Exhibit 10.25
INTERNATIONAL BANKNOTE COMPANY, INC.
Post-Retirement Welfare Benefit Trust
TRUST AGREEMENT made and entered into as of December 29, 1989 by and
between International Banknote Company, Inc., a New York Corporation
(hereinafter referred to as the "Company") and Xx. Xxxxxx Xxxxxxx and Xx. Xxxxxx
Xxxxx (hereinafter referred to singly as the "Trustee" and jointly as the
"Trustees").
WHEREAS, the Company has by corporate resolutions dated January 26,
1986 ("Corporate Resolutions") provided that the following employees of the
Company shall receive post-retirement medical benefits funded by a certain trust
(i) employees who retired under the terms of the International Banknote Company,
Inc. Employee Pension Plan (the "Pension Plan") after January 26, 1986 but on or
before August 9, 1989, (ii) employees who satisfied the eligibility requirements
for retirement under the Pension Plan after January 26, 1986 but on or before
August 9, 1989 but had not yet retired as of August 9, 1989, and (iii) employees
who will satisfy the eligibility requirements for retirement under the Pension
Plan (as provided for by the Pension Plan on August 9, 1989) on or before August
9, 1994 (each of whom is hereinafter referred to as a "Participant"); and
WHEREAS, the Company has entered into employment agreements with Xx.
Xxxxxx Xxxxx and Xx. Xxxxxx Xxxxxxx dated as of November 18, 1981 and amended
November 1, 1987 (collectively, the "Agreements") (each of whom is also referred
to as a Participant"); and
WHEREAS, the Corporate Resolutions and Agreements contemplate, among
other things, that the Company will provide post-retirement medical benefits
(collectively referred to as "Benefits") to Participants and their dependents
within the meaning of Section 152 of the Internal Revenue Code of 1986, as
amended ("Dependents") and that the Company will pay the entire cost of all such
Benefits from its general assets; and
WHEREAS, the Company wishes to assure that the Benefits will be
provided or paid, as the case may be; and
WHEREAS, the Company wishes to establish a trust known as the
International Banknote Company, Inc. Post Retirement Welfare Benefit Trust (the
"Trust"), which shall be irrevocable, to aid it in meeting its obligations to
provide Benefits under the Corporate Resolutions and Agreements; and
WHEREAS, the Company intends to make contributions to the Trust to aid
it in meeting its obligations under the Corporate Resolutions and Agreements,
initially in the amount of $100 and subsequently at such time or times and in
such amount or amounts as it may determine and in such form as it shall
determine; and
WHEREAS, both the Corporate Resolutions and resolutions of the Company
dated June 14, 1989 provide that upon the termination of the Pension Plan, any
assets remaining after the Pension Plan has satisfied its liabilities for
retirement benefits to its participants or other beneficiaries under the Pension
Plan shall be transferred to the Trust; and
WHEREAS, the Company intends that such contributions shall be held by
the Trustee and invested, reinvested and distributed, all in accordance with the
provisions of this Trust Agreement; and
WHEREAS, the Trust is intended to be a "grantor trust" with the corpus
and income of the Trust treated as assets and income of the Company pursuant to
sections 671 through 679 of the Internal Revenue Code of 1986, as amended; and
WHEREAS, the Company intends that the assets of the Trust shall be
subject to the claims of the general creditors of the Company as provided in
Section 15 of this Trust Agreement, and intends that the existence of the Trust
shall not alter the characterization of the Corporate Resolutions and Agreements
as "unfunded".
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Trustee declare and agree as follows:
SECTION 1. ESTABLISHMENT OF THE TRUST.
1.1 The Company hereby establishes the Trust with the Trustee,
consisting of such sums of money and other property acceptable to the Trustee as
from time to time shall be paid or delivered by the Company to the Trustee to
aid the Company in meeting its obligations under the Corporate Resolutions and
Agreements. The Company has specified the Agreements and Corporate Resolutions
under which the Trust is intended to provide Benefits. Such Agreements and
Corporate Resolutions are set forth on Exhibit A hereto. All such money and
other property, all investments and reinvestments made therewith or proceeds
thereof and all earnings and profits thereon, less all payments and charges as
authorized herein, shall Constitute the "Trust Fund". The Trust Fund shall be
held by the Trustee in trust and shall be dealt with in accordance with the
provisions of this Trust Agreement.
