CONTRAN AMENDED AND RESTATED DEFERRED COMPENSATION TRUST (Amending, Restating and Consolidating Trust No. 1 Originally Established February 11, 1994 and Trust No. 2 Originally Established October 1, 1995) AMENDED AND RESTATED As OF JANUARY 1, 2006
CONTRAN
AMENDED AND RESTATED
(Amending,
Restating and Consolidating Trust No. 1 Originally Established February 11,
1994
and
Trust
No. 2 Originally Established October 1, 1995)
AMENDED
AND RESTATED As OF JANUARY 1, 2006
This
Amended and Restated Agreement (“Trust
Agreement”) is made effective as of the 1st day of
January, 2006 by and between Contran Corporation, a Delaware corporation
(“Company”) and U.S. Bank National
Association (“Trustee”);
WHEREAS,
Company and a former trustee had previously entered into the Contran
Deferred Compensation Trust No. 1 dated February 11, 1994 (hereinafter called
“Trust No. 1”), most recently amended and
restated under the terms of a trust agreement by and between Company and Trustee
effective as of January 1, 2004; and
WHEREAS,
Company and a former trustee had previously entered into the Contran
Deferred Compensation Trust No. 2 dated October 1, 1995 (hereinafter called
“Trust No. 2”), most recently amended and
restated under the terms of a trust agreement by and between Company and Trustee
effective as of January 1, 2004; and
WHEREAS,
the Company and Employee are parties to the 1984 Deferred Compensation
Agreement Amended and Restated as of January 1, 2004 (the “1984
Agreement”), the 1993 Deferred Compensation Agreement Amended and Restated
as of January 1, 2004 (the “1993 Agreement”), the Xxxxxx X. Xxxxxxx
Contran Corporation 2000 Deferred Compensation Agreement (the “2000
Agreement”), and the Xxxxxx X. Xxxxxxx Contran Corporation 2001 Deferred
Compensation Agreement (the “2001 Agreement”) (collectively, the
“Prior Agreements”); and
WHEREAS,
Company established Trust No. 1 to provide itself with a source of
funds to assist it in meeting its liabilities under the 1993 Agreement, the
2000
Agreement and the 2001 Agreement; and
WHEREAS,
Company established Trust No. 2 to provide itself with a source of
funds to assist it in meeting its liabilities under the 1984 Agreement;
and
WHEREAS,
effective as of December 21, 2005, the Company amended, restated and
consolidated the Prior Agreements under the terms of the Xxxxxx X. Xxxxxxx
2005
Restated and Consolidated Deferred Compensation Agreement, more particularly
described in Appendix “A” attached hereto and incorporated herein by this
reference (the “Plan”); and
WHEREAS,
Company has incurred or expects to incur liability under the terms
of
the Plan with respect to the individuals participating in such Plan;
and
WHEREAS,
Company desires to amend, restate, consolidate and merge Trust No.
1
and Trust No 2 into a single trust which will hold the assets of Trust No.
1 and
Trust No. 2, subject to the claims of Company’s creditors in the event of
Company’s Insolvency, as herein defined, to be held and distributed in
accordance with the terms of this Trust Agreement; and
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 a select
group of management or highly compensated employees for purposes of Title I
of
the Employee Retirement Income Security Act of 1974 (“ERISA”);
and
WHEREAS,
Company may, from time to time, make additional contributions to the
Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plan; and
WHEREAS,
for purposes of this Trust Agreement, the term
“subsidiary” of Company shall mean an
entity that is controlled by Company directly or indirectly through one or
more
intermediaries;
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. Merger
and Continuation of Trusts.
(a) Effective
as of the commencement of business on January 1, 2006, Trust
No. 1 and Trust No. 2 have been combined, merged, and consolidated into this
trust so that together they will become and be a single trust, with the
surviving trust being governed by the terms of this Amended and Restated
Deferred Compensation Trust.
