XXXX MANUFACTURING CO.
SUPPLEMENTAL EXECUTIVE BENEFITS PLAN
TRUST AGREEMENT
(As Amended and Restated Effective January 1, 1996)
AUGUST 1996
TABLE OF CONTENTS
Page
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ARTICLE I -- DEFINITIONS............................................................................... 2
1.1 Change in Control.................................................................... 2
1.2 Death Benefits....................................................................... 3
1.3 Deferred Benefits.................................................................... 3
1.4 Fiduciary............................................................................ 3
1.5 Grantor.............................................................................. 3
1.6 Insurance Contract................................................................... 4
1.7 Insurer.............................................................................. 4
1.8 Plan................................................................................. 4
1.9 Salary Deferral Benefits............................................................. 4
1.10 Trust Account........................................................................ 4
1.11 Trust Agreement...................................................................... 4
1.12 Trust Assets......................................................................... 4
1.13 Trustee.............................................................................. 4
1.14 Valuation Date....................................................................... 4
ARTICLE II -- THE TRUST ASSETS......................................................................... 4
2.1 Continuation of Trust................................................................ 4
2.2 Future Contributions................................................................. 4
2.3 Rights in Trust Assets............................................................... 5
2.4 Nontransferability................................................................... 6
2.5 Permitted Investments................................................................ 6
2.6 Investment Directions................................................................ 6
2.7 Allocation of Investment Responsibilities............................................ 6
2.8 Investment after Change in Control................................................... 6
2.9 Distribution of Trust Assets......................................................... 6
2.10 Termination of Trust................................................................. 8
ARTICLE III -- ALLOCATION OF RESPONSIBILITIES.......................................................... 8
3.1 General Responsibilities............................................................. 8
3.2 Designated Fiduciaries............................................................... 9
3.3 Delegation of Fiduciary Duties; Employment of Agents and Certain Other
Matters.............................................................................. 9
3.4 Allocation of Responsibility......................................................... 9
3.5 Duties of the Board and Compensation Committee of the Board:......................... 9
3.6 Duties of the Committee.............................................................. 10
3.7 Duties of Trustee.................................................................... 11
3.8 Board, Compensation Committee of the Board and Committee Directions,
Instructions or Data................................................................. 14
3.9 Indemnification of Trustee........................................................... 14
ARTICLE IV -- ADMINISTRATIVE PROVISIONS................................................................ 15
4.1 General Administrative Powers........................................................ 15
4.2 Payment of Deferred Benefits, Death Benefits, Salary Deferral Benefits and Plan
Exhibits B and C Benefits............................................................ 16
4.3 Distribution......................................................................... 17
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4.4 Account Records...................................................................... 17
4.5 Notices, Directions and Other Communications......................................... 18
4.6 Reports by Trustee................................................................... 18
4.7 Notification of Rights Regarding Securities.......................................... 18
4.8 Tax Assessments...................................................................... 18
4.9 Validity of Contracts................................................................ 19
4.10 Principal and Income................................................................. 19
ARTICLE V -- PROVISIONS RELATING TO TRUSTEE............................................................ 19
5.1 Resignation and Removal.............................................................. 19
5.2 Appointment of Successor............................................................. 19
5.3 Information Furnished to Trustee..................................................... 20
5.4 Expenses and Trustee Compensation.................................................... 20
ARTICLE VI -- AVAILABILITY OF TRUST FUND............................................................... 21
6.1 Trust Irrevocable; Amendments........................................................ 21
6.2 Participants' Rights to Trust Assets................................................. 21
6.3 Grantor Trust........................................................................ 21
ARTICLE VII -- MISCELLANEOUS........................................................................... 21
7.1 Applicable Law....................................................................... 21
7.2 Binding Effect....................................................................... 21
7.3 Separability......................................................................... 21
7.4 Notices to Parties................................................................... 22
7.5 Headings............................................................................. 22
7.6 Gender and Number.................................................................... 22
7.7 Incorporation of Plan................................................................ 22
7.8 Conflicting Provisions............................................................... 22
7.9 Effective Date....................................................................... 22
7.10 Court Proceedings.................................................................... 22
7.11 Successors and Assigns............................................................... 22
7.12 Prohibition on Trustee............................................................... 23
TRUST EXHIBIT A -- SPECIAL PROVISIONS RELATING TO XXXXXX X. XXXXXX..................................... 24
TRUST EXHIBIT B -- SPECIAL PROVISIONS RELATING TO XXXXXX X. XXXXXXXX................................... 25
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XXXX MANUFACTURING CO.
SUPPLEMENTAL EXECUTIVE BENEFITS PLAN
TRUST AGREEMENT
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1996)
THIS AMENDED AND RESTATED TRUST AGREEMENT, made by and between
XXXX MANUFACTURING CO. ("Grantor"), with its principal place of business at One
Commerce Square, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, and CORESTATES
BANK, N.A. ("Trustee"), with an office at 16th and Market Streets, Centre Square
West, Philadelphia, PA 19102,
WITNESSETH:
WHEREAS, effective April 16, 1992, Grantor established the
XXXX MANUFACTURING CO. SUPPLEMENTAL EXECUTIVE BENEFITS PLAN (the "Plan") to
provide deferred compensation to certain eligible officers who constitute a
select group of management or highly compensated employees of Grantor within the
meaning of section 201(2) of ERISA ("Executive Officers") and to provide death
benefits to the beneficiaries ("Beneficiaries") of certain officers of Grantor
("Corporate Officers"); and
WHEREAS, effective January 1, 1995, Grantor amended the Plan
to provide salary deferral and matching contributions to said Executive Officers
and to make certain other changes; and
WHEREAS, Article IV of the Plan provides for payment of
deferred compensation to Plan participants who are Executive Officers
("Participants") or their beneficiaries upon death, disability or other
termination of employment ("Deferred Benefits"); and
WHEREAS, Article V of the Plan provides for payment of a death
benefit to Beneficiaries of the Corporate Officers upon the death of such
Corporate Officers ("Death Benefits"); and
WHEREAS, Article VI of the Plan provides for salary deferrals
and matching contributions to Plan participants who are Executive Officers
("Salary Deferral Benefits"); and
WHEREAS, effective April 16, 1992, Grantor and Trustee entered
into the XXXX MANUFACTURING CO. SUPPLEMENTAL EXECUTIVE BENEFITS PLAN TRUST
AGREEMENT (the "Trust Agreement"), whereby Grantor placed certain funds in a
grantor trust (the "Trust") to be used to pay such Deferred Benefits to
Participants and their beneficiaries under the terms and conditions set forth in
Article IV of the Plan, if not otherwise paid by Grantor, and to pay such Death
Benefits to the Beneficiaries of the Corporate Officers under the terms and
conditions set forth in Article V of the Plan, if not otherwise paid by Grantor;
and
WHEREAS, effective February 17, 1993, Grantor and Trustee
amended and restated the Trust Agreement in order to provide for a broader range
of investment alternatives and to facilitate the payment of benefits paid under
the Plan from the Trust from the investments held in the Trust or from
contributions made by the Grantor to the Trust prior to the investment thereof;
and
WHEREAS, effective January 1, 1995, Grantor and Trustee again
amended and restated the Trust Agreement in order to place certain funds in the
Trust to be used to pay said Salary Deferral Benefits to Participants and their
beneficiaries under the terms and conditions set forth in Article VI of the
Plan, if not otherwise paid by Grantor, and to make certain other changes; and
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WHEREAS, effective January 1, 1996, the Plan was amended by
adding thereto Plan Exhibits B and C and by making certain other changes in
order to provide certain benefits to Xxxxxx X. Xxxxxx, formerly Chief Executive
Officer of Grantor, and to Xxxxxx X. Xxxxxxxx, Chairman and Chief Executive
Officer of Grantor; and
WHEREAS, Grantor and Trustee again desire to amend and restate
the Trust Agreement in order to conform the Trust Agreement to the Plan, as thus
amended and restated effective January 1, 1996;
NOW, THEREFORE, EFFECTIVE JANUARY 1, 1996, UNLESS SPECIFICALLY
PROVIDED OTHERWISE:
(a) The Grantor hereby reappoints CORESTATES BANK,
N.A., as trustee of the grantor trust continued by this Trust Agreement;
(b) CORESTATES BANK, N.A. accepts its reappointment
as trustee of the grantor trust continued by this Trust Agreement and agrees to
hold all funds which it has received and may receive hereunder, IN TRUST, upon
the terms and conditions hereinafter stated; and
(c) The parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I -- DEFINITIONS
Except as otherwise provided in this Article I, and unless the
context of this Trust Agreement clearly indicates otherwise, the terms defined
in the Plan shall, when used herein, have the same meaning as in the Plan. The
following additional words and phrases, as used herein, shall have the following
meanings, unless the context clearly indicates otherwise:
1.1 Change in Control: A "Change in Control" of the Grantor
shall be deemed to have occurred if:
(a) Any person (a "Person"), as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than (1) the Grantor and/or its
wholly-owned subsidiaries, (2) any ESOP or other employee benefit plan
of the Grantor, and any trustee or other fiduciary in such capacity
holding securities under such plan, (3) any corporation owned, directly
or indirectly, by the shareholders of the Grantor in substantially the
same proportions as their ownership of stock of the Grantor or (4) the
Participant or any group of Persons of which he voluntarily is a part),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Grantor
representing thirty (30) percent or more of the combined voting power
of the Grantor's then outstanding securities, or such lesser percentage
of voting power, but not less than fifteen (15) percent, as the Board
shall determine; provided, however, that a Change in Control shall not
be deemed to have occurred under the provisions of this Section 1.1(a)
by reason of the beneficial ownership of voting securities by members
of the Xxxxxx Family (as defined below) unless and until the beneficial
ownership of all members of the Xxxxxx Family (including any other
individuals or entities who or which, together with any member or
members of the Xxxxxx Family, are deemed under Sections 13(d) or 14(d)
of the Exchange Act
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to constitute a single Person) exceeds fifty (50) percent of the
combined voting power of the Grantor's then outstanding securities.
