Exhibit 10.7
TRUST AGREEMENT
between
XXXXXXX INSTRUMENTS, INC.
and
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee,
For The Benefit of
Participating Employees
TRUST AGREEMENT
Dated as of May 31, 1995
between
Xxxxxxx Instruments, Inc.
and
The First National Bank of Chicago
TABLE OF CONTENTS
SECTION 1 Definitions. . . . . . . . . . . . . . . . . . 1
SECTION 2 Establishment of the Trust . . . . . . . . . . 4
2.1 Trust Fund. . . . . . . . . . . . . . . . 4
2.2 Irrevocability. . . . . . . . . . . . . . 4
2.3 Claims of Creditors . . . . . . . . . . . 5
SECTION 3 Acceptance by the Trustee. . . . . . . . . . . 5
SECTION 4 Investment of the Trust. . . . . . . . . . . . 5
4.1 General Duty of Trustee . . . . . . . . . 5
4.2 Additional Powers of Trustee. . . . . . . 5
SECTION 5 Establishment and Maintenance of
Participant Schedule . . . . . . . . . . . . . 8
5.1 Form of Participant Schedule. . . . . . . 8
5.2 Maintaining the Plan Schedule . . . . . . 8
SECTION 6 Maintenance of Trust . . . . . . . . . . . . . 8
6.1 Trust Assets and Allocation to Plans. . . 8
6.2 Valuation of Trust and Accounts . . . . . 8
SECTION 7 Voting and Tender of Company Stock Held in
Trust . . . . . . . . . . . . . . . . . . . . 8
7.1 Voting Rights . . . . . . . . . . . . . . 8
7.2 Tender Rights . . . . . . . . . . . . . . 9
7.3 Notices and Information Statements. . . . 9
SECTION 8 Distributions from the Trust . . . . . . . . . 9
8.1 Distributions from the Trust. . . . . . . 9
8.2 Significant Event . . . . . . . . . . . .10
8.3 Protection of Trustee . . . . . . . . . .10
8.4 Company Obligations . . . . . . . . . . .11
8.5 Trustee as Holder of Legal Title
to Trust Assets . . . . . . . . . . . . .11
8.6 Federal Income Tax Consequences of
the Trust . . . . . . . . . . . . . . . .11
SECTION 9 Expenses, Compensation and Indemnification . .11
9.1 Expenses. . . . . . . . . . . . . . . . .11
9.2 Compensation. . . . . . . . . . . . . . .11
9.3 Charge on Trust Fund. . . . . . . . . . .12
9.4 Indemnification . . . . . . . . . . . . .12
9.5 Payment from Trust Fund . . . . . . . . .12
SECTION 10 Administration and Records . . . . . . . . . .12
10.1 Records . . . . . . . . . . . . . . . . .12
10.2 Settlement of Accounts. . . . . . . . . .13
10.3 Audit . . . . . . . . . . . . . . . . . .13
10.4 Judicial Settlement . . . . . . . . . . .13
10.5 Delivery of Records to Successor. . . . .13
10.6 Tax Filings . . . . . . . . . . . . . . .14
SECTION 11 Removal or Resignation of the Trustee and
Designation
of Successor Trustee . . . . . . . . . . . . .14
11.1 Removal . . . . . . . . . . . . . . . . .14
11.2 Resignation . . . . . . . . . . . . . . .14
11.3 Successor Trustee . . . . . . . . . . . .14
SECTION 12 Enforcement of Trust Agreement . . . . . . . .14
12.1 Rights of Parties to Enforce the Trust
Agreement . . . . . . . . . . . . . . . .14
12.2 Limitation on Rights of Participant
and Beneficiaries . . . . . . . . . . . .15
SECTION 13 Termination. . . . . . . . . . . . . . . . . .15
13.1 Termination upon Specific Events. . . . .15
13.2 Termination in Other Events . . . . . . .15
13.3 Limitation on Trustee Liability upon
Total Distribution; Continuation of
Trustee Powers. . . . . . . . . . . . . .15
13.4 Nonapplicability of ERISA . . . . . . . .16
SECTION 14 Amendment. . . . . . . . . . . . . . . . . . .16
14.1 Amendments in General . . . . . . . . . .16
14.2 Nonapplicability of ERISA; Preventing
Current Taxation. . . . . . . . . . . . .16
SECTION 15 Nonalienation. . . . . . . . . . . . . . . . .16
15.1 Prohibition Against Certain Transfers,
Pledges, Etc.. . . . . . . . . . . . . . 16
SECTION 16 Communications . . . . . . . . . . . . . . . .17
16.1 To the Company, Board of Directors and
Committee . . . . . . . . . . . . . . . .17
16.2 To the Trustee. . . . . . . . . . . . . .17
16.3 To a Participant. . . . . . . . . . . . .17
16.4 Binding upon Receipt. . . . . . . . . . .17
16.5 Authority to Act. . . . . . . . . . . . .18
16.6 Authenticity of Instruments . . . . . . .18
SECTION 17 Claims of Companies Bankruptcy Creditors . . .18
17.1 Bankruptcy Creditors. . . . . . . . . . .18
17.2 Resumption of Benefits, Restoration of
Accounts. . . . . . . . . . . . . . . . .18
SECTION 18 Consolidation, Merger or Sale of the Company .19
18.1 Consolidation, Merger or Sale of
the Company . . . . . . . . . . . . . . .19
SECTION 19 Miscellaneous Provisions . . . . . . . . . . .19
19.1 Binding Effect. . . . . . . . . . . . . .19
19.2 Inquiry as to Authority . . . . . . . . .19
19.3 Responsibility for the Company Action . .19
19.4 Successor to Trustee. . . . . . . . . . .19
19.5 Intercompany Agreements . . . . . . . . .19
19.6 Titles Not to Control . . . . . . . . . .20
19.7 Fractional Shares . . . . . . . . . . . .20
Schedule A
LIST OF PLANS . . . . . . . . . . . . . . . . . . . . .21
Schedule B
MINIMUM DISTRIBUTION SCHEDULE(S). . . . . . . . . . . .22
Schedule C
FEE SCHEDULE . . . . . . . . . . . . . . . . . . . . .23
TRUST AGREEMENT made and entered into as of May 31,
1995 by and between Xxxxxxx Instruments, Inc., a corporation
organized under the laws of the State of Delaware (the
"Company"), and The First National Bank of Chicago, a
national banking association, organized under the laws of
the United States of America (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has in place various qualified and
non-qualified employee benefit plans and arrangements for
the benefit of some or all of the employees of the Company
and certain of its subsidiaries and affiliates and may from
time to time adopt one or more additional plans or
arrangements;
