EXHIBIT 10.34
GLOBAL MARINE
OUTSIDE DIRECTOR DEFERRED
COMPENSATION TRUST
THIS TRUST AGREEMENT made this 26th day of
February, 1997, but effective January 1, 1996 by and between
GLOBAL MARINE INC., a Delaware corporation having its principal
offices in Houston, Texas ("Company"), and TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association ("Trustee");
WHEREAS, Company has established the Global Marine
Retirement Plan for Outside Directors (the "Plan");
WHEREAS, Company has incurred or expects to incur
liability under the terms of such Plan with respect to the
individuals participating in such Plan;
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 the 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;
WHEREAS, it is the intention of the parties that this
Trust shall constitute an unfunded arrangement and shall not affect
the status of the Plan as an unfunded plan maintained for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees for purposes of Title I
of the Employee Retirement Income Security Act of 1974; and
WHEREAS, it is the intention of the 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
$900,000, which shall become the principal of the Trust to be held,
administered and disposed by Trustee as provided in this Trust
Agreement.
(b) The Trust shall be irrevocable from and after
January 1, 1996.
(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 any earnings 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 Trust 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, 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) Upon a Change of Control, Company shall, as soon as
possible, but in no event longer than thirty (30) days following
the Change of Control, as defined in Section 13(d) herein, make an
irrevocable contribution to the Trust in an amount, determined in
accordance with Section 1(g), that is sufficient to pay each Plan
participant or beneficiary the benefits to which Plan participants
or their beneficiaries would be entitled pursuant to the terms of
the Plan as of the date on which the Change of Control occurred.
(g) The amount required to be contributed, if any,
pursuant to Section 1(f) herein shall be determined by an
independent actuarial firm selected by Company, in its sole
discretion. Such amount shall be equal to the present value of the
accrued benefits of each participant or beneficiary as of the date
of the contribution, whether or not then vested and nonforfeitable,
determined using the interest rate assumption that would be used by
the Pension Benefit Guaranty Corporation during the month in which
the contribution occurs to value annuities for a pension plan
termination, the GAM 83 mortality table, and the other relevant
assumptions used by Company in computing the accumulated benefit
obligation for the Global Marine Retirement Plan for Employees or
any successor plan (the "Retirement Plan") in accordance with
Financial Accounting Standards Bulletin 87 for its financial
statements as of the date of the most recent financial statements
completed before such contribution or if the Company does not
maintain the Retirement Plan, such assumptions as are deemed
reasonable by the actuary.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR
BENEFICIARIES
(a) Company shall deliver to Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect
of each Plan participant (and his or her beneficiaries), that
provides a formula or other instructions acceptable to Trustee for
determining the amount so payable, the form in which such amount is
to be paid (as provided for or available under the Plan), and the
time of commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with such
Payment Schedule. 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
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.
(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 any earnings thereon,
are not sufficient to make payments 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 where
principal and earnings are not sufficient.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY 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 Trust
Agreement if (i) Company is unable to pay its debts as they become
due, or (ii) 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 President of
Company shall have the duty to inform Trustee in writing
of Company's Insolvency. If a person claiming to be a
creditor of the Company alleges in writing to the 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 Trust Agreement shall
in any way diminish any rights of Plan participants or
their beneficiaries to pursue their right as general
creditors of Company with respect to benefits due under
the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to
Plan participants or their beneficiaries in accordance
with Section 2 of this Trust Agreement only after Trustee
has determined that 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. PAYMENTS TO COMPANY
Except as provided in Section 3 hereof, after the Trust
has become irrevocable, Company shall have no right or power to
direct Trustee to return to Company or to divert to others any of
the Trust assets before all payment of benefits have been made to
Plan participants and their beneficiaries pursuant to the terms of
the Plan.
