Exhibit 10(ff)
THE ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
DEFERRED COMPENSATION TRUST II
This Agreement effective as of the 1st day of January, 1997, by and between
▇▇▇▇▇▇▇▇ & Ilsley Corporation ("Company") and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Trust Company
("Trustee");
WHEREAS, Company, on its behalf and on behalf of certain of its affiliates
and other related entities (referred to individually as a "Plan Sponsor" and
collectively as the "Plan Sponsors"), has adopted a nonqualified deferred
compensation plan for a selected group of its highly compensated employees known
as the ▇▇▇▇▇▇▇▇ & Ilsley Corporation Executive Deferred Compensation Plan
("Plan") and the Amended and Restated ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation
Supplementary Retirement Benefits Plan (the "SERP") (the Plan and the SERP are
jointly referred to as the "Plans");
WHEREAS, the Plan Sponsors have incurred or expect to incur liability under
the terms of such Plans with respect to their respective employees participating
in such Plans;
WHEREAS, the Plan Sponsors wish to establish a trust (hereinafter called
"Trust") and each Plan Sponsor wishes to contribute, to its own account (the
"Account") within the Trust, assets that shall be held in its Account, subject
to the claims of such Plan Sponsor's creditors in the event of its Insolvency,
as herein defined, until paid to Plan participants and their beneficiaries from
their respective subaccounts (the "Subaccounts") within such Plan Sponsor's
Account, in accordance with the terms of the Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of ERISA;
WHEREAS, it is the intention of the Company, and each Plan Sponsor, to make
contributions to the Subaccounts under the Trust to provide the Plan Sponsors
with a source of funds to assist them in the meeting of their liabilities under
the Plans.
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) Each Plan Sponsor hereby deposits with Trustee in trust Ten Dollars
($10.00) into its Account under the Trust, which amount, in the aggregate, 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 each Plan Sponsor
is a 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 each Plan Sponsor and shall be used
exclusively for the uses and purposes of Plan participants and their
beneficiaries and general creditors of each Plan Sponsor 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 Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against their
respective Plan Sponsors. Any assets held in a Plan Sponsor's account under the
Trust will be subject to the claims of such Plan Sponsor's general creditors
under federal and state law in the event of such Plan Sponsor's Insolvency, as
defined in Section 3(a) herein.
(e) Each Plan Sponsor shall, from time to time, but no less frequently than
annually, 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 so that the funds in each Subaccount
are sufficient to meet such Plan Sponsor's obligation to each participant in the
Plans from time to time.
(f) Each Plan Sponsor, other than the Company, shall join in and adopt this
Trust by means of a joinder agreement (the "Joinder Agreement"), substantially
in the form of Exhibit A hereto, and in so doing, shall appoint the Company as
its agent for purposes of this Trust, and shall agree that (i) it shall be bound
by the Company's decisions, actions, and directions under this Trust, (ii) the
Company has the sole authority to enforce this Trust on behalf of such Plan
Sponsor, and (iii) the Trustee shall be fully protected in relying upon such
decisions, actions, and directions, and the Trustee shall in no event be
required to give notice to, or otherwise deal with, such Plan Sponsor except by
dealing with the Company as agent of such Plan Sponsor.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company, on behalf of itself and the other Plan Sponsors, 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 the Plan and the time of commencement for payment of such
amounts. Except as otherwise provided herein, Trustee shall make payments to the
Plan participants and their beneficiaries in accordance with such Payment
Schedule. The Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the Plans and shall
pay amounts withheld to the appropriate taxing authorities or determine that
such amounts have been reported, withheld and paid by the applicable Plan
Sponsor.
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(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plans shall be determined by Company or such party as it
shall designate under the Plans, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plans.
(c) Each Plan Sponsor may make payment of benefits directly to such Plan
Sponsor's Plan participants or their beneficiaries as they become due under the
terms of the Plans. Company shall notify Trustee of its or any other Plan
Sponsor's decision to make payment of benefits directly prior to the time
amounts are payable to participants or their beneficiaries. In addition, if the
principal of the Trust, and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the Plans, Company or other
Plan Sponsor, whichever applies, shall make the balance of each such payment as
it falls due. Trustee shall notify Company where principal and earnings are not
sufficient.
Section 3. Trustee Responsibility Regarding Payments To Trust Beneficiary
When A Plan Sponsor is Insolvent.
(a) When a Plan Sponsor is Insolvent, Trustee shall cease payment of
benefits to such Plan Sponsor's Plan participants and their beneficiaries from
their respective Subaccounts within such Plan Sponsor's Account. A Plan Sponsor
shall be considered "Insolvent" for purposes of this Trust Agreement if (i) the
Plan Sponsor is unable to pay its debts as they become due, (ii) the Plan
Sponsor is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code, or (iii) the Plan Sponsor is determined to be insolvent by any
state or federal regulatory authority.