(b) The
Trust shall be irrevocable.
(c) The
Trust is intended to be a grantor trust, of which Company 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, 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 Company 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 Company. Any assets
held by the Trust will be subject to the claims of Company’s general creditors
under federal and state law in the event of Insolvency, as defined in Section
3(a) herein.
(e) Company,
in its sole discretion, may at any time, or from time to time, make additional
deposits of cash or other property in trust with Trustee to augment the
principal to be held, administered and disposed of by Trustee as provided in
this Trust Agreement. Neither Trustee nor any Plan participant or beneficiary
shall have any right to compel such additional deposits. The foregoing shall
not
modify any obligation of Company under the Plan.
(f) The
parties expressly acknowledge and intend that, except in the event of a Change
in Control as detailed in Section 14(d), Trustee shall serve as a custodial,
directed trustee hereunder.
Section
2. Payments
to Plan Participants and Their Beneficiaries.
(a) Company
shall deliver to Trustee a schedule (the “Payment
Schedule”) that indicates the amounts
payable in respect of each Plan participant (and his or her beneficiaries),
that
provides a formula or other instructions acceptable to Trustee for determining
the amounts so payable, the form in which such amount is to be paid (as provided
for or available under the Plan(s)), and the time of commencement for payment
of
such amounts consistent with the terms of the Plan(s). Except as otherwise
provided herein, Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of any federal, state or local
taxes
as the Company shall direct in writing to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan(s) and shall promptly
pay
to the Company in cash such amounts withheld. The Company shall pay such amounts
withheld to the appropriate taxing authorities. The Company shall provide the
Trustee with specific directions regarding the manner, timing and form of tax
reporting to be made to Plan participants and governmental
agencies.
(b) The
entitlement of a Plan participant or his or her beneficiaries to benefits under
the Plan(s) shall be determined by Company 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 Plans(s).
(c) Company
may make payment of benefits directly to Plan participants or their
beneficiaries as they become due under the terms of the Plan(s). Company shall
notify 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(s), Company shall
make the balance of each such payment as it falls due. Trustee shall notify
Company where principal and earnings are not sufficient but shall not have
a
duty to require that supplemental payments be made to Plan participants or
supplemental contributions be made to the Trust.
(d) Company
determination of Payment Schedules and a participant’s entitlement to benefits
shall be made annually by Company with respect to the deferred compensation
accrued each year and may not thereafter be modified by Company without the
participant’s consent. For purposes of this Section 2(d) all Company actions
with respect to a participant prior to the time of his death, disability,
retirement or termination shall be by the members of its Board of Directors
at
such time, and all Company actions with respect to a participant following
his
death, disability, retirement or termination shall be by the members of its
Board of Directors immediately prior to the participant’s death, disability,
retirement or termination.
(e) Any
real estate held in a real estate subtrust of this Trust shall be distributed
to
the Plan participants or beneficiaries for whom such assets are held under
such
subtrust in accordance with the distribution provisions of the Plan(s), but
only
to the extent that the market value of the real estate (as determined by the
Company) does not exceed the participant’s or beneficiary’s
benefits.
Section
3. Trustee
Responsibility Regarding Payments to Trust Beneficiary When Company Is
Insolvent.
(a) Trustee
shall cease payment of benefits to Plan participants and their beneficiaries
if
the Company is insolvent. Company shall be considered
“Insolvent” for purposes of this Trust
Agreement if (i) Company is unable to pay its debts as they become due, or
(ii)
Company 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 Company under federal and state law as set forth
below.
(1) The
Board of Directors and the Chief Executive Officer of Company shall have the
duty to inform the Trustee in writing of Company’s Insolvency. If a person
claiming to be a creditor of Company alleges in writing to Trustee that Company
has become Insolvent, Trustee shall determine whether Company is Insolvent
and,
pending such determination, Trustee shall discontinue payment of benefits to
Plan participants or their beneficiaries. In all cases, Trustee shall be
entitled to conclusively rely upon the written certification of the continuing
Directors of the Company when determining whether Company is
insolvent.
