Amended and Restated
CONTRAN DEFERRED COMPENSATION TRUST NO. 2
This Amended and Restated Agreement is made this 1st day of August,
2000 by and between Contran Corporation, a Delaware corporation ("Company") and
U.S. Bank National Association ("Trustee");
WHEREAS, Company and NationsBank of Texas, N.A. ("Former Trustee") have
previously entered into the Contran Deferred Compensation Trust No. 2 dated
October 1, 1995 (hereinafter called "Trust");
WHEREAS, NationsBank of Texas, N.A. requested to be removed as trustee
of the Trust effective January 2, 1998;
WHEREAS, Boston Safe Deposit and Trust Company accepted the appointment
as trustee of the Trust effective January 2, 1998;
WHEREAS, the Company and then trustee amended and restated the Trust
effective January 2, 1998 as the Contran Deferred Compensation Trust No. 2,
Amended and Restated;
WHEREAS, the restated Trust was amended first on July 16, 1998;
WHEREAS, the Company and then trustee further amended and restated the
Trust as of January 1, 1999 as the Amended and Restated Contran Deferred
Compensation Trust No. 2;
WHEREAS, the Company desires to appoint U.S. Bank National Association
as successor trustee to the former successor trustee, Boston Safe Deposit and
Trust Company, and to amend and restate the Trust to reflect such a change in
trustees;
WHEREAS, Company has adopted the nonqualified deferred compensation
Plan(s) as listed in Appendix A (the "Plans");
WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plan(s) with respect to the individuals participating in such
Plan(s);
WHEREAS, Company has established a Trust and wishes to contribute to
the Trust assets that shall be held therein, subject to the claims of Company's
creditors in the event of Company'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(s);
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(s) 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 Company 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(s); and
WHEREAS, for purposes of this Trust Agreement, the term "subsidiary" of
Company shall mean an entity that is controlled by Company directly or
indirectly through one or more intermediaries;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust.
(a) Company deposited with Former Trustee in trust:
(i) 260,458 shares of the common stock, par value $0.01 per
share, of Valhi, Inc., a Delaware corporation and subsidiary of
Company;
(ii) 97,065 shares of the common stock, par value $1.00 per
share, of Tremont Corporation, a Delaware corporation and subsidiary of
Company; and
(iii) 134,720 shares of the common stock, par value $1.00 per
share, of Keystone Consolidated Industries, Inc., a Delaware
corporation and subsidiary of Company;
all of which shares became 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 grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in any assets of the Trust. Any rights
created under the Plan(s) and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against Company.
Any assets held by the Trust will be subject to the claims of Company's general
creditors under federal and state law in the event of Insolvency, as defined in
Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with Trustee
to augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits. The
foregoing shall not modify any obligation of Company under the Plan(s).
(f) The parties expressly acknowledge and intend that, except in the
event of a change in control as detailed in Section 14(d), Trustee shall serve
as a custodial, directed trustee hereunder.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or available under the
Plan(s)), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the Plan participants
and their beneficiaries in accordance with such Payment Schedule. The Trustee
shall make provision for the reporting and withholding of any federal, state or
local taxes as Company shall direct in writing to be withheld with respect to
the payment of benefits pursuant to the terms of the Plan(s) and shall promptly
pay to the Company in cash such amounts withheld. The Company shall pay such
amounts withheld to the appropriate taxing authorities. The Company shall
provide the Trustee with specific directions regarding the manner, timing and
form of tax reporting to be made to Plan participants and governmental agencies.
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan(s) shall be determined by Company or such party as it
shall designate under the Plan(s), and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plans(s).
(c) Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan(s).
Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plan(s), Company shall make the balance of each such payment as it
falls due. Trustee shall notify Company where principal and earnings are not
sufficient but shall not have a duty to require that supplemental payments be
made to Plan participants or supplemental contributions be made to the Trust.
