RABBI TRUST AGREEMENT
EXHIBIT
10.1(c)
THIS
AGREEMENT, made this 6th
day of
January, 1998 by and between Peoples Bancorp Inc. (the "Corporation") and The
Peoples Banking and Trust Company (the "Trustee").
WITNESSETH:
WHEREAS,
the Corporation has adopted the Peoples Bancorp Inc. Deferred Compensation
Plan
for Directors of Peoples Bancorp Inc. and Subsidiaries (the
"Plan");
WHEREAS,
the Corporation has incurred or expects to incur liability under the terms
of
such Plan with respect to the individuals participating in such
Plan;
WHEREAS,
the Corporation wishes to establish a trust (hereinafter called "the Trust")
and
to contribute to the Trust assets that shall be held therein, subject to the
claims of the Corporation's creditors in the event of the Corporation's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the
Plan;
WHEREAS,
it is the intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plan as an unfunded plan
maintained for the purpose of providing deferred compensation for the
participants and beneficiaries of the Plan;
WHEREAS,
it is the intention of the Corporation to make contributions to the Trust to
provide itself with a source of funds to assist it in the meeting of its
liabilities under the Plan;
NOW,
THEREFORE, the parties do hereby establish the Trust and agree that the Trust
shall be comprised, held and disposed of as follows:
Section
1
Establishment
of
Trust
(a) The
Corporation hereby deposits with the Trustee in trust Five Hundred Thousand
Dollars ($500,000), which shall become the principal of the Trust to be held,
administered and disposed of by the 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 the Corporation is the grantor,
within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle
A of
the Internal Revenue Code of 1986, as amended (the "Code"), 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 the Corporation and shall be used exclusively for
the
uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any rights
created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against the
Corporation. Any assets held by the Trust will be subject to the claims of
the
Corporation's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e)
The Corporation, in its sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with the Trustee
to
augment the principal to be held, administered and disposed of by the Trustee
as
provided in this Trust Agreement. Neither the Trustee nor any Plan participant
or beneficiary shall have any right to compel such additional
deposits.
Section
2
Payments
to Plan
Participants
and
Their
Beneficiaries
(a)
The Corporation shall deliver to the 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 the Trustee for determining the amounts so payable, the form (cash,
securities or other assets) 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, the 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 taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall pay amounts
withheld to the appropriate taxing authorities or determine that such amounts
have been reported, withheld and paid by the Corporation.
(b)
The entitlement of a Plan participant or his or her beneficiaries to benefits
under the Plan shall be determined by the Corporation or such party as it shall
designate under the Plan, and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plan.
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(c)
The Corporation may make payment of benefits directly to Plan participants
or
their beneficiaries as they become due under the terms of the Plan. The
Corporation shall notify the Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with
the
terms of the Plan, the Corporation shall make the balance of each such payment
as it falls due. The Trustee shall notify the Corporation if principal and
earnings are not sufficient.
Section
3
Trustee
Responsibility
Regarding Payments
to
Trust Beneficiary When
Corporation is Insolvent
(a)
The Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Corporation is Insolvent. The Corporation shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) the
Corporation is unable to pay its debts as they become due; or (ii) the
Corporation is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
(b)
At all times during the continuance of this Trust, as provided in Section 1(d)
hereof, the principal and income of the Trust shall be subject to claims of
general creditors of the Corporation under federal and state law as set forth
below.
(i) The
Board of Directors and the President of the Corporation shall have the duty
to
inform the Trustee in writing of the Corporation's Insolvency. If a
person claiming to be a creditor of the Corporation alleges in writing to the
Trustee that the Corporation has become Insolvent, the Trustee shall determine
whether the Corporation is Insolvent and, pending such determination, the
Trustee shall discontinue payment of benefits to Plan participants or their
beneficiaries.
(ii) Unless
the Trustee has actual knowledge of the Corporation's Insolvency, or has
received notice from the Corporation or a person claiming to be a creditor
alleging that the Corporation is Insolvent, the Trustee shall have no duty
to
inquire whether the Corporation is Insolvent. The Trustee may in all
events rely on such evidence concerning the Corporation's solvency as may be
furnished to the Trustee and that provides the Trustee with a reasonable basis
for making a determination concerning the Corporation's solvency.
(iii) If
at any time the Trustee has determined that the Corporation is Insolvent, the
Trustee shall discontinue payments to Plan participants or their beneficiaries
and shall hold the assets of the Trust for the benefit of the Corporation's
general creditors. Nothing in the Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of the Corporation with respect to benefits due
under the Plan or otherwise.
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(iv) The
Trustee shall resume the payment of benefits to Plan participants or their
beneficiaries in accordance with Section 2 of this Trust Agreement only after
the Trustee has determined that the Corporation is not Insolvent (or is no
longer Insolvent).
(c)
Provided that there are sufficient assets, if the Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Corporation in lieu of the payments
provided for hereunder during any such period of discontinuance.
Section
4
Payments
to the
Corporation
Except
as
provided in Section 3 hereof, after the Trust has become irrevocable, the
Corporation shall have no right or power to direct the Trustee to return to
the
Corporation 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)
It is intended that a portion of the assets of the Trust will be invested by
the
Trustee in securities (including stock or rights to acquire stock) or
obligations issued by the Corporation (the "Corporation Stock"). All rights
associated with assets of the Trust shall be exercised by the Trustee or the
person designated by the Trustee, including, but not limited to, the voting
rights with respect to Corporation Stock. The Corporation shall have the right
from time to time in its sole discretion, to substitute assets of equal fair
market value for any asset held by the Trust. This right is exercisable by
the
Corporation in a nonfiduciary capacity without the approval or consent of any
person in a fiduciary capacity.
