EXHIBIT 10.49
TRUST AGREEMENT EXECUTED IN
CONJUNCTION WITH THE GENUINE PARTS COMPANY
SUPPLEMENTAL RETIREMENT PLAN
This Agreement and Declaration of Trust is made this 1st day of July,
2001, by and between Genuine Parts Company ("Company") and SunTrust Bank,
Atlanta (formerly, Trust Company Bank of Georgia) (Trustee);
WHEREAS, Company has adopted the Genuine Parts Company Supplemental
Retirement Plan ("Plan"); and
WHEREAS, Company has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
and
WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of 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; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
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;
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 hereby deposits with Trustee in trust Ten Dollars
($10.00), which shall become the principal of the Trust to be held, administered
and disposed of by Trustee as provided in this Trust Agreement. The Company may
also contribute additional assets including, but not limited to, insurance
policies.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company
is the grantor, within the meaning of subpart E, part I, subchapter J, chapter
1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general creditors
as herein set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their beneficiaries
against Company. Any assets held by the Trust will be subject to the claims of
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Upon a Change of Control, Company shall, as soon as possible,
but in no event longer than 30 days following the Change of Control, as defined
herein, make an irrevocable contribution to the trust in an amount that is
sufficient to pay each Plan participant or beneficiary the benefits to which
Plan participants or their beneficiaries would be entitled pursuant to the terms
of the Plan as of the date on which the Change of Control occurred.
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
participants (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or available under the
Plan), and the time of commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the Plan participants
and their beneficiaries in accordance with such Payment Schedule. The Trustee
shall make provision for the reporting and withholding of any federal, state or
local taxes that may be required to be withheld with respect to the payment of
benefits pursuant to the terms of the Plan and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by Company or such
party as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. 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
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any earnings thereon, are not sufficient to make payments of benefits in
accordance with the terms of the Plan, Company shall make the balance of each
such payment as it falls due. Trustee shall notify Company where principal and
earnings are not sufficient.
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 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.
(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.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of Company with respect to benefits due under the
Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Company is not Insolvent (or is
no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the
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aggregate amount of all payments due to Plan participants or their beneficiaries
under the terms of the Plan 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 Section 3 hereof, 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.
Section 5. Investment Authority.
(a) Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by Company. All rights associated with
assets of the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Plan participants,
except that voting rights with respect to Trust assets will be exercised by
Company.
(b) 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.
(c) In addition to the investment powers set forth above in this
Section 5, the following provisions shall apply:
(i) Investment Guidelines and Directives. The Trustee
shall manage, acquire, or dispose of the assets of the Trust in
accordance with this Agreement and the directions of the Company or its
designee. To the extent permitted by law, the Trustee shall not be
liable for any investment made pursuant to the Company's or its
designee's direction.
(ii) Trustee Powers. The Trustee shall have the following
powers, rights and duties subject to the Section 8 and the other
provisions of this Trust Agreement:
(A) To receive and hold all contributions paid
to it by the Company; provided, however, that the Trustee
shall have no duty to require any contributions to be made to
it;
(B) To effectuate the written investment
instructions given by the Company or its designee without
regard to any law now or hereafter in force limiting
investments of fiduciaries;
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(C) To retain in the trust for investment, any
property deposited by the Trustee hereunder;
(D) To have the authority to invest and reinvest
assets of the Trust in shares of common or preferred stock,
bonds, notes, debentures, short-term securities, mutual funds,
common Trust funds, and other property, real or personal, of
any kind; to purchase and sell "put" and "call" options on
publicly traded securities; and to acquire, hold, manage,
operate, sell, contract to sell, grant options with respect
to, convey, exchange, transfer, abandon, lease, manage, and
otherwise deal with respect to assets of the Trust;
(E) To acquire, hold or dispose of insurance or
annuity contracts as directed by the Company or its designee;
(F) To borrow from anyone such amount or amounts
of money necessary to carry out the purpose of this Trust and
for that purpose to mortgage or pledge all or any part of the
Trust;
(G) To retain in the Trust for investment or
pending distributions, any portion of the Trust in cash deemed
appropriate by the Trustee;
(H) To establish accounts in any commercial
department of the Trustee and in such other banks and
financial institutions as the Trustee deems appropriate to
carry out the purposes of the Trust;
(I) To deposit securities with a clearing
corporation as defined in Article Eight of the Uniform
Commercial Code; to hold the certificates representing
securities, including those in bearer form, in bulk form with
and to merge such certificates into certificates of the same
class of the same issuer which constitutes assets of other
accounts or owners, without certification as to the ownership
attached; and to utilize a book-entry system for the transfer
or pledge of securities held by the Trustee or by a clearing
corporation, provided that the records of the Trustee shall
indicate the actual ownership of the securities and other
property of the Trust Fund.
(J) To participate in and use the Federal
book-entry Account system, a service provided by the Federal
Reserve Bank for its member banks for deposit of Treasury
securities.
(K) To hold securities or property in the name
of the Trustee or its nominee or nominees or in such other
form as it determines best with or without disclosing the
Trust relationship, providing the records of the Trust shall
indicate the actual ownership of such securities or other
property.
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Section 6. Disposition of Income.