(b) During any two-(2-) year period beginning after
September 12, 1990, Directors of the Grantor in office at the beginning
of such period plus any new Director (other than a Director designated
by a Person who has entered into an agreement with the Grantor to
effect a transaction within the purview of Section 1.1(a) or (c)) whose
election by the Board, or whose nomination for election by the
Grantor's shareholders, was approved by a vote of at least two-thirds
(2/3) of the Directors then still in office who either were Directors
at the beginning of the period or whose election or nomination for
election was previously so approved, shall cease for any reason to
constitute at least a majority of the Board; or
(c) The Grantor's shareholders or the Board shall
approve (1) any consolidation or merger of the Grantor in which the
Grantor is not the continuing or surviving corporation or pursuant to
which the Grantor's voting common shares (the "Common Shares") would be
converted into cash, securities and/or other property, other than a
merger of the Grantor in which holders of Common Shares immediately
prior to the merger have the same proportionate ownership of common
shares of the surviving corporation immediately after the merger as
they had in the Common Shares immediately before, (2) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets or earning power
of the Grantor, or (3) the liquidation or dissolution of the Grantor.
As used in this Section 1.1, "Members of the Xxxxxx Family"
shall mean the wife, children and descendants of such children of the late
Xxxxxx X. Xxxxxx III, their respective spouses and estates, and trusts primarily
for the benefit of any of the foregoing and the administrators, executors and
trustees of any such estates or trusts.
Whether a Change in Control has occurred shall be determined
by the Compensation Committee of the Board (as it is constituted on the day
preceding the date of the Change in Control) subject to the provisions of
Section 3.7(d).
1.2 Death Benefits: The benefits payable to Beneficiaries of
Participants who are Corporate Officers or former Corporate Officers under the
terms of Article V of the Plan and Plan Exhibits B and C. The term "Death
Benefits" shall also include paid-up Insurance Contracts which may be purchased
for Participants who are Corporate Officers or former Corporate Officers under
Article V of the Plan and Plan Exhibits B and C in the event of a Change in
Control.
1.3 Deferred Benefits: The benefits payable to Participants
who are Executive Officers or former Corporate Officers under the terms of
Article IV of the Plan and Plan Exhibits B and C.
1.4 Fiduciary: The Board, the Compensation Committee of the
Board, the Committee, the Trustee, and any person to whom the responsibilities
of such persons under this Trust Agreement are delegated in accordance with
Section 3.3. References to such persons as Fiduciaries herein are for
convenience only and shall not be construed to create or enlarge any duties of
such persons under any statute or at common law. The Grantor and Trustee intend
that such persons shall not be subject to the fiduciary responsibility
provisions of Part 4 of Title I of ERISA.
1.5 Grantor: XXXX MANUFACTURING CO.
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1.6 Insurance Contract: Any insurance contract issued by an
Insurer.
1.7 Insurer: Any insurance company authorized to do business
in any State provided such insurance company has the highest rating (AA or
better from Standard and Poor's Corporation, Xxxxx'x Investors Services, or Duff
and Xxxxxx, or A+ from A.M. Best) from any two (2) of Standard and Poor's
Corporation, Xxxxx'x Investors Services, A.M. Best, and Duff and Xxxxxx.
1.8 Plan: The XXXX MANUFACTURING CO. SUPPLEMENTAL EXECUTIVE
BENEFITS PLAN, and as the same may be amended from time to time.
1.9 Salary Deferral Benefits: The benefits payable to
Participants who are Executive Officers or former Executive Officers under the
terms of Article VI of the Plan and Plan Exhibits B and C.
1.10 Trust Account: An account to which Trust Assets are
allocated to cover the Grantor's obligations to a Participant or Beneficiary
under the Plan.
1.11 Trust Agreement: The XXXX MANUFACTURING CO. SUPPLEMENTAL
EXECUTIVE BENEFITS PLAN TRUST AGREEMENT, as set forth herein and as the same may
be amended from time to time.
1.12 Trust Assets: The Insurance Contracts, cash and other
property contributed by Grantor to the Trust under Sections 2.1 and 2.2, and any
earnings thereon.
1.13 Trustee: CORESTATES BANK, N.A., or any corporate
successor thereto appointed pursuant to Section 3.6(a) or 5.2.
1.14 Valuation Date: The last day of each Plan Year and each
February 28/29, May 31, and August 31, and such other date or dates as the
Committee shall from time to time direct the Trustee.
ARTICLE II -- THE TRUST ASSETS
2.1 Continuation of Trust: The Trustee shall continue to hold,
manage, and distribute, as hereinafter provided, the assets of the Trust. As of
January 1, 1996, such assets consist of Insurance Contracts on the lives of the
Participants in the Plan and such cash and other property as has been
contributed to the Trust. Each Insurance Contract and other amounts shall
continue to be held by and owned by the Trustee as agent of the Grantor, and to
be allocated to the Trust Account maintained with respect to the Participant on
whose life such Insurance Contract was purchased or with respect to whom such
additional amounts were contributed.
2.2 Future Contributions: At the direction of the Committee,
the Grantor shall contribute to the Trust such amounts as are necessary to
purchase Insurance Contracts providing benefits under the Plan and to make
scheduled premium payments under such Insurance Contracts, and any additional
amounts necessary to cover the Grantor's potential liabilities under the Plan to
each Participant. Any such Insurance Contract or additional amounts shall be
allocated to the Trust Account maintained with respect to the Participant on
whose life such Insurance Contract was purchased or with respect to whom such
additional amounts are contributed. The Grantor's contributions may consist of
cash, Insurance Contracts, or other property valued at fair market value and
acceptable to
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the Trustee. All contributions shall be paid to the Trustee for investment and
reinvestment pursuant to the terms of this Trust Agreement and in accordance
with the written directions issued by the Committee pursuant to Section 2.6. The
Trustee shall have no duty to determine or inquire whether any contributions to
this Trust are in compliance with the Plan, or to compute any amount to be paid
to the Trustee; nor shall the Trustee be responsible for the collection or
adequacy of any contributions to this Trust to meet and discharge liabilities to
the Participants and/or Beneficiaries under the Plan.
2.3 Rights in Trust Assets:
(a) Use of Trust Assets: The Trust Assets shall
remain in this Trust until used to pay:
(1) All Deferred Benefits due the
Participants under Article IV of the Plan and Plan Exhibits B
and C,
(2) All Death Benefits due to Participants
or Beneficiaries under Article V of the Plan and Plan Exhibits
B and C,
(3) All Salary Deferral Benefits due the
Participants under Article VI of the Plan and Plan Exhibits B
and C,
(4) All other payments due under, or
pursuant to, Plan Exhibits B and C,
(5) The expenses of this Trust, or
(6) The claims of Insolvency Creditors of
the Grantor, or until returned to the Grantor on termination
of this Trust pursuant to Section 2.10.
(b) Purposes: The Trustee shall hold, invest, and
dispose of all Trust Assets in accordance with the applicable
provisions of the Plan and this Trust Agreement. Until such time as all
Deferred Benefits due the Participants have been paid, and until such
time as all Death Benefits due the Participants and Beneficiaries have
been paid, and until such time as all Salary Deferral Benefits due the
Participants have been paid, and until such time as all other payments
due Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan
Exhibits B and C have been made, no part of the Trust Assets, other
than such part as is required to pay taxes or administration expenses
as provided herein, shall be used for, or diverted to, purposes other
than the payment of Deferred Benefits to the Participants , or the
payment of Death Benefits to the Participants and Beneficiaries , or
the payment of Salary Deferral Benefits to the Participants , or the
payment of other benefits to Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx
under, or pursuant to, Plan Exhibits B and C, or the payment of
obligations to the Insolvency Creditors of the Grantor.
(c) Insolvency Creditors: All Trust Assets held shall
at all times remain subject to the claims, if any, of the Insolvency
Creditors of the Grantor.
