EXHIBIT 4.5
XXXXXXXX GROUP INDIVIDUAL RETIREMENT PLAN
TRUST AGREEMENT
(For Company Stock Fund)
Table of Contents
Article Page
First: Establishment of Trust.................................................1
Second: General Duties of the Employer........................................2
Third: General Duties of Trustee..............................................2
Fourth: Participant Investment Direction......................................5
Fifth: Payment of Taxes......................................................12
Sixth: Disbursement of Trust Funds...........................................13
Seventh: Exclusive Benefit of Employees, etc.................................14
Eighth: Expenses of Trustee..................................................14
Ninth: Expenses of the Plan and Trust Fund...................................15
Tenth: Accounts of the Trustee...............................................15
Eleventh: Resignation, Removal and Substitution of Trustee...................16
Twelfth: Amendment and Termination of Trust..................................18
Thirteenth: Miscellaneous Provisions.........................................18
THIS TRUST AGREEMENT, effective as of the 16th day of December, 1997, by
Xxxxxxxx Group, Inc., a Connecticut corporation (hereinafter called the
"Employer") and Xxxxxx X. Xxxxx, Xx. and Xxxxxxx X. Xxxxx (collectively called
the "Trustee").
WITNESSETH:
WHEREAS, the Employer has established for its eligible employees the
Xxxxxxxx Group Individual Retirement Plan (hereinafter called the "Plan");
and WHEREAS, the Plan provides for Trustees to receive and hold contributions
paid thereunder; and WHEREAS, the Employer has entered into a Trust Agreement
with the Chase Manhattan Bank ("Chase") whereby Chase will hold all of the
investments held by the Plan as trustee except the Company stock fund; and
WHEREAS, the Employer desires that the aforementioned Trustees hold the
Company stock fund as the Trustee pursuant to the terms of this Trust Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto do hereby mutually declare and agree as
follows:
First: Establishment of Trust. In order to carry out the purposes of the
Plan for the limited purpose of holding assets in the Company stock fund, the
Employer hereby adopts the XXXXXXXX GROUP INDIVIDUAL RETIREMENT PLAN STOCK FUND
TRUST (hereinafter called the "Trust"). The Trustee accepts this Trust and
agrees to act as Trustee hereunder, but only on the terms and conditions herein
set forth. The Trustee shall only hold those assets in the Company Stock Fund
not held by Chase (the "Trust Fund"). Subject to the terms of this Trust
Agreement all right, title and interest in and to the estate of the Trust Fund
shall be vested exclusively in the Trustee.
Second: General Duties of Trustee. The Employer agrees that a committee
appointed by the Employer (hereinafter called the "Committee") shall control and
manage the operation of the Plan in respect of the Trust Fund. The Committee may
delegate the power to control and manage the operations of the Plan to
appropriate employees of the Employer and other outside service providers. The
Committee shall be responsible for instructing the Trustee in the disbursement
of assets held in the Trust Fund, holding of the Trust Fund assets, and
performing those plan administration functions with respect to those assets
required under the terms of the Plan.
The Committee shall be responsible for keeping accurate books and
records with respect to the Plan's rights and interests in the Trust Fund.
Third: General Duties of Trustee. It shall solely be the duty of the
Trustee to receive and hold such assets as comprise the Trust Fund pursuant to
the provisions hereinafter set forth and to receive assets from and to transfer
assets from the Trust Fund, pursuant to the directions of the Committee, to
Chase. The Trustee shall only be responsible for such assets as are actually
received by it as Trustee hereunder. The Trustee shall have no duty or authority
to ascertain whether any assets should be held by it pursuant to the Plan or to
bring any action to enforce any obligation to make any contribution to the Plan.
The duties and obligations of the Trustee hereunder shall be limited to those
expressly imposed upon it by this Trust Agreement notwithstanding any reference
herein to the Plan. The Trustee shall not be liable in discharging its duties
hereunder if it acts in good faith and in accordance with the terms of this
Trust Agreement and in accordance with applicable Federal or state laws, rules
and regulations.
The Trustee shall, as soon as practicable following each date on which
a cash contribution is received from the Employer, invest, by purchases first,
from the Employer's treasury shares (based on the average last traded price for
the five days of trades preceding the date of purchase), then from The Ney
Company Profit Sharing Savings Plan (based on the average last traded price for
the five days of trades, preceding the date of purchase), then from the
Retirement Plan for Employees of The X.X. Xxx Company (based on the average last
traded price for the five days of trades, preceding the date of purchase), then
from the Xxxxxxxx Group Inc. Pension Plan (based on the average last traded
price for the five days of trades, preceding the date of purchase), then on any
stock exchange on which the shares of Xxxxxxxx Group, Inc. Common Stock, shall
be listed or admitted to unlisted trading privileges, then by purchases in the
so-called "third market" and then by purchases in private transactions, all
funds then held by them, after first reserving such amounts as the Trustee in
its sole and absolute discretion shall deem necessary or advisable in order to
meet the current cash needs of the Trust, in shares of Xxxxxxxx Group, Inc.