(a) If requested by the Company or its designee during the term of
this Trust, part of the income received by the Trust, net of expenses and taxes,
shall be returned to Company in an amount sufficient to satisfy the Company's
federal, state, local and any other jurisdiction's income tax liability,
intangibles tax liability or any other tax liability applicable to such fiscal
year and attributable to the income, deductions, tax credits or assets of the
Trust.
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 60 days following the close of each calendar year and within 60 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 the extent permitted by law) to any person
for any action taken pursuant to a direction, request or approval given by
Company or its designee which is contemplated by, and in conformity with, the
terms of the Plan or this Trust and is given in writing by Company or its
designee. In the event of a dispute between Company and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify 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. Counsel for
Trustee and other related costs must be approved by the Company in advance.
Failure to obtain such approval shall relieve Company from its obligation to
indemnify Trustee.
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(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.
(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.
(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
(f) However, notwithstanding the provisions of Section 8(e) above,
Trustee may loan to Company the proceeds of any borrowing against an insurance
policy held as an asset of the Trust.
(g) 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.
Section 9. Compensation and Expenses of Trustee.
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.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company,
which shall be effective 60 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 60 days notice or upon
shorter notice accepted by Trustee.
(c) Upon a 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 11(b) hereof prior to the effective date of Trustee's
resignation.
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(e) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 90 days after receipt of notice
of resignation, removal or transfer, unless Company extends the time limit.
(f) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date of
resignation or removal under paragraphs (a) or (b) of this section. If no such
appointment has been made, Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions. All expenses of
Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section 11. Appointment of Successor.
(a) If Trustee resigns in accordance with Section 10(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 10(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 7 and 8 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 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and the Pension and Benefits Committee of Genuine Parts
Company ("Benefits Committee"). Notwithstanding the foregoing, no such amendment
shall
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conflict with the terms of the Plan or shall make the Trust revocable after it
has become irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan. Upon termination of the Trust any assets remaining in
the Trust shall be returned to Company.
(c) Upon written approval of participants or beneficiaries
entitled to payment of benefits pursuant to the terms of the Plan, the Pension
and Benefits Committee may terminate this Trust prior to the time all benefits
payments under the Plan have been made. All assets in the Trust at termination
shall be returned to Company.
(d) Any action required to be taken by the Company under this
Agreement may be taken by the Pension and Benefits Committee.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Georgia.
(d) Change in Control shall mean,
(1) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2)
of the 1934 Act) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under
the 0000 Xxx) of 20% or more of the combined voting
power of the then outstanding voting securities of
Genuine Parts entitled to vote generally in the
election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for
purposes of this subsection (1), the following
acquisitions shall not constitute a Change of
Control: (i) any acquisition by a Person who is on
the date hereof the beneficial owner of 20% or more
of the Outstanding Company Voting Securities, (ii)
any acquisition directly from Genuine Parts, (iii)
any acquisition by Genuine Parts, (iv) any
acquisition by any employee
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benefit plan (or related trust) sponsored or
maintained by Genuine Parts or any corporation
controlled by Genuine Parts, or (v) any acquisition
by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of
Section 13(d)(3); or
(2) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the
Board; provided, however, that any individual
becoming a director subsequent to the date hereof
whose election, or nomination for election by Genuine
Parts' shareholders, was approved by a vote of at
least a majority of the directors then comprising the
Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result
of an actual or threatened election contest with
respect to the election or removal of directors or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board; or
(3) Consummation of a reorganization, merger,
consolidation or share exchange or sale or other
disposition of all or substantially all of the assets
of Genuine Parts (a "Business Combination"), in each
case, unless, following such Business Combination,
(i) all or substantially all of the individuals and
entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the combined
voting power of the then outstanding voting
securities entitled to vote generally in the election
of directors of the corporation resulting from such
Business Combination (including, without limitation,
a corporation which as a result of such transaction
owns Genuine Parts or all or substantially all of
Genuine Parts' assets either directly or through one
or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company
Voting Securities, and (ii) no Person (excluding any
corporation resulting from such Business Combination
or any employee benefit plan (or related trust) of
Genuine Parts or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 20% or more of the combined voting power
of the then outstanding voting securities of such
corporation except to the extent that such ownership
existed prior to the Business Combination, and
(iii) at least a majority of the members of the board
of directors of the corporation resulting from such
Business Combination were members of the Incumbent
Board at the time of
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the execution of the initial agreement, or of the
action of the Board, providing for such Business
Combination; or
(4) Approval by the shareholders of Genuine Parts of a
complete liquidation or dissolution of Genuine Parts.
Section 14. Effective Date
The effective date of this Trust Agreement shall be July 1, 2001.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Declaration of Trust on the date first shown above, but effective as of the date
indicated in Section 14.
PENSION AND BENEFITS
COMMITTEE
By: /s/ Xxxxxx X Xxxxxxx
--------------------------------------
Title Chairman, Pension Committee
-----------------------------------
Attest: /s/ Xxxxx X Xxxxxx
--------------------------
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X Xxxxxx
--------------------------------------
Title: 1st Vice President
-----------------------------------
Attest: /s/ Xxxxxxx Xxxx
--------------------------
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