(d) Return to Grantor: Trust Assets remaining in this
Trust, if any, after all Deferred Benefits due the Participants and all
Death Benefits due the Participants and Beneficiaries and all Salary
Deferral Benefits due the Participants and all other benefits due
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Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan
Exhibits B and C are paid shall revert to the Grantor in accordance
with Section 2.10.
2.4 Nontransferability: Except as otherwise required by
applicable law, the interest, if any, of the Participants and Beneficiaries in
this Trust shall not be subject to anticipation, alienation, sale, transfer,
assignment, pledge or encumbrance, nor to legal process, nor to the debts,
contracts, liabilities, engagements or torts of any Participant or Beneficiary.
2.5 Permitted Investments: All investments under this Article
II may be made in any property, real, personal, or mixed, wherever situate,
without being limited to the classes of property in which trustees are
authorized to invest trust funds by any law, or any rule of court, of any State,
except that no investments in employer securities or employer real property
shall be permitted.
2.6 Investment Directions: The Committee shall provide written
investment directions to the Trustee. The investment directions shall be in
accordance with Sections 2.5, 2.8 and with the terms of the Plan.
2.7 Allocation of Investment Responsibilities: The Trustee
shall control and manage the Trust Assets, and shall invest and reinvest the
same without distinction between income and principal in accordance with the
guidelines in Sections 2.5, 2.8, the written investment directions issued by the
Committee pursuant to Section 3.6(b), and the terms of the Plan; provided,
however, that at any time prior to the date of any Change in Control (but not
after such date) the Committee may allocate and reallocate investment
responsibility with respect to any Trust Assets between the Committee and the
Trustee. Any such allocation or reallocation of investment responsibility shall
be made by the Committee in a written instrument delivered to the Trustee.
2.8 Investment after Change in Control: Upon any Change in
Control, the Trust Assets, to the extent not invested in Insurance Contracts,
shall be invested and reinvested in short-term liquid investments until such
Trust Assets are used to pay out the Deferred Benefits to the Participants in
accordance with Section 7.1(c)(1) of the Plan and to provide for the payment of
Death Benefits to the Participants and Beneficiaries in accordance with Section
7.1(c)(2) of the Plan and to pay out the Salary Deferral Benefits to the
Participants in accordance with Section 7.1(c)(3) of the Plan and to pay out the
other Plan Exhibit B and C benefits to Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx
in accordance with Plan Exhibits B and C.
2.9 Distribution of Trust Assets:
(a) Payment of Deferred Benefits, Death Benefits,
Salary Deferral Benefits and Other Plan Exhibits B and C Benefits: The
Trustee shall pay the Deferred Benefits in cash to Participants (or, at
the election of Participants pursuant to the Plan, shall distribute
paid-up Insurance Contracts to Participants) on behalf of the Grantor
in satisfaction of the Grantor's obligations under the Plan and shall
pay the Death Benefits in cash to Beneficiaries (or shall distribute
paid-up Insurance Contracts to Participants) on behalf of the Grantor
in satisfaction of the Grantor's obligations under the Plan and shall
pay the Salary Deferral Benefits in cash to Participants (or, at the
election of Participants pursuant to the Plan, shall distribute paid-up
Insurance Contracts to Participants) on behalf of the Grantor in
satisfaction of the Grantor's obligations under the Plan and shall pay
the other benefits provided under, or pursuant to, Plan Exhibits B and
C to Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx, respectively (or, at the
election of Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxxx, as applicable,
pursuant to the Plan, shall distribute paid-up Insurance Contracts to
Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxxx, as applicable), on
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behalf of the Grantor in satisfaction of the Grantor's obligations
under, or pursuant to, Plan Exhibits B and C to the extent Grantor does
not make such payments directly to Participants and Beneficiaries,
respectively (or to Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxxx under, or
pursuant to, Plan Exhibits B and C, as applicable). To the extent
sufficient Trust Assets do not exist to pay Deferred Benefits to a
Participant or Death Benefits to a Participant or Beneficiary or Salary
Deferral Benefits to a Participant , or other benefits under, or
pursuant to, Plan Exhibits B and C to Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxxx, respectively, neither the Trust nor Trustee shall be liable
to such Participant or such Beneficiary. The Grantor's obligations
shall not be limited to the value of the Trust Assets, and a
Participant and/or Beneficiary (as applicable) shall have a claim
against the Grantor for any payment not made by the Trustee. The
Trustee shall make payments in accordance with Section 4.2. The Trustee
shall make any required income tax withholding and shall pay amounts
withheld to taxing authorities on the Grantor's behalf or determine
that such amounts have been paid by the Grantor.
(b) Acceleration of Payments: Notwithstanding any
other provision of this Trust Agreement, if the Trustee determines,
based on a change in the tax or revenue laws of the United States of
America, a published ruling or similar announcement issued by the
Internal Revenue Service, a regulation issued by the Secretary of the
Treasury or his delegate, a decision by a court of competent
jurisdiction involving a Participant, or a closing agreement involving
a Participant made under section 7121 of the Code that is approved by
the Commissioner, that such Participant or Beneficiary has recognized
or will recognize income for Federal income tax purposes with respect
to the Deferred Benefits that are or will be payable to the Participant
or the Death Benefits that are or will be payable to the Participant or
Beneficiary or the Salary Deferral Benefits that are or will be payable
to the Participant or the other benefits that are or will be payable
under, or pursuant to, Plan Exhibits B and C to Xxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxxxx) before they otherwise would be paid to the
Participant or the Beneficiary (as applicable), upon the request of the
Participant or Beneficiary, the Trustee shall immediately make
distribution to the Participant or Beneficiary of the amount so
taxable. Moreover, in the event of a Change in Control, payment of
Deferred Benefits provided under Article IV of the Plan (and any
additional amounts provided under Section 7.1(c)(1) of the Plan) shall
be made in accordance with Article IV of the Plan and Section 7.1(c)(1)
of the Plan and payment of Death Benefits provided under Article V of
the Plan (and any additional amounts provided under Section 7.1(c)(2)
of the Plan) shall be made in accordance with Article V of the Plan and
Section 7.1(c)(2) of the Plan and payment of Salary Deferral Benefits
provided under Article VI of the Plan (and any additional amounts
provided under Section 7.1(c)(3) of the Plan) shall be made in
accordance with Article VI of the Plan and Section 7.1(c)(3) of the
Plan and the payment of benefits under, or pursuant to, Plan Exhibits B
and C shall be made in accordance with Plan Exhibits B and C. Moreover,
in the event the Compensation Committee of the Board determines that
the Trust does not provide adequate security for payment of benefits
under the Trust pursuant to Section 7.2 of the Plan, at the direction
of the Compensation Committee of the Board, payment of Deferred
Benefits provided under Article IV of the Plan (and any additional
amounts provided under Section 7.2(b)(1) of the Plan) shall be made in
accordance with Article IV of the Plan and Section 7.2(b)(1) of the
Plan and payment of Death Benefits provided under Article V of the Plan
(and any additional amounts provided under Section 7.2(b)(2) of the
Plan) shall be made in accordance with Article V of the Plan and
Section 7.2(b)(2) of the Plan and payment of Salary Deferral Benefits
provided under Article VI of the Plan (and any additional amounts
provided under Section 7.2(b)(3) of the Plan) shall be made in
accordance with Article VI of the Plan and Section 7.2(b)(3) of the
Plan and payment of benefits provided under, or pursuant to, Plan
Exhibits B and C for Xxxxxx X. Xxxxxx
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and Xxxxxx X. Xxxxxxxx, respectively, shall be made in accordance with
Plan Exhibits B and C.
(c) Confirmation of Payment: The Trustee shall
provide Grantor and the Committee with written confirmation of the fact
and time of any payment hereunder within ten (10) business days after
any payment to a Participant or a Beneficiary is made or any series of
payments to a Participant commences.
(d) Nonliability of Trustee: The Grantor shall not
bring any action or proceeding against the Trustee for making or
refraining from making any payment in accordance with the provisions of
this Section 2.9.
2.10 Termination of Trust: The Trust shall terminate on the
first date on which:
(a) All Deferred Benefits due Participants and all
Death Benefits due Participants or Beneficiaries and all Salary
Deferral Benefits due Participants and all benefits due Xxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan Exhibits B
and C, respectively, have been paid, or
(b) There are no remaining Trust Assets.
Upon termination of the Trust, any and all Trust Assets
remaining in the Trust, after the payment to Participants and Beneficiaries of
all amounts to which they are entitled and after payment of expenses under
Section 5.4, shall revert to the Grantor, and the Trustee shall promptly take
such action as shall be necessary to transfer any such Trust Assets to the
Grantor. In no event, however, shall the Trust be terminated solely for the
purpose of accelerating the payment of Deferred Benefits or Death Benefits or
Salary Deferral Benefits hereunder or solely for the purpose of accelerating the
payment of benefits under, or pursuant to, Plan Exhibit B and/or C.
