EXHIBIT 10.6
RABBI TRUST AGREEMENT
THIS AGREEMENT made this 1st day of July, 1996, by and between XXXXXXXX
XXXXXX, INC. (hereinafter referred to as "Company") and XXXX XXXXXX TRUST
COMPANY (hereinafter referred to as "Trustee").
WHEREAS, the Company has adopted that certain Deferred Compensation Plan,
as attached and incorporated herein as Exhibit 1 (hereinafter collectively
referred to as "Plan");
WHEREAS, the Company has incurred or expects to incur liabilities under the
terms of the Plan with respect to the individuals participating in the Plan;
WHEREAS, the 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 the Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such time as specified in the Plan(s);
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(s) 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;
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(s)
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 $1.00,
which shall become the principal of the Trust to be held,
administered and disposed of by Trustee as provided in this
Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(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
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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(s) and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their
beneficiaries against the Company. Any assets held by the
Trust will be subject to the claims of the 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.
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 amounts so payable, the form in
which such amount is to be paid (as provided for or
available under Plan(s)), 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(s)
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(s) shall be
determined by Company or such party as it shall designate
under the Plan(s), and any claim for such benefits shall be
considered and reviewed under the procedures set out in the
Plan(s).
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under
the terms of the Plan(s). 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
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principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance
with the terms of the Plan(s), Company shall make the
balance of each payment as it falls due. Trustee shall
notify Company where principal and earnings are not
sufficient.
SECTION 3. TRUSTEE RESONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN COMPANY IS INSOLVENT
(a) Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Trustee is properly notified
that the Company's Insolvent or has actual knowledge that
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 Chief Executive Office
[or substitute the title of the highest ranking office
of the Company] 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 an any time Trustee has determined that Company is
Insolvent, the 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
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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(s) 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(s) 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, the 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(s).
SECTION 5. INVESTMENT AUTHORITY
(a) Except as provided in Paragraph (b) below, 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. If
mutual funds are to be used as investments for assets of the
Trust, the Company shall provide a list of funds from which
the Trustee can select for purposes of investment of the
assets of the Trust. However, the participant, if more than
one fund is made available, may request that the Trustee
allocate or reallocate the composition of the funds within
the participant's account. Such request shall be subject to
the approval of the Trustee who shall have absolute
investment authority over the assets of the Trust. If the
Trustee should decline to follow the participant's request,
the Trustee will notify the participant in a timely manner.
(b) Except as provided in the Trustee may invest the assets of
the Trust in property of any character, real or
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personal, including, but not limited to the following:
stocks, including shares of open-end investment companies
(mutual funds); bonds; notes; debentures; options;
limited partnership interests; mortgages; real estate or
any interest therein; unit investment trusts; Treasury
Bills, and other U.S. Government obligations; common
trust funds, combined investment trusts, collective trust
funds or commingled funds maintained by a bank or similar
financial organization (whether or not the Trustee
hereunder); savings accounts, time deposits or money
market accounts of a bank or similar financial
organization (whether or not the Trustee hereunder);
annuity contracts; life insurance policies; or in such
other investments as is deemed proper without regard to
investments authorized by statute or rule of law
governing the investment of trust funds.
(c) Trustee is specifically authorized to invest assets of the
Trust in mutual funds for which Xxxx Xxxxxx InterCapital
Inc. ("InterCapital"), an affiliate of Trustee, acts as
investment advisor or investment manager and/or for which
InterCapital and or its affiliates provide services. It is
acknowledged that InterCapital, Trustee and their affiliates
receive compensation in addition to Trustee fees and the
receipt of such additional compensation is specifically
authorized by the Company.
(d) Trustee is also specifically authorized to execute
securities transactions without providing written
confirmation thereof to the Company or any Plan Participant
and to execute securities transactions through any
broker/dealer, including an affiliate of Trustee, at normal
rates of commissions.
(e) Plan Participants may from time to time request certain
investments for the Trust; provided however that such
requests are subject to the exercise of Trustee's
discretion.
(f) 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 the Trustee, and shall
in no event be exercisable by or rest with Plan
participants.
(g) 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.