Common Stock, whether or not the same shall be authorized by law for the
investment of trust funds; provided, however, that, (a) if, under the rules and
regulations of the Securities and Exchange Commission and/or any stock exchange
on which the shares of the Xxxxxxxx Group, Inc. Common Stock shall be listed or
admitted to unlisted trading privileges, such investment may not be made on any
business day, in whole or part, the Trustees shall make such investment on such
succeeding business day or business days as shall be permitted by said rules and
regulations, (b) the Trustees shall not be required to purchase shares of
Xxxxxxxx Group, Inc. Common Stock at times or prices which, in their sole and
absolute opinion, would not be consistent with the conduct of orderly
transactions in the market for shares of Xxxxxxxx Group, Inc. Common Stock and
(c) if any purchase is made from a person who is a "party in interest" with
respect to the Plan within the meaning of Section 3(14) of ERISA, other than any
such purchases effected in a transaction on any stock exchange on which the
shares of Xxxxxxxx Group, Inc. Common Stock shall be listed or admitted to
unlisted trading privileges, including any such purchase made from the Employer,
such purchase shall be at a price per share not in excess of the closing sale
price thereof on the stock exchange on which the shares of Xxxxxxxx Group, Inc.
Common Stock shall be listed or admitted to unlisted trading privileges, on the
date of the purchase and no commissions or other compensation shall be paid with
respect thereto.
Fourth: Participant Investment Direction. Since plan participants, in
accordance with the provisions of the Plan, may individually direct the
investment of any part or all of the Trust Fund credited to their accounts, each
participant shall have the power to direct the Trustee in the exercise of the
powers described in paragraphs (a) through (j) below hereof with respect to that
portion of the Trust Fund attributable to their accounts in the Plan, and the
Trustee shall, upon receipt of a written direction from the participant,
exercise such powers in accordance with such direction:
(a) To receive and continue to hold property, real or
personal, including without limitation, stocks of any class (including common
stock of the Employer), bonds, notes, debentures (including convertible stocks
and securities), mortgages, forms of deposit maintained by a bank, shares of
investment companies and mutual funds, or guaranteed or other insurance
contracts, irrespective of any laws or rules of court of any state governing the
investment of trust funds or diversification of trust funds and without regard
to the proportion any such property may bear to the entire amount of the Trust
Fund;
(b) To sell, exchange, redeem, or otherwise dispose of any
securities or other property at any time held by the Trustee;
(c) To retain any property at any time received by the
Trustee; (d) To settle, compromise, adjust, submit to
arbitration, xxx upon or abandon any
claims or demands in favor of or against the Trust; provided, however, that the
Trustee shall not be required to take any such action unless it shall have been
indemnified by the participant to its reasonable satisfaction against liability
or expenses it might incur therefrom;
(e) To join in, dissent from or oppose any plan of
reorganization, consolidation, sale, merger, liquidation or other plan relating
to any corporation or other entity, the securities of which may be held by the
Trustee;
(f) To exercise any conversion privilege and/or subscription
right available in connection with any securities or other property at any time
held by the Trustee, to oppose or to consent to the reorganization,
consolidation, merger, or readjustment of the finances of any corporation,
company or association or to the sale, mortgage, pledge or lease of the property
of any corporation, company or association any of the securities of which may at
any time be held by the Trustee, 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 the Trustee may so acquire;
(g) To hold uninvested any monies received by the Trustee,
without liability for interest thereon, until directed that such monies shall be
invested, reinvested or disbursed;
(h) To exercise any right, including the right to vote in
person or by proxy, appurtenant to any securities or other property held by the
Trustee at any time;
(i) To respond to a tender or exchange offer appurtenant to
any securities or other property held by the Trustee at any time;
(j) To renew or extend or participate in the renewal or
extension of any mortgage, upon such terms as may be deemed advisable, and to
agree to a reduction in the rate of interest on any mortgage or to any other
modification or change in the terms of any 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 Fund or the preservation of the value of the
investment; to waive any default whether in the performance of any covenant or
condition of any mortgage or in the performance of any guarantee, or to enforce
any such default in such manner and to such extent as may be deemed advisable;
to exercise and enforce any and all rights of foreclosure; to take a deed in
lieu of foreclosure with or without paying a consideration therefor 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 proceedings any
rights or remedies in respect of any such mortgage or guarantee.