ARTICLE III -- ALLOCATION OF RESPONSIBILITIES
3.1 General Responsibilities: In establishing and continuing
this Trust, it is the intention of the Grantor and the Trustee that, except in
the event of the Insolvency of the Grantor or subsequent to the satisfaction of
all liabilities of the Grantor to the Participants under Article IV of the Plan
and to the Participants or Beneficiaries under Article V of the Plan and to the
Participants under Article VI of the Plan and to Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxxx under, or pursuant to, Plan Exhibits B and C, all Trust Assets held
pursuant to this Trust shall be used only for the following purposes:
(a) To pay any Deferred Benefits due the
Participants;
(b) To pay any Death Benefits due the Participants or
Beneficiaries;
(c) To pay any Salary Deferral Benefits due the
Participants;
(d) To pay any other benefits due Xxxxxx X. Xxxxxx
and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan Exhibits B and C,
respectively; or
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(e) To pay the expenses, including Trustee's fees,
incurred in the administration of this Trust and any taxes assessed in
accordance with Section 4.8.
In the event of the Insolvency of the Grantor, all Trust
Assets then held pursuant to this Trust shall be available to pay the claims of
any Insolvency Creditor of the Grantor to whom a distribution may be made in
accordance with State and Federal bankruptcy laws to the same extent that
unencumbered assets held by the Grantor are available to satisfy such claims.
Each Fiduciary, in carrying out the responsibilities assigned to him under this
Trust Agreement, shall act in accordance with the intent and the terms of the
Plan and this Trust Agreement using the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent person 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.
3.2 Designated Fiduciaries: The following Fiduciaries are
designated to control and manage the operation and administration of this Trust:
(a) The Board, including, but not limited to, the
Compensation Committee of the Board;
(b) The Committee; and
(c) The Trustee.
3.3 Delegation of Fiduciary Duties; Employment of Agents and
Certain Other Matters: Each Fiduciary (other than the Trustee) designated
pursuant to Section 3.2 (herein referred to as a "designated Fiduciary") may
delegate any or all of its responsibilities to persons who are not designated
Fiduciaries with respect to the specific responsibility or responsibilities so
delegated; provided, however, that the duties of the Compensation Committee (as
it is constituted on the day preceding the date of a Change in Control) may not
be delegated following a Change in Control. Any such delegation shall be in
writing and shall be made a permanent part of the records of the designated
Fiduciary. Such delegation shall be reviewed periodically by the designated
Fiduciary and shall be terminable under such conditions and upon such notice as
the designated Fiduciary, in its sole discretion, deems reasonable and prudent
under the circumstances. No such delegation shall relieve a Fiduciary from
liability for a breach by persons to whom responsibilities have been delegated.
In addition, each designated Fiduciary (including the Trustee) shall be entitled
to employ and consult with such agents and counsel as may be reasonably
necessary in connection with the performance of such designated Fiduciary's
responsibilities hereunder, and to pay them or cause them to be paid reasonable
compensation out of this Trust.
3.4 Allocation of Responsibility: The responsibilities of the
Fiduciaries designated in Section 3.2 shall be allocated among them as provided
in Sections 3.5 through 3.8, and the Committee may allocate among its designees
its responsibilities under this Trust, and the Board and the Compensation
Committee of the Board (except to the extent prohibited after a Change in
Control under Section 3.3) may do the same with respect to the responsibilities
of the Board and the Compensation Committee of the Board hereunder. Except as
otherwise provided by applicable law, no Fiduciary shall be liable for a breach
by another Fiduciary.
3.5 Duties of the Board and Compensation Committee of the
Board: The Board shall provide written notice to the Trustee of the Grantor's
Insolvency as soon as possible after such Insolvency becomes known to the
Grantor.
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Upon a Change in Control, the Compensation Committee of the
Board (as it is constituted on the day preceding the date of the Change in
Control) may, in its discretion, issue written directions to the Trustee which
shall govern the distribution of Trust Assets in accordance with Section
7.1(c)(1) of the Plan with respect to Deferred Benefits and in accordance with
Section 7.1(c)(2) of the Plan with respect to Death Benefits and in accordance
with Section 7.1(c)(3) of the Plan with respect to Salary Deferral Benefits and
in accordance with Plan Exhibits B and C with respect to benefits payable under,
or pursuant to, Plan Exhibits B and C. The directions shall be in accordance
with Section 7.1(c)(1) of the Plan with respect to Deferred Benefits and in
accordance with Section 7.1(c)(2) of the Plan with respect to Death Benefits and
in accordance with Section 7.1(c)(3) of the Plan with respect to Salary Deferral
Benefits and in accordance with Plan Exhibits B and C with respect to benefits
payable under, or pursuant to, Plan Exhibits B and C all as they exist on the
day before the date of any Change in Control. After such written directions have
been issued to the Trustee, they shall be amended only with the consent of the
Participant or Beneficiary to whom such directions apply. Said Compensation
Committee of the Board shall furnish a copy of the directions issued under this
Section 3.5 to the Trustee who shall promptly acknowledge receipt of such
directions to the Grantor and shall furnish a copy of such directions to each
Participant and to each Beneficiary.
In the event that all members of the Compensation Committee of
the Board (as it is constituted on the day preceding the date of a Change in
Control) die or otherwise become incapacitated, the duties and responsibilities
of the Compensation Committee shall devolve upon the Trustee.
3.6 Duties of the Committee: The Committee shall have sole
authority and responsibility for:
(a) Prior to a Change in Control, the removal of the
Trustee and the appointment of one or more successor Trustees, subject
to the provisions of Sections 5.1 and 5.2;
(b) The issuance of written investment directions
pursuant to Section 2.6 and in accordance with the standards set forth
in Section 2.8 and with the terms of the Plan to be followed by the
Fiduciary or Fiduciaries to whom investment responsibilities have been
allocated;
(c) The allocation of investment responsibilities
between itself and the Trustee in accordance with Section 2.10;
(d) Subject to the provisions of Sections 3.5 and
3.7(a)(4) and prior to a Change in Control, the issuance of written
directions to the Trustee which shall govern the distribution of Trust
Assets; such directions shall be made in accordance with the terms of
the Plan;
(e) Providing to the Trustee such statements as may
be appropriate to inform the Trustee of Deferred Benefits payable to
the Participants and of Death Benefits payable to Participants and
Beneficiaries and of Salary Deferral Benefits payable to the
Participants and of other benefits payable to Xxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan Exhibits B and C, as
they exist on the day before the date of any Change in Control and as
may be required by the Trustee to implement the written directions
issued by the Compensation Committee of the Board under Section 3.5 or
the Committee under
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Section 3.6(b); after the day before the date of any Change in Control,
such statements shall be amended only with the consent of the
Participants under the Plan;
(f) The preparation and filing of reports and other
information concerning this Trust as may be required by the Plan, the
Trust Agreement and by applicable law, except such reports and
information as are specifically required by law to be prepared and
filed by the Trustee;
(g) Subject to the provisions of Section 2.7, acting
on behalf of the Grantor in connection with the termination of this
Trust;
(h) Except as provided in Section 3.5, all other acts
permitted or required to be performed by the Grantor under this Trust
Agreement.
3.7 Duties of Trustee:
(a) Authority and Responsibility: The Trustee shall
have sole authority and responsibility for:
(1) The control, management, investment, and
reinvestment of the Trust Assets of this Trust in accordance
with the written investment directions provided by the
Committee under Section 3.6(b) and in accordance with the
standards set forth in Section 2.8 and with the terms of the
Plan, unless and to the extent the Committee has allocated
such powers to another Fiduciary;
(2) The valuation of the Trust Assets;
(3) The maintenance and production of
records and reports pertaining to the administration of this
Trust;
(4) At the request of a Participant or
Beneficiary, determining whether the written distribution
instructions issued by the Compensation Committee of the Board
pursuant to Section 3.5 or by the Committee pursuant to
Section 3.6(b) (or in either case, the failure to issue
written instructions) are in accordance with the terms of the
Plan as it exists on the day before the date of any Change in
Control and then determining what the rights of such
Participant or Beneficiary are;
(5) Payment of Deferred Benefits in
accordance with Article IV of the Plan and Section 7.1(c)(1)
of the Plan and Section 4.2 and Death Benefits in accordance
with Article V of the Plan and Section 7.1(c)(2) of the Plan
and Section 4.2 and payment of Salary Deferral Benefits in
accordance with Article VI of the Plan and Section 7.1(c)(3)
of the Plan and Section 4.2 and payment of benefits under, or
pursuant to, Plan Exhibits B and C;
(6) Promptly furnishing to the Participants
a copy of the written notice of Insolvency received pursuant
to Section 3.5; and
(7) The performance of the general
administrative powers conferred under Article IV; subject,
however, to the directions of Fiduciaries specifically
authorized to direct the Trustee with respect to the exercise
of such powers.
