Exhibit 10.23
RESTRICTED STOCK TRUST AGREEMENT
UNDER THE 1993 STOCK INCENTIVE PLAN
This Declaration of Trust is made effective as of April 20,
1994 and entered into by and between American Home Products
Corporation (the "Company") which adopts this Trust Agreement and
Xxxx X. X'Xxxxxx, (hereinafter referred to as the "Trustee") as
Trustee. This Trust is established to implement the Restricted
Stock Performance Award Agreements entered into between the
Company and certain key employees under the 1993 Stock Incentive
Plan (the "Plan").
ARTICLE I
TITLE AND DEFINITIONS
1.1 Title
This Trust Agreement shall be known as the Restricted Stock
Trust.
1.2 Definitions
All of the definitions set forth in Section 2 of the Plan
are hereby incorporated by reference. Notwithstanding any
inference to the contrary contained in said Plan, the Trustee's
rights, powers, titles, duties, responsibilities, discretions and
immunities shall be governed solely by this Trust Agreement
without reference to the provisions of the Plan.
ARTICLE II
ADMINISTRATOR
2.1 Committee
The Company shall notify the Trustee, in writing, of the
names of the members of the committee appointed pursuant to the
terms of the Plan ("Committee"), including the persons acting as
Secretary and Assistant Secretary, respectively, and of any
change in the identity of the members of the Committee. Until so
notified of a change, the Trustee shall act upon the direction of
the members of the Committee last designated by the Company in
writing.
2.2 Committee Directions to Trustee
All directions by the Committee to the Trustee shall be in
writing and signed by the member or members of the Committee
specifically authorized to give the Trustee written directions,
or by the agents of the Committee as may be designated under
Section 2.5 hereof, which authorizations shall likewise be
contained in a written notice to the Trustee. The Company shall
furnish to the Trustee specimen signatures of the members of the
Committee at the time they are appointed and specimen signatures
of any successor members of the Committee at the time the Trustee
is notified in writing of any change in membership of the
Committee and specimen signatures of any duly authorized agents
of the Committee who are authorized to give the Trustee written
directions pursuant to Section 2.5 hereof. The Trustee shall not
be liable for losses or unfavorable results arising from
compliance with the directions of the Committee made in
accordance with the Trust Agreement.
2.3 Committee Sole Responsibility
The Committee shall have sole responsibility for the
exercise of its rights and duties as set forth in Section 3 and
elsewhere in the Plan, specifically including the determination
of the existence, non-existence, nature and amount of rights and
interests of all persons in the Trust.
2.4 Maintenance of Accounts
(a) The Trustee will create and maintain a separate account
("Participant's Account") for each participant ("Participant").
The Trustee shall credit a Participant's Account with (i) the
number of shares of Company Stock awarded to the Participant,
(ii) the number of shares of Company Stock purchased with any
cash dividend paid on the Company Stock held in the Participant's
Account and any cash remaining after such purchase, (iii) the
number of shares of Company Stock received as stock splits with
respect to the shares of Company Stock in such Participant's
Account and (iv) warrants or any other property received with
respect to the Company Stock in such Participant's Account. The
Trustee shall debit a Participant's Account to reflect any
distributions or forfeitures with respect to the Participant.
Company Stock that is contributed to the Plan for any year and
Company Stock that is purchased by the Trustee with the
contributions of the Company for such year shall each be
separately allocated to the Participant's Accounts on a pro-rata
basis based on the Participants respective awards ("Awards") for
such year. Any Trust assets distributed by the Trustee to the
judgment creditors of the Company shall be debited to the
Participant's Accounts on a pro-rata basis based on the value of
the respective Participant's Accounts that is attributable to
contributions made by the Company at the time of such
distribution.
(b) The Trustee shall maintain records for each
Participant's Account showing (i) the aggregate number of shares
of Company Stock so credited and debited, (ii) the number of
shares of Company Stock which are awarded or purchased for each
calendar year during which the Plan is in effect and (iii) such
other matters as the Trustee and/or the Company may deem
necessary or advisable.
(c) No fractional share shall be purchased for or credited
to the Participant's Accounts.
(d) Unless otherwise provided by the Company, the Trustee
shall have custody of the certificate or certificates
representing all the shares of Company Stock held in the Trust
under the Plan. The Trustee shall register such certificate or
certificates in its own name or in the name of a nominee of the
Trustee.