In addition to following the direction of Plan participants and having
the powers enumerated above, the Trustee shall have the powers specified below:
(k) To employ suitable agents and counsel, who may be counsel
for the Employer, and to act in accordance with their advice and to pay their
reasonable expenses and compensation;
(l) To cause any property or securities at any time held in
the Trust Fund to be registered in the name of one or more nominees, without
disclosure of the Trust, or to hold any securities at any time held in trust in
bearer form so that they will pass by delivery; to combine certificates
representing securities with certificates of the same issue held by the Trustee
in other fiduciary capacities or to deposit or to arrange for the deposit of
such securities with the Depository Trust Company (New York) even though where
deposited, such securities may be held in the name of the nominee of such
depository with other securities deposited therewith by other persons, provided,
however, that the books and records of the Trustee shall at all times show that
all such securities are part of the Trust Fund.
(m) To make, execute and deliver, as Trustee, any and all
deeds, leases, mortgages, conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the accomplishment of any of the
foregoing powers;
(n) To do all acts, whether or not expressly authorized, that
the Trustee may deem necessary or desirable for the protection of the Trust Fund
and to accomplish any action provided for in the Plan;
(o) If any dispute shall arise as to the persons to whom
payments and the delivery of any monies shall be made by the Trustee, or the
amounts thereof, to retain such payments and/or postpone such delivery until
actual adjudication of such dispute shall have been made in a court of competent
jurisdiction, or the parties concerned have agreed to a settlement, or the
Trustee has been indemnified against loss to its satisfaction.
The words "security or other property" as used in this Trust Agreement
shall be deemed to refer to such stocks, bonds, notes or other evidences of
indebtedness or ownership, in which trustees are authorized to invest under the
laws of the State of Connecticut as such laws exist from time to time. Such
phrase shall also be deemed to refer to any property, real or personal or part
interest therein, wherever situated, including but without being limited to
governmental, corporate or personal obligations, trust and participation
certificates, leaseholds, fee titles, mortgages and other interests in realty,
preferred and common stocks, and any other evidences of indebtedness or
ownership, even though the same may not be legal investments for trustees under
the law applicable thereto.
A Plan participant's direction may be in writing or such other format
approved by the Trustee. The Trustee may decline to implement participant
directions which may result in a prohibited transaction or generate income that
would be taxable to the Plan. The Trustee shall not be liable for investments
made in compliance with such directions or for any diminution in the value of
such portion of the Trust Fund, or for any breach of ERISA, as a result of
following a Plan participant's directions, and, further, shall be under no duty
or obligation to review, evaluate or reevaluate the investments made pursuant to
such directions.
The Trustee shall take direction from a participant as to the manner in
which securities allocated to a Plan participant's account are to be voted on
each matter brought before an annual or special stockholders' meeting or the
manner in which to respond to a tender or exchange offer with respect to
securities allocated to a Plan participant's account. Before each such meeting
of stockholders or with respect to a tender or exchange offer, the Trustee shall
cause to be furnished to each participant or beneficiary a copy of the proxy
solicitation material or other material generally distributed to stockholders,
together with a description of any Plan provisions which relate to the exercise
of voting, tender or exchange rights with respect to such securities, and a form
requesting confidential directions on how such securities allocated to such
participant's account shall be voted on each such matter. The Committee shall
also provide the Trustee with the mailing address of each participant or
beneficiary. Upon timely receipt of each participant's directions, the Trustee
shall reconcile the proxies received with the Plan's holdings on the record date
and shall vote as directed on each such matter the number of shares of such
security (including fractional shares) allocated to each participant's account
or, in the case of a tender or exchange offer, shall respond as instructed with
respect to such securities, and the Trustee shall have no discretion in such
matter. The instructions received by the Trustee from participants shall be held
by the Trustee in confidence and shall not be divulged or released to any
person, except to the extent necessary to comply with applicable Federal or
state laws. If the Trustee has not received direction from a participant as to
the manner in which securities allocated to a plan participant's account are to
be voted or responded to on a matter, the Trustee shall not exercise any right
to vote with respect to such securities, or shall not tender or exchange any
security, and the Trustee shall have no discretion in such matter. The Trustee
shall keep accurate records as to the voting of proxies of Plan-owned stock.
