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EXHIBIT 99.1
XXXXX CORPORATION
RESTORATION TRUST
THIS AGREEMENT made as of the 1st day of January, 2000, by and between
Xxxxx Corporation ("Employer") and PNC Bank, N.A. ("Trustee");
WHEREAS, Employer is adopting the Xxxxx Corporation Restoration Plan;
WHEREAS, Employer has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
WHEREAS, Employer wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Employer's creditors in the event of Employer'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 a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
WHEREAS, it is the intention of Employer 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) Employer hereby deposits with Trustee in trust the sum of $100,
which shall become the principal of the Trust to be held, administered and
disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Employer 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.
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(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Employer 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 Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
Employer. Any assets held by the Trust will be subject to the claims of
Employer's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Employer, 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.
(f) Within 30 days following the end of each Plan year, Employer shall
be required to irrevocably deposit additional cash or other property to the
Trust in an amount sufficient to pay each Plan participant or beneficiary the
benefits payable pursuant to the terms of the Plan as of the close of the Plan
year.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Employer shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or available under the
Plan), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the Plan participants
and their beneficiaries in accordance with such Payment Schedule. With respect
to benefit payments to Plan Participants, the Employer is solely responsible for
determining the amounts of income that are reportable, the amounts and types of
payroll taxes that are to be withheld, and to remit such withholding taxes to
the appropriate government agencies. The Trustee has no duty hereunder other
than to follow the direction of the Employer.
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan shall be determined by Employer or such party as it
shall designate under the Plans, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plans.
(c) Employer may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan. Employer
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,
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Employer shall make the balance of each such payment as it falls due.
Trustee shall notify Employer where principal and earnings are not sufficient.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN EMPLOYER IS INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if Employer is Insolvent. Employer shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Employer is unable to
pay its debts as they become due, or (ii) Employer 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 Employer under federal and state law as set forth
below.
(1) The Board of Directors (the "Board") and the Chief
Executive Officer of Employer shall have the duty to inform Trustee in writing
of Employer's Insolvency. If a person claiming to be a creditor of Employer
alleges in writing to Trustee that Employer has become Insolvent, Trustee shall
determine whether Employer is Insolvent and, pending such determina tion,
Trustee shall discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Employer's
Insolvency, or has received notice from Employer or a person claiming to be a
creditor alleging that Employer is Insolvent, Trustee shall have no duty to
inquire whether Employer is Insolvent. Trustee may in all events rely on such
evidence concerning Employer's solvency as may be furnished to Trustee and that
provides Trustee with a reasonable basis for making a determination concerning
Employer's solvency.
(3) If at any time Trustee has determined that Employer is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Employer'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 Employer with respect to benefits due under the
Plans 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 Employer 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 Plans for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Employer in lieu of the payments provided
for hereunder during any such period of discontinuance.
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SECTION 4. PAYMENTS TO EMPLOYER.
Except as provided in Section 3 hereof, after the Trust has become
irrevocable, Employer shall have no right or power to direct Trustee to return
to Employer or to divert to others any of the Trust assets before all payments
of benefits have been made to Plan participants and their beneficiaries pursuant
to the terms of the Plans.
SECTION 5. INVESTMENT AUTHORITY.
(a) In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by Employer, other than a de
minimis amount held in common investment vehicles in which Trustee invests. All
rights associated with assets of the Trust shall be exercised by Trustee or the
person designated by Trustee, and shall in no event be exercisable by or rest
with Plan participants.
(b) Subject to (a) above, Trustee may invest and reinvest the principal
and income of the Trust fund in any and all common stocks, preferred stocks,
bonds, notes, debentures, mort gages, equipment trust certificates, investment
trust certificates, common, collective or group trust investments or mutual fund
investments (including any such trusts or funds as may be established by Trustee
or any of its affiliates), real and personal property wherever situated, and in
such other property, investments and securities of any kind, class or character
as Trustee may deem suitable for the Trust. Trustee shall have the power, in its
sole discretion, to do all such acts, execute all such instruments, take all
such proceedings and exercise all rights and privileges with respect to any
property or asset constituting a part of the Trust fund as if Trustee were the
absolute owner thereof.
