EXHIBIT 10(e)
Restated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Non-Qualified Deferred
Compensation Plan Trust Agreement
TRUST UNDER:
TIDEWATER INC. SECOND RESTATED EMPLOYEES' SUPPLEMENTAL SAVINGS PLAN
This Agreement made effective this 1st day of October, 1999 by and between
Tidewater Inc. (Company) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust Company of America, an Illinois
corporation (Trustee);
WHEREAS, Company has adopted the non-qualified deferred compensation
Plan(s) identified above and such other plan(s) as are listed in Appendix A;
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 (the "Trust") and to
contribute to the Trust assets that shall be held therein, subject to the claims
of Company's Insolvency, as herein defined, until paid to the 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 purpose 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 meeting of its
liabilities under the Plan(s);
WHEREAS, the provisions of the Trust are at present expressed in a
document effective June 26, 1997 and amendment thereto effective October 1,
1999; and
WHEREAS, the Board of Directors has authorized the restatement of the
Agreement, as amended and restated;
NOW, THEREFORE, the Agreement is hereby restated to read in its entirety as
follows:
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Section 1. Establishment of Trust.
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(a) Company hereby deposits with Trustee in trust such cash and/or
marketable securities, if any, listed in Appendix B, which 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) Trustee shall not be obligated to receive any cash and/or property
pursuant to this Section 1 unless prior thereto Trustee has agreed that such
cash and/or property is acceptable to Trustee and Trustee has received such
reconciliation, allocation, investment or other information concerning, or
representation with respect to, the cash and/or property as Trustee may require.
Trustee shall have no duty or authority to (a) require any deposits to be made
under the Plan or to Trustee, (b) compute any amount to be deposited under the
Plan to Trustee, or (c) determine whether amounts received by Trustee comply
with the Plan. Assets of the Trust may, in Trustee's discretion, be held in an
account with an affiliate of Trustee.
(g) (1) Upon a Potential Change of Control (as defined in Section 14
hereof), the Company shall make, as soon as possible, but in no event later than
fifteen (15) business days following the Potential Change of Control, a
contribution (which contribution shall be, except as otherwise provided in
Sections 1(g)(2), 3, and 13 hereof, an irrevocable contribution) to the Trust in
an amount which (when aggregated with the assets then held by the Trust, valued
at their then fair market value) is equal to (i) the present value of the
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maximum benefits in which all Plan participants (or their beneficiaries) would
be vested pursuant to the terms of the Plan(s) as of the date on which the
Potential Change of Control occurred (calculated as if such Potential Change of
Control were also a "Change of Control" as defined in the relevant Plan and as
if any vesting of benefits which the relevant Plan requires upon a Change of
Control had already occurred), plus (ii) a reasonable estimated amount for the
Trust's expenses during its term (such estimate not to exceed one percent (1%)
of such present value). The sum of the amounts described in items (i) and (ii)
of the immediately preceding sentence is hereinafter called the "Required
Funding Amount." The Company hereby authorizes and directs its chief executive
officer, and its chief financial officer, or either of them acting alone, to
contribute the Required Funding Amount without the further approval of the board
of directors of the Company (the "Board"). Immediately after the Company makes
such contribution, the Company shall provide the Trustee with copies of all
Plans, to the extent not previously provided, and other information used in the
Company's calculation of the Required Funding Amount, as well as its worksheets
for such calculation.