2.5 Designation of Agents
The Committee shall in its sole discretion have the right to
appoint such agents as it may deem necessary to carry out its
duties pursuant to the provisions of the Plan and this Trust.
ARTICLE III
CONTRIBUTIONS
3.1 Contributions
The Trustee shall receive all contributions paid by the
Company in Company Stock and all contributions so received,
together with the income therefrom and any increment thereon,
shall be held, managed and administered by the Trustee as a
single Trust pursuant to the terms of this Agreement for the
Company without distinction between principal and income. The
Trustee shall have no duty to require any contributions to be
made to it by the Company and shall have no duty or authority to
compute any amount to be paid to it by the Company nor to
determine whether the amounts received by it from the Company
comply with the Plan or to determine that the assets of the Trust
are adequate to provide any benefits payable pursuant to the
Plan.
ARTICLE IV
PAYMENT FROM TRUST FUND
4.1 Payments by Trustee
All payments from the Trust shall be made by the Trustee to
such persons, in such manner, at such times and in such amounts
as the Committee shall direct and the Trustee shall be under no
duty to make inquiry as to whether any distribution direction by
the Committee is made pursuant to the provisions of the Plan.
4.2 Trustee, Compensation and Expenses
The Trustee shall be paid such reasonable compensation for
its services as shall be agreed upon from time to time by the
Company and the Trustee, and the Trustee shall be reimbursed for
its expenses that are reasonably necessary and incident to its
administration of the Trust. Such expenses shall include outside
counsel fees, if any, incurred by the Trustee for the purpose of
determining its responsibilities under the Trust. All such
compensation, expenses and fees may be paid to the Trustee from
the Trust assets or directly by the Company, in the discretion of
the Committee; provided, however, if the Committee fails to
direct payment of what is agreed between the Trustee and the
Company to be a proper amount of compensation or reimbursement,
the Trustee may withdraw such proper amount from the Trust.
4.3 Taxes
The Trustee shall not be personally liable for any real and
personal property taxes, income taxes and other taxes of any kind
levied or assessed under the existing or future laws against the
Trust assets. Such taxes may be paid directly from the Trust
assets or by the Company in the discretion of the Committee.
4.4 Alienation
The rights, benefits, and payments of any Participant or
beneficiary payable from the Trust assets shall not be subject in
any manner to anticipation, sale, assignment, pledge,
encumbrance, or charge, voluntary or involuntary, by any
Participant or beneficiary. Any attempt by a Participant or
Beneficiary to anticipate, alienate, sell, transfer, assign,
pledge, encumber, or charge the same shall be void. The Trust
assets shall not in any manner be liable for or subject to the
debts, contracts, liabilities, engagements or torts of any
Participant or beneficiary entitled to benefits hereunder and
such benefits shall not be considered an asset of a Participant
or a beneficiary in the event of his insolvency or bankruptcy.
4.5 Committee Expenses
Expenses and fees of the Committee or Company for the
administration of the Plan and services in relation thereto for
legal and accounting and other similar expenses, including any
costs with respect to the creation of the Plan and Trust, may be
paid either from the Trust assets or by the Company at the
discretion of the Committee.
ARTICLE V
INVESTMENT OF TRUST ASSETS
5.1 Trustee Has Fiduciary Responsibility
(a) The Trustee shall have full discretion in and sole
responsibility for investment in Company Stock, management and
control of Trust assets including, without limitation, discretion
in the responsibility for determining the method to be used to
purchase Company Stock, either through open market or private
purchase from the Company or others, the time when and the price
at which Company Stock shall be purchased, the amount of Company
Stock to be purchased, or the broker or dealer, if any, to be
used to effect purchases of Company Stock for Section 5 of the
Plan and Section 5.4 of the Trust.
(b) As soon as practicable after the Trustee receives (i)
any cash awarded to a Participant or (ii) any cash dividend paid
on Company Stock held in a Participant's Account, the Trustee
shall use such cash (any other cash then in the Participant's
Account) to buy in one or more transactions the largest
practicable whole number of shares of Company Stock for such
Participant's Account (which may include purchases of Company
Stock executed on a national securities exchange) after
deductions for the payment of brokers' fees and stock transfer
and similar taxes, if any, applicable to such purchases. The
Trustee shall limit the daily volume and prices of such purchases
as required by regulations of the Securities and Exchange
Commission, if applicable, and otherwise to the extent it deems
necessary or advisable.
