1
EXHIBIT 10(M)
2
TRUST UNDER
UNION PLANTERS CORPORATION
DEFERRED COMPENSATION PLAN FOR EXECUTIVES
This Trust Agreement ("Trust Agreement") effective the 1st day of January, 1996,
by and between Union Planters Corporation as grantor ("Company") and the Union
Planters National Bank Trust Department as trustee ("Trustee").
WHEREAS, Company adopted the Deferred Compensation Plan for Executives
("Plan"), effective January 1, 1996, for selected executive officers of Union
Planters Corporation and its subsidiaries ("Participants"), and such Plan and
Deferred Compensation Election Forms ("Forms") under the Plan are included with
this Trust Agreement as Appendix A;
WHEREAS, those terms which are defined in the Plan and accompanying Forms shall
have the same meaning in this Trust Agreement as they do in the Plan and
accompanying Forms;
WHEREAS, Company has incurred or expects to incur liability under the terms of
such Plan and accompanying Forms;
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 Participants and their Beneficiaries 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 under 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;
NOW, THEREFORE, the Company and Trustee do hereby establish this Trust and
agree that this Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
1.1 The Trust hereby established is irrevocable by Company.
1.2 Within sixty (60) days from the establishment of this Trust, Company shall
irrevocably deposit in this Trust the sum necessary to fund the current
aggregate obligations to Participants under the Plan. Furthermore, in its sole
discretion, additional amounts in excess of the current funding obligation may
also be irrevocably deposited by Company into the Trust. For these purposed,
the current funding obligation shall be that amount required to be placed on
the Company's financial statements in accordance with the provisions of
Generally Accepted Accounting Principles ("GAAP") as a liability for future
payment obligations under the Plan. Such amounts shall become the initial
principal of the Trust to be held, administered, and disposed of by Trustee as
provided in this Trust Agreement.
Although sums deposited by Company into the Trust may be held in the form of
one or more common, pooled investment funds, for administrative accounting
purposes, a subaccount ("Participant Subaccount") shall be established under
the Trust Agreement for each Participant. Subject to the provisions of this
Section 1.2 of the Trust Agreement, each Participant's Subaccount shall be
substantially equivalent in value to the three Subaccounts (i.e., Deferred
3
Contribution, Matching Contribution and Supplemental Contribution Subaccounts)
established under the Plan for each Participant. The Trustee shall allocate to
such Participant Subaccounts amounts deposited by Company to the Trust under
the provisions of Sections 1.2, 1.3, and 1.4 of the Trust Agreement. Such
allocations shall be in the sole discretion of the Trustee and individual
Participant allocations need not necessarily conform to that amount required to
be placed on the Company's financial statements in accordance with the
provisions of Generally Accepted Accounting Principles ("GAAP") as a liability
for future payment obligations under the Plan. For purposes of such allocations,
Trustee may utilize any information provided by the Company as deemed relevant,
including any annual or more frequent statements prepared by Company for
Participants showing those benefits which have accrued to Participants.
1.3 Company shall, within ninety (90) days following the end of any calendar
year during which a Participant is covered under the Plan, make additional
irrevocable deposits of cash or other property to the Trust to augment the
initial principal under the provisions of Section 1.2 of this Trust.
Furthermore, in its sole discretion, additional amounts in excess of the
additional amount required may also be irrevocably deposited by Company into the
Trust. The amount of such additional deposits shall be equal to the additional
amount required to be placed on the Company's financial statements during such
calendar year in accordance with the provisions of Generally Accepted Accounting
Principles ("GAAP") as a liability for future payment obligations under the
Plan. Such additional amounts shall be held, administered and disposed of by the
Trustee as provided in this Trust Agreement.
1.4 Upon a Change of Control or termination of employment by a Participant for
Good Reason ("Good Reason Termination"), as defined in Sections 13.4 and 13.5 of
this Trust, Company shall within thirty (30) days following the Change of
Control or Good Reason Termination, make an additional irrevocable contribution
to the Trust.
In the case of a Change of Control, the contribution shall be an amount that,
when combined with previous contributions to the Trust under Sections 1.2 and
1.3 of this Trust, is sufficient to pay all Participants or Beneficiaries the
benefits to which each Participant or their Beneficiaries would be entitled
pursuant to the terms of the Plan assuming termination of employment as of the
date on which the Change of Control occurred. In the case of a Good Reason
Termination, the contribution shall be an amount that, when combined with
previous contributions to the Trust under Sections 1.2 and 1.3 of this Trust, is
sufficient to pay each Participant terminating employment for Good Reason the
benefits to which such Participant or his Beneficiary would be entitled pursuant
to the terms of the Plan assuming termination of employment as of the date on
the Good Reason Termination.
Additional amounts shall subsequently be contributed by the Company to the Trust
with ninety (90) days following the end of each calendar year to insure that the
Trust's assets are sufficient to pay each Participant or Beneficiary described
above the benefits to which such Participants or their Beneficiaries would be
entitled pursuant to the terms of the Plan. Such additional amounts shall be
held, administered and disposed of by the Trustee as provided in this Trust
Agreement. Furthermore, in its sole discretion, additional amounts in excess of
that required in the case of a Change of Control or Good Reason Termination may
also be irrevocably deposited by Company into the Trust.