1.2 The Trust shall be irrevocable, and shall be held for the
exclusive purpose of providing Benefits to Participants and their Dependents and
defraying expenses of the Trust in accordance with the provisions of this Trust
Agreement. Except as provided in Sections 5.5, 8.3 and 11, no part of the income
or corpus of the Trust Fund shall be recoverable by the Company.
1.3 Anything in this Trust Agreement to the contrary notwithstanding,
the Trust Fund shall be subject to the claims of the general creditors of the
Company as provided in Section 15 of this Trust Agreement.
SECTION 2. ACCEPTANCE BY THE TRUSTEE.
2.1 The Trustee accepts the Trust established under this Trust
Agreement on the terms and subject to the provisions set forth herein, and it
agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
SECTION 3. POWERS AND DUTIES OF THE TRUSTEE.
3.1 The Trustee shall invest and reinvest the principal and income of
the Trust Fund and keep the Trust Fund invested, without distinction between
principal and income, in accordance with the investment guidelines attached as
Exhibit B hereto, which guidelines may only be amended or revoked by the
Trustees, or if Xx. Xxxxxx Xxxxxxx and Xx. Xxxxxx Xxxxx are not the Trustees,
the Participants.
3.2 Subject to the investment guidelines provided pursuant to Section
3.1, the Trustee shall have the following additional powers and authority with
respect to all property constituting a part of the Trust Fund:
(a) To purchase securities or any other kind of property and to
retain such securities or other property, regardless of
diversification and without being limited to investments authorized by
law for the investment of trust funds, including, but not limited to
the investment of trust funds in any pooled or commingled trust fund
operated and maintained by Trustee.
(b) To sell, exchange or transfer any such property at public or
private sale for cash or on credit and grant options for the purchase
or exchange thereof.
(c) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating to any
such property, and to consent to or oppose any such plan or any action
thereunder, or any contract, lease, mortgage, purchase, sale or other
action by any corporation or other entity any of the securities of
which may at any time be held in the Trust Fund, and to do any act
with reference thereto.
(d) To deposit any such property with any protective,
reorganization or similar committee; to delegate discretionary power
to any such committee; and to pay part of the expenses and
compensation of any such committee and any assessments levied with
respect to any property so deposited.
(e) To exercise any conversion privilege or subscription right
available in connection with any such property, and to do any act with
reference thereto, including the exercise of options, the making of
agreements or subscriptions and the payment of expenses, assessments
or subscriptions, which may be deemed necessary or advisable in
connection therewith, and to hold and retain any securities or other
property which it may so acquire.
(f) To commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings; to settle,
compromise or submit to arbitration, any claims, debts or damages, due
or owing to or from the Trust.
(g) To exercise, personally or by general or limited power of
attorney, any right, including the right to vote, appurtenant to any
securities or other such property.
(h) To borrow money from any lender in such amounts and upon such
terms and conditions as shall be deemed advisable or proper to carry
out the purposes of the Trust and to pledge any securities or other
property for the repayment of any such loan.
(i) To hold all or part of the Trust Fund uninvested.
(j) To form corporations or partnerships and to create trusts to
hold title to any such property, upon such terms and conditions as may
be deemed advisable.
(k) To acquire, renew or extend or participate in the renewal or
extension of any mortgage, and to agree to a reduction in the rate of
interest on any indebtedness or mortgage or to any other modification
or change in the terms of any indebtedness or mortgage or of any
guarantee pertaining thereto, in any manner and to any extent that may
be deemed advisable for the protection of the Trust or the
preservation of any covenant or condition of any indebtedness or
mortgage or in the performance of any guarantee, or to enforce any
default in such manner and to such extent as may be deemed advisable;
and to exercise and enforce any and all rights of foreclosure, to bid
on any property on foreclosure, to take a deed in lieu of foreclosure
with or without paying a consideration therefore and in connection
therewith to release the obligation on the bond secured by such
mortgage, and to exercise and enforce in any action, suit or
proceeding at law or in equity any rights or remedies in respect of
any such indebtedness or mortgage or guarantee.