(2) Unless
Trustee has actual knowledge of Company’s Insolvency, or has received notice
from Company or a person claiming to be a creditor alleging that Company is
Insolvent, Trustee shall have no duty to inquire whether Company is Insolvent.
Trustee may in all events rely on such evidence concerning Company’s solvency as
may be furnished to Trustee and that provides Trustee with a reasonable basis
for making a determination concerning Company’s solvency. The Trustee may hire
counsel and/or other professionals to assist it in making a determination as
to
the Company’s insolvency. Any legal or other professional fees and expenses
incurred by the Trustee in making its determination shall be paid from the
Trust.
(3) If
at any time Trustee has determined that Company is Insolvent, Trustee shall
discontinue payments to Plan participants or their beneficiaries and shall
hold
the assets of the Trust for the benefit of Company’s general creditors. Nothing
in this Trust Agreement shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their rights as general creditors
of Company with respect to benefits due under the Plan or
otherwise.
(4) Trustee
shall resume the payment of benefits to Plan participants or their beneficiaries
in accordance with Section 2 of this Trust Agreement only after Trustee has
determined that Company is not Insolvent (or is no longer
Insolvent).
(c) Provided
that there are sufficient assets, if 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 (as certified by Company) for the period of such
discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Company in lieu of the payments provided
for hereunder during any such period of discontinuance.
Section
4. Payments
to Company.
(a) Except
as provided in Sections 2(a), 3, 4(b) or 5(c) hereof, Company shall have no
right or power to direct Trustee to return to Company 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.
(b) From
time to time, Company may provide certification to the Trustee of its
determination that the fair market value of the assets of the Trust exceeds
the
accrued liabilities of the Plan and may request in writing that the Trustee
return to Company an amount equal to the difference between 100% of the amount
of accrued liabilities of the Plan and the fair market value of the assets
held
by the Trust, so long as the difference exceeds one million dollars
($1,000,000.00) (the “Surplus Assets”). Upon such written request
and certification from Company, the Trustee shall return the Surplus Assets
to
Company, in the form requested by Company, as soon as administratively
feasible.
Section
5. Investment
Authority.
(a) Except
as limited by Section 5(b), Trustee shall have the powers, rights and duties
in
addition to those provided elsewhere in this agreement or by law to be exercised
only pursuant to the direction of Company or an investment manager appointed
by
Company: to invest and reinvest part or all of the trust fund in any real
property, securities (including stock or rights to acquire stock) or obligations
issued by Company or subsidiaries of Company, stocks, mutual fund shares
(including proprietary funds of Trustee or its affiliates), partnership
interests, venture capital investments, bonds, debentures, notes, commercial
paper, treasury bills, any common, commingled or collective trust funds
(including proprietary funds of Trustee or its affiliates), or pooled investment
funds, any deposit accounts or funds maintained by a legal reserve life
insurance company in accordance with an agreement between Trustee and such
insurance company or a group annuity contract issued by such insurance company
to Trustee as contract holder, any interest-bearing deposits held by any bank
or
similar financial institution (including Trustee or its affiliates ), and to
diversify such investments so as to minimize the risk of large losses unless
under the circumstances it is clearly prudent no to do so. In no event shall
the
Trust invest directly in real estate. Trust assets shall be limited to domestic
United States assets or securities which may be held through the Depository
Trust Company.
(b) Trustee
shall not have any investment discretion with respect to the assets of the
Trust
and shall not sell or otherwise dispose of any assets that are deposited by
Company with the Trust unless it is directed to do so by Company in writing.
All
rights associated with assets of the Trust shall be exercised by Company or
the
person designated by Company, and shall in no event be exercisable by or rest
with Plan participants. Voting rights with respect to Trust assets will be
exercised by Company.