(b) At all times during the continuance of this Trust, as provided in
Section l(d) hereof, the principal and income held in each Plan Sponsor's
Account within the Trust shall be subject to claims of such Plan Sponsor's
general creditors under federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive Officer of Company
and each other Plan Sponsor shall have the duty to inform Trustee in writing of
its, or in the case of the Company, its or any other Plan Sponsor's Insolvency.
If a person claiming to be a creditor of any Plan Sponsor alleges in writing to
Trustee that such Plan Sponsor has become Insolvent, Trustee shall determine
whether such Plan Sponsor is Insolvent and, pending such determination, Trustee
shall discontinue payment of benefits to such Plan Sponsor's Plan participants
or their beneficiaries or their beneficiaries from their respective Subaccounts
within such Plan Sponsor's Account.
(2) Unless Trustee has actual knowledge of any Plan Sponsor's
Insolvency, or has received notice from Company, another Plan Sponsor, or a
person claiming to be a creditor alleging that Company or any other Plan Sponsor
is Insolvent, Trustee shall have no duty to inquire whether any Plan Sponsor is
Insolvent. Trustee may in all events rely on such evidence concerning any Plan
Sponsor's solvency as may be furnished to Trustee and that provides
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Trustee with a reasonable basis for making a determination concerning any Plan
Sponsor's solvency.
(3) If at any time Trustee has determined that any Plan Sponsor is
Insolvent, Trustee shall discontinue payments to such Plan Sponsor's Plan
participants or their beneficiaries from their respective Subaccounts within
such Plan Sponsor's Account and shall hold the assets of the Trust for the
benefit of such Plan Sponsor's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of their Plan Sponsor
with respect to benefits due under the Plans or otherwise.
(4) Trustee shall resume the payment of benefits to such Plan
Sponsor's Plan participants or their beneficiaries in accordance with Section 2
of this Trust Agreement only after Trustee has determined that such Plan Sponsor
is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets in the Plan Sponsor's Account
under the Trust, if Trustee discontinues the payment of benefits from such Plan
Sponsor's Account 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 such Plan Sponsor's Plan participants or
their beneficiaries under the terms of the Plan for the period of such
discontinuance, less the aggregate amount of any payments made to such Plan
Sponsor's Plan participants or their beneficiaries by such Plan Sponsor in lieu
of the payments provided for hereunder during any such period of discontinuance.
Section 4. Payments to the Plan Sponsors.
Except as provided in Section 3 hereof, any Plan Sponsor shall have no
right or power to direct Trustee to return to the Plan Sponsor or to divert to
others any of the Trust assets before all payment of benefits have been made to
Plan participants and their beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
(a) Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by Company. All rights associated with assets of
the Trust shall be exercised by Trustee at the direction of the Plan Sponsors or
the person designated thereby (a "designee"), and shall in no event be
exercisable by or rest with Plan Participants.
(b) In addition to the general investment powers set forth above in this
Section 5, the following provisions shall apply:
(i) Investment Guidelines and Directives. The Trustee shall manage,
acquire, or dispose of the assets of the Trust in accordance with this Agreement
and the directions of the Plan Sponsors or their designee. To the extent
permitted by law, the Trustee shall not be liable for any investment made
pursuant to the Plan Sponsors' or their designees' direction.
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(ii) Trustee Powers. The Trustee shall have the following powers,
rights and duties subject to Section 8 and the other provisions of this Trust
Agreement:
(A) To receive and hold all contributions paid to it by the Plan
Sponsors;
(B) To effectuate the written investment instructions given by the
Plan Sponsors or their designee without regard to any law now or hereafter
in force limiting investments of fiduciaries;
(C) To retain in separate Accounts for each Plan Sponsor within the
trust for investment, any property deposited by the Plan Sponsors
hereunder, allocated among Subaccounts in accordance with Section 7 hereof;
(D) To have the authority to invest and reinvest assets of the Trust
in shares of common or preferred stock, bonds, notes, debentures, short-
term securities, mutual funds (including any such fund from which the
Trustee or any affiliate thereof receives an investment management fee or
any other fee), common Trust funds, and other property, real or personal,
of any kind; to purchase and sell "put" and "call" options on publicly
traded securities; and to acquire, hold, manage, operate, sell, contract to
sell, grant options with respect to, convey, exchange, transfer, abandon,
lease, manage, and otherwise deal with respect to assets of the Trust;
(E) To acquire, hold or dispose of insurance or annuity contracts as
directed by the Plan Sponsors or their designees;
(F) To borrow from anyone such amount or amounts of money necessary to
carry out the purpose of this Trust and for that purpose to mortgage or
pledge all or any part of the Trust;
(G) To retain in the Trust for investment or pending distributions,
any portion of the Trust in cash deemed appropriate by the Trustee;
(H) To establish accounts in any affiliate of the Trustee and in such
other banks and financial institutions as the Trustee deems appropriate to
carry out the purposes of the Trust;
(I) To deposit securities with a clearing corporation as defined in
Article Eight of the Uniform Commercial Code; to hold the certificates
representing securities, including those in bearer form, in bulk form with
and to merge such certificates into certificates of the same class of the
same issuer which constitute assets of other accounts or owners, without
certification as to the ownership attached; and to utilize a book-entry
system for the transfer or pledge of securities held by the Trustee or by a
clearing corporation, provided that the records of the Trustee shall
indicate the actual ownership of the securities and other property of the
Trust Fund.
