Exhibit 10.15
DEFERRED COMPENSATION PLAN
TRUST AGREEMENT
BETWEEN
POLAROID CORPORATION AND NATIONSBANK
AGREEMENT made this 17th day of May, 1995, by and among POLAROID
CORPORATION, a Delaware corporation (the "Company"), and NATIONSBANK,
a corporation organized and existing under the laws of the state of
Delaware (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has adopted the non-qualified deferred
compensation Plans listed in Appendix A; and
WHEREAS, the Company has incurred or expects to incur liability
under the terms of such Plans with respect to the individuals
participating in such Plans; and
WHEREAS, the Company wishes to establish a trust ("Trust") and to
contribute to such 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 the Plan participants and
their beneficiaries in such manner and at such times as specified in
the Plans; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plans as unfunded plans maintained for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee
Retirement Income Security Act of 1974; and
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist it in
the meeting of its liabilities under the Plans.
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as
follows:
SECTION 1. ESTABLISHMENT OF TRUST.
(a) The Company hereby initially deposits with Trustee in trust
the sum of five million, one hundred thousand dollars ($5,100,000.00)
which shall become the principal of the Trust, to be held,
administered and disposed of by Trustee as provided in this Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall
be held separate and apart from other funds of the Company and shall
be used exclusively for the uses and purposes of the Plan participants
and the general creditors of the Company 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 Plans and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their
beneficiaries against the 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.
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(e) The 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) Ten days prior to a Change of Control, as defined herein,
the Company shall make an irrevocable contribution to the Trust in an
amount that is sufficient to pay each Plan participant or beneficiary
an amount to which Plan participants or their beneficiaries would be
entitled pursuant to the terms of the Plans.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) The Company shall deliver to Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of
each 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 Plans), and the time of
commencement for payment of such amounts. 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 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 Plans
and shall pay amounts withheld to the appropriate taxing authorities
or determine that such amounts have been reported, withheld and paid
by the Company.
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(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plans shall be determined by the
Company or such party as they shall designate under the Plans, and any
claim for such benefits shall be considered and reviewed under the
procedures set out in the Plans.
(c) The Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms
of the Plans. The Company shall notify Trustee of the Company's
decision to make payments of benefits directly prior to the time such
amounts are payable to the Plan 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 Plans, the Company shall make the balance of each such
payment as it falls due. Trustee shall notify the Company when
principal and earnings are not sufficient.
SECTION 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 the 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.
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(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 the Company under
federal and state law as follows:
(i) The Board of Directors of the Company and the
Chief Executive Officer of the Company shall have the
duty to inform Trustee in writing of Company's
Insolvency. If a person claiming to be a creditor of
the Company alleges in writing to Trustee that the
Company has become Insolvent, Trustee shall determine
whether the Company is Insolvent and, pending such
determination, Trustee shall discontinue payment of
benefits to Plan participants and their beneficiaries.
(ii) Unless Trustee has actual knowledge of
Company's Insolvency, or has received notice from the
Company or a person claiming to be a creditor alleging
that the Company is Insolvent, Trustee shall have no
duty to inquire whether the Company is Insolvent.
Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable
basis for making a determination concerning the
Company's solvency.
(iii) If at any time Trustee has determined
that the Company is Insolvent, Trustee shall
discontinue payments to Plan participants and their
beneficiaries and shall hold the assets of the Trust
for the benefit of the Company's general creditors.
Nothing in this Agreement shall in any way diminish any
rights of Plan participants and their beneficiaries to
pursue their rights as general creditors of the Company
with respect to benefits due under the Plans or
otherwise.
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(iv) Trustee shall resume the payment of benefits
to Plan participants and their beneficiaries in
accordance with Section 2 of this Agreement only after
Trustee has determined that the 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 and their
beneficiaries under the terms of the Plans for the period of such
discontinuance, less the aggregate amount of any payments made to Plan
participants and their beneficiaries by the Company in lieu of the
payments provided for hereunder during any such period of
discontinuance.
SECTION 4. PAYMENTS TO COMPANY. Company shall have no right
or power to direct Trustee to return to the 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 Plans.
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SECTION 5. INVESTMENT AUTHORITY.
