Exhibit 10.iii.s.
RETIREMENT COMPENSATION
ARRANGEMENT TRUST AGREEMENT
THIS TRUST AGREEMENT made as of the
20th day of February, 2002.
B E T W E E N:
IMC CANADA LTD.
, a company duly incorporated under
the laws of Canada,
(hereinafter referred to as the
“Company”)
OF THE FIRST PART,
- and -
IMC ESTERHAZY CANADA LIMITED
PARTNERSHIP , a
limited partnership duly formed under the laws of the Province of
Saskatchewan, by its General Partner, International
Minerals & Chemical (Canada) Global Limited, a company
duly incorporated under the laws of Canada
(hereinafter referred to as the
“Partnership”)
OF THE SECOND PART,
- and -
ROYAL TRUST CORPORATION OF
CANADA , a trust
company duly incorporated under the laws of Canada,
(such trustee and any successor
trustee being hereinafter referred to as the
“Trustee”)
OF THE THIRD PART.
WHEREAS the Company and the
Partnership have adopted Retirement Compensation Arrangements
(hereinafter collectively referred to as the “Plans”
and individually referred to as a “Plan”) to provide
benefits to the Participants (hereinafter referred to individually
as a “Participant” and collectively as the
“Participants”), on or after retirement in recognition
of the long service of such Participants with the Company or the
Partnership as the case may be (or on or after the termination of a
Participant’s employment with the Company or the Partnership
as the case may be);
AND WHEREAS in conjunction with the
Plans, the Company for and on behalf of itself and the Partnership
has established a trust fund known as the Retirement Compensation
Plan Trust Fund (hereinafter referred to as the “Trust
Fund”);
AND WHEREAS the Company and the
Partnership represent and warrant that the Plans, together with the
Trust Fund are retirement compensation arrangements, as that term
is defined in the Income Tax Act (Canada), and are not
subject to pension benefits standards legislation in Canada and
that the initial Contribution, as that term is defined herein, paid
or delivered to the Trustee is in an amount as is required to be
made in accordance with the terms of the Plans;
AND WHEREAS the parties hereto
desire to set out in this Trust Agreement the terms and conditions
under which the Trustee is to hold, maintain, administer, invest
and re-invest the Trust Fund.
NOW THEREFORE IN CONSIDERATION of
the premises and mutual covenants herein contained, the parties
hereto do hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS, GENDER AND
NUMBER
1.01 Definitions - The
following terms when used in this Trust Agreement shall have the
meanings set out below:
“Actuary”
means Hewitt Associates or such
other person or firm retained by the Company (or, following a
Trigger if it is necessary, the Trustee) to provide actuarial
services as may be required from time to time for the purposes of
the Trust Fund or the Plans, who is (or, in the case of a firm, one
of whose employees or members is) a Fellow of the Canadian
Institute of Actuaries.
“Company”
means IMC Canada Ltd. which is the
employer of all of the Participants, except for Mr. Donald
Hood who is employed by the Partnership.
“Contribution”
means the amount or amounts, net of
refundable tax, which are from time to time required to be remitted
by the Company to the Trustee in accordance with section
2.02(a).
“Event of
Default” means
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(a)
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the failure of
the Company, on or before the Renewal Date of each year, to make
arrangements enabling the Trustee to obtain, renew or replace a
Letter of Credit in accordance with section 2.02(b);
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(b)
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the failure of
the Company to ensure that the Trust Fund is sufficient to permit
the Trustee to obtain, renew or replace a Letter of Credit in
accordance with section 2.02(a);
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(c)
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the failure of
the Company, after providing a Funding Notice, to make the required
payment no later than the Renewal Date in accordance with section
2.02(a);
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(d)
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following the
receipt by the Trustee of a sworn declaration from a Participant,
declaring that (i) the Company or the Partnership, as
applicable, has failed to make payment of benefits due to him or
her in accordance with the applicable Plan for a period of sixty
(60) days following its due date; (ii) the Participant
has provided a notice to the Company or the Partnership, as
applicable, of such default not later than ten (10) days
following the due date of the payment and attaches a photocopy or a
true copy of the notice given thereunder, and the Trust Fund, less
refundable tax, is not sufficient to allow for the payment of
benefits by the Trustee from the Trust Fund or the assets of the
Trust Fund are not held in a form which render them usable for the
making of such benefit payment; and (iii) the Trustee has
confirmed that the failure to pay the benefits due to the
Participant has occurred and remains unremedied (in making such
determination the Trustee shall rely on information obtained from
the Actuary as to the benefits payable to the Participant);
or
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(e)
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the failure of
the Company to make a payment to the Trustee of all expenses, fees
and compensation incurred or payable under the Trust Agreement
after thirty (30) days following delivery to the Company by
the Trustee of a written notice from the Trustee that such payment
is overdue.
