1
EXHIBIT 10.2
AMENDED AND RESTATED MANVILLE PERSONAL INJURY
SETTLEMENT TRUST AGREEMENT
Amended and Restated Manville Personal Injury Settlement Trust Agreement,
dated as of April 29, 1997, among Xxxxxxxx Corporation, f/k/a Manville
Corporation (the "Company"), as successor to the Trustors (as hereinafter
defined), and Xxxxxx X. Xxxxxx, Xxxxx Xxxxx, Xx., Xxxxx X. Xxxxxxxxxxx and
Xxxxxxxxx X. Xxxxxx, Xx., as trustees (such persons and their successors
appointed pursuant hereto, the "Trustees") and successors to the Original
Trustees (as hereinafter defined).
WHEREAS, Xxxxx-Xxxxxxxx Corporation, Manville Corporation, Manville Sales
Corporation, Manville Canada Inc., Manville Investment Corporation, Xxx-Xxxxx
Ranch Corporation and XXX Contract & Supply, Inc., (the "Trustors"), filed
petitions for reorganization under chapter 11 of the Code on August 26, 1982;
and
WHEREAS, in order to effectuate the Plan, to provide for the payment of
Trust Claims and to receive the benefits under the Internal Revenue Code of so
providing for certain of such payments, the Trustors, as trustors, entered into
the Manville Personal Injury Settlement Trust Agreement dated as of November
28, 1988 (the "Original Trust Agreement") with Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxx,
Xxxxxxx X. Xxxx, Xx., Xxxxxxxxx X. Xxxxxx, Xx., and Xxxx X. Xxxxxxx, as
trustees, (the "Original Trustees"), and transferred the Trust Estate to the
Trust pursuant thereto; and
WHEREAS, the Original Trust Agreement has previously been amended by an
Amendment to Trust Agreement dated as of February 14, 1989, a Second Amendment
dated as of November 15, 1990, a Third Amendment dated as of December 6, 1991,
a Fourth Amendment dated as of August 6, 1992, a Fifth Amendment dated as of
December 9, 1992, a Sixth Amendment dated as of November 5, 1993, a Seventh
Amendment dated as of September 22, 1994, an Eight Amendment dated as of August
15, 1995, a Ninth Amendment dated as of March 27, 1996, and a Tenth Amendment
dated as of November 21, 1995; and
WHEREAS, the Company and the Trustees wish to amend and restate the
Original Trust Agreement, as previously amended and as further amended pursuant
hereto, in the form set forth hereinbelow;
NOW, THEREFORE, THIS TRUST AGREEMENT WITNESSETH AND IT IS
HEREBY DECLARED as follows:
2
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used herein
and not otherwise defined have the meanings assigned to them in Exhibit A
hereto.
ARTICLE II
DECLARATION OF TRUST
2.01 Name. The Trust shall be known as "Manville Personal Injury
Settlement Trust", and the Trustees may transact the business and affairs of
the Trust in that name.
2.02 Purposes. The purposes of the Trust are:
(i) to use the assets in the Trust Estate to deliver fair,
adequate and equitable compensation to bona fide Beneficiaries,
whether presently known or unknown, without overpaying or
underpaying any claims and with settlement to be preferred over
arbitration, arbitration to be preferred over resort to the tort
system, and fair and efficient resolution of claims to be preferred
over all else;
(ii) to enhance and preserve the Trust Estate;
(iii) otherwise to carry out the provisions of this Trust
Agreement, the Supplemental Agreement, as amended by the Second
Amended and Restated Supplemental Agreement, Annex D to this
Agreement, the PD Supplemental Agreement and any other agreements
into which the Trustees have entered or will enter in connection
with the Plan.
In furtherance of the foregoing purposes, the Trustees shall be responsible for
supervising and administering the Claims Resolution Facility, unless such
facility is an Industry-Wide Claims Handling Facility, in which event the
Trustees shall be responsible for monitoring and supervising the Trust's
participation in such facility.
2.03 Transfer of Assets. The Trustors transferred and assigned to the
Trust the assets listed in Part A of Schedule I hereto, having theretofore
obtained all consents and taken all other steps prerequisite to such transfer
and assignment. The Company, as the successor of the Trustors for this
purpose, shall take any and all steps as may be further necessary to effectuate
fully the transfer and assignment of such assets to the Trust. Upon execution
and delivery by the Original Trustees of the Supplemental Agreement, as amended
by the Second Amended and Restated Supplemental Agreement, the Trust in
addition received or became entitled to receive from the Company the assets
listed in Parts B and C of Schedule I hereto in accordance with the
3
terms of the Supplemental Agreement, as amended by the Second Amended and
Restated Supplemental Agreement.
