AMCAST INDUSTRIAL CORPORATION
TRUST AGREEMENT FOR THE:
AMCAST INDUSTRIAL CORPORATION
NONQUALIFIED SUPPLEMENTARY BENEFIT PLAN
AND
EXECUTIVE AGREEMENT WITH LEO W. LADEHOFF
September 27, 2000
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TABLE OF CONTENTS
Page
ARTICLE I Name of Trust......................................... 1
1.1 Name .........................................1
1.2 Purpose.......................................2
ARTICLE II Definitions .........................................2
ARTICLE III Payments to Participants Pursuant to the Plan..........3
3.1 Payments......................................3
3.2 Order of Payments.............................4
ARTICLE IV Payment Schedules under Plan...........................4
4.1 Payment Schedules.............................4
4.2 Modified Payment Schedules....................4
4.3 Resolution of Disputes as to
Payment Schedules........................5
4.4 Records.......................................5
4.5 Withholdings..................................5
4.6 Further Assurances............................5
4.7 Distributions in the Event
of Taxability............................6
ARTICLE V The Trust Fund and Funding.............................6
5.1 Receipt and Holding of the Trust Fund.........6
5.2 Funding of Trust..............................6
5.3 Allocation of Contributions...................7
5.4 Maintenance of Separate Accounts..............7
5.5 Trust Gains and Losses........................8
5.6 Reallocation of Separate Account Balances.....8
5.7 Additional Funding............................8
5.8 Transfer to Another Trustee...................9
ARTICLE VI Status of Trust and Trustee Responsibility
When Company is Insolvent..............................9
6.1 Grantor Trust.................................9
6.2 Cessation of Payments and Insolvency..........9
6.3 Subject to Claims of Creditors
of the Company...........................9
6.4 Participant of Subsidiary Corporation.........10
ARTICLE VII The Trustee's Accounting...............................11
7.1 Books and Records.............................11
7.2 Trustee's Report..............................11
7.3 Availability of Reports to the Participants...11
ARTICLE VIII Administration of the Trust Fund.......................11
8.1 Ownership and Investment of the Trust Fund....11
8.2 Powers of the Trustee.........................12
8.3 Situs of Assets...............................13
8.4 Entire Agreement..............................13
ARTICLE IX Relating to the Trustee................................14
9.1 Liability of the Trustee......................14
9.2 Obligations under Law.........................14
9.3 Bond......................................... 14
9.4 Compensation..................................14
9.5 Indemnification...............................14
9.6 Acceptance....................................15
9.7 No Business Activity..........................15
ARTICLE X Missing Persons; Incapacitated Participants;
Directions; and Notices................................15
10.1 Missing Persons...............................15
10.2 Incapacitated Participants....................15
10.3 Form..........................................15
10.4 Proof of any Matter...........................15
10.5 Absence of Directions.........................16
ARTICLE XI Resignation or Removal of Trustee......................16
11.1 Successor Trustee.............................16
11.2 Final Account.................................16
11.3 Transfer and Discharge........................16
11.4 Effective Date of Appointment
of Successor Trustee.....................16
11.5 Merger or Consolidation.......................16
ARTICLE XII Protection for Third Persons...........................16
12.1 Protection for Third Persons..................16
ARTICLE XIII Termination; Amendment; and Waiver.....................17
13.1 Termination...................................17
13.2 Amendment and Waiver..........................17
ARTICLE XIV General Provisions.....................................17
14.1 Ohio Trust....................................17
14.2 Nonalienation of Benefits.....................17
14.3 Severability..................................18
14.4 Arbitration...................................18
14.5 Notices.......................................18
14.6 Trust Beneficiaries...........................18
14.7 Headings......................................18
14.8 Counterparts..................................19
Schedule A Payment Schedule
Schedule B(1) Amcast Industrial Corporation Nonqualified Supplementary
Benefit Plan
Schedule B(2) Executive Agreement between Amcast Industrial
Corporation and Leo W. Ladehoff, dated March 3, 1995 and
amended and restated as of August 1, 1997.
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TRUST AGREEMENT FOR AMCAST INDUSTRIAL CORPORATION
NONQUALIFIED SUPPLEMENTARY BENEFIT PLAN
AND EXECUTIVE AGREEMENT WITH LEO W. LADEHOFF
THIS TRUST AGREEMENT (the "Trust") is entered into this 27th
day of September, 2000 by Amcast Industrial Corporation, an Ohio corporation, as
grantor (the "Company"), and Fifth Third Bank, Western Ohio , as trustee (the
"Trustee"), under the following circumstances:
(A) Payments to Participants in the Company's
Nonqualified Supplementary Benefit Plan (the "Plan") and to Leo
W. Ladehoff under the Executive Agreement between the Company
and Leo W. Ladehoff, dated March 3, 1995 and amended and
restated as of August 1, 1997 (the "Ladehoff Agreement") are not
funded or otherwise secured, and the Company by this Trust
desires to provide further assurance to Participants and
Ladehoff that the deferred payments provided for under the Plan
and the Ladehoff Agreement will be timely made when due by
depositing with the Trustee, subject only to the claims of the
Company's existing or future general creditors in the event of
the Company's Insolvency as defined at Section 6.2, assets for
use in making such deferred payments;
(B) The Company desires that upon satisfaction of all
liabilities of the Company to all Participants under the Plan
and Ladehoff under the Ladehoff Agreement, any assets remaining
in the Trust shall be transferred to the Company; and
(C) It is the intention of the parties that this
Trust shall constitute an unfunded arrangement and shall not
affect the status of the Plan or the Ladehoff Agreement as
unfunded arrangements maintained for the purpose of providing
deferred compensation for former employees of the Company for
purposes of Title I of the Employee Retirement Income Security
Act of 1974.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the parties
hereto agree as follows:
ARTICLE I
NAME OF TRUST
1.1 Name. This Trust may be referred to as the "Trust
Agreement for the Amcast Industrial Corporation Nonqualified Supplementary Bene-
fit Plan and Executive Agreement with Leo W. Ladehoff."