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“Funding
Notice” means a
written notice provided pursuant to section 2.02(b) by the Company
to the Trustee of the Company’s intention to commence fully
funding the Plans by making a Contribution such that C and D in
section 2.02(a) would both be equal to 0.
“Insolvent
Date” means the
date on which the Trustee is provided evidence satisfactory to it
that:
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(a)
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there has been
a decree or order of a court of competent jurisdiction (whether in
Canada or not) adjudging any of the Company, the Partnership or any
of the partners of the Partnership (herein collectively referred to
as the “Applicable Entities”) as bankrupt or insolvent
or approving as properly filed a petition seeking the winding-up of
any of the Applicable Entities under the Companies’
Creditors Arrangement Act (Canada), the Bankruptcy and
Insolvency Act (Canada) or the Winding Up and Restructuring
Act (Canada) or any other bankruptcy, insolvency or analogous
laws of any other jurisdiction (whether in Canada or not), and any
such decree or order continues unstayed and in effect for a period
of (10) days;
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(b)
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any of the Applicable Entities
has made any assignment in bankruptcy or makes any other assignment
for the benefit of creditors, makes any proposal under the
Bankruptcy and Insolvency Act (Canada) or any comparable
law, seeks relief under the Companies’ Creditors
Arrangement Act (Canada), the Winding Up and Restructuring Act
(Canada) or any other bankruptcy, insolvency or analogous law of
any other jurisdiction (whether in Canada or not), is adjudged
bankrupt, files a petition or proposal to take advantage of any act
of insolvency, consents to or acquiesces in the appointment of a
trustee, receiver, receiver and manager, interim receiver,
custodian, sequestrator or other person with similar powers of
itself or of all or any substantial portion of its assets, or files
a petition or otherwise commences any proceeding seeking any
reorganization, arrangement, composition or readjustment under any
applicable bankruptcy, insolvency,
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moratorium, reorganization or
other similar law affecting creditors’ rights (whether in
Canada or not) or consents to, or acquiesces in, the filing of such
a petition; or
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(c)
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proceedings are
commenced for the dissolution, liquidation or winding-up of any of
the Applicable Entities, or for the suspension of the operations of
any of the Applicable Entities, unless such proceedings are being
actively and diligently contested in good faith.
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“Investment
Manager” has the
meaning assigned in section 3.02.
“Letter of
Credit” means an
irrevocable, standby, unsecured letter of credit obtained from a
bank acceptable to the Trustee with a term of one year and an
expiry date of December 31 which names the Trustee as
beneficiary permitted to draw down (an amount up to the face
amount) on the Letter of Credit on the occurrence of an Event of
Default and which shall have a face amount no greater than A
– B in section 2.02(a). The Letter of Credit and each
replacement or renewal thereof may be amended from time to time
with the written agreement of the Company, the Partnership, the
Trustee and the issuer, and shall meet the foregoing requirements
of the Letter of Credit. Notwithstanding the foregoing, where the
Trust Fund contains a Letter of Credit immediately upon its
establishment, such Letter of Credit may have a term of less than
one year.
“Liabilities”
means the actuarial liabilities of
the Plans on a wind up basis determined as at December 31 of
the year following the year in which the determination is made
using the methods and assumptions selected by the Actuary,
multiplied by 105%.
“Participants”
means such individuals who are
designated by the Company or the Partnership to participate in a
Plan and are so indicated in Schedule “A” and,
following each such person’s death, each such person’s
spouse, designated beneficiary or other person eligible for
payments from the Plan.