2.04 Acceptance of Assets and Assumption of Liabilities. In connection
with and in furtherance of its purposes and subject to Section 5.04, the
Original Trustees hereby expressly accepted the transfer and assignment to the
Trust of the assets listed on Schedule I hereto and the Trust hereby further
expressly assumes or undertakes all Trust Claims and all Indemnification
Liabilities. Except as otherwise provided in the Claims Resolution Procedures
as such procedures are amended by the Trust Distribution Process, Annex C to
this Agreement, and the Co-Defendants' Procedures as such procedures are
amended by the Trust Distribution Process, the Trust shall have all defenses,
cross claims, and rights to liens, offsets and recoupment that the Company and
other Debtors would have had under applicable nonbankruptcy law with respect to
the Trust Claims and Indemnification Liabilities assumed by the Trust. Except
as amended by the Trust Distribution Process, (a) the Trust shall not have any
obligation with respect to any warranty, guarantee or indemnification liability
or obligation constituting an AH Claim or an Other Asbestos Obligation or an
Indemnification Liability under Clause (b) of the definition thereof, unless
(i) the Trust is notified of the assertion of the underlying claim giving rise
to the warranty, guarantee or indemnification liability or obligation against
the Person entitled to the benefits of such warranty, guarantee or
indemnification promptly after the later of the Consummation Date and the date
on which such Person becomes aware of the underlying claim, (ii) following the
Consummation Date the Trust is provided the opportunity to conduct the defense
of such claim and (iii) neither any of the Trustors nor such other Person
settles such claim without the consent of the Trust and (b) the Trust shall not
pay any contribution liability or obligation constituting an AH Claim or an
Other Asbestos Obligation, other than an Indemnity Claim or a Contribution
Claim, or constituting an Indemnification Liability unless and until the
aggregate liability of the Trust in respect of the claim underlying such
contribution liability or obligation, whether directly or through contribution,
has been Liquidated. Following assertion of any claim against any past or
present officer, director or employee of any of the Trustors that gives rise to
a Trust Claim by such officer, director or employee for indemnification from
the Trust or of any claim that gives rise to an Indemnification Liability, the
Trust shall assume and conduct the defense of the underlying claim, provided
that the conditions set forth in Clauses (a)(i) and (iii) of this Section 2.04
are satisfied.
ARTICLE III
POWERS; TRUST ADMIMSTRATION
3.01 Powers. (a) Subject to the limitations set forth in this Trust
Agreement, the Trustees shall have the power to take any and all such actions
as in the judgment of the Trustees are necessary or convenient to effectuate
the purposes of the Trust, including, without limitation, each power expressly
granted in Subsection (b) below and any power reasonably incidental thereto.
(b) Without limiting the generality of Subsection (a) above, the
Trustees shall have the power to:
(i) receive and hold the Trust Estate, and invest and re-invest
monies, other assets and proceeds held from time to time therein;
4
(ii) supervise and administer the Claims Resolution Facility, or if
such facility is an Industry-Wide Claims Handling Facility, monitor and
supervise the Trust's participation in such facility, or create, own or
acquire an ownership interest in a claims resolution facility as
described in Clause (xvii) below and supervise and administer such claims
resolution facility or monitor and supervise the Trust's participation
therein;
(iii) pay Indemnification Liabilities and other Trust Expenses and
Trust Claims either Liquidated in accordance with the Claims Resolution
Facility or the Co-Defendants' Procedures, as such procedures are amended
by the Trust Distribution Process, as applicable, or otherwise Allowed;
(iv) borrow money and issue notes and other evidences of
indebtedness (which notes or other evidences of indebtedness may
exonerate the Trustees from personal liability with respect thereto) in
the ordinary course of operations for payment of Indemnification
Liabilities and other Trust Expenses and Trust Claims and secure any of
its obligations by mortgage, pledge or other encumbrance of all or any of
its property or income;
(v) enter into the Supplemental Agreement, as amended by the Second
Amended and Restated Supplemental Agreement, the PD Supplemental
Agreement and any other agreements required by the Plan and perform all
of the Trust's obligations thereunder;
(vi) exercise all rights and benefits available to the Trust with
respect to the Insurance Coverage, subject to the provisions of the
Supplemental Agreement, as amended by the Second Amended and Restated
Supplemental Agreement;
(vii) exercise all rights and benefits accruing to the Trust as
owner of any shares the Trust may own from time to time of Manville
Common Stock, subject to the provisions of the Supplemental Agreement, as
amended by the Second Amended and Restated Supplemental Agreement, and
any other securities or instruments of the Company or of any other
issuer;
(viii) take all actions contemplated hereunder with respect to the
funds created hereby and, subject to Section 4.01(d), establish such
funds, reserves and accounts within the Trust Estate, in addition to the
funds created hereby, as deemed by the Trustees to be useful in carrying
out the purposes of the Trust;
(ix) xxx and be sued and participate, as a party or otherwise, in
