any
such entity shall nevertheless be entitled as partner, stockholder,
director, officer or corporate affiliate to receive such fiduciary's
share of the compensation paid to such entity;
(p) To exercise any and all of the powers, authorities
and discretions conferred hereunder in respect of any securities of any
corporate fiduciary acting hereunder, or in respect of any securities
of any holding company or corporation owning securities of any
corporate fiduciary acting hereunder; and
(q) To act in any jurisdiction where permitted by law, or
to designate one or more persons or a corporation to be ancillary
fiduciary who shall serve without bond or security in any jurisdiction
in which ancillary administration may be necessary; and to negotiate
and determine the compensation to be paid to such ancillary fiduciary
whether or not any compensation would otherwise be authorized by law,
and to pay such compensation out of principal or income or both; and
such ancillary fiduciary shall have with respect to any and all
property subject to the ancillary administration all powers,
authorities and discretions granted in this Article; provided, however,
that any action which may require the investment of additional funds or
the assumption of additional obligations shall not be undertaken
without prior written consent of the fiduciary or fiduciaries acting
hereunder; and if by reason of the law of any jurisdiction in which it
may be necessary to perform any act any fiduciary hereunder may be
disqualified from acting, then all of the acts required to be performed
in such jurisdiction may be performed by such fiduciary's qualified
co-fiduciary or co-fiduciaries then acting hereunder.
5.2 Additional Authority. Notwithstanding the provisions of
Section 5.1 hereof:
(r) The Administrator, as agent for the Grantor, shall
have the authority to establish and deliver to the Trustee from time to
time written investment guidelines setting forth the parameters within
which the Trustee shall exercise its discretionary authority with
respect to the investment of the Trust Fund subject to the restrictions
on investments set forth above, and the Trustee shall have no liability
to the Administrator, the Company, the Grantor or any other person
interested in the Trust Fund for any action or any omission in reliance
upon such guidelines;
(s) The Administrator, as agent for the Grantor, is
authorized to receive any disclosures or other notices delivered by the
Trustee with respect to the investment of the Trust Fund in shares or
interests in investment trusts or mutual funds with respect to which
the Trustee or any of its affiliates acts as investment advisor or
custodian or provides other services;
B-9
EXHIBIT B
(t) In no event may the Trust Fund be invested in
securities (including stocks or rights to acquire stock) or obligations
issued by the Company, other than a de minimus amount held in common
investment vehicles in which the Trustee invests; and
(u) The Trustee and its affiliates shall discharge their
duties with respect to the Trust Fund solely in the interest of the
Grantor and his or her Beneficiaries, for the exclusive purpose of
accumulating assets to make distributions as provided in Article 2
hereunder and paying the reasonable expenses of administering the
Trust.
ARTICLE 6
GENERAL PROVISIONS
6.1 Governing Law. This Trust Agreement and the Trust created
hereunder shall be construed, regulated and governed in all respects, not only
as to administration but also as to validity and effect, by the laws of the
State of Georgia in effect from time to time, without regard to its conflict of
laws rules.
6.2 IRC. The references in this Trust Agreement to the Internal
Revenue Code shall mean the Internal Revenue Code of 1986, as amended, and shall
include corresponding provisions of all subsequently enacted federal tax laws.
6.3 Severability. Any provision of the Trust Agreement prohibited
by law, or which would cause the Trust to any extent to fail or cease to be a
grantor trust as described in Section 1.3 hereof, shall be to such extent
ineffective, without invalidating the remaining provisions hereof.
6.4 Prohibition of Assignment. Amounts held in the Trust Fund may
not be anticipated, assigned, alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable process,
except to the extent specifically permitted herein. The Grantor's spouse hereby
agrees that he or she will not seek, in any Domestic Relations Order (as defined
in Section 414(p) of the Code) or otherwise, to have any amounts of the Trust
Fund paid or distributed from the Trust prior to the time of distribution or
payment stated in Section 2.1 hereof.
6.5 Notice. Any notice required under this Trust Agreement shall
be delivered (a) personally, (b) by next day courier service (e.g., Federal
Express or UPS), or (c) by certified or registered mail, return receipt
requested, addressed as follows (or to such other address as any party may so
notify the other party):
If to the Trustee:
------------------------------------
------------------------------------
B-10
EXHIBIT B
------------------------------------
------------------------------------
If to the Grantor:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
If to the Administrator:
Delta Air Lines, Inc.
Attention: Senior Vice President-General Counsel
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Any notice required under this Trust Agreement may be waived by the
person entitled to such notice. Any notice to or from the Grantor under this
Trust Agreement shall, in the event of the Grantor's death, be provided to or by
the Beneficiaries designated by the Grantor under this Trust Agreement.
6.6 Binding Effect. This Trust Agreement shall be binding on all
persons entitled to payments from the Trust Fund and their respective heirs and
legal representatives, and on the Trustee and its successors.
6.7 Amendment. The Administrator, acting on behalf of the Grantor,
may from time to time amend this Trust Agreement in any respect; provided,
however, that no such amendment shall (i) change the duties, responsibilities,
or compensation of the Trustee without the Trustee's written consent; (ii) cause
any amount held in the Trust Fund to be payable to the Company or to any person
other than the Grantor, his or her Beneficiaries, his or her estate, or to the
Trustee as compensation for services, or reimbursement for payment to its
agents; or (iii) otherwise diminish the rights of Grantor.