(l) To engage any legal counsel, or any other suitable agents, to
consult with such counsel or agents with respect to the construction
of this Trust Agreement, the duties of the Trustee hereunder, the
transactions contemplated by this Trust Agreement or any act which the
Trustee proposes to take or omit, to rely upon the advice of such
counsel or agents, and to pay its reasonable fees, expenses and
compensation.
(m) To register or hold any securities or other property held by
it in its own name or in the name of any custodian of such property or
of its nominee, including the nominee of any system for the central
handling of securities, with or without the addition of words
indicating that such securities are held in a fiduciary capacity, to
deposit or arrange for the deposit of any such securities with such a
system and to hold any securities in bearer form.
(n) To make, execute and deliver, as Trustee, any and all deeds,
leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing necessary or proper
for the accomplishment of any of the foregoing powers.
(o) To do other acts that the Trustee may deem necessary or
proper to carry out any of the powers set forth in this Agreement or
otherwise in the best interest of the Trust Fund.
SECTION 4. CONTRIBUTIONS.
4.1 Promptly after the execution and delivery of this Trust Agreement,
the Company shall deliver to the Trustee the sum of $100. Thereafter the Company
shall deliver to the Trustee such amounts as it shall from time to time
determine, in such form as it shall determine; provided that the contributions
must be in a form acceptable to the Trustee.
4.2 The Trust Fund shall be revalued by the Trustee as of the last
business day of each calendar quarter at current market values, as determined by
the Trustee.
4.3 In addition to contributions made to the Trust pursuant to the
preceding paragraphs of this Section 4, the Company may deliver to the Trustee
such other amounts in cash as may be considered appropriate to provide for the
payment of expenses of the Trust.
SECTION 5. PURCHASE OF BENEFITS BY THE TRUSTEE.
5.1 The assets held by the Trust shall be used by the Trustee to
purchase or otherwise pay for Benefits for or on behalf of each Participant and
Dependents.
5.2 The Trustee shall not use any assets from the Trust Fund to
purchase or otherwise pay for any Benefits on behalf of Participants, or make
any payments to Participants from the Trust Fund except as provided in Sections
5.1 and 5.3. The Trustee shall, to the maximum extent permitted by applicable
law, be fully protected in acting upon the terms of Corporate Resolutions and
Agreements and shall have no duty to determine the rights of any person in the
Trust Fund or under the Agreements or under the Corporate Resolutions or to
inquire into the right of power of the Company to grant any payment to a
Participant. The Trustee shall, to the maximum extent permitted by applicable
law, be fully protected in making payments pursuant to Sections 5.1 and 5.3.
5.3 Notwithstanding any other provision of this Trust Agreement, if
any amounts held in the Trust are found in a "determination" (within the meaning
of section 1313(a) of the Internal Revenue Code of 1986, as amended) to have
been includible in gross income of a Participant prior to payment of such
amounts from the Trust or the use of such amounts to purchase Benefits, the
Trustee shall, as soon as practicable after receiving notice in writing from the
Participant, pay such amounts to such Participant. For purposes of this Section
5.3, the Trustee shall be entitled to rely on an affidavit by a Participant to
the effect that a determination described in the preceding sentence has
occurred.
5.4 Notwithstanding the provisions of this Trust, the Company shall
remain obligated to pay the Benefits under the Agreements. Nothing in this Trust
Agreement shall relieve the Company of its liabilities to pay the Benefits
except to the extent such liabilities are met by the application of Trust Fund
assets.
5.5 After all the Benefits payable to or on behalf of all Participants
have been paid in full, the remaining Trust Fund, if any, shall, upon written
certification by the Trustee that all liabilities of the Trust have been
discharged, be transferred to the Company on the condition that such remaining
Trust Fund be used to satisfy tax liabilities in connection with the
establishment of this Trust.