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(b) Insolvency: In the event that the Trustee is
informed of the Grantor's Insolvency pursuant to Section 3.5, the
Trustee shall suspend payments to the Participants under Article IV of
the Plan and to the Participants and Beneficiaries under Article V of
the Plan and to the Participants under Article VI of the Plan and to
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan
Exhibits B and C and shall hold the Trust Assets for the benefit of the
Insolvency Creditors of the Grantor. In addition, if the Trustee
receives other written allegations of the Grantor's Insolvency, the
Trustee shall suspend payments of Deferred Benefits to the Participants
and payments of Death Benefits to the Participants and Beneficiaries
and payments of Salary Deferral Benefits to the Participants and
payments of other benefits to Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx
under, or pursuant to, Plan Exhibits B and C and shall hold the Trust
Assets for the benefit of the Grantor's Insolvency Creditors, and shall
take such steps as it determines, in its sole discretion, to be
reasonably necessary to determine within thirty (30) days whether the
Grantor is Insolvent. Upon a determination that the Grantor is solvent,
the Trustee shall resume payments of Deferred Benefits to the
Participants and payments of Death Benefits to the Participants and
Beneficiaries and payments of Salary Deferral Benefits to the
Participants and payments of other benefits to Xxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan Exhibits B and C,
including any Deferred Benefits or Death Benefits or Salary Deferral
Benefits or Plan Exhibit B benefits or Plan Exhibit C benefits
previously suspended. In the case of the Trustee's actual knowledge of,
or determination of, or receipt of a court order evidencing the
Grantor's Insolvency, the Trustee shall deliver Trust Assets as
necessary to satisfy claims of the Insolvency Creditors of the Grantor
as directed by a court of competent jurisdiction. Unless the Trustee
has actual knowledge of the Grantor's Insolvency, or has received
notice from the Grantor or a person claiming to be a creditor alleging
Grantor's Insolvency, the Trustee shall have no duty to inquire as to
the Insolvency of Grantor. The Trustee may, in all events, rely on such
evidence concerning Grantor's solvency as may be furnished to the
Trustee pursuant to this Section 3.7(b) and that provides the Trustee
with a reasonable basis for making a determination concerning Grantor's
solvency.
(c) Change in Control: If a Change in Control occurs:
(1) Subject to Sections 7.1(c)(1) and
7.1(c)(2) and 7.1(c)(3) of the Plan and Plan Exhibits B and C,
the Trustee shall follow the written distribution directions
issued by the Compensation Committee of the Board pursuant to
Section 3.5; provided, however, that if the Trustee
determines, pursuant to Section 3.7(a)(4), that the written
distribution instructions issued by the Compensation Committee
of the Board pursuant to Section 3.5 or the Committee pursuant
to Section 3.6 are not in accord with the Plan as it exists on
the day before the date of any Change in Control, or if there
are no written directions from the Compensation Committee, the
Trustee shall determine the rights of Participants and
Beneficiaries; and
(2) The Trustee shall distribute the Trust
Assets in accordance with Section 7.1(c)(1) of the Plan with
respect to Deferred Benefits and Section 7.1(c)(2) of the Plan
with respect to Death Benefits and Section 7.1(c)(3) of the
Plan with respect to Salary Deferral Benefits and in
accordance with Plan Exhibits B and C with respect to benefits
payable under, or pursuant to, Plan Exhibits B and C.
(d) Determination of Change in Control: At the
request of fifty-one (51) percent or more of the Participants in the
Plan, or in the Trustee's discretion, the Trustee shall request that
the Grantor furnish evidence to enable the Trustee to determine whether
a Change
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in Control has occurred. The Trustee shall make such determination in
accordance with the definition of Change in Control in this Trust
Agreement. In performing its duties pursuant to Sections 2.9, 4.2 and
4.3, the Trustee may rely on its determination, including an opinion of
counsel (who may be counsel to the Trustee), that a Change in Control
has occurred, as long as the Trustee acts in accordance with the terms
of the Plan and this Trust Agreement using the care, skill, prudence,
and diligence under the circumstances then prevailing that a prudent
person 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. Except as provided in the next succeeding sentence, the Trustee's
determination that a Change in Control has occurred shall be binding
and conclusive on all persons. Notwithstanding the foregoing, if the
Compensation Committee of the Board (as it is constituted on the day
before the date of a Change in Control) determines that a Change in
Control has occurred prior to the date such determination is made by
the Trustee or, if the Trustee has determined that a Change of Control
has not occurred, after the date of such Trustee determination, the
determination of the Compensation Committee of the Board that a Change
in Control has occurred shall be final and binding on the Trustee and
on all other persons.
(e) Notice by Trustee of Payment of Deferred
Benefits, Death Benefits, Salary Deferral Benefits and Plan Exhibits B
and C Benefits: The Trustee shall promptly provide written notice to
the Grantor and each Participant and Beneficiary when it believes that
all Deferred Benefits due each such Participant and that all Death
Benefits due each such Participant or Beneficiary and that all Salary
Deferral Benefits due each such Participant and that all other benefits
due Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan
Exhibits B and C under the distribution directions on which it is
relying have been paid. Such notice shall state that the Trustee
believes that all Deferred Benefits, Death Benefits, Salary Deferral
Benefits and other benefits under, or pursuant to, Plan Exhibits B and
C due from the Trust have been paid and that if any Participant or
Beneficiary (as applicable) disagrees with this determination he must
do so within sixty (60) days of the date of the notice. Such
Participant or Beneficiary (as applicable) shall notify the Trustee
within sixty (60) days of the date of the notice if he believes all
Deferred Benefits or Death Benefits or Salary Deferral Benefits (as
applicable) due the Participant or Beneficiary (as applicable) under
the Plan or other benefits under, or pursuant to, Plan Exhibits B and C
due Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxxx (as applicable) have not
been paid. If the Participant or Beneficiary (as applicable) provides
such notice to the Trustee, the Trustee shall make an independent
determination of whether all Deferred Benefits due the Participants and
all Death Benefits due the Participants and Beneficiaries and all
Salary Deferral Benefits due the Participants and all other benefits
due Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan
Exhibits B and C have been paid. Any such determination shall be in
accordance with the Plan as it exists on the day before the date of any
Change in Control. In performing its duties pursuant to this Section
3.7(e) and pursuant to Section 2.3(d), the Trustee may rely on an
opinion of counsel (who may be counsel to the Trustee but shall not be
counsel to the Grantor) that all such Deferred Benefits due the
Participants and all such Death Benefits due the Participants and
Beneficiaries and all such Salary Deferral Benefits due the
Participants and all other benefits due Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxxx under, or pursuant to, Plan Exhibits B and C have been paid,
as long as the Trustee acts in accordance with the terms of the Plan
and this Trust Agreement using the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent person 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. The
determination made by the Trustee in this manner shall be conclusive on
all persons.
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If the Trustee determines that all Deferred Benefits
due the Participant and/or all the Death Benefits due the Participant
and/or Beneficiary and/or all Salary Deferral Benefits due the
Participant and/or all the other benefits due Xxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan Exhibits B and C have
not been paid, the Trustee shall make such further payments as it
determines are due.
If (1) the Trustee determines that all Deferred
Benefits due the Participant and all Death Benefits due the Participant
and/or Beneficiary and all Salary Deferral Benefits due the Participant
and all other benefits due Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx
under, or pursuant to, Plan Exhibits B and C have been paid or (2) the
Participant and/or Beneficiary does not provide notice to the Trustee
within the sixty (60)-day period described above that such Participant
believes that all Deferred Benefits due have not been paid or that such
Participant or Beneficiary believes that all Death Benefits due have
not been paid or that such Participant believes that all Salary
Deferral Benefits due have not been paid or that Xxxxxx X. Xxxxxx or
Xxxxxx X. Xxxxxxxx believe that all other benefits due under, or
pursuant to, Plan Exhibits B and C have not been paid, then the Trustee
shall pay to the Grantor all Trust Assets remaining in this Trust, if
any.
3.8 Board, Compensation Committee of the Board and Committee
Directions, Instructions or Data: The Trustee shall not be liable for losses or
unfavorable results arising from its compliance with, or reliance on, proper
directions, instructions or data from the Board, Compensation Committee of the
Board or the Committee given prior to the date of any Change in Control in
accordance with the terms of the Plan and this Trust Agreement; provided,
however, the Trustee shall not be entitled to rely on any directions,
instructions or data:
(a) Received from the Grantor after the day before
the date of any Change in Control, but only if the Trustee is aware
that a Change in Control has occurred;
(b) If, after the day before the date of any Change
in Control, any Participant or Beneficiary requests that the Trustee
make a determination pursuant to Section 3.7(a)(4); or
(c) If, after the day before the date of any Change
in Control, any Participant or Beneficiary requests that the Trustee
make a determination pursuant to Section 3.7(e).