(d) Company determination of Payment Schedules and a participant's
entitlement to benefits shall be made annually by Company with respect to the
deferred compensation accrued each year and may not thereafter be modified by
Company without the participant's consent. For purposes of this Section 2(d) all
Company actions with respect to a participant prior to the time of his death,
disability, retirement or termination shall be by the members of its Board of
Directors at such time, and all Company actions with respect to a participant
following his death, disability, retirement or termination shall be by the
members of its Board of Directors immediately prior to the participant's death,
disability, retirement or termination.
(e) As soon as possible after the occurrence of a Change of Control,
any real estate held in a real estate subtrust of this Trust shall be
distributed to the Plan participants or beneficiaries for whom such assets are
held under such subtrust, and within one hundred and eighty (180) days following
such a Change of Control, the Trustee shall distribute any remaining benefits to
which a Plan participant or beneficiary is entitled by a lump sum payment in
cash.
Section 3. Trustee Responsibility Regarding Payments to Trust
Beneficiary When Company Is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of
Company shall have the duty to inform the Trustee in writing of
Company's Insolvency. If a person claiming to be a creditor of Company
alleges in writing to Trustee that Company has become Insolvent,
Trustee shall determine whether Company is Insolvent and, pending such
determination, Trustee shall discontinue payment of benefits to Plan
participants or their beneficiaries. In all cases, Trustee shall be
entitled to conclusively rely upon the written certification of the
continuing Directors of the Company when determining whether Company is
insolvent.
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a person claiming to
be a creditor alleging that Company is Insolvent, Trustee shall have no
duty to inquire whether Company is Insolvent. Trustee may in all events
rely on such evidence concerning Company's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for making
a determination concerning Company's solvency. The Trustee may hire
counsel and/or other professionals to assist it in making a
determination as to the Company's insolvency. Any legal or other
professional fees and expenses incurred by the Trustee in making its
determination shall be paid from the Trust.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this Trust Agreement
shall in any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of Company
with respect to benefits due under the Plan(s) or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after Trustee has determined that Company is
not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan(s) (as certified
by Company) for the period of such discontinuance, less the aggregate amount of
any payments made to Plan participants or their beneficiaries by Company in lieu
of the payments provided for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Except as provided in Sections 2(a), 3 or 5(c) hereof, or as provided
in Section 7 of the Plan, after the Trust has become irrevocable, Company shall
have no right or power to direct Trustee to return to Company or to divert to
others any of the Trust assets before all payment of benefits have been made to
Plan participants and their beneficiaries pursuant to the terms of the Plan(s).
Section 5. Investment Authority.
(a) Except as limited by Section 5(b), Trustee shall have the powers,
rights and duties in addition to those provided elsewhere in this agreement or
by law to be exercised only pursuant to the direction of Company or an
investment manager appointed by Company: to invest and reinvest part or all of
the trust fund in any real property, securities (including stock or rights to
acquire stock) or obligations issued by Company or subsidiaries of Company,
stocks, mutual fund shares (including proprietary funds of Trustee or its
affiliates), partnership interests, venture capital investments, bonds,
debentures, notes, commercial paper, treasury bills, any common, commingled or
collective trust funds (including proprietary funds of Trustee or its
affiliates), or pooled investment funds, any deposit accounts or funds
maintained by a legal reserve life insurance company in accordance with an
agreement between Trustee and such insurance company or a group annuity contract
issued by such insurance company to Trustee as contractholder, any
interest-bearing deposits held by any bank or similar financial institution
(including Trustee or its affiliates ), and to diversify such investments so as
to minimize the risk of large losses unless under the circumstances it is
clearly prudent no to do so. In no event shall the Trust invest directly in real
estate. Trust assets shall be limited to domestic United States assets or
securities which may be held through the Depository Trust Company.
(b) Trustee shall not have any investment discretion with respect to
the assets of the Trust and shall not sell or otherwise dispose of any assets
that are deposited by Company with the Trust unless it is directed to do so by
Company in writing. All rights associated with assets of the Trust shall be
exercised by Company or the person designated by Company, and shall in no event
be exercisable by or rest with Plan participants. Voting rights with respect to
Trust assets will be exercised by Company.
