Exhibit 10.21
XXXXXXXX COMPANIES
NONQUALIFIED DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
(2000 STATEMENT)
XXXXXXXX COMPANIES
NONQUALIFIED DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
(2000 STATEMENT)
TABLE OF CONTENTS
Page
SECTION 1. ESTABLISHMENT OF TRUST............................................1
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.............2
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN PRINCIPAL SPONSOR IS INSOLVENT...................3
SECTION 4. INVESTMENT AUTHORITY..............................................4
SECTION 5. DISPOSITION OF INCOME.............................................5
SECTION 6. ACCOUNTING BY TRUSTEE.............................................5
SECTION 7. RESPONSIBILITY OF TRUSTEE.........................................5
SECTION 8. COMPENSATION AND EXPENSES OF TRUSTEE..............................7
SECTION 9. RESIGNATION AND REMOVAL OF TRUSTEE................................7
SECTION 10. APPOINTMENT OF SUCCESSOR..........................................8
SECTION 11. AMENDMENT OR TERMINATION..........................................8
SECTION 12. MISCELLANEOUS.....................................................9
SECTION 13. EFFECTIVE DATE....................................................9
XXXXXXXX COMPANIES
NONQUALIFIED DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
(2000 STATEMENT)
THIS AGREEMENT Made and entered into as of January 1, 2001, by and between
X.X. XXXXXXXX WORLDWIDE, INC. (the "Principal Sponsor") and American Express
Trust Company, a Minnesota trust company (the "Trustee");
WHEREAS, Principal Sponsor has adopted a nonqualified deferred compensation
Plan known as the Xxxxxxxx Companies Nonqualified Deferred Compensation Plan
(the "Plan").
WHEREAS, Principal Sponsor has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals participating in such
Plan;
WHEREAS, Principal Sponsor wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Principal Sponsor's creditors in the event of Principal
Sponsor's Insolvency, as herein defined, until paid to Plan participants and
their beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that the Plan and this Trust
shall constitute an unfunded arrangement for federal income tax purposes and
shall not affect the status of the Plan as an unfunded plan maintained for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees for purpose of Title I for the Employee Retirement
Income Security Act of 1974:
WHEREAS, it is the intention of Principal Sponsor to make contributions to
the Trust to provide itself with a source of funds to assist in the meeting of
its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST.
(a) Principal Sponsor hereby deposits with Trustee in trust $100, which
shall become the principal of the Trust to be held, administered and
disposed of by Trustee as provided in this Trust Agreement. The
Trustee will be responsible only for actual dollars deposited with
this Trust and will not have any duties or liabilities until the Trust
receives deposits of more than a de minimus amount.
(b) The Trust hereby established shall be revocable by Principal Sponsor.
(c) The Trust is intended to be a grantor trust, of which Principal
Sponsor is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Principal Sponsor and shall be
used exclusively for the uses and purposes of Plan participants and
general creditors as herein set forth. Plan participants and their
beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries
against Principal Sponsor. Any assets held by the Trust will be
subject to the claims of Principal Sponsor's general creditors under
federal and state law in the event of Insolvency, as defined in
Section 3(a) herein.
(e) Principal Sponsor, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in
trust with Trustee to augment the principal to be held, administered
and disposed of by Trustee as provided in this Trust Agreement.
Neither Trustee nor any Plan participant or beneficiary shall have any
right to compel such additional deposits.
(f) Principal Sponsor represents that it shall restrict participation in
the Plan relating to or supported by this trust to a "select group of
management or highly compensated employees," as that phrase is used in
and defined under Sections 201, 301, and 401 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
Principal Sponsor represents to the Trustee that this trust is exempt
from Parts 2, 3, and 4 of Title 1 of ERISA. Principal Sponsor agrees
to indemnify against and hold harmless from any and all claims,
judgments, settlements and related costs or damages incurred by the
Trustee resulting from Trustee's reliance on these representations.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Principal Sponsor shall, from time to time, deliver instructions to
Trustee (the "Payment Instructions") that indicate the amounts payable
in respect of each Plan participant (and his or her beneficiaries),
that provide a formula or other instructions acceptable to Trustee for
determining the amounts so payable, the form in which such amount is
to be paid (as provided for or available under the Plan), and the time
of commencement for payment of such amounts. Except as otherwise
provided herein, Trustee shall make payments to the Plan participants
and their beneficiaries in accordance with such Payment Instructions.
The Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be withheld
with respect to the payment of
-2-
benefits pursuant to the terms of the Plan and shall pay amounts
withheld to the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by Principal Sponsor.
The Trustee may delegate to the Principal Sponsor the responsibility
for the reporting, withholding, and payments as described above,
pursuant to separate agreement.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by Principal Sponsor or
such party as it shall designate under the Plan, and any claim for
such benefits shall be considered and reviewed under the procedures
set out in the Plan.
(c) Notwithstanding paragraph (a) above, Principal Sponsor may make
payment of benefits directly to Plan participants or their
beneficiaries as they become due under the terms of the Plan.