5.6 The Company agrees that all income, deductions and credits of the
Trust are attributable to the Company as owner for income tax purposes and will
be included on the Company's income tax returns.
SECTION 6. TAXES, EXPENSES AND COMPENSATION.
6.1 The Company shall from time to time pay taxes of any and all kinds
whatsoever which at any time are levied or assessed upon or become payable in
respect of the Trust Fund, the income or and property forming a part thereof or
any security transaction pertaining thereto. To the extent that any taxes levied
or assessed upon the Trust Fund are not paid by the Company, the Trustee shall
pay such taxes out of the Trust Fund. The Trustee shall, at the Company's
expense, contest the validity of such taxes but only if it has received an
indemnity bond or other security satisfactory to it to pay any expenses of such
contest; provided, however, the Trustee shall have no obligation to contest if
it receives an opinion of counsel retained by the Trustee to the effect that
there is no basis in law or fact for such contest. Alternatively, the Company
may itself out of Company funds contest the validity of any such taxes.
6.2 Any other reasonable expenses incurred by the Trustee in the
performance of its duties under this Trust Agreement, including brokerage
commissions, or counsel fees incurred by the Trustee, shall be charged against
and paid from the Trust Fund to the extent that the Company does not promptly
pay such expenses on request.
6.3 The Company will pay the Trustee such reasonable compensation for
its services computed in the manner and at the rates specified in Exhibit C as
may be agreed upon from time to time by the Participants, the Company and the
Trustees. Such compensation shall be charged against and paid from the Trust
Fund to the extent the Company does not promptly pay such compensation on
request. The compensation and expenses of the Trustee shall constitute a lien on
the Trust Fund.
SECTION 7. ADMINISTRATION AND RECORDS.
7.1 The Trustee shall keep or cause to be kept accurate and detailed
accounts of any investments, receipts, disbursements and other transactions
hereunder, and all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times by any person designated by the
Company or by any Participant. All such accounts, books and records shall be
preserved (in original form, or on microfilm, magnetic tape or any other similar
process) for such period as the Trustee may determine, but the Trustee may only
destroy such accounts, books and records after first notifying the Company and
Participants in writing of its intention to do so and transferring to the
Participants or the Company any of such accounts, books and records requested.
7.2 Within 60 days after the close of each calendar year, and within
60 days after the removal or resignation of the Trustee or the termination of
the Trust, the Trustee shall file with the Company a written account setting
forth all investments, receipts, disbursements and other transactions effected
by it during the preceding calendar hear or during the period from the close of
the preceding calendar year to the date of such removal, resignation or
termination, including a description of all investments and securities purchased
and sold, with the cost or net proceeds of such proceeds or sales, and showing
all cash, securities and other property held at the end of such calendar year or
other period. Each account so filed shall be open to inspection at the office of
the Trustee during normal business hours by any Participant (and any person
designated by a Participant) at a time mutually acceptable to the Trustee and
the Participant (or such designee) for a period of 60 days immediately following
the date on which the account is filed with the Company. Upon the expiration of
90 days from the date of filing such annual or other account, the Trustee shall,
to the maximum extent permitted by applicable law, be forever released and
discharged from all liability and accountability with respect to the propriety
of its acts and transactions shown in such account except with respect to any
such acts or transactions as to which the Company or any Participant shall
within such 90 day period rile with the Trustee written objections.
7.3 The Trustee shall at reasonable intervals permit an independent
public accountant selected by the Company to have access during ordinary
business hours to such records as may be necessary to audit the Trustee's
accounts.
7.4 Nothing contained in this Trust Agreement shall be construed as
depriving the Trustee or the Company of the right to have a judicial settlement
of the Trustee's accounts, and upon any proceeding for a judicial settlement of
the Trustee's accounts or for instructions the only necessary party thereto in
addition to the Trustee shall be the Company.
7.5 In the event of the removal or resignation of the Trustee, the
Trustee shall deliver to the successor Trustee all existing records which shall
be required by the successor Trustee to enable it to carry out the provisions of
this Trust Agreement.
7.6 In addition to any returns required of the Trustee by law, the
Trustee shall prepare and file such tax reports and ether returns as the Company
and the Trustee may from time to time agree.