WHEREAS, the Company and its subsidiaries or affiliates
have and will have certain legal obligations under these
employee benefit plans or arrangements;
WHEREAS, the Company wishes to establish a trust to
assist it in meeting certain of these obligations and
intends to make contributions to such trust at such time or
times and in such amount or amounts as it may determine;
WHEREAS, the Company intends that such contributions
shall be held by the Trustee and invested and reinvested
primarily in common stock of the Company, all in accordance
with the provisions of this Trust Agreement;
WHEREAS, inasmuch as the income and corpus of such
trust may and will be applied in discharge of the Company's
legal obligations, such trust is intended to be a "grantor
trust" within the meaning of Section 671 of the Internal
Revenue Code of 1986; and
WHEREAS, the Company intends that the assets of such
trust at all times shall be subject to the claims of
bankruptcy and other general creditors of the Company and
its subsidiaries and affiliates that maintain the employee
benefit plans and arrangements as provided in Section 17 of
this Trust Agreement.
NOW THEREFORE, in consideration of the mutual covenants
herein contained, the Company and the Trustee declare and
agree as follows:
SECTION 1 Definitions.
As used in this Trust Agreement, the following
definitions apply to the terms indicated below:
1.1 "Administrator" or "Administrators" shall refer to
the committee, person or persons charged with responsibility
for overseeing and administering the Plans.
1.2 "Affiliate" shall refer to any subsidiary or other
firm related by direct or indirect stock ownership that has
adopted a Plan while each such entity remains a subsidiary
or related firm of the Company.
1.3 "Beneficiary" shall mean any person entitled to
receive benefits under any Plan on the death of a
Participant.
1.4 "Benefits" shall mean amounts that the Company or
an Affiliate has an obligation pursuant to any Plan to (i)
pay from its general assets, (ii) provide for the payment of
by making contributions from its general assets, or (iii)
deliver in shares of Company Stock.
1.5 "Board of Directors" shall mean the Board of
Directors of the Company.
1.6 "Change in Control" shall be deemed to occur if
the Secretary of the Company certifies to the Trustee that
any of the following events has occurred:
1.6.1 Any "person", as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), other than an
employee benefit plan of the Company, or a trustee or
other fiduciary holding securities under an employee
benefit plan of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined
voting power of the Company's then outstanding voting
securities. Notwithstanding the preceding sentence, a
Change of control shall not be deemed to have occurred
if the "person" described in the preceding sentence is
an underwriting syndicate which has acquired the
ownership of 20% or more of the combined voting power
of the Company's then outstanding voting securities
solely in connection with a public offering of the
Company's securities.
1.6.2 Individuals who, as of the date hereof,
constitute the Board of the Company (the "Incumbent
Board"), cease for any reason to constitute at least a
majority of the Board provided that any person becoming
a director subsequent to the date hereof whose
election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an
individual whose initial assumption of office is in
connection with an actual or threatened election
contest relating to the election of the directors of
the Company, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act)
shall be considered as though such person were a member
of the Incumbent Board of the Company.
1.6.3 The stockholders of the Company approve a
merger or consolidation with any corporation, other
than (A) a merger or consolidation which would result
in the voting securities of the Company outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted
into voting securities of another entity) more than 80%
of the combined voting power of the voting securities
of the Company or such other entity outstanding
immediately after such merger or consolidation or (B) a
merger or consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no person acquires 20% or more
the combined voting power of the Company's then
outstanding voting securities.
1.6.4 The stockholders of the Company approve a
plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets.
1.7 "Code" shall mean the Internal Revenue Code of
1986 as it may be amended from time to time.
1.8 "Committee" shall mean such committee as the Board
of Directors shall appoint from time to time to administer
the Trust. The Committee shall consist of three or more
persons. The members of the Committee will be certified to
the Trustee by the Secretary or Assistant Secretary of the
Board of Directors.
1.9 "Company Stock" shall mean the common stock of the
Company, par value $.10 per share.
1.10 "Daily Value" shall mean, with respect to a share
of Company Stock, the closing reported sales price per share
of Company Stock on the New York Stock Exchange Composite
Tape, or if Company Stock is not traded on such stock
exchange, the principal national securities exchange on
which Company Stock is traded, or if not so traded, the mean
between the highest bid and lowest asked quotation on the
over-the-counter market as reported by the National
Quotations Bureau, or any similar organization, on any
relevant date, or if not so reported, as determined by the
Committee in a manner consistently applied.