(b)
The Trustee may purchase and sell Corporation Stock for the Plan wherever the
Corporation Stock is traded, in the over-the-counter market or in negotiated
transactions. The Trustee shall purchase and sell Corporation Stock for the
Plan
on such terms as to price, delivery and otherwise as the Trustee determines
in
its sole discretion. It is the intent of the Corporation and the Trustee that
to
the extent Corporation Stock is to be purchased for the Plan in the open market,
the Trustee shall cause each such purchase to be made by an entity (the
"Purchasing Agent") which qualifies as an "agent independent of the issuer,"
as
that term is used in Rule 10b-18 promulgated under the Securities Exchange
Act
of 1934, as amended.
4
No
Purchasing Agent may be an affiliate of the Corporation. In addition,
neither the Corporation nor any of its subsidiaries or affiliates (including
the
Trustee) nor the Plan Administrator (as defined in the Plan) may exercise
any
direct or indirect control or influence over the times when, or the prices
at
which, shares of Corporation Stock are purchased by the Purchasing Agent,
the
amount of Corporation Stock to be purchased, the manner in which purchases
are
made or the selection of the broker or dealer (other than the Purchasing
Agent
itself) through whom the purchases are executed.
(c)
With respect to the portion of the assets of the Trust which are not invested
in
Corporation Stock, the Trustee shall invest and reinvest such assets and keep
them invested, without distinction between principal and income, in three (3)
year certificates of deposit or an equivalent deposit account. In making such
investments, the Trustee shall not be restricted from investing assets of the
Trust in certificates of deposit or other deposit accounts offered by the
Trustee.
Section
6
Disposition
of
Income
During
the term of this Trust, all income received by the Trust, net of any expenses
and taxes paid from the Trust as provided in this Trust Agreement, shall be
accumulated and reinvested.
Section
7
Accounting
by the
Trustee
The
Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between the Corporation
and
the Trustee. Within 90 days following the close of each calendar year and within
90 days after the removal or resignation of the Trustee, the Trustee shall
deliver to the Corporation a written account of its administration of the Trust
during such year or during the period from the close of the last preceding
year
to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal
or
resignation, as the case may be.
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Section
8
Responsibility
of the
Trustee
(a)
The Trustee shall act with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in like capacity
and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims; provided, however, that the Trustee shall incur
no
liability to any person for any action taken pursuant to a direction, request
or
approval given by the Corporation which is contemplated by, and in conformity
with, the terms of the Plan or this Trust and is given in writing by the
Corporation. In the event of a dispute between the Corporation and a party,
the
Trustee may apply to a court of competent jurisdiction to resolve the
dispute.
(b)
If the Trustee undertakes or defends any litigation arising in connection with
this Trust, the Corporation agrees to indemnify the Trustee against the
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 Corporation does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain payment from
the Trust.
(c)
The Trustee may consult with legal counsel (who may also be counsel for the
Corporation generally) with respect to any of its duties or obligations
hereunder.
(d)
The 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)
The 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, the 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)
Notwithstanding any powers granted to the Trustee pursuant to this Trust
Agreement or to applicable law, 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 Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
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Section
9
Compensation
and Expenses of
the Trustee
The
Corporation shall pay all administrative expenses and the Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from
the Trust. The Trustee's fees shall be mutually agreed to between the
Corporation and the Trustee.
Section
10
Resignation
and Removal of
the Trustee
(a)
The Trustee may resign at any time by written notice to the Corporation, which
shall be effective 30 days after receipt of such notice unless the Corporation
and the Trustee agree otherwise.
(b)
The Trustee may be removed by the Corporation on 30 days' notice or upon shorter
notice accepted by the Trustee.
(c)
Upon resignation or removal of the Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 60 days after receipt of notice of
resignation, removal or transfer, unless the Corporation extends the time
limit.
(d)
If the 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, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the Trustee
in
connection with the proceeding shall be allowed as administrative expenses
of
the Trust.
(e)
Upon resignation or removal of the Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 60 days after receipt of notice of
resignation, removal or transfer, unless the Corporation extends the time
limit.
7
Section
11
Appointment
of
Successor
(a)
If the Trustee resigns or is removed in accordance with Section 10(a) or (b)
hereof, the Corporation may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace the 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 the Corporation 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 the Corporation
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 the
Trustee and the Corporation. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plan or shall make the Trust
revocable.
(b)
The Trust shall not terminate until the date on which Plan participants and
their beneficiaries are no longer entitled to benefits pursuant to the terms
of
the Plan. Upon termination of the Trust, any assets remaining in the Trust
shall
be returned to the Corporation.
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.
8
(c)
This Trust Agreement shall be governed by and construed in accordance with
the
laws of the State of Ohio.
Section
14
Effective
Date
The
effective date of this Trust Agreement shall be January 2, 1998.
IN
WITNESS WHEREOF, the undersigned authorized officers of the parties have
executed this Trust Agreement as of the date first above written, to be
effective as of the date specified in Section 14 hereof.
By:/s/
XXXXXX X.
XXXXX
Its:
President
&
CEO
THE
PEOPLES BANKING AND TRUST
COMPANY
By:/s/
XXXXXXX X.
XXXXX
Its:
Vice
President
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