SECTION 8. REMOVAL OR RESIGNATION OF THE TRUSTEE AND DESIGNATION OF SUCCESSOR
TRUSTEE.
8.1 The Trustee may not be removed except by order of a court of
competent jurisdiction for good cause shown. In the event that neither Xx.
Xxxxxx Xxxxxxx and Xx. Xxxxxx Xxxxx are the Trustee, the Trustee may be removed
only by the majority of the surviving Participants.
8.2 The Trustee may resign at any time upon at least 60 days notice in
writing to the Company.
8.3 Within 60 days after any such notice of removal or resignation of
the Trustee, the Trustee shall designate a successor Trustee, which must be a
bank or trust company with equity capital in excess of $1,000,000. Each such
successor Trustee, during such period as it shall act as such, shall have the
powers and duties herein conferred upon the Trustee, and the word "Trustee"
wherever used herein, except where the context otherwise requires, shall be
deemed to include any successor Trustee. Upon designation of a successor Trustee
and delivery to the resigned or removed Trustee of written acceptance by the
successor Trustee of such designation, such resigned or removed Trustee shall
promptly assign, transfer, deliver and pay over to such Trustee, in conformity
with the requirements of applicable law, the funds and properties in its control
or possession then constituting the Trust Fund. If any successor Trustee shall
decline to serve as successor Trustee or, having commenced to serve, shall
resign, be removed or be unable to serve as successor Trustee for any reason,
the successor Trustee shall appoint a new successor Trustee. If the successor
Trustee shall fail to appoint a new successor Trustee within 120 days after the
vacancy giving rise to the power of appointment has occurred, the successor
Trustee shall notify the Participants of such failure to appoint a new successor
Trustee and the Participants shall, by at least a majority vote of all
Participants, elect a successor Trustee. If the Participants shall fail to
appoint a Successor Trustee within 90 days following the expiration of the 120
day period referred to in the previous sentence, the Trust shall be terminated
and an amount necessary (i) to pay for all medical services performed for
Participants (and Dependents) prior to the termination of the Trust shall be
paid to such service providers and (ii) to reimburse each Participant for
medical expenses incurred prior to the termination of the Trust by such
Participant (and Dependents) shall be paid to each such Participant, by the last
Trustee or successor Trustee in being ("Acting Trustee"); provided that such
payments and reimbursements qualify as Benefits. Any trust property remaining
after all such payments have been made shall be returned to the Company.
SECTION 9. ENFORCEMENT OF TRUST AGREEMENT AND LEGAL PROCEEDINGS.
9.1 Any Participant shall have the right to enforce any provision of
this Trust Agreement that affects the right, title and interest of such
Participant (or other person) in the Trust. Except as provided in Section 7.4,
in any action or proceeding affecting the Trust the only necessary parties shall
be the Company, the Trustee and the Participants (and/or their representatives),
and, except as otherwise required by applicable law, no other person shall be
entitled to any notice or service of process. Any judgment entered in such an
action or proceeding shall to the maximum extent permitted by applicable law be
binding and conclusive on all persons having or claiming to have any interest in
the Trust.
9.2 Except for the right to enforce the Trust Agreement as provided in
Section 9.1, a Participant shall have no right to any property comprising the
Trust Fund.
SECTION 10. CHANGE OF CONTROL.