5.2 Relationship of Fiduciaries
It is the intent of all fiduciaries under the Plan and Trust
that each fiduciary shall be solely responsible for its own acts
or omissions. No fiduciary shall have the duty to question
whether any other fiduciary is fulfilling all of the
responsibilities imposed upon such other fiduciary. No fiduciary
shall have any liability for a breach of fiduciary responsibility
of another fiduciary with respect to the Plan and Trust unless
(1) he participates knowingly in such breach or knowingly
undertakes to conceal such breach, knowing such act or omission
to be a breach, (2) has actual knowledge of such breach and fails
to take responsible remedial action to remedy said breach, or (3)
through this negligence in performing his own specific fiduciary
responsibilities which give rise to his status as a fiduciary,
has enabled such other fiduciary to commit a breach of the
latter's fiduciary responsibilities.
5.3 Duty of Care
Subject to the investment directions in Section 5 of the
Plan and Section 5.4 of the Trust, the Trustee shall discharge
its responsibilities for the investment, management and control
of the Trust assets solely in the interest of the Participants
and beneficiaries of the Plan for the exclusive purpose of
providing benefits to Participants and their beneficiaries and
defraying reasonable expenses of administering the Plan with the
care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims. All actions
by the Trustee shall be in accordance with the documents and
instruments governing the Plan and this Trust.
5.4 Plan and Trust Constitute a Key Employees Restricted Stock
Performance Award Plan
This Plan and Trust constitute a key employees restricted
stock performance award plan, not designed to be a qualified plan
under Section 401(a) of the Internal Revenue Code. Because a
significant purpose of the Plan is to xxxxxx an increased
ownership interest by key employees of the Company in the
Company, all investments of Trust assets shall be made in Company
Stock; provided that, from time to time the Trustee may maintain
such portion of the Trust assets in cash or forms of short-term
liquid investments, including short-term collective investment
funds maintained by the Trustee, as it deems in the best
interests of the Trust provided that the Trust remains primarily
invested in Company Stock.
ARTICLE VI
POWERS OF TRUSTEE
6.1 Investment Powers
The Trustee is authorized and empowered.
(a) To purchase, hold, sell, invest and reinvest Trust
Assets ("Trust Assets"), together with the income therefrom, in
Company Stock;
(b) To transfer part or all of the money constituting Trust
Assets to and as an investment in any type of interest bearing
account, including but not limited to savings accounts and time
certificates of deposit;
(c) To hold, manage and control all property at any time
forming part of the Trust Assets; to sell, convey, transfer,
exchange, and otherwise dispose of the same from time to time in
such manner, for such consideration and upon such terms and
conditions as it shall determine;
(d) Except to the extent its powers are modified by Section
6.3 of the Trust, to exercise any option, conversion privilege or
subscription right given to the Trustee as the owner of any
security forming part of the Trust assets; except to the extent
its powers are modified by Section 6.3 of the Trust, to consent
to or oppose any reorganization, consolidation, merger,
readjustment of the financial structure, sale, lease, or other
disposition of the assets of any corporation or other
organization, the securities of which may be an asset of the
Trust and to take any action in connection therewith and receive
and retain any securities resulting therefrom;
(e) To make distributions from the Trust at such times and
in such number of shares of Company Stock and amounts of cash to
or for the benefit of the person entitled thereto under the Plan,
as the Committee directs in writing. Where distribution is
directed in Company Stock, the Committee shall cause the Trustee
to obtain an appropriate stock certificate for the person
entitled thereto, to be delivered to such person by the Trustee.
Any portion of a Participant's Account to be distributed in cash
shall be paid by the Trustee furnishing its check to the
Participant or to the Committee for delivery to the Participant
(or beneficiary). Shares of Company Stock distributed by the
Trustee may include such restrictions on transferability as the
Committee may require;
(f) To exercise all the further rights, powers, options and
privileges granted, provided for, or vested in Trustees generally
under applicable federal or state law, as amended from time to
time, it being intended that, except as herein otherwise
provided, the powers conferred upon the Trustee herein shall not
be construed as being in limitation of any authority conferred by
law, but shall be construed as in addition thereto.