SECTION 5. INVESTMENT AUTHORITY
(a) Subject to the investment direction of the
Retirement Plan Committee of Company (the "Retirement Plan
Committee"), funds held for the account of the Trust may be
invested by Trustee in obligations issued or fully guaranteed by
the United States of America or any agency thereof, corporate debt
securities currently rated A or better in Moody's, notes secured by
first mortgages on real estate, certificates of deposit, demand or
time deposits, life insurance and annuity contracts, commercial
paper rates P-1 or A-1 or master note agreements of companies the
commercial paper of which is rated P-1 or A-1 and pooled, common or
group investment funds offered by or through Trustee.
(b) The Retirement Plan Committee, in its sole
discretion, may at any time, or from time to time direct, require
or permit different or additional investments of Trust assets,
except that in no event may Trustee invest in securities (including
stock or rights to acquire stock) or obligations issued by Company,
other than a de minimis amount held in common investment vehicles
in which Trustee invests. 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.
(c) Company shall have the right, at any time, and from
time to time in its sole discretion, to substitute assets of equal
fair market value for any asset held by the Trust. This right is
exercisable by Company in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
SECTION 6. 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 7. ACCOUNTING BY TRUSTEE
(a) The Trust's fiscal year shall be the calendar year.
Trustee shall maintain the books of the Trust on the cash receipts
and disbursements method of accounting.
(b) For federal and state income tax purposes, Trustee
shall file such returns and statements as it is directed by the
Retirement Plan Committee to so file in order to comply with
applicable provisions of the Code, regulations thereunder and any
state laws and regulations thereunder.
(c) Trustee shall provide the Retirement Plan Committee
annual reports respecting cash receipts and disbursements of the
Trust Fund.
(d) The Retirement Plan Committee shall have the right
to examine during regular business hours Trustee's books and
records respecting the Trust Fund by giving Trustee two (2) weeks'
prior written notice of its desire to inspect such books and
records.
SECTION 8. RESPONSIBILITY OF TRUSTEE
(a) Trustee is empowered to act in its discretion and
shall not be personally or individually liable to Company for any
act or omission except in the case of gross negligence, bad faith
or fraud.
(b) Trustee shall be indemnified by, and receive
reimbursement from, Company against and from any and all liability,
expense, claim, damage or loss incurred by it individually or as
Trustee in the administration of the Trust or any part or parts
thereof, or in the doing of any act done or performed or omission
occurring on account of its being Trustee, except such liability,
expense, claim, damage or loss arising from its gross negligence,
bad faith or fraud.
(c) Trustee shall receive from Company compensation for
its services in implementing the Trust as set forth in Exhibit A
hereto.
(d) No bond or other security shall be required of
Trustee.
(e) To the extent allowed by applicable law, Trustee
shall not be prohibited in any way in exercising its powers or from
dealing with itself in any other capacity, fiduciary or otherwise.
(f) Pursuant to Section 113.059 of the Texas Trust Code,
Company as Trustor hereby relieves Trustee from any or all duties,
restrictions, and liabilities otherwise imposed upon Trustee by the
Texas Trust Code except for such duties, restrictions, and
liabilities as are imposed (a) by Sections 113.052, 113.053 and
113.057 of the Texas Trust Code, (b) by the terms and conditions of
this Trust Agreement, or (c) by any other applicable law, rule or
regulation.
(g) Whenever Trustee, in the administration of the
provisions of this Trust Agreement, shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter may, in the absence of
bad faith on the part of Trustee, be deemed to be conclusively
proved by a certificate delivered to Trustee by Company or the
Retirement Plan Committee, as the case may be, and such certificate
shall be complete authority to Trustee for any action taken or
suffered by it under the provisions of this Trust Agreement upon
the faith thereof. In the case of Company, such certificate shall
be signed by the President or any Vice President of Company.
(h) 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.
(i) However, notwithstanding the provisions of Section
8(h) above, Trustee may loan to Company the proceeds of any
borrowing against an insurance policy held as an asset of the
Trust.
(j) 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.