6.8 Beneficiaries. In general, a Grantor's Beneficiaries shall be
the beneficiary or beneficiaries designated by the Grantor. A beneficiary
designation under this Trust Agreement shall be made in writing by the Grantor
in such manner and on such form as shall be specified by the Administrator, and
a designation shall not be effective until it has been filed with the
Administrator. In the absence of a beneficiary designation hereunder or the
failure of the Beneficiaries to survive, the Beneficiary shall be the Grantor's
spouse, if any, and, if none his or her estate.
6.9 Headings. Headings of paragraphs herein are for purposes of
information only, and this Trust Agreement is not to be construed with reference
thereto.
B-11
EXHIBIT B
IN WITNESS WHEREOF, the Grantor has hereunto set his or her hand and
seal and the undersigned corporate party has caused this Trust Agreement to be
executed and its seal affixed hereunto by its officers duly authorized and
directed all as of the day and year first above written.
--------------------------------------------
Grantor
I am aware of and agree to the provisions of
this Trust, specifically including the
provisions of Section 6.4 hereof
--------------------------------------------
Grantor's spouse
SunTrust Bank
Trustee
By:
-----------------------------------------
Attest:
-------------------------------------
X-00
XXXXXXX X
XXXXXXXX X
0000 Xxxxx Excess Benefit Plan
2002 Delta Supplemental Excess Benefit Plan
B-13
EXHIBIT B
STATE OF )
---------------
)
COUNTY OF )
--------------
On this _____ day of ______________, 2002, before me personally came
_____________, to me known and known to me to be the same person described in
and who executed the foregoing instrument, and acknowledged to me that such
person executed the same.
GIVEN under my hand and Notarial Seal this ___ day of ___________,
2002.
-----------------------------------
Notary Public
-----------------------------------
My Commission Expires:
B-14
EXHIBIT B
STATE OF )
---------------------------
)
COUNTY OF )
--------------------------
On this _____ day of _______________, 2002, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that such person resides at _______________________________________________in
the City of ________, County of _______________, State of ___________________;
that such person is a _______________________ of Suntrust Bank, the corporation
described in and which executed the foregoing instrument; that such person
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation, and that such person signed such person's name thereto by
like order.
GIVEN under my hand and Notarial Seal this ___ day of _______________,
2002.
----------------------------------
Notary Public
My Commission Expires:
-------------
B-15
EXHIBIT C
BENEFICIARY DESIGNATION
EMPLOYEE GRANTOR TRUST
I understand that, pursuant to Section 5 of my Excess Benefit
Agreement, assets of the ______________Employee Grantor Trust (the "Grantor
Trust")will be applied to reduce survivor benefits payable on my behalf under
the nonqualified supplemental benefit plans specified in Schedule A attached to
the Grantor Trust (the "Plans") and my Excess Benefit Agreement. I specifically
understand that the supplemental monthly survivor benefit otherwise payable to
my spouse and other eligible family members under the Plans and my Excess
Benefit Agreement will be so reduced regardless of whether my spouse is named
as a beneficiary under this Trust, to the extent described in said Section 5. I
understand that my spouse must consent to the designation of any beneficiary
other than my spouse. I further understand that in the event any beneficiary
does not survive me, any remaining assets of the Grantor Trust will be paid to
my spouse, if any, or if none, my estate.
Name of Beneficiary:
-----------------------------------------------------------
Social Security Number:
--------------------------------------------------------
Address:
-----------------------------------------------------------------------
Beneficiary Share:
-------------------------------------------------------------
Name of Beneficiary:
-----------------------------------------------------------
Social Security Number:
--------------------------------------------------------
Address:
-----------------------------------------------------------------------
Beneficiary Share:
-------------------------------------------------------------
Name of Beneficiary:
-----------------------------------------------------------
Social Security Number:
--------------------------------------------------------
Address:
-----------------------------------------------------------------------
Beneficiary Share:
-------------------------------------------------------------
C-1
EXHIBIT C
Name of Beneficiary:
-----------------------------------------------------------
Social Security Number:
--------------------------------------------------------
Address:
-----------------------------------------------------------------------
Beneficiary Share:
-------------------------------------------------------------
---------------------------------- -------------------------------------
Date Signature of Employee
----------------------------------
Witness
C-2
EXHIBIT D
CONSENT OF SPOUSE
I understand that my spouse has designated someone other than myself
as a beneficiary of the Grantor Trust. By signing below, I give my consent to
the designation of the beneficiary(ies) on the Beneficiary Designation Employee
Grantor Trust form. I am aware that in the event of my spouse's death, I will
not receive that part of the Grantor Trust assets designated for other
beneficiaries. I also understand that pursuant to Section 5 of my Spouse's
Excess Benefit Agreement, the supplemental monthly survivor benefit otherwise
payable to me and other eligible family members under the nonqualified
supplemental benefit plans specified in Schedule A attached to the Grantor
Trust and my spouse's Excess Benefit Agreement will be reduced as provided in
said Section 5 by amounts in the Grantor Trust regardless of whether or not I
am named as a beneficiary under the Grantor Trust.
---------------------------------- -------------------------------------
Date Signature of Employee's Spouse
----------------------------------
Administrator or Notary Public
D-1