6.2 General Powers
The Trustee in any and all events is authorized and
empowered:
(a) To cause any property of the Trust to be issued, held
or registered in the individual name of the Trustee, or in the
name of its nominee, or in such form that title will pass by
delivery, provided the records of the Trustee shall indicate the
true ownership of such property;
(b) To employ such agents and counsel as may be reasonably
necessary in managing and protecting the Trust assets and to pay
them reasonable compensation; and to settle, compromise or
abandon all claims and demands in favor of or against the Trust
assets;
(c) In addition to the enumerated powers herein, to do all
other acts necessary or desirable for the proper administration
of the Trust assets, as though the absolute owner thereof.
6.3 Voting Rights; Offer to Purchase Stock
Each Participant shall have the right and shall be afforded
the opportunity to instruct the Trustee how to vote the shares of
Company Stock held in Participant's Account. The Trustee shall
vote any shares of Company Stock for which it does not receive
instructions in the same proportions on each matter to be voted
upon as the shares for which the Trustee does receive
instructions. In the event any offer is made to shareholders of
the Company generally by any person, corporation or other entity
(the "Offeror") to purchase any or all of the outstanding Company
Stock, including the Company Stock then held in Participant's
Accounts, then and in that event the Trustee shall promptly
forward to each Participant all materials and written information
furnished to the Trustee by the Offeror and/or by the Company in
connection therewith, and shall notify each Participant in
writing of the number of shares of Company Stock which is then
credited to such Participant's Account. Such notice shall also
set forth the rights afforded each Participant by the following
sentence and shall state that, absent timely instructions from
such Participant to the Trustee, no tender to the Offeror shall
be made of any of the shares specified in such written notice.
Each Participant shall be entitled to instruct the Trustee as to
whether all (but not less than all) of the shares of Stock
standing to his credit should be tendered by the Trustee pursuant
to such offer. The Trustee shall tender only those shares of
stock held in a Participant's Account for which it receives
instructions to so tender from such Participant, and shall not
tender any shares as to which such instructions are not so
received. In the event that Company Stock held in a
Participant's Account is tendered pursuant to this paragraph, the
proceeds received upon the acceptance of such tender by the
Offeror shall be credited to such Participant's Account (and
shall be subject to the same terms and conditions as were
applicable to the Company Stock so tendered). Pending the
distribution of such proceeds pursuant to Section 7 of the Plan,
the Trustee shall invest any cash portion of such proceeds in
such short-term or intermediate-term obligations issued or
guaranteed by the Government of the United States or any agency
or instrumentality thereof, and in such commercial paper (other
than obligation of the Company), certificates of deposit and
other investments of a short-term or intermediate-term nature, as
the Trustee, in its discretion, deems suitable for the investment
of trust funds.
ARTICLE VII
ACCOUNTS OF THE TRUSTEE
7.1 Records
The Trustee shall maintain accurate records and accounts of
all transactions hereunder, which shall be available at all
reasonable times for inspection or audit by any person or persons
designated by the Committee.
7.2 Reports
If the Committee so directs, the Trustee shall submit to the
committee such interim valuations, reports, or other information
as the Committee may reasonably require. Within 90 days
following (a) the close of each calendar year of the Trust or (b)
the effective date of the removal or resignation of the Trustee,
the Trustee shall file with the Committee a written account
setting forth all transactions effected by it subsequent to the
end of the period covered by its last previous annual account,
and listing the assets of the Trust, showing carry and market
values of such assets, at the close of the period covered by such
account.
7.3 Value of Trust Assets
For the purposes of this Article 7.3, the fair market value
of assets in the Trust shall be determined by the Trustee based
upon such sources of information as it may deem reliable
including, but not limited to, information reported in (1)
newspapers of general circulation, (2) standard financial
periodicals or publications, (3) statistical and valuation
services, (4) the records of securities exchanges or brokerage
firms deemed by the Trustee to be reliable, or any combination
thereof.
ARTICLE VIII
RESIGNATION AND REMOVAL OF TRUSTEE
8.1 Method and Procedure
The Trustee may resign at any time by delivering to the
Company a written notice of resignation, to take effect at a date
specified therein, which shall not be less than 60 days after the
delivery thereof, unless such notice shall be waived.
The Company shall have the right to remove the Trustee by
delivery of a written notice of removal to take effect at a date
specified therein, which shall not take effect less than 60 days
after the delivery thereof, unless such notice shall be waived.