10.1 A "Change of Control" shall be deemed to have occurred at the
time that both the following events set forth in subsections (1) and (2) of this
Section 10.1 have occurred:
(1) either (a) a change is proposed by the stockholders of the
Company as to the number of members, or incumbent membership, of
the Company's Board of Directors such that the incumbent members
of said Board of Directors immediately prior to such change would
no longer constitute at least two-thirds of the Board of
Directors after such change and such proposal is enacted; (b) the
Board of Directors as constituted immediately prior to any action
by the Company's stockholders with respect to a proposal
described in Section 10.1(l)(a) determines that such proposal, if
enacted, would constitute a change in control of the Company and
such proposal is enacted; (c) a determination is made by the
Board of Directors of the Company that there has been a change in
the control of the Company that there has been a change in
control of the Company because a person (as such term is used in
Section 13(d) of the Securities Exchange Act of 1934, as amended
(the Exchange Act)), together with its affiliates (as such term
is defined in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act), has become, at any date hereafter, the
beneficial owner (as such term is defined in Rule 13d-3 of the
General Rules and Regulations under the Exchange Act), directly
or indirectly, of 5% or more of the voting power of the Company's
then outstanding securities; (d) any person (other than any
employee stock ownership trust or similar entity created by the
Company for the benefit of its employees), together with its
affiliates, has become, at any date hereafter, the beneficial
owner, directly or indirectly, of 20% or more of the voting power
of the Company's then outstanding securities entitled generally
to vote for the election of the Company's Directors; or (e) the
approval by the stockholders of the Company of the merger or
consolidation of the Company with any other corporation, unless
the incumbent members of the Board of Directors of the Company as
constituted immediately prior to such merger or consolidation
shall constitute at least two-thirds of the Directors of the
surviving corporation of such merger or consolidation and any
parent (as such term is defined in Rule 12b-2 of the General Rule
and Regulations under the Exchange Act) of such corporation; and
(2) either (a) the Trustee receives written certification from
the Chief Executive Officer or in the event of his inability to
act the Executive Vice President of the Company that one of the
event set forth in subparagraph (1) of this Section has occurred
or (b) 30 days have passed since the occurrence of an event
described in subparagraph (1) of this Section.
Any determination that an event described in subparagraph (l) of this Section
has occurred shall, if made in good faith on basis of information available at
that time, be conclusive and binding on the Trustee, the Company and the
Participants for all purpose" of this Agreement.
10.2 Notwithstanding the foregoing definition, in the event that the
Trustee has not received written certification from the Chief Executive Officer
of the Company or the Executive Vice President of the Company (as the case may
be) that one of the events set forth in Section 10.1(1) has occurred, no Change
of Control shall be deemed to have occurred for purposes of this Trust Agreement
unless and until the Trustee has actual knowledge from a reliable source, not
including a Participant, of such Change of Control. For this purpose, a report
filed with the Securities and Exchange Commission, a public statement issued by
the Company or an article in a periodical of general circulation, including, but
not limited to, THE NEW YORK TIMES or THE WALL STREET JOURNAL, shall be deemed
to be a reliable source, and the Trustee shall be deemed to have actual
knowledge of any Change of Control included in such report, public statement or
periodical. The Trustee shall not be deemed to have received actual knowledge of
any Change of Control as defined in Section 10.1(1)(b) until it has received a
report signed by a majority of the Board of Directors referred to in such
Section indicating that they have not approved of the change in the composition
of the Board of Directors referred to in such Section.
SECTION 11. TERMINATION.
11.1 Except as provided in section 8, the Trust shall terminate after
the Trustee shall have made all payments required by Section 5, and any Trust
property remaining after all such payments have been made shall be returned to
the Company.
SECTION 12. AMENDMENT.
12.1 Subject to the provisions of Section 1.2, prior to the occurrence
of a Change of Control, the Company may from time to time amend in whole or in
part, any or all of the provisions of this Trust Agreement with the written
consent of the Trustee, but without the consent of any Participant.
12.2 Subject to the provisions of Section 1.2, at any time upon or
after a Change of Control, the Trust Agreement may not be amended by the Company
or its successor except as may be required by applicable law.
12.3 The Company and the Trustee shall execute such supplements to, or
amendments of, this Trust Agreement as shall be necessary to give effect to any
such amendment.
SECTION 13. NONALIENATION
13.1 Except insofar as applicable law may otherwise require, (i) no
amount payable to or in respect of any Participant at any time under the Trust
shall be subject in any manner to alienation by or through anticipation, sale,
transfer, assignment, bankruptcy of the Participant, pledge, attachment, charge
or encumbrance of any kind and any attempt to so alienate, sell, transfer,
assign, pledge, attach, charge or otherwise encumber any such amount, whether
presently or thereafter payable, shall be void; and (ii) the Trust Fund shall in
no manner be liable for or subject to the debts, contracts, engagements, torts
or liabilities of any Participant, and such benefits shall not be considered an
asset of the Participant in the event of such Participant's insolvency or
bankruptcy.