1.11 "Eligible Participant" shall mean a Participant
who is an Employee and who, during the 6-month period
preceding the date as of which Eligible Participants are to
be determined for purposes of this Trust Agreement,
purchased Common Stock pursuant to the Xxxxxxx Instruments
Employee Stock Purchase Plan.
1.12 "Employee" shall mean any individual who is
actively employed by the Company or an Affiliate.
1.13 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
1.14 "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
1.15 "Minimum Distribution Schedule" shall mean the
schedule (or schedules) set forth in Schedule B.
1.16 "Other Assets" shall mean any asset or investment
aside from cash held by the Trust that is not Company Stock.
1.17 "Participant Schedule" shall mean the schedule
prepared by the Company pursuant to Section 5.2.
1.18 "Participants" shall mean those individuals who
participate in one or more of the Plans described in
Appendix A.
1.19 "Plans" shall mean the plans or arrangements
referred to in Schedule A, as amended from time to time.
1.20 "Trust" shall mean the trust established pursuant
to this Trust Agreement.
1.21 "Trust Fund" shall mean all Company Stock, money
or other property from time to time contributed to the Trust
and all investments and reinvestments made therewith or
proceeds thereof and all earnings and profits thereon, less
all payments and charges as authorized herein.
SECTION 2 Establishment of the Trust.
2.1 Trust Fund. The Company hereby establishes the
Trust. The Trust Fund shall consist of such sums of Company
Stock, money and other property acceptable to the Trustee as
are from time to time paid or delivered to the Trustee. The
Company shall have no duty or obligation to make any
contribution to the Trust and the Trustee shall have no duty
or obligation to require the company to make any
contribution to the Trust. 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. The Trustee,
and any successor Trustee appointed pursuant to Section 11
hereof or resulting under Section 19.4 hereof shall at all
times be a bank and trust company or other national banking
association that is neither a subsidiary of nor other firm
related by direct or indirect stock ownership to the
Company.
2.2 Irrevocability. Except as provided in Section 17
hereof, the Trust shall be for the exclusive purpose of
assisting the Company in providing Benefits and defraying
expenses of the Trust in accordance with the provisions of
this Trust Agreement. No part of the income or corpus of
the Trust Fund shall be recoverable by the Company;
provided, however, that the Trust Fund shall be applied in
discharge of the Company's legal obligations as provided in
this Trust Agreement.
2.3 Claims of Creditors. Notwithstanding anything in
this Trust Agreement or the Plans to the contrary, the Trust
Fund shall at all times be subject to the claims of
bankruptcy and other general creditors of the Company and
its affiliates, as provided in Section 17 hereof. No
Participant or Plan shall have any claim against the Trust
Fund other than as a general unsecured creditor of the
Company.
SECTION 3 Acceptance by the Trustee.
The Trustee accepts the Trust established under this
Trust Agreement on the terms and subject to the provisions
set forth herein. The Trustee agrees to discharge and
perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
SECTION 4 Investment of the Trust.
4.1 General Duty of Trustee. Except as otherwise
directed by the Committee pursuant to this Section 4.1, and
except as otherwise expressly provided in this Trust
Agreement, all assets received by the Trustee other than
Company Stock shall be invested as soon as practicable in,
and remain invested in, Company Stock. The Trustee shall
acquire shares of Company Stock in the open market or
through the method of purchase and sales which is used by
the Trustee in the normal course of its security
transactions, including transactions with the Company. The
Committee may direct that cash or Other Assets received by
the Trustee may be retained and invested in Other Assets
provided that, after payment of the costs of the Trust,
including, without limitations, Trustee fees and expenses,
through the end of the calendar year during which such cash
or other Assets are received by the Trustee, any such cash
or Other Assets remaining shall be distributed by the
Trustee at the end of such calendar year to such Plans,
Participants or Employees as determined by the Committee in
good faith taking into account the best interests of a broad
cross-section of Employees.
4.1.1 Upon any purchase by or contribution to the
Trust of Company Stock pursuant to this Section 4, the
Trustee shall promptly take such steps as are necessary
to register such Company Stock in accordance with
Section 4.2.13 hereof.
4.2 Additional Powers of Trustee. Subject to the
provisions of Section 4.1, the Trustee shall have the
following additional powers and authority with respect to
all property constituting a part of the Trust Fund:
4.2.1 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; provided however, "property"
shall not include any direct or indirect interest in
real estate. For this purpose, "real estate" includes,
but is not limited to real property, mortgages,
leaseholds, mineral interests, and any form of asset
which is secured by any of the foregoing.
4.2.2 Subject to Section 7 hereof, the 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.
4.2.3 Subject to Section 7 hereof, 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.
4.2.4 To deposit cash or any Other Assets 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.
4.2.5 To exercise any conversion privilege or
subscription right available in connection with any
such property, and to do any act with referenced
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.
4.2.6 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.
4.2.7 Subject to Section 7 hereof, 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.
4.2.8 To hold cash awaiting investment
uninvested, and to maintain such additional cash
balances as it shall deem reasonable or necessary to
meet anticipated cash distributions from or
administrative costs of the Trust.
4.2.9 To invest cash or Other Assets at The First
National Bank of Chicago, or another bank and trust
company or national banking association in any type of
interest-bearing investment, including, without
limitation, deposit accounts, certificates of deposit
and repurchase agreements.
4.2.10 To invest and reinvest all or any specified
portion of cash or Other Assets (i) through the medium
of any common trust fund which has been or may
hereafter be established and maintained by the Trustee,
or (ii) in shares of open end or closed end investment
companies provided that, prior to investing any portion
of the Trust Fund for the first time in any such common
trust fund or investment company, the Trustee shall
advise the Company of its intent to make such an
investment and furnish to the Company any information
it may reasonably request with respect to such
investment.