(a) Trustee shall invest the principal of the Trust and any
earnings thereon in accordance with written directions from the
Company. Such directions shall provide Trustee with the investment
discretion to invest the above-referenced amounts within broad
guidelines established by Trustee and the Company and set forth
therein.
(b) Subject to Subsection (a), Trustee may
(i) invest and reinvest the amounts
described in Subsection (a) in any form of
property not prohibited by law, including, without
limitation on the amount which may be invested
therein, any mutual funds, money market funds,
certificates of deposit, life insurance policies,
annuity contracts, and other deposits yielding a
reasonable rate of interest; and
(ii) hold cash uninvested in an amount
considered necessary and prudent for proper
administration of the Trust, or deposit the same
with any banking, savings or similar financial
institution supervised by the United States or any
State, including Trustee's own banking department.
(c) Trustee may invest in securities (including stock or rights
to acquire stock) or obligations issued by the Company only to the
extent set forth in Appendix A. 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 the Plan
participants or beneficiaries.
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(d) The Company shall have the right, at any time, 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 non-fiduciary capacity without the
approval or consent of any person in a fiduciary capacity.
SECTION 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.
SECTION 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 the Company and Trustee. Within sixty (60) days following the
close of each calendar year and within sixty (60) days after its
removal or resignation, Trustee shall deliver to the 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.
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SECTION 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 a 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 the Company which is contemplated by, and in
conformity with, the terms of the Plans or this Trust Agreement and is
given in writing by the Company. In the event of a dispute between
the 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, the 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 payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be
counsel for the 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.
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(e) 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.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE. The Trust
fees and expenses shall be paid from the income from Trust assets. If
not so paid, the Company shall pay the administrative and Trustee's
fees and expenses.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to the
Company which shall be effective sixty (60) days after receipt of such
notice unless the Company and Trustee agree otherwise.
(b) Trustee may be removed by the Company on sixty (60) days'
written notice or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may not
be removed by the Company for two (2) years.
(d) 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 the Company extends the time limit.
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(e) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective date
of such resignation or removal under paragraphs (a) or (b),
respectively, 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.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed in accordance with Section
10(a) or (b) hereof, respectively, the 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 such 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 the
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 the 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.
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SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust may be amended only by written agreement executed
by the Company. Notwithstanding the foregoing, no amendment shall
conflict with the terms of the Plans or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) Except as provided in paragraph (c) of this Section 12, the
Trust shall not terminate until the date on which Plan participants
and beneficiaries are no longer entitled to benefits pursuant to the
terms of the Plans. 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 Plans,
the Company may terminate this Trust prior to the time all benefit
payments under the Plans have been made. All assets in the Trust at
termination shall be returned to the Company.
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(d) Sections 1, 10 and 12 of this Trust Agreement may not be
amended by the Company for two (2) years following a Change of
Control, as defined below:
Change of Control shall mean:
(i) the date on which a change in control of the
Company occurs of a nature that would be required to be
reported (assuming that the Company's Common Stock was
registered under the Exchange Act) in response to an
item (currently Item 6(e)) of Schedule 14A of
Regulation 14A promulgated under the Exchange Act or an
item (currently Item 1(a)) of Form 8-K under the
Exchange Act;
(ii) the date on which there is an Acquiring
Person and change in the composition of the Board of
Directors of the Company within two (2) years after the
Share Acquisition Date with respect to such Acquiring
Person that results in the Disinterested Directors not
constituting a majority of the Board of Directors;
(iii) any day on or after the Share
Acquisition Date when, directly or indirectly, any of
the transactions specified in the following clauses
shall occur:
(A) the Company shall consolidate with,
or merge with and into, any other Person;
(B) any Person shall merge with and
into the Company; or
(C) the Company shall sell, lease,
exchange or otherwise transfer or dispose of (or
one or more of its Subsidiaries shall sell, lease,
exchange or otherwise transfer or dispose of), in
one or more transactions, the major part of the
assets of the Company and its Subsidiaries (taken
as a whole) to any other Person or Persons; or
(iv) the date when a Person (other than the
Company, any subsidiary of the Company, any employee
benefit plan of the Company or any of its Subsidiaries
or any Person holding Common Shares for or pursuant to
the terms of any such employee benefit plan) alone or
together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 30% or more of
the Common Shares then outstanding.