(2) In the event that, prior to any delivery pursuant to Section
1(g)(1) hereof, the Trust was only nominally funded and that the Company
delivers an amount to the Trustee upon a Potential Change of Control pursuant to
Section 1(g)(1) hereof, the Trustee will, if directed by the Company and if
provided with a written certification from the Company that a Change of Control
has not occurred, return substantially all the Trust assets (retaining a nominal
portion of such assets as corpus for the continuing Trust) to the Company on the
last day of the eighteenth month following the month in which the Potential
Change of Control occurred, unless a Change of Control shall have occurred
during such eighteen-month period. In the event that, prior to any delivery
pursuant to Section 1(g)(1), the Trust had been more than nominally funded by
discretionary contributions from the Company which were calculated with
reference to the present value of Plan benefits from time to time and that the
Company delivers an amount to the Trustee upon a Potential Change of Control
pursuant to Section 1(g)(1) hereof, the Trustee will, if directed by the Company
and if provided with a written certification from the Company that a Change of
Control has not occurred, return the portion of such Section 1(g)(1) delivery
which is equal to the sum of (i) Plan benefits attributable solely to Change-of-
Control vesting and (ii) the estimate of the Trust's expenses (retaining the
balance of the Trust assets as corpus for the continuing Trust) to the Company
on the last day of the eighteenth month following the month in which the
Potential Change of Control occurred, unless a Change of Control shall have
occurred during such eighteen-month period. Such eighteen-month period shall be
begun anew (thus postponing any such discretionary return of Trust assets) in
the event of any subsequent Potential Change of Control occurring during such
initial period or any subsequent period.
(3) Following the end of each calendar year which ends after a
Potential Change of Control has occurred, unless the assets delivered to the
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Trustee pursuant to Section 1(g)(1) in connection with such Potential Change of
Control (or a portion of such assets) shall have previously been returned to the
Company pursuant to Section 1(g)(2) hereof or the Trust shall have previously
terminated pursuant to Section 13 hereof, the Company shall recalculate the
Required Funding Amount as if such Potential Change of Control had occurred at
the end of such calendar year. Not later than sixty (60) days after each such
calendar year-end, the Trustee shall give notice to the Company as to the fair
market value of assets held in the Trust as of such calendar year-end. If such
recalculated Required Funding Amount exceeds the fair market value of the assets
then held in the Trust, the Company shall within five days after receipt of
information from the Trustee pursuant to the immediately preceding sentence pay
(or cause the respective Employers to pay) to the Trustee an amount in cash (or
marketable securities or any combination thereof) equal to such excess;
provided, however, that if no such information has been received by the Company
before the ninetieth (90th) day following the respective calendar year-end, then
on or before the ninety-fifth (95th) day the Company shall pay (or cause the
respective Employers to pay) to the Trustee an amount in cash (or marketable
securities or any combination thereof) equal to the amount so paid the
immediately preceding year. The Company hereby authorizes and directs its Chief
Executive Officer, and its Chief Financial Officer, or either of them acting
alone, to make such additional contributions (or to cause such additional
contributions to be made) without the further approval of the Board.
(4) The Trustee shall have no obligation to perform any of the
calculations provided for herein or to review any such calculations for
accuracy.
Section 2. Payments to Plan Participants and Their Beneficiaries.
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(a) With respect to each Plan participant, Company shall deliver to Trustee
a schedule (the "Payment Schedule") that indicates the amounts payable in
respect of the 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. The Payment Schedule shall be delivered to Trustee not more than (30)
business days nor fewer than (15) business days prior to the first date on which
a payment is to be made to the Plan participant. Any change to a Payment
Schedule shall be delivered to Trustee not more than (30) days nor fewer than
(15) days prior to the date on which the first payment is to be made in
accordance with the changed Payment Schedule. Except as otherwise provided
herein, Trustee shall make payments to Plan participants and their beneficiaries
in accordance with such Payment Schedule. The Trustee shall make provisions 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, it being understood among the
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parties hereto that (1) Company shall on a timely basis provide Trustee specific
information as to the amount of taxes to be withheld and (2) Company shall be
obligated to receive such withheld taxes from Trustee and properly pay and
report such amounts 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 payment as it falls due. Trustee
shall notify Company where principal and earnings are not sufficient.
(d) Trustee shall have no responsibility to determine whether the Trust is
sufficient to meet the liabilities under the Plan(s), and shall not be liable
for payments or Plan(s) liabilities in excess of the value of the Trust's
assets.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary
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When Company Is Insolvent.
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(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 l(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
(or, if there is no Chief Executive Officer, the highest ranking
officer) 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.