any judicial, administrative, arbitrative or other proceeding, including,
without limitation, in connection with the Claims Resolution Facility;
(x) amend the Bylaws;
5
(xi) appoint such officers, including a Managing Trustee, and hire
such employees and engage such legal, financial, investment and other
advisors, managers and agents as, in the judgment of the Trustees, the
business of the Trust requires, and pay the Trustees (subject to Section
5.05) and such officers (subject to Section 5.05 in the case of the
Managing Trustee), employees, advisors, managers and agents reasonable
compensation;
(xii) enter into such other arrangements with third parties as are
deemed by the Trustees to be useful in carrying out the purposes of the
Trust (possibly including, without limitation, engaging a Person having
trust powers to act as paying agent, depositary, custodian, or trustee
with respect to funds, reserves or accounts created hereby or established
pursuant hereto);
(xiii) indemnify (and purchase insurance indemnifying or in lieu of
or in addition to such insurance, escrow monies out of the assets of the
Trust to establish self-insurance funds indemnifying) (A) the Trustees
and officers, employees, agents and representatives of the Trust to the
fullest extent that a corporation organized under Delaware law is from
time to time entitled to indemnify its directors, officers, employees,
agents and representatives, and (B) financial advisors, independent
auditors, and investment bankers engaged by the Trust where such
indemnification is determined by the Trustees to be necessary or
appropriate to serve the objectives of the Trust, which indemnification
and insurance may also cover, without limitation, claims based on
occurrences during the period from January 9, 1987 to the Consummation
Date; and without limiting the foregoing, to establish a segregated
security fund of up to $30,000,000, to be set aside out of the assets of
the Trust and devoted exclusively to securing the obligations of the
Trust to indemnify such of the Trustees and officers, employees, agents,
representatives, financial advisors, independent auditors, and investment
bankers of the Trust as may be specified in the instrument or instruments
governing such fund or in amendments thereto;
(xiv) enter into any contract or otherwise engage in any transaction
with any Trustee or any Person affiliated with any Trustee provided that
such contract or such transaction is approved by the majority vote of not
less than 80% of the Trustees none of whom is a party to or otherwise
involved in, or has an interest in, such contract or transaction, it
being understood that to the extent permitted by law the usual rules
prohibiting fiduciaries from dealing with themselves as individuals or
from dealing with respect to any matter in which they have a personal
interest shall not apply to the Trustees;
(xv) delegate any or all of the discretionary power and authority
herein conferred at any time with respect to all or any portion of the
Trust Estate to any one or more reputable individuals or recognized
institutional advisers or investment managers without liability for any
action taken or omission made because of any such delegation;
(xvi) consult with the Company at such times and with respect to
such issues relating to the conduct of the Trust as the Trustees consider
desirable;
6
(xvii) at any time after the second anniversary of the Consummation
Date, withdraw from the Claims Resolution Facility and create, enter
into, participate with others in or merge with, any other claims
resolution facility (including, without limitation, a claims resolution
facility that handles personal injury and/or property damage claims
related to asbestos brought against one or more Persons other than the
Trust, in addition to handling Trust Claims for the Trust) or an
Industry-Wide Claims Handling Facility, if the Trustees shall determine
by unanimous vote, after consultation with the Selected Counsel for the
Beneficiaries and any other interested parties whom the Trustees desire
to consult, that the purposes and substantive procedures of such other
claims resolution facility or such Industry-Wide Claims Handling Facility
are consistent with those of the Claims Resolution Facility, which
determination by the Trustees shall be final, binding and non-appealable;
(xviii) make any investment or carry on any activity permitted by
Section 4.03 hereof;
(xix) serve as a director of any corporation (including, without
limitation, the Company or any of its Affiliates) in which the Trust
directly or indirectly holds an equity or debt investment (a "Portfolio
Company"), including, without limitation, service on any committees or
subcommittees of the board of directors of any such Portfolio Company;
provided that, commencing on October 1, 1993, any Trustee who also serves
concurrently as a director of any Portfolio Company at the request of the
Trust (a "Trustee Director") will instruct such Portfolio Company to pay
directly to the Trust all meeting fees and annual retainers which such
Trustee-Director is entitled to receive in his or her capacity as a
director or board committee member of such Portfolio Company, so long as
such Trustee remains both a Trustee and a director of such Portfolio
Company. For the foregoing purposes, any person who is serving
concurrently as a Trustee of the Trust and a director of Xxxxxxxx
Corporation or any majority-owned subsidiary of Xxxxxxxx Corporation
(each, a "Manville Company") will, so long as the Trust continues to own
directly or indirectly more than 50% of the outstanding common stock of
Xxxxxxxx Corporation, be conclusively presumed to be serving as a
director of such Manville Company at the request of the Trust.