3.9 Indemnification of Trustee: The Grantor hereby indemnifies
the Trustee against, and agrees to hold the Trustee harmless from, all
liabilities and claims (including reasonable attorneys' fees and expenses in
defending against such liabilities and claims) against the Trustee as a result
of:
(a) Any breach of Fiduciary responsibility by a
Fiduciary other than the Trustee unless the Trustee participates
knowingly in such breach, has actual knowledge of such breach and fails
to take reasonable remedial action to remedy such breach, or is
negligent in performing its own specific Fiduciary responsibilities;
(b) The Trustee's payment of Deferred Benefits to the
Participant pursuant to Article IV of the Plan and Section 7.1(c)(1) of
the Plan and Section 4.2 and of Death Benefits to the Participant or
Beneficiary pursuant to Article V of the Plan and Section 7.1(c)(2) of
the Plan and Section 4.2 and of Salary Deferral Benefits to the
Participant pursuant to Article VI of the Plan and Section 7.1(c)(3) of
the Plan and Section 4.2 and of other benefits
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to Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx pursuant to Plan Exhibits B
and C and Section 4.2;
(c) The Trustee's determination under Section 3.7(d)
as to whether a Change in Control has occurred;
(d) The Trustee's determination under Section
3.7(a)(4) of the rights of a Participant or Beneficiary; or
(e) The Trustee's determination under Section 3.7(e)
as to whether all Deferred Benefits due the Participants and all Death
Benefits due the Participants and Beneficiaries and all Salary Deferral
Benefits due the Participants and all other benefits due Xxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxxxx under, or pursuant to, Plan Exhibits B
and C have been paid.
ARTICLE IV -- ADMINISTRATIVE PROVISIONS
4.1 General Administrative Powers: The Trustee shall have the
rights, powers, and privileges of an absolute owner when dealing with property
of the Trust, including, without limitation, the powers listed below. Except as
otherwise specified below, the Trustee's exercise of such powers shall be
subject to the direction of a Fiduciary authorized to direct the Trustee under
this Trust Agreement with respect to the management or control of Trust Assets
and any earnings thereon:
(a) To hold, manage, and control all property; to
sell, convey, transfer, exchange, and otherwise dispose of such
property from time to time in such manner, for such consideration, and
upon such terms and conditions, including credit, as may be deemed
proper;
(b) To exercise any option, conversion privilege, or
subscription right given the Trustee as the owner of any security held
in this Trust; to vote any corporate stock either in person or by
proxy, with or without power of substitution; to consent to, or oppose,
any reorganization, consolidation, merger, readjustment of financial
structure, sale, lease, or other disposition of the assets of any
corporation or other organization, and to take any action in connection
therewith and receive and retain any securities resulting therefrom;
(c) To deposit any security with any protective or
reorganization committee, and to delegate to such committee such power
and authority with respect thereto as may be deemed proper, and to pay
out of this Trust an appropriate portion of the expenses and
compensation of such committee;
(d) Regardless of whether the Trustee or any other
Fiduciary has responsibility to manage or control the Trust Assets, to
cause any Insurance Contracts to be issued, held, or registered in the
name of the Trustee as Trustee, or in the name of a nominee or in such
form that title will pass by delivery, provided that the records of the
Trustee shall in all events indicate the true ownership of such
property;
(e) To renew or extend the time of payment of any
obligation due or to become due;
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(f) To commence or defend suits or legal or
administrative proceedings, and to compromise, arbitrate, or settle
claims, debts, or damages in favor of or against this Trust and to
deliver or accept, in either total or partial satisfaction of any
indebtedness or other obligation, any property, and to continue to hold
for such period of time as may be deemed appropriate any property so
received, and to pay all costs and reasonable attorneys' fees in
connection therewith out of the Trust Assets; and to select counsel
acceptable to the Trustee and to the Committee or, on or after a Change
in Control, acceptable to the Compensation Committee of the Board (as
it is constituted on the day before the date of a Change in Control),
and to conduct the prosecution or defense of any litigation or legal
dispute subject to the control of the Committee or, on or after a
Change in Control, subject to the control of the Compensation Committee
of the Board (as it is constituted on the day before the date of a
Change in Control);
(g) To foreclose any obligation by judicial
proceeding or otherwise;
(h) Regardless of whether the Trustee or the
Committee has responsibility to manage or control the Trust Assets, to
deposit any securities held in this Trust with a securities depository;
and
(i) To hold amounts contributed to the Trust by the
Grantor for the payment of premiums on Insurance Contracts uninvested
for such limited periods of time not to exceed five (5) business days
as may be necessary for purposes of orderly account administration or
pending required directions, without liability for payment of interest
prior to the payment of such premiums to the Insurer; provided,
however, that regardless of whether the Trustee or any other Fiduciary
has responsibility to manage such Trust Assets, the Trustee shall be
authorized in its discretion to invest such Trust Assets, pending
receipt of such directions, in interest bearing accounts (including
interest bearing accounts established with the Trustee).
4.2 Payment of Deferred Benefits, Death Benefits, Salary
Deferral Benefits and Plan Exhibits B and C Benefits: The Trustee shall, subject
to the claims of the Insolvency Creditors, if any, of the Grantor, make payment
of Deferred Benefits due a Participant directly to the Participant (or the
Spouse or other Beneficiary of the Participant). The Trustee shall, subject to
the claims of the Insolvency Creditors, if any, of the Grantor, make payment of
Death Benefits due a Participant or Beneficiary directly to the Participant or
Beneficiary. The Trustee shall, subject to the claims of the Insolvency
Creditors, if any, of the Grantor, make payment of Salary Deferral Benefits due
a Participant directly to the Participant (or the Spouse or other Beneficiary of
the Participant). The Trustee shall, subject to the claims of the Insolvency
Creditors, if any, of the Grantor, make payment of Plan Exhibits B and C
benefits due Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx (as applicable) under, or
pursuant to, Plan Exhibits B and C directly to Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxxx (as applicable) (or the Spouse or other Beneficiary of Xxxxxx X. Xxxxxx
or Xxxxxx X. Xxxxxxxx (as applicable)). To the extent Trust Assets are
insufficient to pay such Deferred Benefits and/or Death Benefits and/or Salary
Deferral Benefits and/or Plan Exhibit B or C benefits, the Grantor shall make
such payments. Such payments shall be made pursuant to written directions issued
by the Committee under Section 3.6(b) prior to any Change in Control and, upon a
Change in Control, pursuant to Section 3.5, and subject, in each case, to the
terms of the Plan as it exists on the day before the date of any Change in
Control. After the day before the date of any Change in Control, modifications
to the written directions of the Committee or to the Plan shall be effective as
to the Participant or Beneficiary (as applicable) with respect to payments from
this Trust only if the Compensation Committee of the Board (as constituted on
the day before the date of the Change in Control) and such Participant or
Beneficiary (as applicable) both
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consent in writing to such modification. In the event that the Trustee
determines, pursuant to Section 3.7(a)(4), that written directions issued by the
Committee pursuant to Section 3.6(b) or by the Compensation Committee pursuant
to Section 3.5 are not in accordance with the terms of the Plan as it exists on
the day before the date of any Change in Control, or the failure to issue such
directions is not in accordance with the terms of the Plan as it exists on the
day before the date of any Change in Control, the Trustee shall act in
accordance with the determination made by the Trustee pursuant to Section
3.7(a)(4).
The establishment of this Trust shall not reduce the Grantor's
obligations to the Participant pursuant to the provisions of Article IV of the
Plan or to the Participants or Beneficiaries pursuant to the provisions of
Article V of the Plan or to the Participant pursuant to the provisions of
Article VI of the Plan or to Xxxxxx X. Xxxxxx or to Xxxxxx X. Xxxxxxxx pursuant
to the provisions of Plan Exhibits B and C. If for any reason the Trustee fails
to make payment of the Deferred Benefit due a Participant in accordance with the
terms of Article IV of the Plan or of a Death Benefit due a Participant or
Beneficiary in accordance with the terms of Article V of the Plan or of the
Salary Deferral Benefit due a Participant in accordance with the terms of
Article VI of the Plan or of the Plan Exhibit B and C benefits due Xxxxxx X.
Xxxxxx or Xxxxxx X. Xxxxxxxx (as applicable) in accordance with the terms of
Plan Exhibits B and C, the Grantor shall remain fully liable for the payment of
such amounts. Such liability of the Grantor constitutes an unsecured promise to
pay Deferred Benefits and/or Death Benefits and/or Salary Deferral Benefits
and/or Plan Exhibit B and C benefits and the Participant's and/or Beneficiary's
(as applicable) status shall be that of a general unsecured creditor. In the
event of the Grantor's Insolvency or any written allegation of such Insolvency,
the Trustee shall apply the Trust Assets in accordance with Section 3.7(b).
The Trustee shall be authorized to apply to a court of
competent jurisdiction for direction at any time it determines that it has
insufficient information to determine the amounts of Deferred Benefit and/or
Death Benefit and/or Salary Deferral and/or Plan Exhibits B and C payments that
would be consistent with the provisions of the Plan. In the event that the
Trustee applies to a court for direction pursuant to this Section 4.2, all costs
and reasonable attorneys' fees incurred in connection with such application
shall be paid by the Grantor.