4.2.11 To form corporations or partnerships and to
create trusts to hold title to any cash or Other Assets
constituting the Trust Fund, upon such terms and
conditions as may be deemed advisable.
4.2.12 To engage legal counsel, including (except
following the occurrence of a Change in Control)
counsel to the Company, or any other suitable agents,
to consult with such counsel or agents with respect to
the implementation or 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 any such counsel's or agent's reasonable fees,
expenses and compensation.
4.2.13 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 indicting 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.
4.2.14 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 that are necessary or
proper for the accomplishment of any of the foregoing
powers.
4.2.15 Pursuant to the direction of the Committee
as to all aspects of the transaction, including without
limitation interest rate, term and identity of lender,
to undertake a borrowing sufficient to enable the Trust
to acquire newly issued Company Stock.
4.2.16 Subject to Section 7 hereof, generally, to
exercise any of the powers of an owner with respect to
property held in the Trust fund.
SECTION 5 Establishment and Maintenance of Participant
Schedule.
5.1 Form of Participant Schedule. The Company shall
prepare, and shall deliver to the Trustee in accordance with
Section 5.2 hereof, a schedule that sets forth the name of
each Participant entitled to receive a Benefit under a Plan.
Such Schedule shall also include a list of Eligible
Participants.
5.2 Maintaining the Participant Schedule. As soon as
practicable after execution of this Trust Agreement, the
Company shall deliver to the Trustee the Participant
Schedule. The Company shall from time to time update the
Participant Schedule. Each Participant Schedule shall state
the date as of which it applies, and the trustee shall be
entitled to rely upon such Participant Schedule, without a
duty of further inquiry, until it receives an updated
Participant Schedule bearing a later date. Each Participant
Schedule shall contain all information concerning a
Participant which the Trustee will need to complete its
responsibilities under this Agreement.
SECTION 6 Maintenance of Trust.
6.1 Trust Assets and Allocation to Plans. The Trustee
shall hold all assets contributed or otherwise obtained by
the Trust and shall distribute such contributions and any
earnings thereon to such Administrators, Employees or
Participants as the Committee may from time to time direct
pursuant to Section 8 hereof or as may be required pursuant
to Section 8 hereof.
6.2 Valuation of Trust and Accounts. The Trustee
shall revalue the Trust Fund as of the last business day of
each calendar quarter. Shares of Company Stock shall be
valued at the Daily Value of Company Stock as of such date.
SECTION 7 Voting and Tender of Company Stock Held in Trust.
7.1 Voting Rights. The Trustee shall vote the shares
of Company Stock held by the Trust in accordance with
directions received by Eligible Participants determined as
of the record date. As soon as practicable following the
record date in question, the Company shall deliver to the
Trustee a Participant Schedule listing Eligible Participants
determined as of such record date. Each Eligible
Participant listed on such Participant Schedule shall have
the right to direct the vote with respect to that number of
shares of Company Stock held by the trust as is equal to the
total number of shares of Company Stock held by the trust as
of such record date divided by the number of Eligible
Participants listed on the Participant Schedule who submit
such voting directions. The Trustee shall devise and
implement a procedure to assure confidentiality of any
directions given by Eligible Participants in respect of
votes. All actions taken by Eligible Participants pursuant
to this Section 7.1 shall be held confidential by the
Trustee and shall not be divulged or released to any person,
other than (i) agents of the Trustee who are not affiliated
with the Company or its Affiliates, (ii) by virtue of the
execution by the Trustee of any proxy, consent or letter of
transmittal for the shares of Company Stock held in the
Trust, or (iii) as may be required by court order.
7.2 Tender Rights. If any person shall commence a
tender or exchange offer or any similar transaction with
respect to the Company Stock, the Trustee shall pass through
tender or exchange rights to Eligible Participants
determined as of the Commencement of such tender or exchange
offer. As soon as practicable following the commencement of
such tender or exchange offer, the Company shall deliver to
the Trustee a Participant Schedule listing the Eligible
Participants determined as of the commencement of such
tender or exchange offer. Each Eligible Participant listed
on such Participant Schedule shall have the right to direct
the tender or exchange of that number of shares of Company
Stock held by the Trust as is equal to the total number of
shares of Company Stock held by the Trust divided by the
number of Eligible Participants listed on the Participant
Schedule who submit such directions. The Trustee shall
devise and implement a procedure to assure the
confidentiality of any directions given by Eligible
Participants in response to such offers. All actions taken
by Eligible Participants pursuant to this Section 7.2 shall
be held confidential by the Trustee and shall not be
divulged or released to any person, other than (i) agents of
the Trustee who are not affiliated with the Company or its
Affiliates, (ii) by virtue of the execution by the Trustee
of any proxy, consent or letter of transmittal for the
shares of Company Stock held in the Trust, or (iii) as may
be required by court order.
7.3 Notices and Information Statements. The Company
shall provide the Trustee in a timely manner with notices
and information statements (including proxy statements) when
voting rights are to be exercised, and with respect to
tender, exchange or similar offers, at the same time and in
the same manner (except to the extent the Exchange Act
requires otherwise) as such notices and information
statements (including proxy statements) are provided to
shareholders of the Company generally. The Trustee shall,
in turn provide all material received by the Company
pursuant to this Section 7.3 to Eligible Participants
described in Sections 7.1 and 7.2.
SECTION 8 Distributions from the Trust.