(c) Company shall have the right at anytime, and from time to time in
its sole discretion, to substitute assets of equal fair market value for any
asset held by the Trust. This right is exercisable by Company in a nonfiduciary
capacity without the approval or consent of any person in a fiduciary capacity.
(d) To settle, compromise or submit to arbitration any claims, debt or
damages due or owing to or from the Trust; to commence or defend suits or legal
proceedings to protect any interest of the Trust; and to represent the Trust in
all suits or legal proceedings in any court or before any other body or
tribunal;
(e) To take all action necessary to pay for authorized transactions,
including borrowing or raising monies from any lender, including Trustee, in its
corporate capacity in conjunction with its duties under this Agreement and upon
such terms and conditions as Trustee may deem advisable to settle security
purchases and/or foreign exchange or contracts for foreign exchange, and
securing the repayments thereof by pledging all or any part of the Trust.
Trustee shall be entitled to collect from the Trust sufficient cash for
reimbursement, and if such cash is insufficient, dispose of the assets of the
Trust to the extent necessary to obtain reimbursement.
(f) To appoint with prior written approval of Company custodians,
subcustodians or subtrustees, domestic or foreign (including affiliates of
Trustee), as to part or all of the Trust; provided, however, that Trustee shall
not be liable for the acts or omissions of any subcustodian appointed under this
Section 5.
(g) To hold property in nominee name, in bearer form, or in book entry
form, in a clearinghouse corporation or in a depository (including an affiliate
of Trustee), so long as Trustee's records clearly indicate that the assets held
are a part of the Trust; provided, however, that Trustee shall not be
responsible for any losses resulting from the deposit or maintenance of
securities or other property (in accordance with market practice, custom, or
regulation) with any recognized foreign or domestic clearing facility,
book-entry system, centralized custodial depository, or similar organization;
and
(h) To settle indirect investments in Real Estate (the "Real Estate")
and exercise such other powers as may be required in connection with the Fund's
investments in Real Estate. The Trustee shall have no responsibility or
discretion with respect to the ownership, management, administration, operation
or control of any Real Estate. To the extent permitted by law, the Trustee shall
be indemnified by the Company, to the extent not paid by the Fund, from all
claims, liabilities, losses, damages and expenses, including reasonable
attorneys' fees and expenses, arising from or in connection with any matter
relating to any Real Estate held in the Trust and which give rise to: (i) any
violation of any applicable environmental or health or safety law, ordinance,
regualtion or ruling; or (ii) the presence, use, generation, storage, release,
threatened release, or containment, treatment or disposal of any petroleum,
including crude oil or any fraction thereof, hazardous substances, pollutants or
contaminants as defined in the Comprehensive Environmental Response Compensation
and Liability Act, as amended (CERCLA) or hazardous, toxic or dangerous
substances or materials as many of these terms may be defined under any federal
or state law in the broadest sense from time to time. This indemnification shall
survive the sale or other disposition of any Real Estate investment of the Fund
or the termination of this Agreement.
(i) Generally to do all acts, whether or not expressly authorized,
which the Trustee may deem necessary or desirable for the protection of the
Trust.
(j) Trustee shall retain in cash or other investments which are
unproductive of income so much of the Trust fund as it may deem advisable its
servicing of the Trust (e.g., Trust assets pending investment or disbursement)
which may include retention of Trust assets in non-interest bearing accounts in
the banking department of Trustee or of any affiliate thereof, notwithstanding
the banking department's or other entity's receipt of "float" from such
uninvested cash.