The Trustee shall withhold from any payment to the Participant
(or his Spouse or other beneficiary) under Article IV of the Plan and from any
payment to the Participant or Beneficiary under Article V of the Plan and from
any payment to the Participant (or his Spouse or other Beneficiary) under
Article VI of the Plan and from any payment to Xxxxxx X. Xxxxxx (or his Spouse
or other Beneficiary) and to Xxxxxx X. Xxxxxxxx (or his Spouse or other
Beneficiary) under Plan Exhibits B and C the amount required by law to be
withheld under Federal, State and local wage withholding requirements and shall
pay over to the appropriate governmental authority any amount so withheld.
4.3 Distribution: Except as otherwise provided in Section
2.9(a), distribution of Deferred Benefits payable to the Participant or his
Spouse or other Beneficiary and of Death Benefits payable to the Participant or
Beneficiary and of Salary Deferral Benefits payable to the Participant or his
Spouse or other Beneficiary and of Plan Exhibit B benefits payable to Xxxxxx X.
Xxxxxx or his Spouse or other Beneficiary and of Plan Exhibit C benefits payable
to Xxxxxx X. Xxxxxxxx or his Spouse or other Beneficiary shall be made in
accordance with the terms of Articles IV, V and VI of the Plan and of Plan
Exhibits B and C as in effect on the day before the date of a Change in Control.
4.4 Account Records: All accounting records, valuation
schedules, periodic statements, and audits pertaining to this Trust and the
Trust Accounts shall be retained as a part of the permanent records of the
Trustee in accordance with its usual recordkeeping procedures for trust
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accounts. The Committee may, in its discretion, direct the Trustee to retain, at
the expense of this Trust, independent certified public accountants to audit
such records; provided, however, that nothing in this Trust Agreement shall be
construed so as to deprive the Trustee of the right to seek and obtain a
judicial settlement of its accounts at the expense of this Trust.
4.5 Notices, Directions and Other Communications: All notices,
directions, and other communications by a Fiduciary pursuant to this Trust
Agreement (herein referred to as "directions") shall be given or made in writing
by the person or persons specifically authorized by the Fiduciary to act on its
behalf, and shall be deemed effective upon receipt by the addressee; provided,
however, that transmission of such directions by photostatic teletransmission
with duplicate or facsimile signature shall be an authorized method of
communication until the Fiduciary is notified by the Committee that the use of
such device is no longer authorized, and provided further that transmission of
such directions by telephone shall also be an authorized method of communication
until the Fiduciary is notified by the Committee to the contrary. Any direction
transmitted by telephone shall be promptly confirmed by a written instrument.
The Trustee shall be entitled to act upon and settle any transactions with the
Insurer in reliance upon directions transmitted by telephone as recorded and
transcribed by the Trustee. If the Trustee fails to receive a written
confirmation of such a direction transmitted by telephone within five (5)
business days following the date of receipt of such direction, or if a written
confirmation received conflicts with the oral direction received by telephone,
the Trustee shall promptly notify the Fiduciary giving the direction orally of
such fact and request (a) delivery of such written confirmation forthwith if it
has not been received, or (b) an additional direction if there is a conflict
between the oral directions and the written confirmation. Notwithstanding the
foregoing, the Trustee is authorized to settle trades effected by a Fiduciary
having investment authority through a securities depository utilizing an
institutional delivery system, in which event the Trustee may deliver or receive
securities in accordance with appropriate trade reports or statements given the
Trustee by such depository without having received communications or
instructions directly from the Fiduciary.
4.6 Reports by Trustee: The Trustee shall submit to the
Committee and each Participant in the Plan such interim valuations, reports, or
other information as the Committee and such Participant may reasonably request.
Within sixty (60) days after (a) the end of each Plan Year, (b) the end of each
Plan Year quarter, (c) the effective date of the Trustee's removal or
resignation, or (d) the effective date of termination of this Trust, unless a
different period is mutually agreed upon, the Trustee shall submit to the
Committee and the Participants in the Plan a written report relating to the
period following the period covered by its last report. Such report shall set
forth all transactions relating to this Trust during the applicable period,
including, but not limited to, investment purchases and sales, receipts,
disbursements, and a listing of the Trust Assets by Trust Account showing
carrying and market values as of the end of the report period.
4.7 Notification of Rights Regarding Securities: The Trustee
shall have no obligation to determine the existence of any conversion,
redemption, exchange, subscription, or other right relating to any securities
purchased hereunder of which notice was given prior to the purchase of such
securities, and shall have no obligation to exercise any such right unless it is
informed of the existence of the right and is instructed to exercise such right,
in writing, by the Fiduciary making or directing the investment in such
securities, within a reasonable time prior to the expiration of such right.
4.8 Tax Assessments: In the event that any income or other tax
or assessment is levied upon or assessed against this Trust or any portion
thereof, or upon or against the interest, if any, of any person in this Trust or
any portion thereof, or the transfer or payment of such interest to any such
person, or upon the Trustee by reason of the existence of this Trust or anything
done by the Trustee pursuant thereto, the Trustee shall immediately notify the
Committee thereof. If the Trustee
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receives no notice or direction from the Committee, the Trustee shall have the
power to pay such tax or assessment to the extent not paid by the Grantor from
such portion of this Trust against which the tax or assessment has been levied;
or if such tax or assessment is not applicable to any specific portion of this
Trust or to the interest, if any, of any specific person therein, the Trustee
shall have authority to pay such tax or assessment from this Trust. In the event
that the Committee desires to contest the validity, in whole or in part, of any
such tax or assessment, it shall give the Trustee notice thereof, and the
Trustee, upon receiving reasonable indemnity (including reasonable attorneys'
fees and expenses) therefor from the Grantor, shall take such steps as the
Committee directs with respect to contesting the validity, in whole or in part,
of any such tax or assessment. The Trustee shall further, upon receiving
reasonable indemnity from the Grantor, either permit the Committee to bring such
action or proceeding in the name of the Trustee as said Committee deems
advisable to test the validity of such tax or assessment, or the Trustee itself
shall bring such action. Whether the action is brought in the name of the
Trustee by the Committee or prosecuted directly by the Trustee, the Committee
shall have the right to select counsel acceptable to the Trustee and to control
the prosecution of said action or proceeding. The Trustee, however, shall not be
required to bring any action or proceeding to test the validity, in whole or in
part, of any such tax or assessment unless so directed by the Committee, and
upon giving said Committee notice of the levy of any such tax or assessment, the
Trustee shall not itself be required to inquire into or question the validity of
such tax or assessment. Prior to making any payments, transfers or distributions
of, or from, any portion of this Trust as provided in this Trust Agreement, the
Trustee may require such releases or other documents from any lawful taxing
authorities as it shall deem necessary or advisable.
4.9 Validity of Contracts: The Trustee shall not be
responsible for the validity or proper execution of any contract delivered to
it, nor for any act of any person which may render any such contract void or
voidable.
4.10 Principal and Income: No distinction shall be made
between the principal and income in the management and administration of this
Trust.
ARTICLE V -- PROVISIONS RELATING TO TRUSTEE
5.1 Resignation and Removal: The Trustee may resign at any
time upon sixty (60) days' written notice to the Committee, unless a shorter
period is acceptable to the Committee. The Committee may at any time prior to
the date of a Change in Control remove the Trustee upon sixty (60) days' written
notice to the Trustee, unless a shorter period is acceptable to the Trustee. On
or after the date of a Change in Control, the Compensation Committee of the
Board (as it is constituted on the day before the date of a Change in Control)
may, with the written consent of at least fifty-one (51) percent of the
Participants in the Plan, remove the Trustee upon sixty (60) days' written
notice to the Trustee, unless a shorter period is acceptable to the Trustee.
5.2 Appointment of Successor: In the event of the removal of,
or resignation of, the Trustee prior to a Change in Control, the Committee shall
appoint a successor with the written consent of the Grantor. In the event of the
removal of, or resignation of, the Trustee on or after the date of a Change in
Control, the Compensation Committee of the Board (as it is constituted on the
day before the date of a Change in Control) shall appoint a successor with the
written consent of at least fifty-one (51) percent of the Participants in the
Plan. If the Committee, or said Compensation Committee of the Board, fails to
appoint a successor by the end of the sixty (60)-day period referred to in
Section 5.1, the Trustee may secure the appointment of a successor by a court of
competent jurisdiction. All expenses of the Trustee in connection with the
proceeding shall be allowed as an
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expense of the Trust. The Trustee shall remain vested with the rights, powers
and duties set forth in this Trust Agreement until its successor delivers
written acceptance of such appointment to the Committee (or Compensation
Committee of the Board, if applicable) and the retiring Trustee. Upon the
receipt of such written acceptance, the successor Trustee shall be vested with
all the rights, powers and duties of the Trustee under this Trust Agreement, and
the retiring Trustee shall endorse, transfer, assign, convey and deliver to its
successor all of the Insurance Contracts and other property then held by it
under this Trust, except such amount as shall be agreed upon between the Trustee
and the Committee (or Compensation Committee of the Board, if applicable), as
reasonable compensation and expenses in connection with the settlement of
accounts and the delivery of the assets to the successor Trustee.