SECTION 14. COMMUNICATIONS
14.1 Communications to the Company shall be addressed to:
International Banknote Company, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000;
provided, however, that upon the Company's written request, such communications
shall be sent to such other address as the Company may specify.
14.2 Communications to the Trustees shall be addressed to:
Xx. Xxxxxx Xxxxx, Trustee
Xx. Xxxxxx Xxxxxxx, Trustee
c/o International Banknote Company, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
provided, however, that upon a Trustee's written request, such communications
shall be sent to such other address as such Trustee may specify.
14.3 No communication shall be binding on the Trustee until it is
received by the Trustee, and no communication shall be binding on the Company
until it is received by the Company.
14.4 Any action of the Company pursuant to this Trust Agreement shall
be in writing signed on behalf of the Company by any duly authorized Officer or
Director of the Company. The Trustee may rely on, and will be fully protected
with respect to any such action taken or omitted in reliance on, any such
writing delivered to the Trustee by the Company.
14.5 The Board of Directors of the Company shall from time to time
certify to the Trustee the person or persons authorized to act for the Company
and provide the Trustee with such information regarding the Company as the
Trustee may reasonably request. The Trustee may continue to rely on any such
certification until notified to the contrary.
14.6 The Trustee shall be fully protected in acting upon any
instrument, certificate or paper believed by it to be genuine and to be signed
or presented by the proper person or persons, and the Trustee shall be under no
duty to make any investigation or inquiry as to any statement contained in any
such writing but may accept the same as conclusive evidence of the truth and
accuracy of the statements therein contained.
SECTION 15. CLAIMS OF COMPANY'S CREDITORS.
15.1 As used in this section 15, the Company shall be deemed to be
"Insolvent" if (i) the Company is unable to pay its debts generally as they come
due, or (ii) the Company is subject to a pending proceeding as a debtor or
debtor-in-possession in a proceeding under the federal Corporation Bankruptcy
Code (11 U.S.C. ss. 1 ET SEQ.) (or any successor federal statute) in which an
order for relief has been entered.
15.2 The Board of Directors and chief executive officer of the Company
shall notify the Trustee that the Company is Insolvent within 3 days after the
occurrence of such an event. Upon the receipt of such a notice, the Trustee
shall discontinue the payment of Benefits under this Trust Agreement and the
purchase of Benefits with the assets of the Trust Fund and shall hold the Trust
Fund for the benefit of the general creditors of the Company. Moreover, if at
any time a person claiming to be a creditor of the Company alleges in writing to
the Trustee that the Company has become Insolvent, the Trustee shall discontinue
payment and purchase of such Benefits under this Trust Agreement which the
Company is obligated to pay or purchase and shall determine within 30 days
whether the Company is Insolvent. The Trustee shall resume the payment or
purchase of such Benefits under this Trust Agreement only after it has been
determined that the Company is not Insolvent, or pursuant to an order of a court
of competent jurisdiction. If at any time (i) the Trustee is served with any
order, process or paper from which it appears that an allegation to the effect
that the Company is insolvent has been made in a judicial proceeding or (ii) the
Trustee has actual knowledge of a current report or statement from a nationally
recognized credit reporting agency or from a reliable source within the meaning
of Section 15 of this Trust Agreement) to the effect that the Company is
Insolvent, the Trustee shall discontinue payment or purchase of Benefits under
this Trust Agreement which the Company is obligated to pay or purchase, shall
hold the Trust Fund for the benefit of the general creditors of the Company and
shall resume payment or purchase of such Benefits under this Trust Agreement in
accordance with Section 5 hereof only upon receipt of an order of a court of
competent jurisdiction permitting or requiring such payment or purchase or upon
the Trustee's actual knowledge of a current report or statement from a
nationally recognized credit reporting agency or other reliable source (within
the meaning of Section 15 of this Trust Agreement) to the effect that the
Company is not Insolvent; provided however, that in the event payment or
purchase of such Benefits was discontinued by reason of a court order or
injunction, the Trustee shall resume payment or purchase of such Benefits only
upon receipt of an order of a court of competent jurisdiction permitting or
requiring such payment or purchase. The Trustee shall not be liable to anyone
for nonpayment of, or failure to purchase, Benefits in the event Benefits are
discontinued pursuant to this Section 15.