Fifth: Payment of Taxes. The Trustee shall pay out of the Trust Fund all
real and personal property taxes, income taxes and other taxes of any and all
kinds levied or assessed under existing or future laws against the Trust Fund.
Sixth: Disbursement of Trust Funds. The Trustee, from time to time upon
receipt of written direction of the Committee, shall transfer assets from the
Trust Fund to such persons, in such manner and in such amounts as the Committee
shall direct in writing, and amounts transferred pursuant to such direction
shall no longer constitute a part of the Trust Fund.
In directing the Trustee to make any transfers from the Trust Fund, the
Committee shall follow the provisions of the Plan and in no event may the
Committee direct that any payments be made, either during the existence or upon
discontinuance of the Plan, that would cause any part of the Trust Fund to be
used for or diverted to purposes other than the exclusive benefit of
participating employees, former employees or beneficiaries of such employees,
pursuant to the provisions of the Plan. The Trustee shall not be liable in any
way for any payment made pursuant to any such direction of the Committee and, in
the absence of knowledge that the direction constitutes such a breach, the
Trustee shall have no duty to make any inquiry or investigation before acting
upon any such direction of the Committee. Any written direction of the Committee
shall constitute a certification that the transfer so directed is one that the
Committee is authorized to direct, and the Trustee need not make any further
investigation.
The Trustee may make any transfer required hereunder by mailing its
check for the specified amount, or delivering the specified property, to Chase
at such address as may have been last furnished to the Trustee, or if no such
address shall have been so furnished, to such person in care of the Employer or
the Committee, or (if so directed by the Committee) by crediting the account of
such person or by transferring funds to such person's account by bank or wire
transfer.
Seventh: Exclusive Benefit of Employees, etc. At no time prior to the
satisfaction of all liabilities with respect to the Plan under this Trust shall
any part of the corpus or income of the Trust Fund be used for, or diverted to,
purposes other than for the exclusive benefit of such employees, former
employees or their beneficiaries. The assets of the Trust Fund shall never inure
to the benefit of the Employer and shall be held for the exclusive purposes of
providing benefits to participants in the Plan and their beneficiaries and
defraying reasonable expenses of administering the Plan.
Eighth: Expenses of Trustee. The Trustee shall be paid its reasonable
expenses for the management and administration of the Trust Fund, including
without limitation reasonable expenses of counsel and other agents employed by
the Trustee.
Ninth: Expenses of the Plan and Trust Fund. The Employer shall pay, or if
not paid by the Employer, the Trustee shall pay from the Trust Fund, the
reasonable expenses relating to the Plan and Trust Fund payable to third parties
including, without limitation, actuarial, investment management, accounting and
legal expenses.
Tenth: Accounts of the Trustee. The Trustee shall keep full accounts of all
of its receipts and disbursements. The Trustee's books and records with respect
to the Trust Fund shall be open to inspection by the Employer or the Committee
at all reasonable times during business hours of the Trustee. The Trustee shall
render from time to time, and not less frequently than once per year, accounts
of its transactions to the Committee and certify to the accuracy thereof. The
Committee may approve such accounts by an instrument in writing delivered to the
Trustee. In the absence of the filing in writing with the Trustee by the
Committee of exceptions or objections to any such account within sixty (60) days
after an accounting has been rendered, the Committee shall be deemed to have
approved such account; and in such case, or upon the written approval of the
Committee of any such account, the Trustee shall be released, relieved and
discharged with respect to all matters and things set forth in such account as
though such account had been settled by the decree of a court of competent
jurisdiction. No person other than the Committee may require an accounting or
bring any action against the Trustee with respect to the Trust or its action as
Trustee. The Trustee or the Committee shall have the right to apply at any time
to a court of competent jurisdiction for judicial settlement of any account of
the Trustee not previously settled as herein provided or for the determination
of any question of construction or for instructions. In any such action or
proceeding it shall be necessary to join as parties only the Trustee and the
Committee (although the Trustee may also join such other parties as it may deem
appropriate), and any judgment or decree entered therein shall be conclusive.
In the case of the revocation or termination of this Trust, or in case
of the resignation or removal of the Trustee, the Trustee shall have the right
to a settlement of the Trustee's accounts, which accounting may be made either
(a) by agreement of settlement between the Trustee and the Committee, or (b) by
judicial settlement in an action, suit or proceeding instituted by the Trustee
in a court of competent jurisdiction.