In the event the Trustee notifies the Company of its
intention to resign, or the Company removes the Trustee, in
accordance with the foregoing provisions of the Article VIII, the
Company, by resolution of its Board of Directors, shall appoint a
successor-trustee and in default thereof, such successor-trustee
may be appointed by a court of competent jurisdiction. The
Trustee hereunder shall thereupon deliver to the
successor-trustee all property of this Trust Fund, together with
such records as may be reasonably required to enable the
successor-trustee to property administer the Trust.
In the cases of its resignation or removal, the Trustee
shall have the right to a settlement of its account, which may be
made, at the option of the Trustee, either (1) by agreement of
settlement between the Trustee and the Company, including
payments by the Company to the Trustee pursuant to the provisions
of section 4.2 hereof, or (2) at the expense of the Trust (other
than legal fees incurred by the Trustee) by a judicial statement
in an action instituted by the Trustee in a court of competent
jurisdiction.
Upon such settlement, all right, title and interest of such
Trustee in the assets of the Trust and all rights and privileges
under this Agreement theretofore vested in such Trustee shall
vest in the successor trustee where applicable, and thereupon all
future liability of such Trustee shall terminate; provided,
however, that the Trustee shall execute, acknowledge and deliver
all documents and written instruments which are necessary to
transfer and convey the right, title and interest in the Trust
assets, and all rights and privileges, to the successor trustee.
ARTICLE IX
AMENDMENT AND TERMINATION
Subject to the limitations of Section 11 of the Plan, the
Company shall have the right to amend the Plan and Trust from
time to time and to amend further or cancel any such amendment.
Any amendment shall be stated in an instrument in writing
executed by the Company and this Trust Agreement shall be amended
in the manner and at the time therein set forth, and the Company
and the Trustee shall be bound thereby; provided, however that:
(a) No amendment shall deprive any Participant of any
benefit already vested.
(b) No amendment shall increase the duties or liabilities
of the Trustee without its written consent.
ARTICLE X
MISCELLANEOUS
10.1 Irrevocable Trust with Assets Subject to Claims of Creditors
of Company and Participating Subsidiaries
This Trust shall be irrevocable, provided, however, that it
will be a grantor trust, with the Trust Assets being treated as
assets of the Company, as the case may be. Any stock, cash or
other property held in the Trust that was contributed by the
Company shall at all times be subject to the claims of judgement
creditors of the Company.
10.2 Limitation on Participants' Rights
Participation in this Trust shall not give any Participant
the right to be retained as an employee of the Company or any
right or interest in this Trust. All rights created under the
Plan and this Trust shall be mere unsecured contractual rights of
Participants against the Company, as the case may be. The
Company reserves the right to dismiss any Participant without any
liability for any claim either against this Trust, except to the
extend provided herein, or against the Company.
10.3 Receipt or Release
Any payment to any Participant or his beneficiary in
accordance with the provisions of this Trust shall, to the extent
thereof, be in full satisfaction of all claims against the
Trustee, the Committee and the Company, as the case may be, and
the Trustee may require such Participant or beneficiary, as a
condition precedent to such payment, to execute a receipt and
release to such effect.
10.4 New Jersey Law Governs
This Agreement and the Trust hereby created shall be
construed, administered and governed in all respects under
applicable New Jersey law.
10.5 Headings, etc., No Part of Agreement
Headings and subheadings in this Agreement are inserted for
convenience of reference only and are not to be considered in the
construction of the previous hereof.
10.6 Instrument in Counterparts
This Agreement has been executed in several counterparts,
each of which shall be deemed an original, and said counterparts
shall constitute but one and the same instrument, which may be
sufficiently evidenced by any one counterpart.
10.7 Successors and Assigns
This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns.
10.8 Masculine Gender Includes Feminine and Neuter
As used in this Plan, the masculine gender shall include the
feminine and neuter genders.
IN WITNESS WHEREOF, the Company has caused these presents to
be executed by its duly authorized officer and the corporate seal
to be hereunto affixed, and the Trustee has executed these
presents.
______________________________
Xxxx X. X'Xxxxxx
as Trustee
______________________________
Xxxx X. Xxxxxxxxx
Vice President - Finance
for American Home Products
Corporation
Attested:
______________________________
Xxxxx X. Xxxxxxxx
Secretary