(k) In the event that a Change of Control occurs as defined in Section
14(d) and Trustee therefore becomes a discretionary trustee hereunder, to the
fullest extent permitted by law, Trustee is expressly authorized to (i) retain
the services of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and/or U.S. Bancorp Investments,
Inc., each being affiliates of U.S. Bank National Association, and/or any other
registered broker-dealer organization hereafter affiliated with U.S. Bank
National Association, and any future successors in interest thereto
(collectively, including U.S. Bank National Association, for the purposes of
this paragraph referred to as the "Affiliated Entities"), to provide services to
assist in or facilitate the purchase or sale of investment securities in the
Trust, (ii) acquire as assets of the Trust shares of mutual funds to which
Affiliated Entities provides, for a fee, services in any capacity and (iii)
acquire in the Trust any other services or products of any kind or nature from
the Affiliated Entities regardless of whether the same or similar services or
products are available from other institutions. The Trust may directly or
indirectly (through mutual funds fees and charges for example) pay management
fees, transaction fees and other commissions to the Affiliated Entities for the
services or products provided to the Trust and/or such mutual funds at such
Affiliated Entities' standard or published rates without offset (unless required
by law) from any fees charged by Trustee for its services as Trustee. Trustee
may also deal directly with the Affiliated Entities regardless of the capacity
in which it is then acting, to purchase, sell exchange or transfer assets of the
Trust even though the Affiliated Entities are receiving compensation or
otherwise profiting from such transaction or are acting as a principal in such
transaction. Each of the Affiliated Entities is authorized to (i) effect
transactions on national securities exchanges for the Trust as directed by
Trustee, and (ii) retain any transactional fees related thereto, consistent with
Section 11(a)(1) of the Securities Exchange Act of 1934, as amended, and related
Rule 11a2-2(T). Included specifically, but not by way of limitation, in the
transactions authorized by this provision are transactions in which any of the
Affiliated Entities are serving as an underwriter or member of an underwriting
syndicate for a security being purchased or are purchasing or selling a security
for its own account. In other circumstances where Trustee is directed by Company
or any Investment Manager, as applicable hereunder (collectively referred to for
purposes of this paragraph as the "Directing Party"), Directing Party shall be
authorized, and expressly retains the right hereunder, to direct Trustee to
retain the services of, and conduct transactions with, Affiliated Entities fully
in the manner described above.
Notwithstanding anything to the contrary contained in this Trust
Agreement, in the event of a Change in Control as defined in Section 14(d), the
Trustee shall have and exercise investment discretion with respect to all assets
of the Trust.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 30 days following the close of each calendar year
and within 30 days after the removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by Company which is contemplated by, and
in conformity with, the terms of the Plan(s) (as certified to Trustee by
Company) or this Trust and is given in writing by Company. In the event of a
dispute between Company and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute. Company agrees to hold Trustee harmless and
indemnify Trustee (for the purposes of this paragraph, the "Trustee" includes
the Trustee and any officers, directors, employees, agents and affiliates of
Trustee) against Trustee's costs, expenses and liabilities (including without
limitation, reasonable attorney's fees and expenses) arising out of or relating
to any action or inaction taken by Trustee in reliance upon direction, request
or approval given by Company or Investment Manager or otherwise taken in
accordance with this Trust Agreement.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify Trustee (for the
purposes of this paragraph, the "Trustee" includes the Trustee and any officers,
directors, employees, agents and affiliates of Trustee) against Trustee's costs,
expenses and liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such payments. If
Company does not pay such costs, expenses and liabilities in a reasonably timely
manner, Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder
and such legal fees and expenses shall be paid from the Trust.
(d) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder and fees and expenses for
such service providers shall be paid from the Trust.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
(g) Notwithstanding anything in this Agreement to the contrary, Trustee
shall not be responsible or liable for any losses to the Trust resulting from
any event beyond the reasonable control of Trustee, its agents, or
subcustodians, including but not limited to nationalization, strikes,
expropriation, devaluation, seizure, or similar action by any governmental
authority, de facto, or de jure; or enactment, promulgation, imposition or
enforcement by any such governmental authority of currency restrictions,
exchange controls, levies or other charges affecting the Trust's property; or
the breakdown, failure or malfunction of any utilities or telecommunications
systems; or any order or regulation of any banking or securities industry
including changes in market rules and market conditions affecting the execution
or settlement of transactions; or acts or war, terrorism, insurrection or
revolution; or acts of God; or any other similar or third-party event.