8.1 Distributions from the Trust. Except as otherwise
provided in Section 8.2, the Trustee shall distribute
Company Stock held in the Trust in accordance with the
Minimum Distribution Schedule applicable to such transfer of
stock. The particular Plan with respect to which any
distribution from the Trust is made will be determined by
the Committee in accordance with the following directions:
(a) to the extent available, shares of Company Stock
sufficient to meet the obligations of the Xxxxxxx
Instruments Inc. Employee Share Purchase Program shall first
be allocated to the Administrator of such Plan, and (b)
remaining shares of Company Stock (if any) shall first be
allocated to the Administrators of other Plans or directly
to Participants in such other Plans or Employees, as
determined by the Committee in good faith taking into
account the best interests of a broad cross-section of
Participants.
8.1.1 Reliance Upon Committee Instruction. The
Committee shall inform the Trustee in writing of how
many shares are required to fund 8.1(a). The Trustee
may rely upon written instructions received by the
Committee to carry out the instructions contained in
this Section 8.1 and shall have no responsibility to
verify or monitor the determinations made by the
Committee. If no direction regarding allocation of
shares of Company Stock pursuant to clause (b) of
Section 8.1 is received by the Trustee from the
Committee by the date specified in the Minimum
Distribution Schedule, the shares of Company Stock
subject to such allocation under said clause (b) shall
be distributed to all participants in an equal amount
per Participant as determined by reference to the most
recent Participant Schedule received by the Trustee.
8.1.2 Acceleration. Notwithstanding anything
herein to the contrary, the Committee can direct that
the number of shares distributed in any year exceed the
number of shares required to be distributed under the
Minimum Distribution Schedule and/or that shares be
distributed prior to the date specified in such
schedule. If, in any year, the Committee directs that
the number of shares distributed exceeds the number
required to be distributed pursuant to the Minimum
Distribution Schedule, such Schedule shall be revised
by the Committee, so that all remaining minimum
distribution amounts will be reduced proportionately.
8.2 Significant Event. If an event occurs that causes
30 percent or more of the Participants to cease to be
Employees within a 12-month period, as certified by the
Committee, then all remaining distribution amounts under the
Minimum Distribution Schedule will be reduced in direct
proportion to such reduction and the Minimum Distribution
Schedule will be correspondingly extended.
8.3 Protection of Trustee. The Trustee shall, to the
maximum extent permitted by applicable law, be fully
protected in acting upon the Participant Schedule and any
written statement, affidavit or certification referred to in
this Trust Agreement. The Trustee shall at all times, to
the maximum extend permitted by applicable law, be fully
protected in making distributions pursuant to Sections 4.1,
8, 13 and 17 hereof.
8.4 Company Obligations. Notwithstanding the
provisions of this Trust Agreement, the Company and its
Affiliates shall remain obligated with respect to the
Benefits attributable to their respective employees.
Nothing in this Trustee Agreement shall relieve the Company
or any of its Affiliates of their respective liabilities
with respect to the Benefits except to the extent such
amounts are paid to a Plan or a Participant from the Trust,
it nevertheless being the Company's intent that the Trust
Fund shall be applied in discharge of the Company's legal
obligations as provided in this Trust Agreement.
8.5 Trustee as Holder of Legal Title to Trust Assets.
Subject to Section 17 hereof, the Trustee shall hold legal
title to all assets in the Trust for benefit of the
Participants and Employees.
8.6 Federal Income Tax Consequences of the Trust. The
Trust Fund may be applied in the discharge of legal
obligations of the Company as provided herein. Accordingly,
the Company shall take into account in computing its tax
liability, those items of income, deductions and credits
against tax attributable to assets held in the Trust to
which the Company would have been entitled had the Trust not
been in existence. The Trustee shall notify the Company
promptly after it becomes aware of any tax liability
assessed against, or imposed upon, the Trust or the Trustee
in its capacity as Trustee of the Trust. The Company shall
be responsible for all matters in respect of such assessment
or imposition, and shall have sole responsibility for any
defense in connection therewith. Payments in respect of any
tax liability of the Company arising in connection with
earnings, gain or activities relating to the Trust,
including, without limitation, interest and penalties, shall
be made from the Trust fund after a final determination of
such liability, unless the Company promptly pays such
liability. In the event the assets of the Trust are
insufficient to pay such liability, any deficit shall be
paid promptly by the Company.
SECTION 9 Expenses, Compensation and Indemnification.
9.1 Expenses. The Trustee shall be reimbursed by the
Company for its reasonable expenses of implementation,
management and administration of the Trust, including
brokerage commissions and the reasonable compensation of
attorneys or other agents engaged by the Trustee or by the
Company to assist in such implementation, management and
administration.
9.2 Compensation. The Company shall pay the Trustee
compensation in accordance with the compensation schedule
attached hereto as Schedule C, unless the Company and the
Trustee otherwise agree in writing.
9.3 Charge on Trust Fund. All expense and
compensation referred to in Sections 9.1 and 9.2 hereof
shall be a charge on the Trust Fund and shall constitute a
lien on the Trust Fund in favor of the Trustee and shall be
payable from the Trust Fund unless paid when due by the
Company.
9.4 Indemnification. The Company hereby agrees to
indemnify and hold harmless the Trustee from and against any
losses, costs, damages, claims or expenses, including
without limitation reasonable attorneys' fees, which the
Trustee may incur or pay out in connection with, or
otherwise arising out of:
9.4.1 the performance by the Trustee of its duties
hereunder, unless any such loss, cost, damage, claim or
expense is a result of negligence or willful misconduct
by the trustee or the breach by the Trustee of its
fiduciary duties hereunder; or
9.4.2 any action taken by the Trustee in good
faith pursuant to the written direction of the Company.