(k) Trustee shall have the power to employ such
accountants, lawyers, brokers or other agents as Trustee deems
advisable in administering this Trust, and to reasonably rely upon
information and advice furnished by such accountants, lawyers,
brokers and other agents.
(l) Trustee shall have the power from time to time to
register any property in the name of its nominee or in its own
name, or to hold it unregistered or in such form that title shall
pass by delivery or to cause the same to be deposited in a
depository clearing corporation or system established to settle
transfers of securities and to cause such securities to be merged
and held in bulk by the nominee of such depository or clearing
corporation or system.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE
Trustee shall receive for its services as trustee
hereunder the compensation which may be agreed upon from time to
time by Company and Trustee. All amounts due Trustee as
compensation for its services shall be paid by Company, or
disbursed by Trustee out of the Trust, and, until paid, shall
constitute a charge upon the Trust. Brokerage fees, commissions,
stock transfer taxes and other charges and expenses incurred in
connection with the purchase and sale of securities for the Trust
or distribution thereof shall be paid by Trustee from the Trust.
All taxes imposed or levied with respect to the Trust or any part
thereof, under existing or future laws, shall be paid from the
Trust. Expenses incurred by Trustee in the administration of the
Trust (including fees for legal, actuarial, investment, or other
services and all other proper charges and expenses of Trustee and
of Trustee's agents and counsel) shall be paid by Company or
disbursed from the Trust by Trustee and, until paid, shall
constitute a charge upon the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to
Company, which shall be effective 30 days after receipt of such
notice (the "Resignation Notice Date") unless Company and Trustee
agree otherwise and by accounting to its successor for the
administration of the Trust as may be required by the successor
Trustee.
(b) Trustee may be removed, by Company at any time;
provided, however, that no such removal shall be effective unless
contemporaneously with such removal a successor Trustee is
appointed by Company.
(c) Upon a Change of Control, as defined herein, Trustee
may not be removed by Company for two (2) years.
(d) 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.
(e) 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 10. 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 11. APPOINTMENT OF SUCCESSOR
(a) In the event Trustee has given notice of its
intention to resign, a successor Trustee shall be appointed by
Company within ten (10) days of the Resignation Notice Date.
Notice of the appointment of a successor Trustee shall be given by
the resigning Trustee to Company on the Resignation Notice Date at
the address of Company as last reflected on the records of Trustee.
(b) In the event that a successor Trustee has not been
appointed by Company within twenty (20) days after the Resignation
Notice Date or the occurrence of a vacancy in the position of
Trustee, a successor Trustee may be appointed by any Texas or
United States District Court holding terms in Houston, Xxxxxx
County, Texas, upon the application of Trustee. In the event such
Court shall deem it necessary, the Court may appoint a temporary
successor Trustee or successor Trustee on such terms as to
compensation as the Court shall deem necessary and reasonable
notwithstanding any provision herein to the contrary. A Trustee
appointed under the provisions of this Section 11 shall be a state
or national banking association which has a capital, surplus and
undivided profits of at least $10,000,000.
(c) Immediately upon the appointment of any successor
Trustee, all rights, titles duties, powers and authority of the
succeeded Trustee hereunder shall be vested in and undertaken by
the successor Trustee which shall be entitled to receive from the
trustee which it succeeds, in addition to the accounting referred
to in Section 10, all of the assets of the Trust held by it
hereunder and all records and files in connection therewith.
(d) Any and all successors to a resigning Trustee shall
be fully protected in relying upon the accounting referred to in
Section 10 and this Section 11. No successor Trustee shall be
obligated to examine or seek alteration of any accounting of any
preceding Trustee, nor shall any Trustee be liable personally for
failing to do so or for any act or omission of any preceding
Trustee. The preceding sentence shall not prevent any successor
Trustee or anyone else from taking any action otherwise permissible
in connection with any such accounting.