(c) The Trustees shall not have the power to Guarantee any Debt of other
Persons.
3.02 Administration. (a) The Trustees have adopted the Bylaws (Annex A
to this Trust Agreement) and may make such amendments thereto as the Trustees
may approve by resolution adopted by all of the Trustees or by written
instrument signed by all of the Trustees. To the extent not inconsistent with
the terms of this Trust Agreement, the Bylaws govern the affairs of the Trust.
(b) The accounting period for the Trust shall be the Fiscal Year.
(c) The Trustees shall timely file, or shall deliver to the Company such
documents and other information as the Company may reasonably require in order
to permit it to timely file, such income tax and other returns and statements
as are required to comply with applicable provisionsof the Internal Revenue
Code and of any state law and the regulations promulgated thereunder.
7
(d) (i) The Trustees shall cause to be prepared and filed with the Court,
as soon as available and in any event within 60 days following the end of
each Fiscal Year, an annual report containing financial statements of the
Trust (including, without limitation, a balance sheet of the Trust as of
the end of such Fiscal Year and a statement of operations for such Fiscal
Year) audited by a nationally recognized firm of Independent public
accountants selected by the Trustees and certified by such firm as to
fairness of presentation and consistency.
(ii) The Trustees shall cause to be prepared and filed with the
Court as soon as available and in any event within 30 days following the
end of each of the first three quarters of each Fiscal Year, a quarterly
report containing financial statements of the Trust (including, without
limitation, an unaudited balance sheet of the Trust as of the end of such
quarter and a statement of operations for such quarter), certified
(subject to normal year-end adjustments) as to the fairness of
presentation and consistency by an appropriate officer of the Trust.
(iii) Simultaneously with delivery of each set of financial
statements referred to in Subsections (i) and (ii) above, the Trustees
shall cause to be prepared and filed with the Court a report containing a
summary (in reasonable detail) of the following information with respect
to the period covered by the financial statement:
(A) if the Trustees are not participating in an Industry-Wide
Claims Handling Facility, the number of Trust Claims Liquidated and
the average amount per Trust Claim paid or payable;
(B) if the Trustees are participating in an Industry-Wide
Claims Handling Facility or a claims resolution facility that
handles claims against other Persons in addition to Trust claims,
the information called for by Clause (A) above, modified as
necessary to account for the degree and manner in which information
is supplied to the Trustees by such facility with respect to
liquidation and payment of Trust Claims;
(C) the amount of investment income earned by the Trust; and
(D) the amount of Trust Expenses incurred by the Trust.
(e) The Trustees shall cause to be prepared as soon as practicable prior
to the commencement of each Fiscal Year a budget and cash flow projections
covering such Fiscal Year and the succeeding four Fiscal Years.
8
ARTICLE IV
FUNDS, PAYMENTS AND INVESTMENTS
4.01 Funds. (a) There is hereby created within the Trust Estate the "Basic
Trust Fund" consisting of those assets listed in Part A of Schedule I hereto.
(b) There is hereby created within the Trust Estate the "Stock Proceeds
Fund" to consist of all proceeds from the sale or other disposition (other than
by conversion of Series A Preferred Stock) by the Trustees of any of the assets
listed in Part C of Schedule I hereto (including Manville Common Stock issued
on conversion of Series A Preferred Stock).
(c) Subject to Section 2.02 hereof, the Trustees may, from time to time,
create additional funds, reserves and accounts within the Trust Estate as they
may deem necessary, prudent or useful in order to provide for the payment of
Trust Expenses and Trust Claims and may, with respect to any such fund, reserve
or account, restrict the use of monies therein; provided that the establishment
and use of such funds, reserves and accounts shall not in any event result in
any transfer, direct or indirect, of assets between the Basic Trust Fund and
any other fund, reserve or account or between the Stock Proceeds Fund and any
other fund, reserve or account.