In the event that any action or regulatory proceeding shall
be commenced or claim asserted which may entitle the Trustee
to be indemnified hereunder, the Trustee shall give the
Company written notice of such action or claim promptly
after becoming aware of such commencement or assertion
unless the Company has otherwise received notice of such
action or claim. The Company shall be entitled to
participate in and, upon notice to the Trustee, assume the
defense of any such action or claim using counsel reasonably
acceptable to the Trustee. The Trustee shall cooperate with
the Company in connection with the defense of any such
action or claim. Subject to Section 17, the Trustee shall
have no claim on the assets of the Trust Fund in respect of
amounts payable to the Trustee under this Section 9.4.
9.5 Payment from Trust Fund. All payments of expenses
and compensation referred to in Sections 9.1 and 9.2 hereof
may be made without approval or direction of the Company.
SECTION 10 Administration and Records.
10.1 Records. Subject to Sections 7.1 and 7.2, 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. The Trustee shall preserve all such accounts,
books, and records, 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 destroy
such accounts, books and records only after first notifying
the Company in writing of its intention to do so and
transferring to the Company, subject to Section 7.1 and 7.2
hereof, any of such accounts, books and records that the
Company shall request.
10.2 Settlement of Accounts. Subject to Sections 7.1
and 7.2 hereof, 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
(or any portion thereof), the Trustee shall file with the
Company a written account setting forth all investments,
receipts, disbursements and other transactions effected by
it with respect to the Trust during the preceding calendar
year 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 purchases or sales, and showing all cash, securities
and other property held at the end of such calendar year or
other period.
It shall be the duty of the Company to review such
written account promptly within 90 days from the date of
filing any such account and if, within such 90-day period,
the Company does not file with the Trustee a written notice
of objection to any of the Trustee's acts or transactions,
the initial account shall become an account stated between
the Trustee and the Company. If the Company files a written
notice of objection with the Trustee, the Trustee may file
with the Company an adjusted account, in which case it shall
be the duty of the Company to review such adjusted account
promptly within 30 days from the date of its filing. If,
within such 30-day period, the Company fails to file a
written notice of objection to any of the Trustee's acts or
transactions as so adjusted with the Trustee, the adjusted
account shall become an account stated between the Trustee
and the Company.
Unless an account is fraudulent, when it becomes an
account stated it shall be finally settled, and the Trustee
shall, to the maximum extend 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.
10.3 Audit. The Trustee shall from time to time 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.
10.4 Judicial Settlement. 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. 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.
10.5 Delivery of Records to Successor. In the event of
the removal or resignation of the Trustee, the Trustee shall
deliver to the successor Trustee all records which shall be
required by the successor Trustee to enable it to carry out
the provisions of this Trust Agreement.
10.6 Tax Filings. In addition to any returns required
of the Trustee by law (e.g. any information return required
to the be filed on IRS Form 1041), the Trustee shall prepare
and file such tax reports and other returns as the Company
and the Trustee may from time to time agree.
SECTION 11 Removal or Resignation of the Trustee and
Designation of Successor Trustee.
11.1 Removal. At any time prior to the occurrence of a
Change in Control, the Company may remove the Trustee with
or without cause upon at least 60 days' notice in writing to
the Trustee. At any time after the occurrence of a Change
in Control, the Trustee may not be removed except by order
of a court of competent jurisdiction. No removal of the
Trustee shall be effective until the Company has appointed
in writing a successor Trustee, and such successor has
accepted the appointment in writing.
11.2 Resignation. Trustee may resign at any time upon
at least 60 days' notice in writing to the Company, except
that any such resignation shall not be effective until the
Company has appointed in writing a successor Trustee, and
such successor has accepted the appointment in writing. At
any time after 30 days following the sending of such notice
of resignation, if the Company is unable to appoint a
successor Trustee or if a successor Trustee has not accepted
an appointment, the Trustee shall be entitled, at the
expense of the Company, to petition a United States District
Court or any of the courts of the Commonwealth of
Pennsylvania or other court having jurisdiction to appoint
its successor.
11.3 Successor Trustee. Subject to Section 2.1 hereof,
each 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.
SECTION 12 Enforcement of Trust Agreement.
12.1 Rights of Parties to Enforce the Trust Agreement.
The Company and the Trustee shall have the right to enforce
any provision of this Trust Agreement. In any action or
proceeding affecting the Trust, the only necessary parties
shall be the Company and the Trustee and, except as
otherwise required by applicable law, no other person shall
be entitled to any notice or service of process. Any
judgement entered in such an action or proceeding shall, to
the maximum extend permitted by applicable law, be binding
and conclusive on all persons having or claiming to have any
interest in the Trust or any Plan.
12.2 Limitation on Rights of Participants and
Beneficiaries. Neither the Plans nor any Participant or
Beneficiary shall have any rights with respect to the Trust
Fund, no Plan shall be deemed to have any beneficial
interest in the Trust Fund and no Employee shall be deemed
to have any beneficial interest in the Trust Fund arising
from his participation in any particular Plan.
SECTION 13 Termination.
13.1 Termination upon Specific Events. The Trust shall
be terminated as soon as practicable after the Trustee has
received written notice from the Committee that one or more
of the following events has occurred:
13.1.1 in the Committee's sole discretion, the
Department of Labor or a court of competent
jurisdiction has determined or would be likely to
determine that the assets of the Trust are subject to
Part 4 of Subtitle B of Title I of ERISA,
13.1.2 in the Committee's sole discretion, the
Internal Revenue Service or a court of competent
jurisdiction has determined or would be likely to
determine that any portion of the Trust Fund is
presently taxable to any Participant or Beneficiary, or
13.1.3 a Change in Control has occurred.