1.5 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 I,
Subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
1.6 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 Participants and general creditors as herein set forth.
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 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.
2
4
SECTION 2
PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES
2.1 Company shall deliver to Trustee a schedule (the "Payment Schedule") that:
(i), indicates the amounts payable with respect of each Participant (and his
Beneficiaries), (ii) provides a formula or other instructions acceptable to
Trustee for determining the amounts so payable, (iii) indicates the form in
which such amounts are to be paid (as provided for or available under the
Plan), and (iv) provides the time of commencement for payment of such amounts.
Except as otherwise provided herein, Trustee shall make payments to the
Participants and their Beneficiaries in accordance with such Payment Schedule.
The Trustee shall make provision for the reporting and withholding of any
federal, state or local taxes that may be required to be withheld with respect
to the payment of benefits pursuant to the terms of the Plan and shall pay
amounts withheld to the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by Company.
2.2 The entitlement of a Participant or his Beneficiaries to benefits under
the Plan shall be determined by Company or such party as it shall designate
under the Plan, and any claim for such benefits shall be considered and
reviewed under the procedures set out in the Plan.
2.3 Company may make payment of benefits directly to Participants or their
Beneficiaries as they become due under the terms of the Plan. Company shall
notify Trustee of its decision to make payment of benefits directly prior to the
time amounts are payable to Participants or their Beneficiaries. In addition,
if the principal of the Trust, and any earnings thereon, are not sufficient to
make payments of benefits in accordance with the terms of the Plan, Company
shall make the balance of each such payment as it falls due. Trustee shall
notify Company where principal and earnings are not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO
TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 Trustee shall cease payment of benefits to 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, (ii) Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, or (iii)
Company is determined to be insolvent or in receivership by its appropriate
bank regulatory agency.
3.2 At all times during the continuance of this Trust, as provided in Section
1.4, 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.
(a) 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 Participants or their Beneficiaries.
(b) 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.
(c) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to 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 Participants or their
3
5
Beneficiaries to pursue their rights as general creditors of Company with
respect to benefits due under the Plan or otherwise.
(d) Trustee shall resume the payment of benefits to 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).
3.3 Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3.2 and subsequently
resumes such payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to 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 Participants
or their Beneficiaries by Company in lieu of the payments provided under during
any such period of discontinuance.
SECTION 4
REVERSION OF TRUST ASSETS TO COMPANY
4.1 The Trust is irrevocable and the Company shall have no right or power to
direct Trustee to return to Company or to divert to others to any of the Trust
assets before all payment of benefits have been made to Participants and their
Beneficiaries pursuant to the terms of the Plan.
SECTION 5
INVESTMENT AUTHORITY
5.1 The duties, powers, and responsibilities of the Trustee shall be limited
as specifically set forth in this Section 5 and as otherwise limited in this
Trust Agreement. The Trustee's powers shall include the following.
(a) The power to invest only in the United States Treasury Department
Securities (or, where necessary, Money Market Mutual Funds which are
invested solely in the United States Treasury Department Securities or
obligations hereinafter referred to the "Treasury Securities." All rights
associated with such Treasury Securities, including any voting rights and
dividend rights, shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Participants.
(b) The power to hold, manage, and control the Treasury Securities held in
trust, to invest and reinvest the same, in such manner as the Trustee deems
to be reasonably sound. Company shall establish an investment policy for
Trustee which shall state Trust asset investment and reinvestment policy.
The Trustee shall not be held responsible for any loss incurred through an
investment error made in good faith, but shall be liable only for the
Trustee's willful misconduct.
(c) The power to take and hold title to Treasury Securities in the name of
the Trustee or a nominee of the Trustee without disclosing the name of
existence of the Trust.
(d) The power to give general and special powers of attorney with or
without rights of substitution, and generally to exercise any powers of an
owner with regard to investment of the Trust assets.
(e) The power to ▇▇▇ or defend in any suit or legal proceeding by or
against the Trust. The Trustee shall have full power in the Trustee's
discretion to compound, compromise, and adjust all claims and demand in
favor of or against the Trust, upon such terms and conditions as the
Trustee deemed appropriate; provided, however, that the Trustee shall be
indemnified by the Company for all expenses and liabilities in connection
with any such proceedings.
4
6
(f) The power to employ such agents, attorneys in fact, experts, and
investment and legal counsel, and to delegate discretionary powers to or rely
upon information or advice furnished by any such persons.
(g) The power to do all acts, whether or not expressly authorized, which
may be necessary or proper for the protection of the assets of the Trust, or
for carrying out any duty imposed hereunder.
5.2 Notwithstanding any powers granted to the Trustee, pursuant to this Trust
Agreement or to applicable law, the 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 6
DISPOSITION OF INCOME
6.1 During the term of this Trust, all of the income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested by the Trustee
in accordance with the terms of the Trust Agreement. Such accumulated and
reinvested income may be used by the Trustee in calculating the Company's
required contributions to the Trust under the provisions of Sections 1.3 and
1.4 of the Trust Agreement.