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(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(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) for the
period of such discontinuance, less the aggregate amount of any payments made to
Plan participants provided for hereunder during any such period of
discontinuance; provided that Company has given Trustee information with respect
to such payments made during the period of discontinuance prior to resumption of
payments by the Trustee.
Section 4. Payments to Company.
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Except as provided in Section 1(g)(2) and Section 3 hereof, since the Trust
is irrevocable, in accordance with Section l(b) hereof, 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.
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(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
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Trustee, and shall in no event be exercised by or rest with Plan participants,
except that voting rights with respect to Trust assets will be exercised by
Company, unless an investment adviser has been appointed pursuant to Section
5(c) and voting authority has been delegated to such investment adviser.
(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 exercised by Company in a nonfiduciary capacity
without the approval or consent of any person in a fiduciary capacity.
(c) Trustee may appoint one or more investment advisers who are registered
as investment advisers under the Investment Advisers Act of 1940, who may be
affiliates of Trustee, to provide investment advice on a discretionary or non-
discretionary basis with respect to all or a specified portion of the assets of
the Trust.
(d) Trustee, or the Trustee's designee, is authorized and empowered:
(1) To invest and reinvest Trust assets, together with the income
therefrom, in common stock, preferred stock, convertible
preferred stock, bonds, debentures, convertible debentures and
bonds, mortgages, notes, commercial paper and other evidences of
indebtedness (including those issued by the Trustee), shares of
mutual funds (which funds may be sponsored, managed or offered by
an affiliate of the Trustee), guaranteed investment contracts,
bank investment contracts, other securities, policies of life
insurance, annuity contracts, options, options to buy or sell
securities or other assets, and all other property of any type
(personal, real or mixed, and tangible or intangible);
(2) To deposit or invest all or any part of the assets of the Trust
in savings accounts or certificates of deposit or other deposits
in a bank or saving and loan association or other depository
institution, including the Trustee or any of its affiliates,
provided with respect to such deposits with Trustee or an
affiliate the deposits bear a reasonable interest rate;
(3) To hold, manage, improve, repair and control all property, real
or personal, forming part of the Trust; to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the
same from time to time;
(4) To hold in cash, without liability for interest, such portion of
the Trust as is pending investments, or payment of expenses, or
the distribution of benefits;
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(5) To take such actions as may be necessary or desirable to protect
the Trust from loss due to the default on mortgages held in the
Trust including the appointment of agents or trustees in such
other jurisdictions as may seem desirable, to transfer property
to such agents or trustees, to grant to such agents such powers
as are necessary or desirable to protect the Trust, to direct
such agent or trustee, or to delegate such power to direct, and
to remove such agent or trustee;
(6) To settle, compromise or abandon all claims and demands in favor
of or against the Trust;
(7) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally
under the laws of the state in which the Trustee is incorporated
as set forth above, so that the powers conferred upon the Trustee
herein shall not be in limitation of any authority conferred by
law, but shall be in addition thereto;
(8) To borrow money from any source and to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any
trust assets as security; and
(9) To maintain accounts at, execute transactions through, and lend
on an adequately secured basis stocks, bonds or other securities
to, any brokerage or other firm, including any firm which is an
affiliate of Trustee.
Section 6. Additional Powers of Trustee.
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To the extent necessary or which it deems appropriate to implement its
powers under Section 5 or otherwise to fulfill any of its duties and
responsibilities as Trustee of the Trust, the Trustee shall have the following
additional powers and authority:
(a) to register securities, or any other property, in its name or in the
name of any nominee, including the name of any affiliate or the nominee name
designated by any affiliate, with or without indication of the capacity in which
property shall be held, or to hold securities in bearer form and to deposit any
securities or other property in a depository or clearing corporation;
(b) to designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel and
accountants as the Trustee considers necessary or appropriate, any of whom may
be an affiliate of the Trustee or a person who renders services to such an
affiliate, and, as a part of its expenses under this Trust Agreement, to pay
their
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reasonable expenses and compensation;
(c) to make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or appropriate for the accomplishment of any of the powers listed in
this Trust Agreement; and
(d) generally to do all other acts which Trustee deems necessary or
appropriate for the protection of the Trust.