(c) Company
shall have the right at anytime, and 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 Company in a nonfiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
(d) To
settle, compromise or submit to arbitration any claims, debt or damages due
or
owing to or from the Trust; to commence or defend suits or legal proceedings
to
protect any interest of the Trust; and to represent the Trust in all suits
or
legal proceedings in any court or before any other body or
tribunal.
(e) To
take all action necessary to pay for authorized transactions, including
borrowing or raising monies from any lender, including Trustee, in its corporate
capacity in conjunction with its duties under this Agreement and upon such
terms
and conditions as Trustee may deem advisable to settle security purchases and/or
foreign exchange or contracts for foreign exchange, and securing the repayments
thereof by pledging all or any part of the Trust. Trustee shall be entitled
to
collect from the Trust sufficient cash for reimbursement, and if such cash
is
insufficient, dispose of the assets of the Trust to the extent necessary to
obtain reimbursement.
(f) To
appoint with prior written approval of Company custodians, subcustodians or
subtrustees, domestic or foreign (including affiliates of Trustee), as to part
or all of the Trust; provided, however, that Trustee shall not be liable for
the
acts or omissions of any subcustodian appointed under this Section
5.
(g) To
hold property in nominee name, in bearer form, or in book entry form, in a
clearinghouse corporation or in a depository (including an affiliate of
Trustee), so long as Trustee’s records clearly indicate that the assets held are
a part of the Trust; provided, however, that Trustee shall not be responsible
for any losses resulting from the deposit or maintenance of securities or other
property (in accordance with market practice, custom, or regulation) with any
recognized foreign or domestic clearing facility, book-entry system, centralized
custodial depository, or similar organization.
(h) To
settle indirect investments in Real Estate (the “Real Estate”) and
exercise such other powers as may be required in connection with the Fund’s
investments in Real Estate. The Trustee shall have no responsibility or
discretion with respect to the ownership, management, administration, operation
or control of any Real Estate. To the extent permitted by law, the Trustee
shall
be indemnified by the Company, to the extent not paid by the Fund, from all
claims, liabilities, losses, damages and expenses, including reasonable
attorneys’ fees and expenses, arising from or in connection with any matter
relating to any Real Estate held in the Trust and which give rise to: (i) any
violation of any applicable environmental or health or safety law, ordinance,
regulation or ruling; or (ii) the presence, use, generation, storage, release,
threatened release, or containment, treatment or disposal of any petroleum,
including crude oil or any fraction thereof, hazardous substances, pollutants
or
contaminants as defined in the Comprehensive Environmental Response Compensation
and Liability Act, as amended (CERCLA) or hazardous, toxic or dangerous
substances or materials as many of these terms may be defined under any federal
or state law in the broadest sense from time to time. This indemnification
shall
survive the sale or other disposition of any Real Estate investment of the
Fund
or the termination of this Agreement.
(i) Generally
to do all acts, whether or not expressly authorized, which the Trustee may
deem
necessary or desirable for the protection of the Trust.
(j) Trustee
shall retain in cash or other investments which are unproductive of income
so
much of the Trust fund as it may deem advisable its servicing of the Trust
(e.g., Trust assets pending investment or disbursement) which may include
retention of Trust assets in noninterest bearing accounts in the banking
department of Trustee or of any affiliate thereof, notwithstanding the banking
department’s or other entity’s receipt of “float” from such uninvested
cash.