If the Trustee discontinues payment of Benefits pursuant to this
Section 15.2 and subsequently resumes such payment, the first payment of
Benefits following such discontinuance shall include an aggregate amount equal
to the difference between the payments which would have been made under this
Trust Agreement but for this Section 15. 2 and the aggregate payments hereunder
actually made by the Company during any such period of discontinuance, plus
interest on such aggregate amount at a rate equivalent to the net rate of return
earned by the Trust Fund during the period of such discontinuance, which
interest shall be payable to the Participant. If the Trustee discontinues
purchase of Benefits pursuant to this Section 15.2 and subsequently resumes such
purchase, benefit coverage shall, to the extent possible, be retroactive to the
date Benefits would have been provided but for this Section 15.2.
SECTION 16. MISCELLANEOUS PROVISIONS.
16.1 This Trust Agreement shall be binding upon the Company and the
Trustee and their respective successors and assigns. Participants shall have the
right to enforce this Trust Agreement to the extent permitted by law.
16.2 The Company shall pay and shall protect, indemnify and save
harmless the Trustee and, if applicable, its officers, employees and agents (to
the extent not indemnified or saved harmless under any liability insurance or
other indemnification arrangement with respect to the Trust) from and against
any and all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) of any nature arising from
or relating to any action by or any failure to act by the Trustee, its officers,
employees and agents or from transactions contemplated by this Trust Agreement,
including, but not limited to, any claim made by a Participant or his or her
beneficiary with respect to payments made or to be made by the Trustee, any
claim made by the Company or its successor, whether pursuant to a sale of
assets, merger, consolidation, liquidation or otherwise, that this Trust
Agreement is invalid or ULTRA XXXXX, except to the extent that any such loss,
liability, action, suit, judgment, demand, damage, cost or expense has been
determined by final judgment of a court of competent jurisdiction to be the
result of the gross negligence or willful misconduct of the Trustee, its
officers, employees or agents. To the extent that the Company has not fulfilled
its obligations under the foregoing provisions of this Section 16.2, the Trustee
shall be reimbursed out of the assets of the Trust Fund or may set up reasonable
reserves for the payment of such obligations.
16.3 A third party dealing with the Trustee shall not be required to
make inquiry as to the authority of the Trustee to take any action nor be under
any obligation to follow the proper application by the Trustee of the proceeds
of sale of any property sold by the Trustee or to inquire into the validity or
propriety of any act of the Trustee.
16.4 The Trustee assumes no obligation or responsibility with respect
to any action required by this Trust Agreement on the part of the Company. The
Trustee shall be under no duties except such duties as are specifically set
forth as such in this Trust Agreement or under applicable law, and no implied
covenant or obligation shall be read into this Trust Agreement against the
Trustee.
16.5 Any corporation into which the Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger,
reorganization or consolidation to which the Trustee may be a party, or any
corporation to which all or substantially all the trust business of the Trustee
may be transferred shall be the successor of the Trustee hereunder without the
execution or filing of any instrument or the performance of any act.
16.6 Titles to the Sections of this Trust Agreement are included for
convenience only and shall not control or affect the meaning or interpretation
of any provision of this Trust Agreement.
16.7 This Trust Agreement and the Trust established hereunder shall be
governed by and construed, enforced, and administered in accordance with the
laws of the State of New York and the Trustee shall be liable to account only in
the courts of that state.
16.8 This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original although the
others shall not be produced.
IN WITNESS WHEREOF, this Trust Agreement has been duly executed by the
parties hereto as of the day and year first above written.
INTERNATIONAL BANKNOTE COMPANY, INC.
By
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Attest
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Xxxxxx Xxxxx, as TRUSTEE
Attest
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