DEFERRED COMPENSATION PLANDeferred Unit Award Agreement |
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MORRIS COMMUNICATIONS CORPORATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Deferred Unit Award Agreement by:
Exhibit 10.6
TRUST UNDER
MORRIS COMMUNICATIONS CORPORATION
DEFERRED COMPENSATION PLAN
THIS AGREEMENT made this 7th day of July, 1999, by and between Morris Communications Corporation (the “Company”) and Institutional Trust Company (the “Trustee”);
WHEREAS, the Company has adopted the nonqualified deferred compensation plan(s) as listed in Appendix A and expects to adopt additional deferred compensation plans that may, with the consent of the Trustee, be added to Appendix A (each referred to as a “Plan”);
WHEREAS, the Company has incurred or expects to incur liability under the terms of each Plan with respect to the individuals participating in each Plan;
WHEREAS, the Company wishes to establish a trust (hereinafter called the “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 (or returned to the Company) in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan maintained for the purpose of providing deferred compensation for a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974;
WHEREAS, it is the intention of the Company to make contributions to the Trust to provide itself with a source of funds to assist it in meeting 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:
ARTICLE I
ESTABLISHMENT OF TRUST
1.1. The Company hereby deposits with Trustee in trust the amounts as determined as credited to the individual plan participants and indicated in their respective plans, which shall become the principal of the Trust to be held, administered and disposed of by Trustee as provided in this Trust Agreement.
1.2. The Trust hereby established shall be irrevocable.
1.3. The Trust is intended to be a grantor trust, of which the 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.
1.4. The principal of the Trust, and any earnings thereon shall be held separate and apart from other funds of the 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 3.1. herein.
1.5. Within 15 days following the accrual of benefits or deferral of compensation by a Plan participant or other requirement under a Plan for the Company to make a contribution to this Trust, the Company shall irrevocably deposit additional cash or other property to the Trust in an amount sufficient to pay each Plan participant or beneficiary the accrued benefits or the required contribution pursuant to the terms of the Plan.
1.6. The Trustee shall maintain separate accounts (each referred to as a “Trust Account”) for the benefit of each participant in each Plan. All earnings attributable to or credited to each Trust Account shall be maintained for the benefit of such Trust Account. The Company shall designate the Trust Accounts to which each Company contribution shall be credited.
ARTICLE II
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
2.1. The 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) and each account maintained under this Trust, 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(s) and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by Company.
2.2. The entitlement of a Plan participant or his or her beneficiaries to benefits under each 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.
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2.3. The Company may make payment of benefits directly to Plan participants or their beneficiaries as they become due under the terms of the Plan. The 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 Account, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of the Plan, the Company shall make the balance of each such payment as it falls due. Trustee shall notify the Company where principal and earnings are not sufficient.
ARTICLE III
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1. 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.
3.2. At all times during the continuance of this Trust, as provided in Section 1.4. 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 President of the 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 Article II of this Trust Agreement only after Trustee has determined that Company is not Insolvent (or is no longer Insolvent).
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3.3. Provided that there are sufficient assets, if Trustee discontinues the payment of benefits from the Trust pursuant to Section 3.2 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 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.
3.4. If and to the extent the Trustee is required to pay any funds from the Trust for the benefit of the Company’s general creditors, then the Trustee shall charge each participant’s Trust Account with a pro rata portion of such payments. The Company shall be required to irrevocably deposit additional cash or other property to the Trust in an amount sufficient to replenish each Trust Account that has been charged with a portion of the amount distributed to general creditors.
3.5. The Company shall have no right or power to direct the Trustee to return to the Company or to divert to others any of the Trust assets from any Trust Account before all payments of benefits have been made to the Plan participant or his beneficiaries entitled to such Trust Account pursuant to the terms of the Plan. Notwithstanding the foregoing, if and to the extent a Plan participant forfeits all or any part of his benefits under his Trust Account in accordance with the terms of the Plan, then the Trustee shall immediately distribute such forfeited amounts to the Company. The Trustee shall return to the Company all amounts remaining in a participant’s Trust Account after payment of all benefits has been made under the Plan to the participant