Section 7. Disposition of Income.
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(a) During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 8. Accounting by Trustee.
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(a) 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 90 days following the close of each calendar year
and within 90 days after 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. Trustee may satisfy its obligation under this Section 8 by
rendering to Company monthly statements setting forth the information required
by this Section separately for the month covered by the statement.
Section 9. Responsibility and Indemnity of Trustee.
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(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) and this Trust and is given in writing by Company.
Trustee shall also incur no liability to any person for any failure to act in
the absence of direction, request or approval from the Company which is
contemplated by, and in conformity with, the terms of this Trust. In the event
of a dispute between Company and a party, Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
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(b) Company hereby indemnifies Trustee and each of its affiliates
(collectively, the "Indemnified Parties") against, and shall hold them harmless
from, any and all loss, claims, liability, and expense, including reasonable
attorneys' fees, imposed upon or incurred by any Indemnified Party as a result
of any acts taken, or any failure to act, in accordance with the directions from
the Company or any designee of the Company, or by reason of the Indemnified
Party's good faith execution of its duties with respect to the Trust, including,
but not limited to, its holding of assets of the Trust, unless the loss, claim,
liability or expense involved resulted from the negligence or willful misconduct
of the Trustee. The Company's obligations with respect to the foregoing are to
be satisfied promptly by Company. If Company does not pay such costs, expenses
and liabilities in a reasonably timely manner, Trustee may obtain payment from
the Trust without direction from Company.
(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 advisers,
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 Trustee
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) However, notwithstanding the provisions of Section 9(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 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 10. Compensation and Expenses of Trustee.
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Trustee is authorized, unless otherwise agreed by Trustee, to withdraw from
the Trust without direction from Company the amount of its fees in accordance
with the fee schedule agreed to by the Company and Trustee. Company shall pay
all administrative expenses, but if not so paid, the expenses
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shall be paid from the Trust.
Section 11. Resignation and Removal of Trustee.
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(a) Trustee may resign at any time by written notice to Company, which
shall be effective 30 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 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 60 days after receipt of notice of
resignation, removal or transfer, unless Company extends the time limit,
provided that Trustee is provided assurance by Company satisfactory to Trustee
that all fees and expenses reasonably anticipated will be paid.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 12 hereof, by the effective date or resignation or
removal under paragraph(s) (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.
(e) Upon settlement of the account and transfer of the Trust assets to the
successor Trustee, all rights and privileges under this Trust Agreement shall
vest in the successor Trustee and all responsibility and liability of Trustee
with respect to the Trust and assets thereof shall terminate subject only to the
requirement that Trustee execute all necessary documents to transfer the Trust
assets to the successor Trustee.
Section 12. Appointment of Successor.
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(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) The successor Trustee need not examine the records and act 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
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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.
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(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, since
the Trust is irrevocable in accordance with Section 1(b) hereof . Upon and after
the occurrence of a Potential Change of Control (as defined in Section 14
hereof), notwithstanding any other provision hereof, this Trust may be amended
only by an instrument in writing signed on behalf of the parties hereto,
together with the written consent of Plan participants (or in the event of their
deaths, their beneficiaries) who were Plan participants immediately prior to the
Potential Change of Control ("Continuing Participants") and who at the time of
such consent have unpaid Plan benefits equal to at least sixty-five percent
(65%) of all unpaid Plan benefits of Continuing Participants; provided, however,
that the signature and approval of the Trustee shall not be required for any
termination of the Trust. Notwithstanding the foregoing, any such amendment may
be made by written agreement of the parties hereto without obtaining the consent
of the Plan participants or their beneficiaries, if such amendment does not
adversely affect the rights of the Plan participants or their beneficiaries
hereunder.