(k) In
the event that a Change of Control occurs as defined in Section 14(d) and
Trustee therefore becomes a discretionary trustee hereunder, to the fullest
extent permitted by law, Trustee is expressly authorized to (i) retain the
services of U.S. Bancorp Xxxxx Xxxxxxx Inc. and/or U.S. Bancorp Investments,
Inc., each being affiliates of U.S. Bank National Association, and/or any other
registered broker-dealer organization hereafter affiliated with U.S. Bank
National Association, and any future successors in interest thereto
(collectively, including U.S. Bank National Association, for the purposes of
this paragraph referred to as the “Affiliated
Entities”), to provide services to assist in or facilitate
the purchase or sale of investment securities in the Trust, (ii) acquire as
assets of the Trust shares of mutual funds to which Affiliated Entities
provides, for a fee, services in any capacity and (iii) acquire in the Trust
any
other services or products of any kind or nature from the Affiliated Entities
regardless of whether the same or similar services or products are available
from other institutions. The Trust may directly or indirectly (through mutual
funds fees and charges for example) pay management fees, transaction fees and
other commissions to the Affiliated Entities for the services or products
provided to the Trust and/or such mutual funds at such Affiliated Entities’
standard or published rates without offset (unless required by law) from any
fees charged by Trustee for its services as Trustee. Trustee may also deal
directly with the Affiliated Entities regardless of the capacity in which it
is
then acting, to purchase, sell exchange or transfer assets of the Trust even
though the Affiliated Entities are receiving compensation or otherwise profiting
from such transaction or are acting as a principal in such transaction. Each
of
the Affiliated Entities is authorized to (i) effect transactions on national
securities exchanges for the Trust as directed by Trustee, and (ii) retain
any
transactional fees related thereto, consistent with Section II (a)(1) of the
Securities Exchange Act of 1934, as amended, and related Rule 11 a2-2(T).
Included specifically, but not by way of limitation, in the transactions
authorized by this provision are transactions in which any of the Affiliated
Entities are serving as an underwriter or member of an underwriting syndicate
for a security being purchased or are purchasing or selling a security for
its
own account. In other circumstances where Trustee is directed by Company or
any
Investment Manager, as applicable hereunder (collectively referred to for
purposes of this paragraph as the “Directing
Party”), Directing Party shall be
authorized, and expressly retains the right hereunder, to direct Trustee to
retain the services of, and conduct transactions with, Affiliated Entities
fully
in the manner described above.
Notwithstanding
anything to the contrary contained in this Trust Agreement, in the event of
a
Change in Control as defined in Section 14(d), the Trustee shall have and
exercise investment discretion with respect to all assets of the
Trust.
Section
6. Disposition
of Income.
During
the term of this Trust, all income received by the Trust, net of expenses and
taxes, shall be accumulated and reinvested.
Section
7. Accounting
by Trustee.
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 Company and Trustee.
Within 30 days following the close of each calendar year and within 30 days
after the removal or resignation of Trustee, Trustee shall deliver to Company
a
written account of its administration of the Trust 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.
Section
8. Responsibility
of Trustee.
(a) Trustee
shall act with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in like capacity and familiar
with
such matters would use in the conduct of an enterprise of a like character
and
with like aims, provided, however, that Trustee shall incur no liability to
any
person for any action taken pursuant to a direction, request or approval given
by Company which is contemplated by, and in conformity with, the terms of the
Plan (as certified to Trustee by the Company) or this Trust and is given in
writing by Company. In the event of a dispute between Company and a party,
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
Company agrees to hold Trustee harmless and indemnify Trustee (for the purposes
of this paragraph, “Trustee” includes
the Trustee and any officers, directors, employees, agents and affiliates of
Trustee) against Trustee’s costs, expenses and liabilities (including without
limitation, reasonable attorney’s fees and expenses) arising out of or relating
to any action or inaction taken by Trustee in reliance upon direction, request
or approval given by Company or Investment Manager or otherwise taken in
accordance with this Trust Agreement.
(b) If
Trustee undertakes or defends any litigation arising in connection with this
Trust, Company agrees to indemnify Trustee (for the purposes of this paragraph,
“Trustee” includes the Trustee and any officers,
directors, employees, agents and affiliates of Trustee) against Trustee’s costs,
expenses and liabilities (including, without limitation, attorneys’ fees and
expenses) relating thereto and to be primarily liable for such payments. If
Company does not pay such costs, expenses and liabilities in a reasonably timely
manner, Trustee may obtain payment from the Trust.