(d) Any investment earnings received with respect to, or other proceeds
of, any asset held within any fund created hereby or pursuant hereto shall be
credited to such fund (except for investment earnings, including capital gains,
on the Stock Proceeds Fund, which shall be credited to the general fund of the
Trust Estate).
4.02 Payments. Payments out of the Trust Estate, other than pursuant to
Section 2.04(a) of the Supplemental Agreement, as amended by the Second Amended
and Restated Supplemental Agreement, must be made from the Basic Trust Fund, to
the extent that the funds therein are available, until such fund has been
depleted.
4.03 Investments. The Trustees shall have the power to invest or reinvest
in such securities (including, without limitation, interests in any entity
registered as an investment company under the Investment Company Act of 1940),
instruments or other property, real or personal, within or without the United
States, and to acquire and hold property for such periods as they may
determine, whether or not the same be income-producing, all in accordance with
the New York Prudent Investor Act (N.Y.E.P.T.L. Section 11.-2.3) as it may be
amended or superseded from time to time (the "Prudent Investor Act").
Notwithstanding anything to the contrary set forth in this Trust Agreement or
in the Prudent Investor Act, the Trust may acquire and hold any securities or
instruments of, and make any other investments in, (i) the Company and/or any
of its Affiliates and (ii) any entity created with the approval of the Trustees
to conduct any activities permitted by this Trust Agreement (including, without
limitation, a claims resolution facility as described in Section
3.01(b)(xvii)).
9
4.04 Source of Payments. All Trust Expenses and payments in respect of
Trust Claims shall be payable solely out of the Trust Estate. Neither the
Trustees nor any officer, agent or employee of the Trust nor any of the
Trustors nor any of their Subsidiaries nor any director, officer, employee or
agent of any of the Trustors or any of their Subsidiaries shall be liable for
the payment of any Trust Expense or Trust Claim or other liability of the
Trust, and no Person shall look to any of the foregoing Persons for payment of
any such expense or liability.
ARTICLE V
TRUSTEES
5.01 Number. Except during the period contemplated by Section 5.03(b),
there shall be no fewer than four Trustees and no more than six Trustees.
5.02 Term of Service. (a) The Trustees shall serve until death or
resignation pursuant to Subsection (b) below or removal pursuant to Subsection
(c) below, subject to mandatory retirement at age 70 unless (and for so long
as) it is waived by a majority vote of the remaining Trustees.
(b) Any Trustee may resign at any time by written notice to each of the
remaining Trustees and the Company. Such notice shall specify a date when such
resignation shall take effect, which shall not be less than 90 days after the
date such notice is given unless (and only for so long as) waived by a majority
of the remaining Trustees.
(c) Any Trustee may be removed for cause (which shall be deemed to include
any failure to comply with Section 5.09(a) or (b) by the majority vote of the
other Trustees, such removal to take effect at such time as the Trustees shall
by such vote determine.
5.03 Appointment of successor Trustee. (a) In the event of a vacancy in
the position of a Trustee, the vacancy shall be filled by unanimous vote of the
remaining Trustees, who shall take into account the relevant provisions hereof,
consult with the Selected Counsel for the Beneficiaries and refrain from making
any appointment which may result in the appearance of impropriety.
(b) If the Trustees are unable to appoint a successor Trustee pursuant to
Subsection (a) above who accepts such an appointment in writing within 90 days
after the occurrence of the vacancy in the position of a Trustee and after
notice to the Company and publication of notice in the national edition of The
Wall Street Journal or The New York Times, the Trustees shall apply to the
Court, which shall appoint a successor Trustee or successor Trustees.
(c) Immediately upon the appointment of any successor Trustee, all rights,
titles, duties, powers and authority of the predecessor Trustee hereunder shall
be vested in and undertaken by the successor Trustee without any further act.
No successor Trustee shall be liable personally for any act or omission of his
predecessor.
10
5.04 Liability of Trustees, Officers and Employees. No Trustee, officer
or employee of the Trust shall be liable to the Trust, any Beneficiary or any
other Person except for his own gross negligence or willful misconduct. No
Trustee, officer or employee of the Trust shall be liable for any act or
omission of any other officer, agent or employee of the Trust unless the
Trustee, officer or employee acted with gross negligence or willful misconduct
in the selection or retention of such officer, agent or employee.