(h) This Section shall survive the termination of this Trust Agreement.
Section 9. Contractual Income and Settlement.
(a) Trustee shall credit the Trust Fund with income and maturity
proceeds on securities on contractual payment date net of any taxes or upon
actual receipt as agreed between Trustee and Company. To the extent Company and
Trustee have agreed to credit income on contractual payment date, Trustee may
reverse such accounting entries with back value to the contractual payment date
if Trustee reasonable believes that such amount will not be received by it
within a reasonable time but in no event later than two weeks following
contractual payment date.
(b) Trustee will attend to the settlement of securities transactions on
the basis of either contractual settlement day accounting or actual settlement
day accounting as agreed between Company and Trustee. To the extent Company and
Trustee have agreed to settle certain securities transactions on the basis of
contractual settlement date accounting, Trustee may reverse with back value to
the contractual settlement day an entry relating to such contractual settlement
where the related transactions remain unsettled but in no event later than two
weeks following contractual settlement date.
(c) Settlements of transactions may be effected in trading and
processing practices customary in the jurisdiction or market where the
transaction occurs. The Company acknowledges that this may, in certain
circumstances, require the delivery of cash or securities (or other property)
without the concurrent receipt of securities (or other property) or cash and in
such circumstances, the Company shall have sole responsibility for nonreceipt of
payment (or late payment) by the counterparty.
Section 10. Compensation and Expense of Trustee.
(a) Except as otherwise provided hereunder, Company shall pay all
administrative and Trustee's fees and expenses. If not so paid, the fees and
expenses shall be paid from the Trust.
(b) If Trustee advances cash or securities for any purpose, including
the purchase or sale of foreign exchange or of contracts for foreign exchange,
or in the event that Trustee shall incur or be assessed taxes, interest,
charges, expenses, assessments, or other liabilities in connection with the
performance of this Agreement, except such as may arise from its own negligent
action, negligent failure to act or willful misconduct, any property at any time
held for the Trust Fund under this agreement shall be security therefor and
Trustee shall be entitled to collect from the Trust Fund sufficient cash for
reimbursement, and if such cash is insufficient, dispose of the assets of the
Trust Fund held under this Agreement to the extent necessary to obtain
reimbursement. To the extent Trustee advances funds to the Trust for
disbursement or to effect the settlement of purchase transactions, Trustee shall
be entitled to collect from the Trust Fund any amount equal to what would have
been earned on the sums advanced (an amount approximating the "federal funds"
interest rate) and with respect to foreign assets, the rate applicable to the
appropriate foreign market.
Section 11. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company, which
shall be effective thirty (30) days after receipt of such notice unless Company
and Trustee agree otherwise.
(b) Prior to a Change of Control, Trustee may be removed by Company on
thirty (30) days notice or upon shorter notice accepted by Trustee.
(c) Upon Change of Control, as defined herein, Trustee may not be
removed by Company for one year.
(d) If Trustee resigns within one year of a Change of Control, as
defined herein, Trustee shall select a successor trustee in accordance with the
provisions of Section 12(b) hereof prior to the effective date of Trustee's
resignation or removal.
Section 12. Appointment of Successor.
(a) If Trustee resigns or is removed in accordance with Section 11(a)
or (b) hereof, Company may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee, who
shall have all of the rights and powers of the former Trustee, including
ownership rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Company or the successor Trustee
to evidence the transfer.