Principal Sponsor shall notify Trustee of its decision to make payment
of benefits directly prior to the time amounts are payable to
participants or their beneficiaries. The Trustee shall remit to
Principal Sponsor the amount to be paid to Plan participants and their
beneficiaries (or to reimburse Principal Sponsor for amounts
previously paid to Plan participants and their beneficiaries). To the
extent Principal Sponsor makes payment of benefits directly to Plan
participants or their beneficiaries, Principal Sponsor shall be
responsible for withholding and reporting.
(d) In addition, if the principal of the Trust, and any earnings thereon,
are not sufficient to make payments of benefits in accordance with the
terms of the Plan, Principal Sponsor shall make the balance of each
such payment as it falls due. Trustee shall notify Principal Sponsor
where principal and earnings are not sufficient.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN
PRINCIPAL SPONSOR IS INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Principal Sponsor is Insolvent. Principal Sponsor
shall be considered "Insolvent" for purposes of this Trust Agreement
if (i) Principal Sponsor is unable to pay its debts as they become
due, or (ii) Principal Sponsor is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be
subject to claims of general creditors of Principal Sponsor under
federal and state law as set forth below:
(i) The Board of Directors and the Chief Executive Officer of
Principal Sponsor shall have the duty to inform Trustee in
writing of Principal Sponsor's Insolvency. If a person claiming
to be a creditor of Principal
-3-
Sponsor alleges in writing to Trustee that Principal Sponsor has
become Insolvent, Trustee shall determine whether Principal
Sponsor is Insolvent and, pending such determination, Trustee
shall discontinue payment of benefits to Plan participants or
their beneficiaries.
(ii) Unless Trustee has actual knowledge of Principal Sponsor's
Insolvency, or has received notice from Principal Sponsor or a
person claiming to be a creditor alleging that Principal Sponsor
is Insolvent, Trustee shall have no duty to inquire whether
Principal Sponsor is Insolvent. Trustee may in all events rely on
such evidence concerning Principal Sponsor's solvency as may be
furnished to Trustee and that provides Trustee with a reasonable
basis for making a determination concerning Principal Sponsor's
solvency.
(iii) If at any time Trustee has determined that Principal Sponsor is
Insolvent, Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets of
the Trust for the benefit of Principal Sponsor's general
creditors. Nothing in this Trust Agreement shall in any way
diminish any right of Plan participants or their beneficiaries to
pursue their rights as general creditors of Principal Sponsor
with respect to benefits due under the Plan or otherwise.
(iv) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee received a determination that
Principal Sponsor is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due
to Plan participants or their beneficiaries under the terms of the
Plan for the period of such discontinuance, less the aggregate amount
of any payments made to Plan participants or their beneficiaries by
Principal Sponsor in lieu of the payment provided for hereunder during
any such period of discontinuance.
SECTION 4. INVESTMENT AUTHORITY.
(a) The Trustee shall have the authority, as directed by the Principal
Sponsor, to invest in government securities, common stocks, preferred
stocks, bonds, notes, commercial paper, fixed time deposits, money
market instruments, mutual funds including any investment offered by
the Trustee or its affiliates. The Principal Sponsor can delegate to
each participant the right to direct the Trustee as to the appropriate
allocation within the authorized investments selected by the Principal
Sponsor. The Principal Sponsor, or if delegated to the Trustee,
retains the authority to override a Participant's direction.
-4-
(b) If so directed by the Principal Sponsor, the Trustee may invest in
securities (including stock or rights to acquire stock) or obligations
issued by the Principal Sponsor. All rights associated with assets of
the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with
Plan participants, except that voting rights with respect to Trust
assets will be exercised by the Principal Sponsor.
"The Principal Sponsor shall have the right at any time, and from time
to time in its sole discretion, to substitute assets of equal fair
value for any asset held by the Trust. This right is exercisable by
the Principal Sponsor in a nonfiduciary capacity without the approval
or consent of any person in a fiduciary capacity."
SECTION 5. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 6. ACCOUNTING BY TRUSTEE.
Trustee shall keep accurate and detailed records of all investment,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Principal Sponsor and Trustee. Within 120 days following the close of each
calendar year and within 120 days after the removal or resignation of Trustee,
Trustee shall deliver to the Principal Sponsor a written account of its
administration of the Trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all investments, receipts, disbursements and other transactions effected
by it, including a description of all securities and investment purchased and
sold with the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
SECTION 7. RESPONSIBILITY OF TRUSTEE.
(a) (a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the
conduct of an enterprise of like character and with like aims,
provided, however, that Trustee shall incur no liability to any person
for any action taken pursuant to a direction, request or approval
given by Principal Sponsor which is contemplated by, and in reasonable
conformity with, the terms of the Plan or this Trust and is given in
writing by Principal Sponsor. In the event of a dispute between
Principal Sponsor and a
-5-
party, Trustee may apply to a court of competent jurisdiction to
resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, Principal Sponsor agrees to indemnify Trustee against
Trustee's costs, expenses and liabilities (including, without
limitation, attorneys' fees and expenses) relating thereto and to be
primarily liable for such payments. If Principal Sponsor does not pay
such cost, expenses and liabilities in a reasonably timely manner,
Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Principal Sponsor or Trustee generally) with respect to any of its
duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise
herein, provided, however, that if an insurance policy is held as an
asset of the Trust, Trustee shall have no power to name a beneficiary
of the policy other than the Trust, to assign the policy (as distinct
from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant
to the Internal Revenue Code.