(c) Trustee
may consult with legal counsel (who may also be counsel for Company generally)
with respect to any of its duties or obligations hereunder and such legal fees
and expenses shall be paid from the Trust.
(d) Trustee
may hire agents, accountants, actuaries, investment advisors, financial
consultants or other professionals to assist it in performing any of its duties
or obligations hereunder and fees and expenses for such service providers shall
be paid from the Trust.
(e) Trustee
shall have, without exclusion, all powers conferred on Trustees by applicable
law, unless expressly provided otherwise herein, provided, however, that if
an
insurance policy is held as an asset of the Trust, Trustee shall have no power
to name a beneficiary of the policy other than the Trust, to assign the policy
(as distinct from conversion of the policy to a different form) other than
to a
successor Trustee, or to loan to any person the proceeds of any borrowing
against such policy.
(f) Notwithstanding
any powers granted to Trustee pursuant to this Trust Agreement or to applicable
law, Trustee shall not have any power that could give this Trust the objective
of carrying on a business and dividing the gains therefrom, within the meaning
of section 301.77012 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
(g) Notwithstanding
anything in this Agreement to the contrary, Trustee shall not be responsible
or
liable for any losses to the Trust resulting from any event beyond the
reasonable control of Trustee, its agents, or subcustodians, including but
not
limited to nationalization, strikes, expropriation, devaluation, seizure, or
similar action by any governmental authority, de facto, or de jure; or
enactment, promulgation, imposition or enforcement by any such governmental
authority of currency restrictions, exchange controls, levies or other charges
affecting the Trust’s property; or the breakdown, failure or malfunction of any
utilities or telecommunications systems; or any order or regulation of any
banking or securities industry including changes in market rules and market
conditions affecting the execution or settlement of transactions; or acts or
war, terrorism, insurrection or revolution; or acts of God; or any other similar
or third-party event.
(h) This
Section shall survive the termination of this Trust
Section
9. Contractual
Income and Settlement.
(a) Trustee
shall credit the Trust Fund with income and maturity proceeds on securities
on
contractual payment date net of any taxes or upon actual receipt as agreed
between Trustee and Company. To the extent Company and Trustee have agreed
to
credit income on contractual payment date, Trustee may reverse such accounting
entries with back value to the contractual payment date if Trustee reasonably
believes that such amount will not be received by it within a reasonable time
but in no event later than two weeks following contractual payment
date.
(b) Trustee
will attend to the settlement of securities transactions on the basis of either
contractual settlement day accounting or actual settlement day accounting as
agreed between Company and Trustee. To the extent Company and Trustee have
agreed to settle certain securities transactions on the basis of contractual
settlement date accounting, Trustee may reverse with back value to the
contractual settlement day an entry relating to such contractual settlement
where the related transactions remain unsettled but in no event later than
two
weeks following contractual settlement date.
(c) Settlements
of transactions may be effected in trading and processing practices customary
in
the jurisdiction or market where the transaction occurs. The Company
acknowledges that this may, in certain circumstances, require the delivery
of
cash or securities (or other property) without the concurrent receipt of
securities (or other property) or cash and in such circumstances, the Company
shall have sole responsibility for nonreceipt of payment (or late payment)
by
the counterparty.
Section
10. Compensation and Expense of Trustee.
(a) Except
as otherwise provided hereunder, Company shall pay all administrative and
Trustee’s fees and expenses. If not so paid, the fees and expenses shall be paid
from the Trust.