(b) Except as provided in Section 13(C) hereof, 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 Plan participants (or in the event of their
deaths, their beneficiaries) then having unpaid Plan benefits equal to at least
sixty-five percent (65%) of all amounts then held in the Trust (or, if such
approval is sought upon or after the occurrence of a Potential Change of
Control, the written approval of Plan participants (or in the event of their
deaths, their beneficiaries) who were Plan participants immediately prior to the
Potential Change of Control ("Continuing Participants") and who at the time of
such approval have unpaid Plan benefits equal to at least sixty-five percent
(65%) of all unpaid Plan benefits of Continuing Participants), Company may
terminate this Trust prior to the time all benefit payments under the Plan(s)
have been made.
Section 14. Miscellaneous.
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(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
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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 the state in which Trustee is incorporated as set forth above.
(d) The provisions of Sections 2(d), 3(b)(3), 9(b) and 15 of this Agreement
shall survive termination of this Agreement.
(e) The rights, duties, responsibilities, obligations and liabilities of
the Trustee are as set forth in this Trust Agreement, and no provision of the
Plan(s) or any other documents shall affect such rights, responsibilities,
obligations and liabilities. If there is a conflict between provisions of the
Plan(s) and this Trust Agreement with respect to any subject involving the
Trustee, including but not limited to the responsibility, authority or powers of
the Trustee, the provisions of this Trust Agreement shall be controlling.
(f) Potential Change of Control. For purposes of this Trust, a 'Potential
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Change of Control' shall be deemed to have occurred if the conditions set forth
in any one of the following paragraphs (i), (ii) or (iii) shall have been
satisfied:
(i) the Company enters into an agreement, the consummation of
which would result in the occurrence of a 'Change of Control' (as
defined in Section 14(g) hereof);
(ii) the Company or any Person (as defined in Section 14(h)
hereof) publicly announces (including within a written statement made
pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended from time to time) an intention to take or to consider taking
actions which, if consummated, would constitute a Change of Control;
or
(iii) the Board adopts a resolution to the effect that, for
purposes of this Trust, a Potential Change of Control has occurred.
The Board and the Chief Executive Officer of the Employer shall each have
the duty to inform the Trustee promptly in writing of the occurrence of any
Potential Change of Control and of any Change of Control (as defined in
Section 14(g) hereof).
(g) Change of Control. For purposes of this Trust, 'Change of Control'
-----------------
shall mean:
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(i) the acquisition by any 'Person' (as defined in Section 14(h)
hereof) of 'Beneficial Ownership' (as defined in Section 14(h) hereof)
of 30% or more of the outstanding Shares of the Company's Common
Stock, $0.10 par value per share (the 'Common Stock') or 30% or more
of the combined voting power of the Company's then outstanding
securities; provided, however, that for purposes of this subsection
14(g)(i), the following shall not constitute a Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 14(g)(iii) hereof) which constitutes a Change
of Control under Section 14(g)(iii) hereof) of Common Stock
directly from the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a
Change of Control under Section 14(g)(iii) hereof; or
(ii) individuals who, as of the effective date of this amendment
to the Trust, 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
effective date of this amendment whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board
shall be considered a member of the Incumbent Board, unless such
individual's 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
Incumbent Board; or
(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of
all or substantially all of the assets of the Company (a 'Business
Combination'), in each case, unless, immediately following such
Business Combination,
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(A) the individuals and entities who were the Beneficial
Owners of the Company's outstanding Common Stock and the
Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership,
respectively, of more than 50% of the then outstanding shares of
common stock, and 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 Post-Transaction Corporation
(as defined in Section 14(h) hereof), and
(B) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-
Transaction Corporation and any employee benefit plan or related
trust of either the Company, the Post-Transaction Corporation or
any subsidiary of either corporation) Beneficially Owns, directly
or indirectly, 30% or more of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or 30% or more of the combined voting power of the
then outstanding voting securities of such corporation, and
(C) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(h) Other Definitions. As used in Section 14(g) hereof, the following
-----------------
words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a
Person that controls, or is controlled by, or is under common control
with, another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants
thereof), with respect to a security, shall mean a Person who,
directly or indirectly (through any contract, understanding,
relationship or otherwise), has or shares (i) the power to vote, or
direct the voting of, the security, and/or (ii) the power to dispose
of, or to direct the disposition of, the security.