Eleventh: Resignation, Removal and Substitution of Trustee. The Trustee may
resign at any time, such resignation to take effect not less than thirty (30)
days after any notice of such (unless notice of a shorter duration shall be
accepted as adequate). Any successor Trustee hereunder may be either a
corporation authorized
and empowered to exercise trust powers or may be one or more individuals. In
either event, the appointment of a successor Trustee shall not be effective
until such successor Trustee delivers its written acceptance of trust to the
Trustee. All of the provisions set forth herein with respect to the Trustee
shall relate to each successor Trustee so appointed with the same force and
effect as if such successor Trustee had been originally named herein as the
Trustee hereunder.
In the case of the resignation of the Trustee, the Trustee shall have
the right to a settlement of the Trustee's accounts, as provided in Article
Tenth hereof. Upon the completion of such accounting and upon the appointment of
a successor Trustee, the resigning Trustee shall transfer and deliver the Trust
Fund to such successor Trustee, after reserving such reasonable amount as it
shall deem necessary to provide for its expenses in the settlement of its
account, and any sums chargeable against the Trust Fund for which it may be
liable. If the sums so reserved are not sufficient for such purposes, the
resigning Trustee shall be entitled to reimbursement for any deficiency from the
successor Trustee. Also upon the completion of such accounting and upon the
appointment of a successor trustee, the resigning Trustee shall thereupon be
discharged from further accountability for the Trust Fund by reason of any
matter embraced in such accounting, and shall be under no further duty,
obligation or responsibility for the disposition by such successor Trustee of
the Trust Fund or any part thereof, but the Trustee shall, in any event,
properly account for any such sums reserved by it.
Twelfth: Amendment and Termination of Trust. The Employer expressly
reserves the right at any time to amend this Trust Agreement and the Trust
created hereby to any extent that it may deem advisable.
The Employer expressly reserves the right to revoke this Trust
Agreement and to terminate the Trust hereby created. Upon such termination,
disposition of the assets of the Trust Fund shall be governed by the terms of
the Plan; provided, however, that the Trustee shall not distribute any portion
of the Trust Fund after such termination unless the Employer first obtains a
determination from the Internal Revenue Service that such termination will not
affect adversely the qualified status of the Plan.
Thirteenth: Miscellaneous Provisions
(a) This Trust Agreement and the trust hereby created shall be
governed, construed, administered and regulated in all respects under the law of
the United States and of the State of Connecticut.
(b) The titles to the Article in this Trust Agreement are
placed herein for convenience of reference only and in case of any conflict the
text of this instrument, rather than such titles, shall control.
(c) In the event that any dispute shall arise as to the
persons to whom payment of any funds and/or delivery of any property shall be
made by the Trustee, the Trustee may withhold such payment and/or delivery until
such dispute shall have been determined by a court of competent jurisdiction or
shall have been settled by the parties concerned.
(d) In case any provisions of this Trust Agreement shall be
held illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts of this Trust Agreement, but this Trust Agreement
shall be construed and enforced as if said illegal and invalid provisions had
never been inserted herein or therein.
(e) No right or claim to any of the monies or other assets of
the Trust Fund shall be assignable, nor shall such rights or claims be subject
to garnishment, attachment or execution or levy of any kind and any attempt to
transfer, assign or pledge the same will not be recognized by the Trustee except
as may be required pursuant to a qualified domestic relations order under
Section 414(p) of the Code or as may be otherwise required by applicable laws.
(f) This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and said counterparts
shall constitute but one and the same instrument and may be sufficiently
evidenced by any one counterpart.
(g) This Trust Agreement shall be binding upon the respective
successors and assigns of the Employer and the Trustee.
(h) Neither the gender nor the number (singular or plural) of
any word shall be construed to exclude another gender or number when a different
gender or number would be appropriate.
(i) In the event of any conflict between provisions of the
Plan and those of this Trust Agreement, or any trust agreement with Chase, this
Trust Agreement shall prevail.
(j) Communications to the Trustee shall be sent to the
Trustee's principal offices or to such other address as the Trustee may specify
in writing. No communication shall be binding upon the Trustee until it is
received by the Trustee. Communications to the Committee or to the Employer
shall be sent to the Employer's principal offices or to such other address as
the Employer may specify in writing.
IN WITNESS WHEREOF, this Trust Agreement has been executed as of the
day and year first above written.
Attest: XXXXXXXX GROUP, INC.
/s/ Xxxxxx X. X'Xxxx By: /s/ Xxxxxxx X. Xxxxxxx, III
Its: Assistant Secretary
Witness: TRUSTEES:
Xxxxxx X. X'Xxxx /s/Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. X'Xxxx /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
