EXHIBIT 10.18
TRUST UNDER CH2M HILL COMPANIES, LTD.
2001 PRE-TAX DEFERRED COMPENSATION PLAN
(a) This Agreement made this _____ day of __________, 2000, by and
between CH2M HILL Companies, Ltd. ("Company") and ________________________
("Trustee");
(b) WHEREAS, Company has adopted the CH2M HILL Companies, Ltd. 2001
Pre-Tax Deferred Compensation Plan (the "Plan");
(c) WHEREAS, Company has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals participating in such
Plan;
(d) WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Company's creditors in the event of Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan; and
(f) WHEREAS, it is the intention of Company to make contributions to
the Trust to provide itself with a source of funds to assist it in the meeting
of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
(a) Company hereby deposits with Trustee in trust $1 in cash, which
shall become the principal of the Trust to be held, administered and disposed
of by Trustee as provided in this Agreement.
(b) The Trust hereby established shall be revocable by Company.
(c) The Trust is intended to be a grantor trust, of which Company is
the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and earnings (if any) thereon, shall be
held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their beneficiaries
shall have no preferred claim on, or any beneficial ownership interest in, any
assets of the Trust. Any rights created under the Plan and this Agreement
shall be mere unsecured contractual rights of Plan participants and their
beneficiaries against Company. Any assets held by the Trust will be subject
to the claims of Company's general creditors under federal and state law in
the event of Insolvency, as defined in Section 3(a) herein.
(e) Company may at any time, or from time to time, make additional
deposits of cash or shares of common stock of Company ("Common Stock") in
trust with Trustee to augment the principal to be held, administered and
disposed of by Trustee as provided in this Agreement. Trustee shall not have
any right to compel such additional deposits.
(f) When Company deposits cash or Common Stock with Trustee, Company
shall inform Trustee in writing of the Plan participant with respect to whom
such deposit is made. Trustee shall establish and maintain a separate
recordkeeping account in the name of each Plan participant and shall credit
that recordkeeping account with a number of units (referred to as "Share Value
Equivalent Units," or "SVEUs") equal to the number of shares of Common Stock
deposited by Company with Trustee with respect to that Plan participant.
Trustee shall also credit the recordkeeping account maintained in the name of
each Plan participant with the amount of cash deposited by Company with
Trustee with respect to that Plan participant. Trustee shall also credit the
recordkeeping account maintained in the name of each Plan participant with an
amount equal to earnings (if any) of the Trust on any assets credited to the
recordkeeping account maintained in the name of that Plan participant, other
than cash dividends paid with respect to the Common Stock (which shall be paid
over to Company in accordance with Section 5). When Trustee uses cash
credited to a recordkeeping account maintained in the name of a Plan
participant to purchase shares of Common Stock, the recordkeeping account
maintained in the name of that Plan participant shall be reduced to reflect
the amount of cash used to purchase the shares of Common Stock and the
recordkeeping account maintained in the name of that Plan participant shall be
credited with a number of SVEUs equal to the number of shares of Common Stock
so purchased.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amount payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or available under
the Plan), and the time of commencement for payment of such amounts. The
Payment Schedule may be modified from time to time by Company. Except as
otherwise provided herein, Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such Payment Schedule.
Trustee shall make provision for the reporting and withholding of any federal,
state or local taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall pay amounts
withheld to the appropriate taxing authorities or determine that such amounts
have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan shall be determined by Company or such party as it
shall designate under the Plan, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan.
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(c) Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan.
Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and earnings (if
any) thereon, are not sufficient to make payment of benefits in accordance
with the terms of the Plan, Company shall make the balance of each such
payment as it falls due. Trustee shall notify Company when assets of the
Trust are not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARIES
WHEN COMPANY IS INSOLVENT
(a) Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Agreement if (1) Company is unable to pay its
debts as they become due, or (2) Company is subject to a pending proceeding as
a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set
forth below.