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Definitions used for purpose of this Definition are as follows:
Acquiring Person. Acquiring Person shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, is the Beneficial Owner of 20% or more of the Common
Shares then outstanding, but does not include any subsidiary of
the Company, any employee benefit plan of the Company or of any
of its Subsidiaries or any Person holding Common Shares for or
pursuant to the terms of any such employee benefit plan.
Affiliate and Associate. Affiliate and Associate, when used with
reference to any Person, shall have the meaning given to such
terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act.
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Beneficial Owner. A Beneficial Owner shall mean a Person deemed
to "beneficially own", any securities which:
(a) such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly; or
(b) such Person or any of such Person's Affiliates or
Associates has:
(i) the right to acquire (whether such right is
exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or
understanding (written or oral), or upon the exercise
of conversion rights, exchange rights, warrants or
options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a
tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for
purchase or exchange thereunder;
(ii) the right to vote pursuant to any agreement,
arrangement or understanding (written or oral);
provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding
(written or oral) to vote such security (A) arises
solely from a revocable proxy given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (B) is
not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report);
or
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(iii)which are beneficially owned, directly or
indirectly, by any Person with which such Person or any
of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (written or
oral), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in
subsection (ii) above) or disposing of any securities
of the Company.
Board of Directors. Board of Directors shall mean the
Board of Directors of the Company.
Company. Company shall mean Polaroid Corporation, a
Delaware corporation.
Disinterested Director. A Disinterested Director shall
mean a member of the Board of Directors as of the Share
Acquisition Date who is not an employee of the Company.
Exchange Act. Exchange Act shall mean the Securities
Exchange Act of 1934, as in effect on the date in question,
unless otherwise specifically provided in this Trust
Agreement.
Share Acquisition Date. Share Acquisition Date shall
mean the first date any Person shall become an Acquiring
Person.
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SECTION 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 or 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 of New York.
IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the date first above written.
POLAROID CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Vice President and
Treasurer
TRUSTEE
By: /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name : T. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
APPENDIX A
THE POLAROID OFFICER'S COMPENSATION EXCHANGE PLAN
-------------------------------------------------
- THIS IS A DEFINED COMPENSATION TYPE PLAN
- FORMULA:
* PART A:
THE NUMBER OF UNITS NOT PROVIDED EMPLOYEES IN THE
POLAROID STOCK EQUITY PLAN DUE TO THE LIMIT ON COMPENSATION
IMPOSED BY SECTION 401(A)(17) OF THE CODE
* PART B:
50% OF THE NUMBER OF UNITS ALLOCATED TO EMPLOYEES DURING
EACH ALLOCATION PERIOD IN THE POLAROID STOCK EQUITY PLAN
WITHOUT CONSIDERATION OF ANY LIMITATION IMPOSED BY THE CODE
- THE TRUST WILL HOLD POLAROID COMMON STOCK TO FUND THE BENEFITS
UNDER THIS PLAN.
THE POLAROID RETIREMENT PARITY PLAN
-----------------------------------
- THIS IS A DEFINED BENEFIT TYPE PLAN
- FORMULA
* EXCESS BENEFIT PLAN FOR THE COMBINED 415 LIMITATIONS
- THE TRUST WILL HOLD CASH, EQUITY AND FIXED INSTRUMENTS, BUT IN NO
EVENT SHALL HOLD POLAROID CORPORATION SECURITIES.
THE POLAROID EXECUTIVE EQUALIZATION RETIREMENT PLAN
---------------------------------------------------
- THIS IS A DEFINED BENEFIT TYPE PLAN
- FORMULA
* TOP HAT PLAN FOR INDIVIDUALS WHO EXCEED THE IRS LIMITATIONS
ON COMPENSATION
- THE TRUST WILL HOLD CASH, EQUITY AND FIXED INSTRUMENTS, BUT IN NO
EVENT SHALL HOLD POLAROID CORPORATION SECURITIES.
THE POLAROID SUPPLEMENTAL BENEFIT PLAN
--------------------------------------
- THE TRUST WILL HOLD CASH, EQUITY AND FIXED INSTRUMENTS, BUT IN NO
EVENT SHALL HOLD POLAROID CORPORATION SECURITIES.