A successor Trustee may not be the Grantor, any person who
would be a "related or subordinate party" to the Grantor within the meaning of
section 672(c) of the Code, or a corporation that would be a member of an
"affiliated group" of corporations including the Grantor within the meaning of
section 1504(a) of the Code if the words "80 percent" were replaced by the words
"50 percent" wherever they appear in such section.
5.3 Information Furnished to Trustee: Upon the original
execution of this Trust Agreement, the Grantor delivered to the Trustee the
name, address, date of birth, and Social Security number of each Participant
covered under Article IV of the Plan and each Participant covered under Article
V of the Plan and the name, address, date of birth and social security number of
each Beneficiary of each Participant covered under Article V of the Plan. Upon
the execution of the Trust Agreement, as previously amended and restated, the
Grantor delivered to the Trustee the name, address, date of birth, and Social
Security number of each Participant covered under Article VI of the Plan. Upon
the execution of the Trust Agreement, as amended and restated herein, the
Grantor shall deliver to the Trustee the address, date of birth, and Social
Security number of Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx who are entitled to
benefits under, or pursuant to, Plan Exhibits B and C, respectively. Not later
than sixty (60) days after the end of each calendar year, Grantor shall provide
Trustee with any changes in such information through the close of the calendar
year.
5.4 Expenses and Trustee Compensation: The Trustee shall be
entitled to reasonable compensation for its services and shall be reimbursed for
all reasonable expenses incurred by it in performing its duties hereunder,
including, but not limited to, legal and accounting expenses. Such compensation
is set forth in a separate schedule. Such schedule may be modified from time to
time as agreed to by the Committee (or Compensation Committee of the Board, if
applicable) and the Trustee. All such compensation and expenses shall be paid to
the Trustee by the Grantor; provided, however, that such compensation and
expenses shall constitute a charge upon this Trust, and may be withdrawn by the
Trustee from this Trust upon prior written notice to the Grantor if not
otherwise paid. Any costs or expenses that are chargeable to this Trust but
which for administrative convenience and efficiency are paid or incurred by the
Grantor shall be fully reimbursed by this Trust to the Grantor upon presentation
to the Trustee of an accounting of such costs and expenses, including any costs
and expenses incurred by the Committee or any employees in connection with
administrative activities relating to the Plan. In all cases the Trustee shall
be entitled to rely upon the Grantor's statement and directions concerning the
payment of any such administration expenses and shall be fully protected in
making such payments pursuant to the directions of the Committee.
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ARTICLE VI -- AVAILABILITY OF TRUST FUND
6.1 Trust Irrevocable; Amendments: The Trust shall be
irrevocable and may not be amended or terminated by the Grantor in whole or in
part, except as follows:
(a) The Grantor and the Trustee may amend this Trust
Agreement by written instrument executed by both parties, without the
consent of the Participants in the Plan, provided such amendment does
not have an adverse effect on the rights of such Participants
hereunder.
(b) Except as provided in Section 6.1(a), the Grantor
and the Trustee may amend this Trust Agreement by written instrument
executed by both parties and consented to in writing by Participants
having at least fifty-one (51) percent of the value of the Deferred
Benefits and Death Benefits under the Plan and of the value of benefits
under, or pursuant to, Plan Exhibits B and C at the time of the
amendment.
6.2 Participants' Rights to Trust Assets: No Participant in
the Plan shall have any preferred claim on, or any beneficial ownership interest
in, any of the Trust Assets prior to the time such Trust Assets are paid to such
Participant or to his Beneficiary as provided in Section 2.9, and all rights
created under the Trust and the Plan shall be mere unsecured contractual rights
of such Participants against the Grantor.
6.3 Grantor Trust: The Trust is intended to be a trust of
which the Grantor is treated as the owner for Federal income tax purposes in
accordance with the provisions of sections 671 through 679 of the Code. If the
Trustee, in its sole discretion, deems it necessary or advisable for the Grantor
or the Trustee to undertake or refrain from undertaking any actions (including,
but not limited to, making or refraining from making any elections or filings)
in order to ensure that the Grantor is at all times treated as the owner of the
Trust for Federal income tax purposes, the Grantor or the Trustee will undertake
or refrain from undertaking (as the case may be) such actions. The Grantor
hereby irrevocably authorizes the Trustee to be its attorney-in-fact for the
purpose of performing any act which the Trustee, in its sole discretion, deems
necessary or advisable in order to accomplish the purposes and the intent of
this Section 6.3. The Trustee shall be fully protected in acting or refraining
from acting in accordance with the provisions of this Section 6.3.
ARTICLE VII -- MISCELLANEOUS
7.1 Applicable Law: This Trust Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania except where
pre-empted by Federal law.
7.2 Binding Effect: This Trust Agreement shall be binding upon
the heirs, personal representatives, successors, and assigns of any and all
present and future parties.
7.3 Separability: In the event that any provision of this
Trust Agreement or the application thereof to any person or circumstances shall
be determined by a court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Trust Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each provision of this Trust Agreement shall be valid and enforced to the
fullest extent permitted by law.
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7.4 Notices to Parties: Any notice or instructions required
under any of the provisions of this Trust Agreement shall be deemed effectively
given only if such notice is in writing and is delivered personally or by
certified or registered mail, return receipt requested and postage prepaid, and
shall be effective when actually delivered or, if mailed, when deposited. Mail
to a party shall be directed to the following addresses or to such other address
as either party may specify by notice to the other party:
(a) Grantor:
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(b) Trustee:
00xx xxx Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
7.5 Headings: Headings of Articles and Sections or any
divisions thereof are inserted for convenience only and do not constitute an
operative part of this Trust Agreement.
7.6 Gender and Number: The masculine pronoun wherever used
shall include the feminine and neuter and the singular may include the plural,
and vice versa, as the context may require.
7.7 Incorporation of Plan: All the provisions of the Plan are
incorporated herein by reference.
7.8 Conflicting Provisions: In the event of any conflict
between the provisions of this Trust Agreement and the provisions of the Plan,
the provisions of the Plan shall control.
7.9 Effective Date: The original effective date of the Trust
Agreement was April 16, 1992. The effective date of the Trust Agreement, as last
amended and restated herein, was January 1, 1995. The effective date of the
Trust Agreement, as amended and restated herein, shall be January 1, 1996.
7.10 Court Proceedings: In the case of any court proceeding
involving the Trustee or this Trust, only the Grantor and the Trustee shall be
necessary or proper parties thereto; provided, however, that the Trustee shall
notify the Committee, the Compensation Committee of the Board (as constituted on
the day before the date of the Change in Control (if applicable)) and each
Participant in the Plan of any such court proceeding, and such Participants
shall have the right to intervene. Any final judgment entered in any such
proceeding shall be conclusive upon the Grantor, the Trustee, the Participants
in, and Beneficiaries under the Plan and the creditors, including Insolvency
Creditors, of the Grantor.
7.11 Successors and Assigns: This Trust Agreement shall inure
to the benefit of, and be binding upon, the parties hereto and their successors
and assigns, except as is expressly provided to the contrary herein.
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7.12 Prohibition on Trustee: Notwithstanding any powers
granted to the Trustee pursuant to this Trust Agreement or applicable laws, the
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
Treas. Reg. ss. 301.7701-2.
IN WITNESS WHEREOF, the Trustee and the Grantor have caused
this amended and restated Trust Agreement to be executed by their duly
authorized officers and their seals to be hereunto affixed as of the 28th day of
August, 1996.
[CORPORATE SEAL] Grantor: XXXX MANUFACTURING CO.
Attest:
________________________________ By:________________________________
Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx, Vice President,
Assistant Secretary Human Relations
[CORPORATE SEAL] Trustee: CORESTATES BANK, N.A.
Attest:
________________________________ By:________________________________
Trust Officer Vice-President
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TRUST EXHIBIT A -- SPECIAL PROVISIONS RELATING TO XXXXXX X. XXXXXX
I. The provisions of Plan Exhibit B shall apply.
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TRUST EXHIBIT B -- SPECIAL PROVISIONS RELATING TO XXXXXX X. XXXXXXXX
I. Preamble. Xxxx Manufacturing Co. ("Grantor") entered into an
Employment Agreement (the "Agreement") with Xxxxxx X. Xxxxxxxx ("Executive") on
April 8, 1996. Pursuant to the Agreement, Executive shall participate in the
Plan in accordance with the terms of the Plan and Plan Exhibit C to the Plan.
II. Phantom Stock Account. In accordance with the Agreement and Plan
Exhibit C to the Plan, there shall be established under the Trust a separate
Phantom Stock Account for Executive. Grantor shall make contributions to such
Phantom Stock Account at such times and in such amounts as the Board, in its
sole discretion, shall determine.
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