In the event of a termination pursuant to this
Section 13.1, the Trustee shall distribute all assets
then constituting the Trust Fund to all Participants
listed on the Participant Schedule in a equal amount
per Participant.
13.2 Termination in Other Events. Notwithstanding
anything herein to the contrary, the Trust shall terminate
on the earliest of (a) 21 years following the death of the
youngest Participant included on the Participant Schedules
received by the Trustee in 1993, (b) the date on which the
Committee informs the Trustee in writing that the Company
and its Affiliates have no obligations under any Plans (or
the date on which there are no Plans) or (c) the date on
which the Trust contains no assets and retains no claims to
recover assets from the Company and its Affiliates pursuant
to any provision hereof, whichever shall first occur. In
the event of a termination described in clauses (a) or (b)
of this Section, the Trustee shall distribute the assets
remaining in the Trust Fund to all participants listed on
the Participant Schedule in an equal amount per Participant.
13.3 Limitation on Trustee Liability upon Total
Distribution; Continuation of Trustee Powers. Upon a total
distribution of the Trust assets pursuant to Sections 8 or
13, the Trustee shall be relieved from all further
liability. The powers of the Trustee hereunder shall
continue so long as any assets of the Trust remain in its
hands.
13.4 Nonapplicability of ERISA. Notwithstanding
anything herein to the contrary, no amount shall be
distributed to any Participant pursuant to this Section 13
if such distribution could, in the opinion of independent
counsel, cause the Trust to be subject to ERISA (other than
as an unfunded plan described in ERISA section 201(2)).
Prior to a distribution pursuant to this Section, the
Committee shall provided the Trustee with a Schedule of
Participants eligible for a distribution (taking into
account this subsection 13.4).
SECTION 14 Amendment.
14.1 Amendments in General. The Company may, in its
sole discretion, from time to time amend, in whole or in
part, any or all of the provisions of this Trust Agreement,
including, without limitation, by adding to, or subtracting
from Schedule A hereto one or more employee benefit plans
(within the meaning of Section 3(3) of ERISA) or plans or
arrangements that are not employee benefit plans (within the
meaning of such Section); provided, that (a) in making any
modification to Schedule A hereto, the Company shall act in
good faith taking into account the best interests of a broad
cross-section of employees, and (b) the Company shall ensure
that at all times Schedule A shall include at least one
employee benefit plan that is not an employee benefit plan
within the meaning of Section 3(3) of ERISA. No amendment
to this Trust Agreement or the Plans shall be made that
would (a) purport to alter the irrevocable character of the
Trust, (b) without the Trustee's prior written consent,
adversely affect the Trustee's rights, increase the
Trustee's duties or responsibilities or decrease the
Trustee's compensation hereunder, or (c) alter Section 1.6,
2, 4, 6, 7, 8, 13, or subsection 14.1.
14.2 Nonapplicability of ERISA; Preventing Current
Taxation. Notwithstanding subsection 14.1, the Company may
amend this Trust Agreement from time to time in such a
manner as may be necessary, in the opinion of independent
counsel, to prevent this Trust Agreement or the Trust from
becoming subject to ERISA and to prevent the current
taxation of the Trust Fund to Participants.
SECTION 15 Non-alienation.
15.1 Prohibition Against Certain Transfers, Pledges,
Etc. Except as otherwise provided by this Trust Agreement
and except as otherwise may be required by applicable law,
(a) no amount payable to or in respect of any Plan,
Participant or Employee at any time under the Trust shall be
subject in any manner to alienation by anticipation, sale,
transfer, assignment, bankruptcy, 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 (b) the Trust Fund
shall in no manner be liable for or subject to the debts or
liabilities of any Participants.
SECTION 16 Communications.
16.1 To the Company, Board of Directors and Committee.
Communications to the Company, the Board of Directors and
the Committee shall be addressed to:
Xxxxxxx Instruments, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Instruments, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. May, Esq.
provided, however, that upon the Company's written request,
such communications shall be sent to such other address as
the Company may specify.
16.2 To the Trustee. Communications to the Trustee
shall be addressed to:
Xxxx X. Xxxxxx
The First National Bank of Chicago
2 First Xxxxxxxx Xxxxx
Xxxxx 0000, 0-00
Xxxxxxx, XX 00000-0000
provided, however, that upon the Trustee's written request,
such communications shall be sent to such other address as
the Trustee may specify.
16.3 To a Participant. Communications to a Participant
or to his Beneficiaries shall be addressed to the
Participant or his Beneficiaries, respectively at the
address indicated on the Participant Schedule as in effect
at the time of the communication.
16.4 Binding upon Receipt. No communication shall be
binding on the Trustee until it is received by the Trustee,
and no communication shall be binding on the Company, the
Board of Directors or the Committee until it is received by
the Company, the Board of Directors or the Committee,
respectively and no communication shall be binding on a
Participant or the Participant's Beneficiaries until it is
received by the Participant or the Participant's
Beneficiaries, respectively.
16.5 Authority to Act. The Secretary of the Company
shall from time to time certify to the Trustee the person or
persons authorized to act for the Company, the Committee and
the Board of Directors, and shall 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.
16.6 Authenticity of Instruments. The Trustee shall be
fully protected in acting upon any instrument, certificate,
or paper reasonably 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 17 Claims of Companies' Bankruptcy Creditors.