(b) If
Trustee advances cash or securities for any purpose, including the purchase
or
sale of foreign exchange or of contracts for foreign exchange, or in the event
that Trustee shall incur or be assessed taxes, interest, charges, expenses,
assessments, or other liabilities in connection with the performance of this
Agreement, except such as may arise from its own negligent action, negligent
failure to act or willful misconduct, any property at any time held for the
Trust Fund under this agreement shall be security therefor and Trustee shall
be
entitled to collect from the Trust Fund sufficient cash for reimbursement,
and
if such cash is insufficient, dispose of the assets of the Trust Fund held
under
this Agreement to the extent necessary to obtain reimbursement. To the extent
Trustee advances funds to the Trust for disbursement or to effect the settlement
of purchase transactions, Trustee shall be entitled to collect from the Trust
Fund any amount equal to what would have been earned on the sums advanced (an
amount approximating the “federal funds” interest rate)
and with respect to foreign assets, the rate applicable to the appropriate
foreign market.
Section
11. Resignation
and Removal of Trustee.
(a) Trustee
may resign at any time by written notice to Company, which shall be effective
thirty (30) days after receipt of such notice unless Company and Trustee agree
otherwise.
(b) Prior
to a Change of Control, Trustee may be removed by Company on thirty (30) days
notice or upon shorter notice accepted by Trustee.
(c) Upon
Change of Control, as defined herein, Trustee may not be removed by Company
for
one year.
(d) If
Trustee resigns within one year of a Change of Control, as defined herein,
Trustee shall select a successor trustee in accordance with the provisions
of
Section 12(b) hereof prior to the effective date of Trustee’s resignation or
removal.
Section
12. Appointment
of Successor.
(a) If
Trustee resigns or is removed in accordance with Section 11 (a) or (b) hereof,
Company 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 Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have all
of
the rights and powers of the former Trustee, including ownership rights in
the
Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by Company or the successor Trustee to evidence the
transfer.
(b) If
Trustee resigns or is removed pursuant to the provisions of Section 11(d) hereof
and selects a successor trustee, Trustee may appoint any third party such as
a
bank trust department or other party that may be granted corporate trustee
powers under state law. The appointment of a successor trustee shall be
effective when accepted in writing by the new trustee. The new
trustee shall have all the rights and powers of the former Trustee, including
ownership rights in Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the successor trustee to
evidence the transfer.
(c) 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 6 and 7
hereof. The successor Trustee shall not be responsible for and Company shall
indemnify and defend the successor Trustee from any claim or liability resulting
from any action or inaction of any prior Trustee or from any other past event,
or any condition existing at the time it becomes successor Trustee.
Section
13. Amendment
or Termination.
(a) This
Trust Agreement may be amended by a written instrument executed by Trustee
and
Company. Notwithstanding the foregoing, no such amendment shall conflict with
the terms of the Plan or shall make the Trust revocable after it has become
irrevocable in accordance with Section 1(b) hereof.
(b) The
Trust shall not terminate until the date on which Plan participants and their
beneficiaries are no longer entitled to benefits pursuant to the terms of the
Plan. Upon termination of the Trust any assets remaining in the Trust shall
be
returned to Company.
(c) Upon
written approval of participants or beneficiaries entitled to payment of
benefits pursuant to the terms of the Plan, Company may terminate this Trust
prior to the time all benefit payments under the Plan have been made. All assets
in the Trust at termination shall be returned to Company.
(d) Notwithstanding
any other provision in this Trust Agreement, this Trust Agreement may not be
amended within one year of the occurrence of a Change of Control.
Section
14. Miscellaneous.
(a) Any
provision of this Trust Agreement prohibited by law shall be ineffective to
the
extent of any such prohibition, without invalidating the remaining provisions
hereof.
(b) Benefits
payable to Plan participants and their beneficiaries under this Trust Agreement
may not be anticipated, assigned (either at law or in equity), alienated,
pledged, encumbered or subjected to attachment, garnishment, levy, execution
or
other legal or equitable process.
(c) This
Trust Agreement shall be governed by and construed in accordance with the laws
of Minnesota.