(c) Notwithstanding any other provision of this Trust, the Compensation
Committee of the Board of Directors of the Employer, which is responsible for
administering the Plan, may from time to time appoint one or more independent
professional investment advisors (each of which is hereinafter called an
"Investment Advisor") with respect to the total or any portion of the Trust
fund. Trustee shall not be required to be a party to any agreement appointing an
Investment Advisor except in the case where the Committee requests Trustee to
enter into an agency and/or custody agreement with an Investment Advisor which
will also be the depository and custodian of the Trust fund assets allocated to
its management; provided further that the terms and conditions of appointment,
authority, retention and removal of Investment Advisor shall be the sole
responsibility of the Committee. Investment Advisor shall have and exercise all
of the investment powers reserved to Trustee under this Trust Agreement during
the period of such appointment. Upon receipt of written notice from the
Committee of the appointment of such Investment Advisor, Trustee shall perform
such custodial and ministerial acts relating to investments as may be required
to carry out the directions of Investment Advisor and the administration of such
portion of the Trust fund for which an advisor is appointed, but shall be
relieved of all responsibility for investment or failure to invest in accordance
with this Trust Agreement for such portion of the Trust fund during the period
of such appointment, except that Trustee may invest and reinvest income and
principal cash in U.S. treasury bills, commercial paper, or other short-term
investments, including interests in any common, collective or group
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trust fund or mutual fund that is created and maintained by Trustee or any of
its affiliates from time to time for the collective short-term investment of
Trust cash reserves, pending receipt of directions as to the investment or
disposition of such cash.
(d) In connection with, or as an alternative to, the appointment of
Investment Advisors pursuant to Section 5(c) above, the Committee may direct
Trustee as to the investment of some or all of the Trust fund for the purpose of
adhering to participant investment directions which may be available under the
Plan or otherwise. Unless written notice to the contrary is provided by the
Committee to the Trustee, (1) the Committee shall direct the Trustee's
investment of Trust assets; and (2) the Trustee is directed by the Committee to
mirror the elections made by Plan Participants and their beneficiaries with
respect to the deemed investment options available with respect to their
accounts under the Plan, as communicated to the Trustee through the telephone
voice response system established for the Plan by the Trustee.
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
Employer and Trustee. Within 60 days following the close of each calendar
quarter (and each calendar year) and within 60 days after the removal or
resignation of Trustee, Trustee shall deliver to Employer a written account of
its administration of the Trust during such quarter (or such year) or during the
period from the close of the last preceding quarter (or in the case of an annual
statement, from the close of the last 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.
The Employer may approve the account either by written notice of approval
delivered to the Trustee or by failure to object in writing to the Trustee
within 180 days from the date on which the account was delivered to the
Employer. Upon receipt of written approval of the account, or upon the
expiration of the 180-day period without written objections, the account shall
be approved, and the Trustee shall be released and discharged with respect to
the account as if the account had been settled and allowed by a decree of a
court of competent jurisdiction. Nothing herein contained, however, shall be
deemed to preclude the Trustee of its right to have its account settled by a
court of competent jurisdiction. In the case of any Plan which provides for a
separate bookkeeping account for the interests of each participant therein,
Trustee shall maintain such separate account records for each participant and
beneficiary as it considers necessary or desirable for the proper administration
of the Trust.
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SECTION 8. RESPONSIBILITY OF TRUSTEE.
(a) Employer shall indemnify and hold Trustee harmless from and against
any claim, loss or expense (including reasonable counsel fees) which the Trustee
may incur or pay out in connection with, or otherwise arising out of:
(i) the performance by the Trustee of its duties
hereunder, unless any such claim, loss or expense is
a result of the Trustee's own negligence, willful
misconduct, breach of fiduciary duties or violation
of applicable law; or
(ii) anything done or omitted by the Trustee in reliance
on the directions of Employer which the Employer is
required or permitted to make hereunder or in the
absence of directions which the Employer is required
to make hereunder.
(b) Trustee may consult with legal counsel, who may be counsel for
Employer or the Trustee or in the employ of Employer or the Trustee, in respect
to any of its rights, duties and obligations hereunder and shall be fully
protected in acting or refraining from acting in accordance with the advice of
such counsel.
(c) 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 the Employer shall pay
their reasonable expenses, fees or compensation or, if the Employer does not pay
within a reasonable time, the Trustee shall make such payments from Trust
assets.
(d) 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 a 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, to the insured if such
assignment is directed by Employer on a Payment Schedule, or to the Employer at
any time after all payment of benefits have been made to Plan participants
pursuant to the terms of the Plan(s), or to loan to any person the proceeds of
any borrowing against such policy.
(e) Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
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SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
Employer shall pay all administrative and Trustee's fees and expenses
as shall be agreed to from time to time by Employer. If not so paid, the fees
and expenses shall be paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Employer, which
shall be effective 30 days after receipt of such notice unless Employer and
Trustee agree otherwise.
(b) Trustee may be removed by Employer on 60 days notice or upon
shorter notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be com pleted within 120 days after receipt of
notice of resignation, removal or transfer, unless Employer extends the time
limit.
(d) If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraphs (a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
If Trustee resigns or is removed in accordance with Section 10(a) or
(b) hereof, Employer 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 Employer or the successor
Trustee to evidence the transfer.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Employer. 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.
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(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plans. Upon termination of the Trust any assets remaining
in the Trust shall be returned to Employer.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, Employer 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 Employer.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Wisconsin and of the United States of America.
SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be January 1, 2000.
XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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PNC BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
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Title: Vice President
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