SECTION 7
ACCOUNTING BY TRUSTEE
7.1 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 ninety (90) days following the close of each
calendar year and within ninety (90) days after the removal or resignation of
Trustee, Trustee shall deliver to Company a written account of its
administration of the Trust during such year or during the period from the
close of the last preceding year to the date of such removal or resignation,
setting forth all investments, receipts, disbursements, and other transactions
effected by it, including a description of all securities and investments
purchased and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
8.1 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 or this Trust and is given in writing by Company. In the event
of a dispute between Company and any third party, including a Participants or
Beneficiary, Trustee may apply to a court of competent jurisdiction to resolve
the dispute.
8.2 If Trustee undertakes or defends any litigation arising in connection with
this Trust Agreement, Company agrees to indemnify Trustee against Trustee's
costs, expenses and liabilities (including, without limitation, attorneys' fees
and expenses) relating thereto and to be primarily liable for such payments. If
Company does not pay such costs, expenses and liabilities in a reasonably
timely manner, Trustee may obtain funds to make payment from the Trust.
8.3 Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
5
7
8.4 Trustee may hire agents, accountants, attorneys, actuaries, investment
advisors, financial consultants, or other professionals to assist it in
performing any of its duties or obligations hereunder.
8.5 Trustee shall have, without exclusion, all powers conferred on Trustees by
applicable law, unless expressly provided otherwise in this Trust Agreement;
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.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
9.1 Company shall pay any administrative and Trustee's fees and expenses.
SECTION 10
RESIGNATION AND REMOVAL OF TRUSTEE
10.1 Trustee may resign at any time by written notice to Company, which shall
be effective thirty (30) days after receipt of such notice unless Company and
Trustee agree otherwise.
10.2 Trustee may be removed by Company on thirty (30) days notice or upon
shorter notice accepted by Trustee.
10.3 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 sixty (60) days after receipt of notice
of resignation, removal, or transfer, unless Company extends the time limit.
10.4 If Trustee resigns or is removed, a successor shall be appointed in
accordance with Section 11 by the effective date of resignation or removal
under Sections 10.1 or 10.2. 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 termination
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
11.1 If Trustee resigns (or is removed) in accordance with Sections 10.1 or
10.2, 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
require the prior approval in writing of a majority of Participants eligible to
receive benefits under the Plan and shall subsequently 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.
11.2 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. 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.
6
8
SECTION 12
AMENDMENT OR TERMINATION
12.1 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 or shall make the Trust revocable.
12.2 The Trust shall not terminate until the date on which all Participants
and their Beneficiaries are no longer entitled to benefits pursuant to the
terms of the Plan.
12.3 Notwithstanding the provisions of Section 12.2 of the Trust, upon
written approval of all Participants (or, if the Participant is deceased, the
Participant's Beneficiary) entitled to payment of benefits pursuant to the
terms of the Plan, Company may terminate this Trust prior to the time all
benefit payments under the Plan have been made. All assets in the Trust at
termination shall then be returned to Company, provided appropriate provisions
are made for full payment of any benefits to Participants (or, if a Participant
is deceased, a Participant's Beneficiary).
SECTION 13
MISCELLANEOUS
13.1 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.
13.2 Benefits payable to 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.
13.3 This Trust Agreement shall be governed by and construed in accordance
with the laws of Tennessee.
13.4 For purposes of this Trust Agreement, Change of Control shall have the
same definition as that found in Section 1.3 of the Plan.
13.5 For purposes of this Trust Agreement, termination of employment for
Good Reason shall have the same definition as that found in Section 1.14 of
the Plan.
13.6 Notwithstanding anything to the contrary contained in this Trust
Agreement or in the Plan: (i) in the event that the Internal Revenue Service
prevails in its claim that amounts contributed to and held in the Trust,
and/or earnings thereon, constitute taxable income to a Participants or his
Beneficiary for any taxable year of him, prior to the taxable year in which
such contributions and/or earnings are distributed to him, or (ii) in the
event that legal counsel satisfactory to the Company, the Trustee and the
applicable Participants or his Beneficiary renders an opinion that the Internal
Revenue Service would likely prevail in such a claim, the assets in the Trust
Fund shall be immediately distributed to the Participants or his Beneficiary.
For purposes of this Section 13.6, the Internal Revenue Service shall be deemed
to have prevailed in a claim if such claim is upheld by a court of final
jurisdiction, or if the Trustee, based upon an opinion of legal counsel
satisfactory to the Company, the Trustee and the Participants or his
Beneficiary, fails to appeal a decision of the Internal Revenue Service, or of
a court of applicable jurisdiction, with respect to such claim, to an
appropriate Internal Revenue Service appeals authority or to a court of
higher jurisdiction within the appropriate time period.
7
9
Section 14
EFFECTIVE DATE
--------------
14.1 Effective date of this Trust Agreement shall be January 1, 1996.
------------
UNION PLANTERS NATIONAL BANK
UNION PLANTERS CORPORATION TRUST DEPARTMENT
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairman and CEO Title: Executive Vice President and
Manager Trust
8