5.05 Compensation and Expenses of Trustees. (a) Each of the Trustees shall
receive compensation for his or her services as Trustee in the amount of $3 0,
000 per annum (as increased in the case of Trustee-Directors in the manner
provided in the next sentence) plus $1,000 per them for each meeting of the
Trustees or any committee or subcommittee thereof attended by such Trustee or
for special duties performed by such Trustee on behalf of the Trust, and $1,000
for each day of transcontinental travel in connection with attendance at any
such meeting or performance of any such special duties. Each Trustee-Director
shall receive from the Trust the per them and travel allowances referred to in
the immediately preceding sentence for such Trustee-Director's attendance at
each board, committee and subcommittee meeting of each Portfolio Company of
which he or she serves as a director at the request of the Trust; and
commencing October 1, 1993 the annual retainer amount referred to in the
immediately preceding sentence shall be increased in the case of a
Trustee-Director by $18,750 for each Portfolio Company directorship, and by
$1,875 for each Portfolio Company committee chairmanship, held by such
Trustee-Director at the request of the Trust, In addition, the Managing Trustee
(if one is elected pursuant to the Bylaws) shall receive, for his or her
part-time services on behalf of the Trust, the sum of $1,500 for each day on
which the services rendered by him or her in such capacity occupy a majority of
his or her time, All compensation amounts referred to above shall be increased
or decreased annually after November 28, 1988 (except the incremental annual
amounts payable to Trustee-Directors in respect of each Portfolio Company
directorship and committee chairmanship, which amounts shall be increased or
decreased annually after October 1, 1993) at the rate of the Consumer Price
Index for urban wage earners and clerical workers (U.S. City Average)
unadjusted for seasonal variation, published by the Bureau of labor Statistics
of the United States Department of labor, or otherwise by the Trustees with the
approval of the Court. In addition to and notwithstanding the foregoing, any
such compensation amounts may be increased by the Trustees to such greater
amounts as the Trustees may reasonably determine from time to time to be
appropriate to provide compensation to the Trustees for their services as
Trustees and for their service as directors and committee chairmen of portfolio
companies at levels comparable to the compensation paid to directors of major
U.S. industrial corporations.
(b) All out-of-pocket costs and expenses incurred by the Trustees in
connection with the performance of their duties hereunder (including, without
limitation, the performance by Trustee-Directors of their duties as directors
and committee and subcommittee members of Portfolio Companies) will be promptly
reimbursed to the Trustees by the Trust.
5.06 Indemnification of Trustees, Officers and Employees. The Trustees,
officers and employees of the Trust shall be indemnified by the Trust to the
fullest extent that a corporation organized under Delaware law is from time to
time entitled to indemnify its directors against any and all liabilities,
expenses, claims, damages or losses incurred by them in the performance of
their
11
duties hereunder, except any such liability, expense, claim, damage or loss as
to which they are liable under Section 5.04. Without limiting the generality
of the foregoing, any person who is serving or has served at the request of the
Trust as a director of any Portfolio Company while also serving as a Trustee of
the Trust shall be indemnified by the Trust in the same manner as he or she is
indemnified as a Trustee, to the fullest extent that a corporation organized
under Delaware law is from time to time entitled to indemnify a person who is
or was serving at the request of such corporation as a director of another
corporation, against any and all liabilities, expenses, claims, damages or
losses incurred by such person as a result of or in connection with such
persons service, actions, omissions or capacity as a director of such Portfolio
Company (including, without limitation, as a member of a board committee or
subcommittee of such Portfolio Company) while such person was serving both as a
Trustee and as a director of such Portfolio Company, except for any such
liability, expense, claim, damage or loss as to which such person is liable
under Section 5.04.
5.07 Trustees' Lien. The Trustees shall have a prior lien upon the Trust
Estate to secure the payment of any amounts payable to them pursuant to Section
5.05 or 5.06.
5.08 Trustees' Employment of Experts. The Trustees may, but shall not be
required to, consult with counsel, accountants, appraisers and other parties
deemed by the Trustees to be qualified as experts on the matters submitted to
them (regardless of whether any such party is a Related Party of any Trustee or
is otherwise affiliated with any of the Trustees in any manner, except as
otherwise expressly provided in this Trust Agreement or the Supplemental
Agreement, as amended by the Second Amended and Restated Supplemental
Agreement), and the opinion of any such parties on any matters submitted to
them by the Trustees shall be full and complete authorization and protection in
respect of any action taken or not taken by the Trustees hereunder in good
faith and in accordance with the written opinion of any such party.
5.09 Additional Qualifications. (a) No Trustee or Related Party of a
Trustee shall represent or shall have represented any of the Trustors or any
Person who asserts or has asserted a Trust Claim.
(b) No Trustee shall own any securities of the Company or any of its
Affiliates or have any other financial interest, direct or indirect, in the
Company or any of its Affiliates.
(c) If there has been a violation of Subsection (a) or (b) above, the
Trustee involved is subject to removal pursuant to Section 5.02(c) above.