(iii) Person: 'Person' shall mean a natural person or
15
company, and shall also mean the group or syndicate created when two
or more Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of
acquiring, holding, or disposing of a security, except that 'Person'
shall not include an underwriter temporarily holding a security
pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 14(g)(iii)
hereof), 'Post-Transaction Corporation' shall mean the Company after
the Change of Control. If a Change of Control includes a Business
Combination, 'Post-Transaction Corporation' shall mean the corporation
resulting from the Business Combination unless, as a result of such
Business Combination, an ultimate parent corporation controls the
Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, 'Post-Transaction Corporation'
shall mean such ultimate parent corporation."
Section 15. Arbitration.
-------------------------
. Arbitration is final and binding on the parties.
. The parties waiving their right to seek remedies in court, including the
right to jury trial.
. Pre-arbitration discovery is generally more limited than and different
from court proceedings.
. The arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or seek modification
of rulings by the arbitrators is strictly limited.
. The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
Company agrees that all controversies which may arise between the Company
and either or both the Trustee and its affiliate ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ incorporated ("MLPF&S") in connection with the Trust,
including, but not limited to, those involving any transactions, or the
construction, performance, or breach of this or any other agreement between
Company and either or both the Trustee and MLPF&S, whether entered into
prior, on, or subsequent to the date hereof, shall be determined by
arbitration. Any arbitration under this Agreement shall be conducted only
before the New York Stock Exchange, Inc., the American Stock Exchange,
Inc., or arbitration facility provided by any other exchange of which
MLPF&S is a member, the National Association of Securities Dealers, Inc.,
or the Municipal Securities Rulemaking Board, and in accordance with its
arbitration rules then in force, Company may elect in the first instance
whether arbitration shall be conducted before the New York Stock Exchange,
Inc., the American Stock Exchange, Inc.,
16
other exchange of which MLPF&S is a member, the National Association of
Securities Dealers, Inc., or the Municipal Securities Rulemaking Board, but
if the Company fails to make such election, by registered letter or
telegram addressed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust Company, Employee Benefit Trust
Operations, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, before
the expiration of five days after receipt of a written request from MLPF&S
and/or the Trustee to make such election then MLPF&S and/or the Trustee may
make such election. Judgment upon the award of arbitrators may be entered
in any court, state or federal, having jurisdiction. No person shall bring
a putative or certified class action to arbitration, nor seek to enforce
any pre-dispute arbitration agreement against any person who has initiated
in court a putative class action; who is a member of putative class who has
not opted out of the class with respect to any claims encompassed by the
putative class action until:
(i) the class certification is denied;
(ii) the class is decertified; or
(iii) the customer is excluded from the class by the court. Such
forbearance to enforce an agreement to arbitrate shall not constitute
a waiver of any rights under this agreement except to the extent
stated herein.
Section 16. Effective Date.
----------------------------
The effective date of this Restated Trust Agreement shall be October 1,
1999.
By signing this Agreement, the undersigned Company acknowledges (1) that,
in accordance with Section 15 of this Agreement, the Company is agreeing in
advance to arbitrate any controversies which may arise with either or both the
Trustee or MLPF&S and (2) receipt of a copy of this Agreement.
Executed this 3rd day of January 2000.
------- ---------------
TIDEWATER INC.
By: s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
(Signature)
Name/Title: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President &
Chief Financial Officer
Executed this 12th day of January , 2000.
------------- ----------------
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▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST COMPANY OF AMERICA
By: s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
(Signature)
Name/Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
New Accounts Trust Officer
---------------------------
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Appendix A
Name of Non-Qualified Deferred Compensation Plan(s):
Deferred Compensation Plan for Outside Directors of Tidewater Inc.
▇▇
▇▇▇▇▇▇▇▇ ▇
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Deposit of cash and/or marketable securities to the Trust:
Cash: $________________________________
Marketable Securities: Hibernia Tower U.S. Government Income Fund
Hibernia Tower Total Return Bond Fund
Fidelity Advisor Income and Growth Fund
Fidelity Advisor Equity Portfolio Income
Fidelity Advisor Growth Opportunities Fund
20