17.1 Bankruptcy Creditors. In the event of the
Company's "insolvency," the assets of the Trust shall be
available to pay the claims of any creditor of the Company
to whom a distribution may be made in accordance with state
and federal bankruptcy laws. The Company shall be deemed to
be "insolvent" if it is either (a) unable to pay its debt
and liabilities as they become due or (b) subject to a
pending proceeding as a debtor under the federal Bankruptcy
Code (or any successor federal statute) or any state
bankruptcy code. In the event the Company becomes
insolvent, the Board of Directors and the Chief Executive
Officer of the Company shall notify the Trustee of the event
as soon as practicable. Upon receipt of such notice, or if
the Trustee receives other written allegations of the
Company's insolvency from a third party considered by the
trustee to be reliable and responsible, the Trustee shall
cease making any distributions from the assets of the Trust,
shall hold the assets in the Trust for the benefit of the
Company's creditors and shall take such steps as are
necessary to determine within a reasonable period of time
whether the Company is insolvent. In making such
determination, the Trustee may rely upon a certificate of
the Board of Directors and the Chief Executive Officer of
the Company or a determination by a court of competent
jurisdiction that the Company is or is not insolvent. In
the case of the Trustee's determination of the Company's
insolvency, the Trustee will deliver assets of the Trust to
satisfy claims of the Company's creditors as directed
pursuant to a final order of a court of competent
jurisdiction.
17.2 Resumption of Benefits; Restoration of Accounts.
In the event the Trustee ceases making distributions by
reason of Section 17.1, the Trustee shall resume making
distributions pursuant to Sections 4, 8, or 13 of this
Agreement only after the Trustee has determined that the
Company is no longer insolvent or upon receipt of an order
of a court of competent jurisdiction requiring such
distributions. In making any determination under this
Section, the Trustee may rely upon a certificate of the
Board of Directors and the Chief Executive Officer of the
Company.
SECTION 18 Consolidation, Merger or Sale of the Company.
18.1 Consolidation, Merger or Sale of the Company.
Effective upon consolidation of the Company with, or merger
of the Company into, any corporation or corporations, or any
sale or conveyance of all or substantially all of the assets
of the Company, the Trustee shall deal with the corporation
formed by such consolidation, or with or into which the
Company is merged, or the person that acquires the assets of
the Company on the same basis as it dealt with the Company
prior to such transactions and, in such event, the term
"Company" within this Agreement shall mean such corporation
or person.
SECTION 19 Miscellaneous Provisions.
19.1 Binding Effect. This Trust Agreement shall be
binding on the Company and the Trustee and their respective
successors and assigns.
19.2 Inquiry as to Authority. 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 obligations 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.
19.3 Responsibility for Company Action. The Trustee
assumes no obligation or responsibility with respect to any
action required by this Trust Agreement on the part of the
Company, the Board of Directors, the Committee, any
Affiliate, the Participants or any Beneficiaries. 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.
19.4 Successor to Trustee. Subject to Section 2.1, 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.
19.5 Intercompany Agreements. The Company may require
any Affiliate to enter into such other agreement or
agreements as it shall deem necessary to obligate such
Affiliate to reimburse the Company for any other amounts
paid by the Company hereunder, directly or indirectly, in
respect of such Affiliate's employees.
19.6 Titles Not to Control. Titles to the Sections of
this Trust Agreement are included for convenience only and
shall not control the meaning or interpretation of any
provision of this Trust Agreement.
19.7 Fractional Shares. Notwithstanding anything
herein to the contrary, the Trustee may distribute any
fractional share otherwise required to be distributed to
Administrators or Participants pursuant to Sections 8 or 13,
in cash in an amount equal to the Daily Value, multiplied by
such fraction.
IN WITNESS WHEREOF, this Trust Agreement has been duly
executed by the parties hereto as of the day and year first
above written.
XXXXXXX INSTRUMENTS, INC.
Attest: XXXXXXX X. XXXXX By: X. X. XXXXXX
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
Attest: X. XXXXX By: XXXX X. XXXXXX
Trust Officer
SCHEDULE A
XXXXXXX INSTRUMENTS, INC.
BENEFIT EQUITY FUND
THE FIRST NATIONAL BANK OF CHICAGO, TRUSTEE
LIST OF PLANS
Xxxxxxx Instruments, Inc. Emloyees' Stock Purchase Plan
Xxxxxxx Instruments, Inc. Incentive Compensation Plan of 1990
Xxxxxxx Instruments, Inc. Savings and Investment Plan
Xxxxxxx Instruments, Inc. Pension Plan
Other non-discretionary base compensation
SCHEDULE B
XXXXXXX INSTRUMENTS, INC.
BENEFIT EQUITY FUND
THE FIRST NATIONAL BANK OF CHICAGO, TRUSTEE
MINIMUM DISTRIBUTION SCHEDULE
AS OF FEBRUARY 1, 1993
SHARES REMAINING MINIMUM SHARES
AT BEGINNING TO BE SHARES REMAINING
YEAR OF YEAR DISTRIBUTED AT END OF YEAR
------------------------------------------------------------
1993 800,000 100,000 700,000
1994 700,000 100,000 600,000
1995 600,000 100,000 500,000
1996 500,000 100,000 400,000
1997 400,000 100,000 300,000
1998 300,000 100,000 200,000
1999 200,000 100,000 100,000
2000 100,000 100,000 0
SCHEDULE C
ANNUAL FEE $7,500.00
GUARANTEED FOR 2 YEARS.