(1) The Board of Directors and the Chief Executive Officer of
Company shall have the duty to inform Trustee in writing of Company's
Insolvency. If a person claiming to be a creditor of Company alleges in
writing to Trustee that Company has become Insolvent, Trustee shall
determine whether Company is Insolvent and, pending such determination,
Trustee shall discontinue payment of benefits to Plan participants or
their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency,
or has received notice from Company or a person claiming to be a creditor
alleging that Company is Insolvent, Trustee shall have no duty to inquire
whether Company is Insolvent. Trustee may in all events rely on such
evidence concerning Company's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning Company's solvency.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this Agreement shall
in any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of Company with
respect to benefits due under the Plan or otherwise.
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(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this
Agreement only after Trustee has determined that Company is not Insolvent
(or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4
INVESTMENT AUTHORITY
(a) Trustee shall, to the maximum extent practicable, invest all assets
of the Trust in Common Stock. Trustee shall retain Common Stock deposited by
Company with Trustee. Trustee shall use cash deposited by Company with
Trustee or earned by the Trust to purchase Common Stock as soon as reasonably
practicable after such cash is received by Trustee. Common Stock shall be
purchased in the internal market maintained by Company or directly from
Company.
(b) All rights associated with assets of the Trust shall be exercised
by Trustee or the person designated by Trustee, and shall in no event be
exercisable by or rest with Plan participants, except that voting rights and
dividend rights with respect to Trust assets will be exercised by Company.
SECTION 5
DISPOSITION OF INCOME
During the term of this Trust, all income (if any) received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested to the maximum
extent practicable in Common Stock, except that cash dividends (if any) paid
to the Trust with respect to Common Stock shall be paid to Company immediately
upon receipt by Trustee.
SECTION 6
ACCOUNTING BY TRUSTEE
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within forty-five (45) days following the close of each
calendar year and within forty-five (45) days after the removal or resignation
of Trustee, Trustee shall deliver to Company a written account of its
administration of the Trust during such year or during the period from the
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close of the last preceding year to the date of such removal or resignation,
setting forth all investments, receipts, disbursements and other transactions
effected by it, including a description of all securities and investments
purchased and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 7
RESPONSIBILITY OF TRUSTEE
(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 a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant
to a direction, request or approval given by Company which is contemplated by,
and in conformity with, the terms of the Plan or this Trust and is given in
writing by Company.
(b) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(c) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein.
(d) Notwithstanding any powers granted to Trustee pursuant to this
Agreement or to applicable law, Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
SECTION 8
COMPENSATION AND EXPENSES OF TRUSTEE
Company shall pay all administrative and Trustee's fees and expenses. If
not so paid, the fees and expenses shall be paid from the Trust.
SECTION 9
RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Company, which
shall be effective thirty (30) days after receipt of such notice unless
Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on thirty (30) days notice or
upon shorter notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within thirty (30) days
after receipt of notice of resignation, removal or transfer, unless Company
extends the time limit.
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(d) If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 10 hereof, by the effective date of resignation or
removal under paragraphs (a) or (b) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 10
APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns or is removed in accordance with Section 9(a) or
(b) hereof, Company may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee,
who shall have all of the rights and powers of the former Trustee, including
ownership rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Company or the successor
Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Section 4 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it becomes
successor Trustee.
SECTION 11
AMENDMENT OR TERMINATION
(a) This Agreement may be amended by a written instrument executed by
Trustee and Company.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan, unless sooner revoked in accordance with
Section 1(b) hereof. Upon termination of the Trust any assets remaining in
the Trust shall be returned to Company.
SECTION 12
MISCELLANEOUS
(a) Any provisions of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Agreement may not be anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
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(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
SECTION 13
EFFECTIVE DATE
The effective date of this Trust Agreement shall be January 1, 2001.
CH2M HILL COMPANIES, LTD.
By:________________________________
TRUSTEE
By:________________________________