ARTICLE VI
GENERAL PROVISIONS
6.01 Irrevocability. The Trust is irrevocable.
6.02 Termination.. (a) The Trust shall automatically terminate on the
date (the "Termination Date") 90 days after the first to occur of the following
events:
12
(i) all Trust Claims duly filed with the Trust have been Liquidated
and paid in full, and twelve consecutive months have elapsed during which
no Trust Claim has been filed with the Trust;
(ii) (x) in the judgment of 80% of the Trustees after consultation
with Selected Counsel for the Beneficiaries, a de minimis number of Trust
Claims are then pending and new Trust Claims are being filed at a de
minimis rate and (y) the Company and the Legal Representative shall have
consented in writing to such dissolution;
(iii) the Company procures from one or more responsible insurance
companies acceptable to the Trustees one or more irrevocable liability
insurance policies covering all Trust Claims;
(iv) 21 years less 91 days pass after the death of the last survivor
of all of the descendants of Xxxxxx X. Xxxxxxx living on the date hereof;
or
(v) the Company and the Trustees after consultation with Selected
Counsel for the Beneficiaries and with the written consent of the Legal
Representative, agree in writing to the termination of the Trust.
(b) On the Termination Date, all Trust Claims shall be extinguished, the
Trust shall be dissolved, the Company shall assume all of the Trust's
liabilities other than Trust Claims and the injunction provided for in
Paragraph 9.2.A.3 of the Plan shall be modified in accordance with the order
issuing such injunction, and all of the Trust's assets shall, except as
provided in Subsections (c) and (d) below, be transferred and assigned to the
Company or any designees of the Company, and the Trustees and the Company agree
to execute and deliver, or cause to be executed and delivered, such agreements,
instruments and other documents as may be necessary or advisable to implement
the foregoing.
(c) If any of the events referred to in Section 6.02(a) of the PD Trust
Agreement shall have occurred prior to the Termination Date, then as soon as
practicable after the occurrence of any of the events referred to in Section
6.02(a) hereof, but in no event later than the Termination Date, all monies
(not including unused Insurance Coverage in place) remaining in the Basic Trust
Fund shall be applied to such charitable purposes as the Trustees in their
reasonable discretion shall determine, which charitable purposes, if
practicable, shall be related to the treatment of asbestos-caused disorders.
6.03 Amendments. (a) The Company (as successor to the Trustors for this
purpose) and the Trustees (by vote of 80% of the Trustees) may, after
consultation with Selected Counsel for the Beneficiaries, modify, supplement or
amend this Trust Agreement (other than Sections 2.02, 4.01 (a), the proviso to
4.01(c), 4.02, 6.01, 6.02(c), and 6.03(a)) in any respect, such modification,
supplement or amendment to be evidenced in writing.
13
(b) The Company and the Trust shall each promptly notify the other and
Selected Counsel for the Beneficiaries of any changes in generally accepted
accounting principles known to it which are likely to materially affect the
size or timing of payments from the Company to the Trust under this Agreement
and the Annexes hereto. Promptly after delivery of such notice, the Company
and the Trust shall consult with each other and Selected Counsel for the
Beneficiaries to determine whether it is desirable to amend this Agreement or
any of the Annexes hereto in any manner in response to such changes. Neither
party shall be legally bound by virtue of this Section 6.03(b) to agree to, or
to negotiate with respect to, any amendments proposed by the other.
6.04 Cooperation. The Company and the Trust shall each cooperate to the
extent reasonably requested by the other in the handling of Trust Claims and
generally in the operation of the Trust for the purposes set forth herein.
6.05 Severability. Should any provision in this Trust Agreement be
determined to be unenforceable, such determination shall in no way limit or
affect the enforceability and operative effect of any and all other provisions
of this Trust Agreement.
6.06 Notices. Notices to Persons asserting Trust Claims shall be given at
the address of such Person, or, where applicable, such Person's legal
representative, in each case as provided on such Person's Proof of Claim (as
defined in Annex B hereto). Any notices or other communications required or
permitted hereunder shall be in writing and delivered at the addresses
designated below, or sent by telecopy pursuant to the instructions listed
below, or mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows, or to such other address or addresses as
may hereafter be furnished by the Company to the Trustees or by the Trustees to
the Company in compliance with the terms hereof.