(d) For
purposes of this Trust, Change of Control shall mean either (1) the purchase
or
other acquisition by any person, entity or group of persons, within the meaning
of section 13(d) or 14(d) of the Securities Exchange Act of 1934
(“Act”), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act) of 30
percent or more of either the outstanding shares of common stock or the combined
voting power of Company’s then outstanding voting securities entitled to vote
generally, or the approval by the stockholders of Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
stockholders of Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50 percent of the
combined voting power entitled to vote generally in the election of directors
of
the reorganized, merged or consolidated Company’s then outstanding securities,
or a liquidation or dissolution of Company or of the sale of all or
substantially all of Company’s assets; or (2) the cessation to serve for any
reason of Xxxxxx X. Xxxxxxx as Trustee of the Xxxxxx X. Xxxxxxx Family Trust
No. 1, u/a January 1, 1964 and/or the Xxxxxx X. Xxxxxxx Family Trust No.2
u/a January 1, 1964.
Trustee
shall have no independent duty of inquiry with respect to the occurrence of
a
Change in Control. Company shall furnish the Trustee with written notice of
the
occurrence of a Change in Control. Absent such notice, if any Plan participant
shall provide the Trustee with written notice of a possible Change of Control,
the Trustee may request that the Company furnish evidence to determine whether
a
Change of Control has occurred. In performing any of its obligations or taking
any discretionary action under this Trust Agreement which is dependent upon
a
Change of Control having occurred, Trustee may rely on its determination,
including any determination based upon an opinion of counsel (who may be counsel
to the Company or the Trustee) or upon information provided by the continuing
Directors of the Company or otherwise available to the Trustee, that a Change
of
Control has occurred. For this purpose, the continuing Directors of the Company
as of the time of a possible change of control or insolvency are the persons
who
were directors immediately prior to such possible change of control or
insolvency. Any legal or other professional fees and expenses incurred by
Trustee in making a determination hereunder shall be paid from the
Trust.
(e) Under
no circumstances shall Trustee be liable for any indirect, consequential, or
special damages with respect to its role as Trustee.
(f) Notwithstanding
anything to the contrary contained elsewhere in this Trust Agreement, any
reference to the Plan or Plan provisions which require knowledge or
interpretation of the Plan shall impose a duty upon the Company to communicate
such knowledge or interpretation to the Trustee. The Trustee shall have no
obligation to know or interpret any portion of the Plan and shall in no way
be
liable for any proper action taken contrary to the Plan.
(g) Company
and Trustee hereby each represent and warrant to the other that it has full
authority to enter into this Agreement upon the terms and conditions hereof
and
that the individual executing this Agreement on their behalf has the requisite
authority to bind Company or Trustee to this Agreement.
Section
15. Effective
Date.
The
effective date of this Amended and Restated Contran Deferred Compensation Trust
Agreement shall be January 1, 2006.
[Balance
of page intentionally left blank.]
IN
WITNESS WHEREOF, the Company and the Trustee have executed this Trust as of
the
_____ day of December, 2006, but effective as herein stated.
|
CONTRAN
CORPORATION
(Company)
By: /s/
Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
President
|
U.S.
BANK NATIONAL ASSOCIATION
(Trustee)
By: /s/
Xxx Xxxxxx
Printed
Name: Xxx Xxxxxx
Title: Vice
President
|
APPENDIX
A
to
the
CONTRAN
DEFERRED COMPENSATION
AMENDED
AND RESTATED TRUST AGREEMENT
AS
OF JANUARY 1, 2006
Nonqualified
Deferred Compensation Plan
Xxxxxx
X.
Xxxxxxx 2005 Restated and Consolidated Deferred Compensation Agreement dated
as
of the 21st day
of December, 2005 by and between Contran Corporation, a Delaware corporation,
(therein referred to as the “Company”) and Xxxxxx X. Xxxxxxx (therein
referred to as “Employee”).