(g) The Trustee shall deliver or cause to be executed and delivered, to
the Principal Sponsor, all notices, prospectuses, finance statements
proxies and proxy soliciting materials relating to investments held
hereunder. The Trustee shall not vote any proxy or tender offer
election, participate in any voting trust, exercise any options or
subscription right or join in, dissent from or oppose any merger,
reorganization, consolidation, liquidation or sale with respect to any
asset held hereunder except in accordance with the timely written
instructions of the Principal Sponsor. If no such written instructions
are timely received, such proxies, elections and voting trust shall
not be voted: such options or subscription rights shall not be
exercised: and such mergers, reorganizations, consolidation,
liquidations or sales shall not be joined, dissented from or opposed.
-6-
(h) The Trustee may, in the exercise of its discretion, invest and
reinvest the assets of any trust created under this Agreement in
assets issued or distributed by American Express Financial Corporation
or any of its successors, subsidiaries or affiliates, even though
American Express Financial Corporation and its successors,
subsidiaries or affiliates are affiliated with the Trustee. Assets
that the Trustee may acquire pursuant to the authority granted by this
paragraph include, but are not limited to load and no-load mutual
funds.
The Trustee shall have full discretionary authority to make sales,
purchases and exchanges of assets of any trust created under this
Agreement to, from, through any securities broker/dealer owned by or
affiliated with American Express Financial Corporation, including but
not limited to American Express Securities Services, or any of its
successors, subsidiaries or affiliates, or any unaffiliated persons,
partnerships or corporations it may select, and settle transactions in
the usual course of business.
(i) The Trustee's responsibilities do not include filing with the DOL of a
Registration Statement or any other documents or any determination of
the need to register the plan or any portion of the plan as a
security, or the performance of any service related to the plan's
compliance with any requirement under the Securities Act of 1933, the
Securities Exchange Act of 1934, the Blue Sky laws of any state or
other jurisdiction, or any related regulations, administrative rules
or requirements.
SECTION 8. COMPENSATION AND EXPENSES OF TRUSTEE.
Principal Sponsor shall pay all administrative and Trustee's fees and
expenses. If not so paid, the Trustee shall deduct the fees and expenses
directly from the Trust. The Trustee will, as part of its compensation for
services, receive the interest earned on any uninvested cash awaiting investment
into or distribution from the Trust.
SECTION 9. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Principal Sponsor,
which shall be effective 60 days after receipt of such notice unless
Principal Sponsor and Trustee agree otherwise.
(b) Trustee may be removed by Principal Sponsor on 60 days notice or upon
shorter notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a successor
Trustee, subject to Trustee's rights to deduct fees and expenses
pursuant to Section 9, all assets shall subsequently be transferred to
the successor Trustee. The transfer shall be completed within 90 days
after receipt of notice of resignation, removal or transfer, unless
Principal Sponsor extends the time limit.
-7-
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraphs (a) or (b) of this section. If
no such appointment has been made, Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 10. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns (or is removed) in accordance with Section 10(a) or
(b) hereof, Principal Sponsor may appoint any third party, such as a
bank trust department or other party that may be granted corporate
trustee powers under state law, as a successor to replace Trustee upon
resignation or removal. The appointment shall be effective when
accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former trustee, including ownership rights in
the Trust assets. The former Trustee shall execute any instrument
necessary or reasonably requested by Principal Sponsor or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and Principal Sponsor shall indemnify and defend the
successor Trustee from any claim or liability resulting from any
action or inaction of any prior Trustee or from any other past event,
or any condition existing at the time it becomes successor Trustee.
SECTION 11. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Principal Sponsor.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan, unless sooner revoked in
accordance with Section 1(b) hereof. Upon termination of the Trust any
assets remaining in the Trust shall be returned to Principal Sponsor.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, Principal
Sponsor may terminate this Trust prior to the time all benefit
payments under the Plan have been made. All assets in the Trust at
termination shall be returned to Principal Sponsor.
-8-
SECTION 12. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law
or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of Minnesota except to the extent federal law is
controlling.
SECTION 13. EFFECTIVE DATE.
Upon the execution by the Trustee, the effective date of this Trust
Agreement shall be January 1, 2001.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be executed as of the day and year first above written.
X.X. XXXXXXXX WORLDWIDE, INC., AMERICAN EXPRESS TRUST COMPANY,
Principal Sponsor Trustee
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------- --------------------------
Title: Treasurer Title: Vice President
------------------------------- --------------------------
Date: December 20, 2000 Date: January 8, 2001
------------------------------- --------------------------
-9-