“Partnership”
means IMC Esterhazy Canada Limited
Partnership, which is the employer of Donald Hood. As of the date
of execution of this Trust Agreement, the partners of the
Partnership are International Minerals & Chemical (Canada)
Global Limited as the sole general partner, and IMC Esterhazy Ltd.
as the sole limited partner.
“Plans”
means the benefits payable to Donald
Hood under the Supplemental Retirement Plan for Salaried Employees
of International Minerals & Chemical (Canada) Global
Limited; the Supplemental Retirement Agreement for Robert Thompson;
the Supplemental Retirement Agreement for Brian Warren and the
Supplemental Retirement Agreement for Norman Beug, known
collectively as the Plans and individually as a Plan as specified
above.
“Renewal
Date” means
November 30 which is one month before the date on which an
existing Letter of Credit is due to expire.
“Representative
Participant” has
the meaning assigned in section 4.10.
“Trigger”
means, where the Trust Fund does not
include a Letter of Credit, the occurrence of an Insolvent Date
and, where the Trust Fund includes a Letter of Credit, the demand
and receipt by the Trustee of a payment under the Letter of Credit
pursuant to section 2.04(a).
“Trust”
has the meaning assigned in section
2.01.
“Trust Agreement”
means this agreement, as amended
from time to time.
“Trustee”
means Royal Trust Corporation of
Canada or any successor trustee thereto appointed in accordance
with this Trust Agreement.
“Trust
Fund” consists of
(i) the Contributions, (ii) any Letter of Credit from
time to time held thereunder, (iii) the earnings, profits and
increments thereon, net of refundable tax exigible, (iv) any
payments made to the Trustee in accordance with section 2.04 and
(v) the right to the refundable tax held by the Canada Customs
and Revenue Agency less (vi) all distributions and authorized
payments therefrom.
1.02 Gender and Number
- Words importing the singular shall include the plural and vice
versa and words importing the masculine gender shall extend to and
include the feminine gender and/or body corporate unless the
context in which a particular word is used clearly requires
otherwise.
ARTICLE II
CREATION AND PURPOSE OF THE
TRUST FUND
2.01 Acceptance of
Trust - The Trustee hereby accepts the trust constituted by
this Trust Agreement (hereinafter referred to as the
“Trust”).
2.02 Establishment of Trust
Fund -
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(a)
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As soon as
practicable after the execution and delivery of this Trust
Agreement and annually thereafter on or before October 31, the
Company shall make a Contribution to the Trustee equal to A - B - C
+ D where:
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A
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means an amount
equal to the Liabilities;
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B
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means an amount
equal to the fair market value of the Trust Fund, excluding the
value of any Letter of Credit;
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C
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means the face
amount of any Letter of Credit to be acquired; and
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D
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means the fees
required to obtain the Letter of Credit referred to in
C.
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(b)
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As soon as
practicable after the execution and delivery of this Trust
Agreement, the Company shall make arrangements enabling the Trustee
to obtain a Letter of Credit in the amount contemplated in section
2.02(a). The Company shall before each Renewal Date make
arrangements to renew or replace the Letter of Credit, unless the
Company provides a Funding Notice to the Trustee.
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(c)
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The Company
shall inform the Trustee in writing that the fifty percent
(50%) refundable tax has been withheld from the Contribution
and remitted to the Receiver General within the prescribed time.
The Trustee is not responsible for the collection of the
Contribution nor for the adequacy of the Trust Fund to meet and
discharge present or future liabilities of the Plans.
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(d)
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The Company
shall cause to be delivered to the Trustee an updated Schedule
“A” identifying each Participant (and setting out the
current address of each Participant, his or her social insurance
number, and the name of his or her spouse and/or designated
beneficiary) as Participants are added or deleted. In the event
that in any calendar year no updated Schedule “A” has
been delivered to the Trustee because no Participants have been
added or deleted in that year, on or before March 1 of the
following calendar year the Company shall either (i) deliver
or cause to be delivered to the Trustee a new Schedule
“A” updated to reflect current information or
(ii) provide written notice to the Trustee confirming that the
information on the most recently updated Schedule “A”
is unchanged.
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(e)
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The Partnership
shall cause to be delivered to the Trustee a list identifying each
partner of the Partnership as partners are added or deleted. Such
list shall be provided to the Trustee no later than sixty
(60) days after a partner is added or deleted.