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(J) To participate in and use the Federal book-entry account system, a
service provided by the Federal Reserve Bank for its member banks for
deposit of Treasury securities.
(K) To hold securities or property in the name of the Trustee or its
nominee or nominees or in such other form as it determines best with or
without disclosing the Trust relationship, providing the records of the
Trust shall indicate the actual ownership of such securities or other
property.
Section 6. Disposition of Income.
During the term of this Trust, all income received by a Plan Sponsor's
Account under the Trust, net of expenses and taxes, shall be accumulated and
reinvested in such Account.
Section 7. Accounting by Trustee.
Trustee shall establish and maintain within the Trust a separate Account
for each Plan Sponsor, which shall at all times reflect such Plan Sponsor's
equitable share in the Trust fund, and shall hold, manage, administer, value,
make purchases and sales for, distribute, account for, and otherwise deal with,
each such Account separately.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made with
respect to the Trust as a whole and each Plan Sponsor's Account within the
Trust, including such specific records as shall be agreed upon in writing
between Company and Trustee. Within 30 days following the close of each calendar
year and within 30 days after the removal or resignation of Trustee, Trustee
shall deliver to Company a written account of its administration of the Trust as
a whole and each Plan Sponsor's Account within 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 or such
Account at the end of such year or as of the date of such removal or
resignation, as the case may be.
In addition, the Trustee shall establish and maintain Subaccounts for Plan
participants, within their Plan Sponsor's Account under the Trust, in a manner
that is consistent with the requirements of the Plans, and that facilitates
their investment instructions and benefit payments under the Plan.
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
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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 any Plan
Sponsor which is contemplated by, and in conformity with, the terms of the Plan
or this Trust and is given in writing by any Plan Sponsor. In the event of a
dispute between any Plan Sponsor and a party, Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, the Plan Sponsors agree to indemnify Trustee against Trustee's
costs, expenses and liabilities (including, without limitation, attorneys' fees
and expenses) relating thereto and to be primarily liable for such payments. If
the Plan Sponsors do not pay such costs, expenses and liabilities in a
reasonably timely manner, Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for a
Plan Sponsor generally) with respect to any of its duties or obligations
hereunder.
(d) 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.
(e) Trustee shall have, without exclusion, all powers conferred on Trustees
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor Trustee or to loan to any person the proceeds of
any borrowing against such policy.
(f) However, notwithstanding the provisions of Section 8(e) above, Trustee
may loan to any Plan Sponsor the proceeds of any borrowing against an insurance
policy held as an asset of the Plan Sponsor's Account within the Trust.
(g) 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 Procedures and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
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. Resignation and Removal of Trustee.
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(a) Trustee may resign at any time by written notice to Company, which
shall be effective 60 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 days notice or upon shorter
notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 30 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 11. Appointment of Successor.
(a) If Trustee resigns or is removed in accordance with Section 10(a) or
(b)hereof, Company may appoint any third party, such as a bank trust department
or other party that may granted corporate trustee powers under state law, as a
successor to replace Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have all of
the rights and powers of the former Trustee, including ownership rights in the
Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by Company or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed by
Trustee and Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plans or shall make the Trust revocable after it
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 Plans. Upon termination of the Trust any assets remaining in the Trust
shall be returned to Company.
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(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plans, Company may terminate
this Trust prior to the time all benefits 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 Wisconsin.
Section 14. Effective Date.
The effective date of this Trust Agreement shall be January 1, 1997.
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IN WITNESS WHEREOF, the Company and Trustee have caused this Agreement to
be duly executed on the date first above written.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By:
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Title: Senior Vice President
Attest:
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Title: Secretary
▇▇▇▇▇▇▇▇ AND ILSLEY TRUST COMPANY
By:
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Title:
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Attest:
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Title:
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