To the Trust or the Trustees:
Manville Personal Injury Settlement Trust
0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxx, Xxxxx 000
P.O. Box 10415
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, General Counsel
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute delivery of notice) to:
Xxxxxxx Leisure Xxxxxx & Irvine
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. XxXxxx
Telecopy No.: (000) 000-0000
14
To the Company:
Xxxxxxxx Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxx Xxxx,
Senior Vice President and General Counsel
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute delivery of notice) to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Case
Telecopy No.: (000) 000-0000
All such notices and communications shall be effective when delivered at
the designated addresses or when the telecopy communication is received at the
designated addresses and confirmed by the recipient by return telecopy in
conformity with the provisions hereof.
6.07 Counterparts. This Trust Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and such counterparts
shall together constitute but one and the same instrument.
6.08 Successors and assigns. The provisions of this Trust Agreement shall
be binding upon and inure to the benefit of the Trustors, the Trust and the
Trustees and their respective successors and assigns, except that neither any
of the Trustors nor the Trust nor any Trustee may assign or otherwise transfer
any of its or his rights or obligations under this Trust Agreement except, in
the case oft he Trust and the Trustees, as contemplated by Section 6.02.
6.09 Entire Agreement; No Waiver. The entire agreement of the parties
relating to the subject matter of this Trust Agreement is contained herein, and
this Trust Agreement supersedes any prior oral or written agreements concerning
the subject matter hereof. No failure to exercise or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any further exercise thereof or of any other fight, power or
privilege. The rights and remedies herein provided are cumulative and are not
exclusive of rights under law or in equity.
6.10 Headings. The headings used in this Trust Agreement are inserted for
convenience only and neither constitute a portion of this Trust Agreement nor
in any manner affect the construction of the provisions of this Trust
Agreement.
15
6.11 Governing Law. This Trust Agreement shall be governed by,
administered under and construed in accordance with, the laws of the State of
New York.
6.12 Dispute Resolution. Any disputes which arise under this Agreement
shall be resolved by the Court pursuant to Section 10.1.B of the Plan.
6.13 Enforcement and Administration. The provisions of this Agreement and
each Annex hereto shall be enforced and administered by the Court pursuant to
Section 10.1.G of the Plan. Notwithstanding anything to the contrary contained
herein or any state law to the contrary, the United States Bankruptcy Court for
the Southern District of New York shall have exclusive jurisdiction to hear and
resolve any and all matters relating to the powers and authority of the
Trustees hereunder, any actions or omissions by them, the operations or
activities of the Trust and the interpretation of this Agreement.
6.14 Settlement of Trustees' Accounts. Notwithstanding any state law to
the contrary, the Court shall have exclusive jurisdiction over the settlement
of the accounts of the Trustees, whether such account is rendered by the
Trustees themselves or is sought by any Beneficiary or other Person. The
Trustees shall render successive accounts covering periods of not more than
five years, commencing on the Consummation Date or the last day of the prior
accounting period, as the case may be, except that an account shall be rendered
for the period ending on the date of the death, resignation, removal or
retirement of any Trustee, Upon the acceptance of any such account by the court
after hearing on notice to the Company, Selected Counsel for the Beneficiaries
and such other parties as the Court shall designate, the Trustees shall be
discharged from any further liability or responsibility to any Beneficiary or
other Person as to all matters embraced in such account.
6.15 No Bond Required.. Notwithstanding any state law to the contrary,
each Trustee (including any successor Trustee) shall be exempt from giving any
bond or other security in any jurisdiction.
6.16 Appointment of Clerk as Agent for Service of Process. Each of the
Trustees hereby designates and appoints the Clerk of the Court (the "Clerk") as
his agent upon whom process against such Trustee may be served in any action or
proceeding under Section 6.12, 6.13 or 6.14 of this Agreement or as to which
the Court has otherwise retained jurisdiction pursuant to the Plan. The Clerk
shall forthwith mail a copy of any such process served upon him to such Trustee
at the address to which notices to the Trustee shall be sent pursuant to
Section 6.06 of this Agreement. Successor Trustees, by acceptance of their
appointment as such, shall be deemed to have designated and appointed the Clerk
in like manner.
16
IN WITNESS WHEREOF, the Company, as successor to the Trustors, has caused
this Agreement to be executed by a duly authorized officer and the Trustees
have each executed this Agreement, all as of the day and year first above
written.
XXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxx Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxx Xxxx
-----------------------------------
Title: Executive Vice President,
General Counsel and
Secretary
TRUSTEES
/s/ Xxxxxx X. Xxxxxx , as Trustee
--------------------------------
Name: Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxx, Xx. , as Trustee
--------------------------------
Name: Xxxxx Xxxxx, Xx.
, as Trustee
--------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxxxxxx X. Xxxxxx, Xx. , as Trustee
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx, Xx.