SECTION 6. DISPOSITION OF INCOME
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(a) 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
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 sixty
(60) days following the close of each calendar year and within
sixty (60) 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 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 8. 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(s) or this Trust and is given in
writing by Company. In the event of a dispute between
Company and a party, Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
(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 may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to
assist it in performing any of its duties or obligations
hereunder.
(d) 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,
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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.
(e) 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.
(f) Trustee may vote any corporate stock either in person or by
proxy for any purpose; exercise or sell any stock
subscription or conversion right; participate in voting
trusts; to consent to, take any action in connection with,
and receive and retain any securities resulting from any
merger, consolidation, reorganization, liquidation, sale or
other disposition of the assets of any corporation or other
organization the securities of which constitute assets of
the trust fund.
SECTION 9. 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 10. PROTECTION AND INDEMNIFICTION OF TRUSTEE
Trustee shall not be obligated to inquire whether any payee of
funds or any distributee of benefits designated by the Company is
entitled thereto or whether any payment, allocation or
distribution directed or authorized by the Company is proper, or
within the terms of the Plan or Trust, and shall not be
accountable for any payment, allocation or distribution made by
Trustee in good faith on the order or direction of the Company.
Trustee shall not be liable or responsible for any payment made
by it in good faith without actual notice or knowledge of the
changed condition or status of the payee.
Evidence required of anyone under the Plan or Trust Agreement may
be by certificate of affidavit, document or other information
which the person acting in reliance thereon may consider
pertinent, reliable and genuine, and to have been signed, made or
presented by the proper party or parties, except that any action
required to be taken by the Company shall be by resolution of its
Board of Directors. The Company or any other person may be
authorized by resolution of the Company's Board of Directors to
act on behalf of the Company. Trustee shall not recognize or
take notice of any appointment
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of any representative of the Company unless and until the
Company shall have notified Trustee in writing of such
appointment and the extent of such representative's authority.
Trustee may assume that such appointment and authority
continue in effect until it receives written notice to the
contrary from the Company. Any action taken or omitted to be
taken by Trustee by authority of any representative of the
Company within the scope of his or her authority shall be as
effective for all purposes hereof as if such action or
nonaction had been authorized by the Company. Trustee, the
Company and any representative of the Company shall each be
fully protected in acting and relying upon any evidence
described in this Section.
Trustee shall have no power, authority or duty with respect to
the determination of the rights or interests of any person in and
to the trust fund or under the Plan nor to examine the
determination of any right or interest thereunder.
The Company shall indemnify and defend the Trustee against any
and all claims, losses, damages, expenses (including attorney's
fees), and liabilities arising from any action or failure to act
in connection with the administration of the Plan or the Trust,
except when the same is judicially determined to be due to the
negligence or willful misconduct of Trustee.
SECTION 11. RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Company,
which shall be effective 90 days after receipt of such
notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company upon 90 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 90 days after receipt of notice of
resignation, removal or transfer, unless Company extends the
time limit.
(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 12. APPOINTMENT OF SUCCESSOR TRUSTEE
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(a) If Trustee resigns or is removed in accordance with Section
11(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.
SECTION 13. AMENDMENT OR TERMINATION OF THE TRUST
(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 is has
become irrevocable in accordance with Section 1(b) hereof.
(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. 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.
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 the State of New Jersey.
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SECTION 14. EFFECTIVE DATE
The effective date of this Trust Agreement shall be
July 1, 1996.
Xxxxxxxx Xxxxxx, Inc.
----------------------------
THE COMPANY
BY: Xxxxxxx X. Xxxxxxxxxx
------------------------------
ITS: Director of Human Resources
------------------------------
State of Indiana )
) SS
County of Xxxxx )
The foregoing instrument was acknowledged before me this 2nd
day of July, 1996, by Xxxxxxx X. Xxxxxxxxxx.
/s/ Xxxx Xx Xxxxxx
-----------------------
Notary Public
Xxxx Xx Xxxxxx
My Commission Expires: April 16, 1999
XXXX XXXXXX TRUST COMPANY, TRUSTEE
BY: Xxxxxxxxx Xxxxxxx
----------------------------
ITS: First Vice President
----------------------------
State of New Jersey )
) SS
County of Xxxxxx )
The foregoing instrument was acknowledged before me this
_____ day of _________, 199___, by ____________________________.
_____________________________
Notary Public
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