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2.03 Failure to Deliver
Certification - Where no written report prepared by the
Actuary setting out the Liabilities is received by the Trustee by
November 1, the Trustee shall, on or before November 15
of such year, provide notice to each of the Participants of the
failure of such certification to be delivered. Unless otherwise
advised, the Trustee shall assume that the Liabilities that would
have been identified in the report had it been filed are the same
as the Liabilities contained in the most recently filed
certification.
2.04 Events of
Default
Where the Trust Fund includes a
Letter of Credit:
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(a)
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unless section
2.04(b) or (c) apply, in the event that there has been an
Event of Default the Trustee shall forthwith demand payment under
the Letter of Credit;
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(b)
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in the event
that there has been an Event of Default as described in paragraph
(d) of the definition thereof which is in connection with
fewer than four (4) Participants then in receipt of benefits
under the Plans, the Trustee shall make a partial demand on the
Letter of Credit in an amount equal to the accrued liabilities
under the Plans in respect to the relevant Participants as
determined by the Actuary less the fair market value of any other
assets of the Trust Fund. For purposes of this paragraph, the right
to the refundable tax shall not be considered an asset of the Trust
Fund;
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(c)
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in the event
that there has been an Event of Default as described in paragraph
(e) of the definition thereof, the Trustee may make a partial
demand on the Letter of Credit in an amount equal to any unpaid
compensation, disbursements and expenses less the fair market value
of any other assets of the Trust Fund. For purposes of this
paragraph, the right to the refundable tax shall not be considered
an asset of the Trust Fund.
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2.05 Fiscal Year End of the
Trust Fund - The fiscal year of the Trust Fund shall end on
the 31st day of December in each year.
2.06 Payments Out of the Trust
Fund - Subject to the remainder of this Section 2.06,
the Trustee shall, on the written directions of the Company and the
Partnership, from time to time make payments out of the Trust Fund
to such persons (which may include the Company or the Partnership)
in such manner and in such amounts as is required under the terms
of the Plan or Plans and this Trust Agreement.
Except where an Event of Default has
occurred, where the Trust Fund includes a Letter of Credit the
Trustee, in accordance with this Trust Agreement, shall pay to the
bank which has agreed to issue the Letter of Credit (or any renewal
or replacement thereof) on or before the date such payment is due,
the portion of the Contribution which the Company informs the
Trustee in writing is to be used as fees for the applicable Letter
of Credit, as fees.
Following a Trigger, the Trustee
shall act on the written direction of the Actuary as to the amounts
to be paid out, to whom such amounts are to be paid and the dates
of such payment, all in accordance with the Actuary’s
interpretation of the Plans and the Trustee shall pay for the
services of the Actuary in this regard from the Trust Fund. In the
event of a Trigger, the Actuary shall consult with the
Representative Participant with respect to such matters.
In the event that there has been an
Event of Default as described in paragraph (d) of the
definition thereof and section 2.04(b) is applicable, the Trustee
shall act on the written direction of the Actuary as to the amounts
to be paid out, to whom such amounts are to be paid and the dates
of such payment, all in accordance with the Actuary’s
interpretation of the Plans, and the Trustee shall pay for the
services of the Actuary in this regard from the Trust
Fund.
Upon a payment being made, the
amount thereof shall no longer constitute a part of the Trust Fund.
After all payments required to be made to all of the Participants
in accordance with such directions have been made or provided for
and no Participant is entitled to receive further payments from the
Trust Fund, the balance of the Trust Fund shall be promptly paid
over to the Company by the Trustee. In each instance, the written
direction shall include a certification to the Trustee that such
direction is in accordance with the terms of the Plans and this
Trust Agreement.
If any person to whom payments are
to be made is legally incompetent to receive them, the Trustee may
make such payments to such person’s legal representative, and
the receipt by such person’s legal representative shall be a
complete release and discharge to the Trustee.
2.07 Trust Fund Held for Plan
Purposes - The Trust Fund shall be held, maintained,
administered, invested and re-invested by the Trustee in the manner
and for the purposes provided in this Trust Agreement. No part of
the corpus or income of the Trust Fund shall be used for or
diverted to purposes other than those provided for under the terms
of this Trust Agreement; provided the Trustee shall pay, or
cause