SECTION 12. AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written
instrument executed by Trustee and Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the
Plan or shall make the Trust revocable after it has become
irrevocable in accordance with Section 1(b) hereof.
(b) Subject to the provisions of Section 12(c) herein,
the Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of
the Trust, any assets remaining in the Trust shall be returned to
Company.
(c) Upon written approval of participants or
beneficiaries entitled to payment of benefits pursuant to the terms
of the Plan, Company 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 Company.
(d) Sections 1, 2 and 10(c) of this Trust Agreement may
not be amended by Company for fifteen (15) years following a Change
of Control, as defined herein.
SECTION 13. 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 Texas.
(d) For purposes of this Trust, "Change of Control"
shall mean: (i) any acquisition of more than fifty percent of the
voting power of Company's stock by any person or persons acting as
a group for purposes of acquiring such stock, (ii) the occurrence
of a change in the membership of the Board of Directors of Company
during any consecutive two-year period, excluding changes due to
death or disability, as a result of which individuals who were
members of said Board at the beginning of such period no longer
constitute a majority of said Board, (iii) shares becoming subject
to delisting by the New York Stock Exchange or a successor exchange
in respect of the number of publicly held shares or the number of
stockholders holding one hundred shares or more, (iv) approval by
the Board of Directors of Company of the sale of all or
substantially all of Company's assets, or (v) approval by the Board
of Directors of Company of any merger, consolidation, issuance of
securities or purchase of assets which would result in an event
described in (i), (ii), or (iii) above.
(e) Except as otherwise required by law, neither this
Trust Agreement nor any executed copy hereof need be filed in any
county, or other jurisdiction in which any of the properties
comprising the Trust are located, but the same may be filed for
record in any county or other jurisdiction by Trustee.
(f) Any notice or demand which by any provision of this
Trust Agreement is required or permitted to be given or served upon
Trustee may be given or served by in-hand delivery or by deposit,
postage prepaid and by registered or certified mail, in a post
office or letter box addressed to Trustee at 000 Xxxxxx, Xxxxxxx,
Xxxxx 00000 or at such other address as Trustee may from time to
time advise Company in writing.
(g) Whenever any notice, communication or report is
given by Trustee to Company pursuant to the provisions of this
Trust Agreement or is otherwise required to be provided to Company
pursuant to the provisions of this Trust Agreement, Trustee shall
provide, by in-hand delivery or by deposit, postage prepaid, in a
post office or letter box addressed to Company at 000 X. Xxxxxxxx,
Xxxxxxx, Xxxxx 00000, or at such other address as Company may from
time to time advise Trustee in writing.
(h) Whenever any notice, communication, or report is
given by Trustee to the Retirement Plan Committee pursuant to the
provisions of this Trust Agreement or is otherwise required to be
provided to the Retirement Plan Committee pursuant to the
provisions of this Trust Agreement, Trustee shall provide, by in-hand
delivery or by deposit, postage prepaid, in a post office or
letter box addressed to the Retirement Plan Committee at 000
X. Xxxxxxxx, Xxxxxxx, Xxxxx 00000, or at such other address as
Company may from time to time advise Trustee in writing.
(i) Trustee, by joining in the execution of this Trust
Agreement, accepts the Trust herein created and provided for and
accepts all of the rights, powers, privileges, duties and
responsibilities of Trustee hereunder and agrees to exercise and
perform the same in accordance with the terms and provisions
contained herein.
(j) This Trust Agreement may be executed in a number of
counterparts, each of which shall constitute an original, but such
counterparts shall together constitute but one and the same
instrument.
(k) The headings of the Sections of this Trust Agreement
are inserted for convenience only and shall not constitute a part
hereof.
SECTION 14. EFFECTIVE DATE
The effective date of this Trust Agreement shall be
January 1, 1996.
GLOBAL MARINE INC.
By: /s/ Xxxxx X. XxXxxxxxx
Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Trustee
By: /s/ Xxxxx Xxxxxx
Vice President
