CONTRAN DEFERRED COMPENSATION TRUST NO. 2
This Agreement is made as of this 1st day of October, 1995
by and between Contran Corporation, a Delaware corporation
("Company"), and NationsBank of Texas, N.A., a national banking
association ("Trustee").
WHEREAS, Company has adopted the nonqualified deferred
compensation plan(s) as listed in Appendix A (the "Plan(s)").
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 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(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 of 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:
1. Establishment Of Trust.
(a) Company hereby deposits with 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 shall become 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 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(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.
(f) Upon a Change of Control, Company shall, as soon as
possible, but in no event longer than thirty 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(s) as of the date on which the Change of
Control occurred.
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 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.
(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 Plan(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.
(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.
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 the 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).
(5) 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) 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.
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(s).
5. Investment Authority.
(a) Except as may be limited by Section 5(b), the Trustee
shall have the powers, rights and duties in addition to those
provided elsewhere in this agreement or by law: to invest and
reinvest part or all of the trust fund in any stocks, mutual fund
shares (including proprietary funds of the 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 the 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 the Trustee and such insurance company or a
group annuity contract issued by such insurance company to the
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 not to do so.
(b) Except as required by Section 2(a) to fund withholding
obligations or unless the Company consents in writing, Trustee
shall not sell or otherwise dispose of publicly traded securities
of Contran subsidiaries that are deposited by Contran with the
Trust. To the extent not limited by the preceding sentence or
unless Company directs Trustee otherwise in writing, Trustee may
invest in securities (including stock or rights to acquire stock)
or obligations issued by Company or subsidiaries of the Company
(provided securities or obligations of subsidiaries are publicly
traded). Unless otherwise directed in writing by the 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 the 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.
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.
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
thirty days following the close of each calendar year and within
thirty 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.
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)
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.
(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, reasonable 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.
(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, 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.
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.
10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to
Company, which shall be effective thirty days after receipt of
such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on thirty days notice
or upon shorter notice accepted by Trustee.
(c) 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 thirty days after receipt of notice of
resignation, removal or transfer, unless Company extends the time
limit.
(d) 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.
11. Appointment of Successor.
(a) If Trustee resigns or is removed in accordance with
Section 10 or 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) 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.
12. Amendments 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.
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 Texas.
(d) For purposes of this Trust, Change of Control shall
mean 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.
14. Effective Date.
The effective date of this Trust Agreement shall be October
1, 1995.
CONTRAN CORPORATION NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇
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Title: Vice President
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APPENDIX A
List of Nonqualified Deferred Compensation Plan(s)
1. Amended Deferred Compensation Agreement, dated as of
October 1, 1995, between Contran Corporation, a Delaware
corporation, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a resident of Dallas, Texas.