(b) If Trustee resigns or is removed pursuant to the provisions of
Section 11(d) hereof and selects a successor trustee, Trustee may appoint any
third party such as a bank trust department or other party that may be granted
corporate trustee powers under state law. The appointment of a successor trustee
shall be effective when accepted in writing by the new trustee. The new trustee
shall have all the rights and powers of the former Trustee, including ownership
rights in Trust assets. The former Trustee shall execute any instrument
necessary or reasonably requested by the successor trustee to evidence the
transfer.
(c) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 6 and 7 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 13. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan(s) or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan(s). Upon termination of the Trust any assets remaining
in the Trust shall be returned to Company.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan(s), Company may terminate
this Trust prior to the time all benefit payments under the Plan(s) have been
made. All assets in the Trust at termination shall be returned to Company.
(d) Notwithstanding any other provision in this Trust Agreement, this
Trust Agreement may not be amended within one year of the occurrence of a Change
of Control.
Section 14. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Minnesota.
(d) For purposes of this Trust, Change of Control shall mean either (1)
the purchase or other acquisition by any person, entity or group of persons,
within the meaning of section 13(d) or 14(d) of the Securities Exchange Act of
1934 ("Act"), or any comparable successor provisions, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Act) of 30 percent or
more of either the outstanding shares of common stock or the combined voting
power of Company's then outstanding voting securities entitled to vote
generally, or the approval by the stockholders of Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
stockholders of Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50 percent of the
combined voting power entitled to vote generally in the election of directors of
the reorganized, merged or consolidated Company's then outstanding securities,
or a liquidation or dissolution of Company or of the sale of all or
substantially all of Company's assets; or (2) the cessation to serve for any
reason of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as Trustee of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Family Trust No.
1, u/a January 1, 1964 and/or the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Family Trust No. 2 u/a
January 1, 1964.
Trustee shall have no independent duty of inquiry with respect to the
occurrence of a Change in Control. Company shall furnish the Trustee with
written notice of the occurrence of a Change in Control. Absent such notice, if
any Plan participant shall provide the Trustee with written notice of a possible
Change of Control, the Trustee may request that the Company furnish evidence to
determine whether a Change of Control has occurred. In performing any of its
obligations or taking any discretionary action under this Trust Agreement which
is dependent upon a Change of Control having occurred, Trustee may rely on its
determination, including any determination based upon an opinion of counsel (who
may be counsel to the Company or the Trustee) or upon information provided by
the continuing Directors of the Company or otherwise available to the Trustee,
that a Change of Control has occurred. For this purpose, the continuing
Directors of the Company as of the time of a possible change of control or
insolvency are the persons who were directors immediately prior to such possible
change of control or insolvency. Any legal or other professional fees and
expenses incurred by Trustee in making a determination hereunder shall be paid
from the Trust.
(e) Under no circumstances shall Trustee be liable for any indirect,
consequential, or special damages with respect to its role as Trustee.
(f) Notwithstanding anything to the contrary contained elsewhere in
this Trust Agreement, any reference to the Plan or Plan provisions which require
knowledge or interpretation of the Plan shall impose a duty upon the Company to
communicate such knowledge or interpretation to Trustee. Trustee shall have no
obligation to know or interpret any portion of the Plan and shall in no way be
liable for any proper action taken contrary to the Plan.
(g) Company and Trustee hereby each represent and warrant to the other
that it has full authority to enter into this Agreement upon the terms and
conditions hereof and that the individual executing this Agreement on their
behalf has the requisite authority to bind Company or Trustee to this Agreement.
Section 15. Effective Date.
The effective date of this Amended and Restated Contran Deferred
Compensation Trust No. 2 Agreement shall be August 1, 2000.
[Balance of page intentionally left blank.]
CONTRAN CORPORATION U.S. BANK NATIONAL ASSOCIATION
(Company) (Trustee)
By: By:
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Printed Name:
President Title:
APPENDIX A
List of Nonqualified Deferred Compensation Plan(s)
1. Amended and Restated Deferred Compensation Agreement, As Of January
1, 1999(Originally Established October 31, 1984) between Contran Corporation, a
Delaware corporation, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a resident of Dallas, Texas.