1.2 Purpose. This Trust is established for the purposes
set forth in Preambles A through C to this Trust.
ARTICLE II
DEFINITIONS
The following terms used in this Trust shall have the following meanings:
"Annuity Contracts" means, collectively, the annuity contracts
issued by insurance companies with respect to particular Participants in the
Plan and Ladehoff which have been contributed to the Trust by the Company and
are still held in the Trust Fund.
"Board" means the Board of Directors of the Company.
"Change of Control" shall mean and be deemed to have occurred
if (i) any "person" (as such term is defined in Sections 13(d) of the Exchange
Act) other than the Company or an entity then controlled by the Company is or
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's
then outstanding securities; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board cease for
any reason to constitute at least a majority thereof unless the election, or the
nomination for the election by the Company's shareholders, of each new Director
was approved by a vote of at least two-thirds of the Directors then still in
office who were Directors at the beginning of the period; (iii) the Company
merges or consolidates with another corporation and an entity controlled by the
Company immediately prior to the merger or consolidation is not the surviving
entity or if the Company is the surviving entity, holders of 80% or more of the
voting power of the Company immediately prior to the merger or consolidation do
not own, immediately after the merger or consolidation, 65% or more of the
voting power of the surviving entity; or (iv) a sale, lease, exchange, or other
disposition of all or substantially all of the assets of the Company takes
place.
"Company" means Amcast Industrial Corporation, an Ohio
corporation, and any successor to such entity.
"Executive Participant" means certain Participants as
described in the Plan.
"Fiscal Year" means the fiscal year of the Company.
"Fully Funded" means that each respective Individual
Participant Separate Account, Group Separate Account and Ladehoff Separate
Account in the Trust has assets equal to the present value of all payments that
the Company is required to make to such Participant and Ladehoff in accordance
with the Payment Schedules, with such present value amount being calculated in
accordance with the manner described in the Ladehoff Agreement and the Plan,
provided that to the extent than an Annuity Contract is credited to an
Individual Participant Separate Account or the Ladehoff Separate Account, such
account is deemed to be Fully Funded.
"Group Separate Account" shall have the meaning ascribed to it
as Section 5.3.
"Individual Participant Separate Account" shall have the
meaning ascribed to it at Section 5.3.
"Insolvent" shall have the meaning ascribed to it at Section
6.2.
"Ladehoff" means Leo W. Ladehoff.
"Ladehoff Agreement" means the Executive Agreement between the
Company and Ladehoff, dated March 3, 1995 and amended and restated as of August
1, 1997.
"Ladehoff Separate Account" shall have the meaning ascribed to
it at Section 5.3.
"Net Present Value" shall have the same meaning as given in
the Plan and the Ladehoff Agreement.
"Participant" means any person the Company has identified in
Schedule A to this Agreement as a participant in the Plan and a beneficiary who
succeeds to the interest of any such person in accordance with the Plan.
"Payment Schedule" shall have the meaning ascribed to it at
Section 4.1.
"Plan" means the Amcast Industrial Corporation Nonqualified
Supplementary Benefit Plan, as adopted by the Company on May 29, 1991 and
Amended and Restated as of June 1, 2000 and as the same may be amended by the
Company from time to time.
"Separate Accounts" means, collectively, the Individual
Participant Separate Accounts, the Ladehoff Separate Account, and the Group
Separate Account.
"Trust" means the trust created by this Agreement.
"Trust Fund" shall have the meaning ascribed to it at Section
5.1.
"Trustee" means any trustee from time to time serving as the
trustee of the Trust.
ARTICLE III
PAYMENTS TO PARTICIPANTS
PURSUANT TO THE PLAN
3.1 Payments. Except as otherwise provided at Section 3.2 or
6.2, the Trustee shall, on behalf of the Company and out of the Trust Fund, make
payments to Participants required under the Plan and to Ladehoff under the
Ladehoff Agreement in accordance with Payment Schedules delivered to the Trustee
pursuant to Article IV. The Company shall continue to be liable to make such
payments to the Participants and Ladehoff required under the terms of the Plan
and the Ladehoff Agreement to the extent such payments have not been made out of
the Trust Fund or otherwise by the Company. Payments made from Trust assets to
the Participants and Ladehoff in respect of the Plan or the Ladehoff Agreement
pursuant to Article IV shall, to the extent of such payments, satisfy the
Company's obligation to pay benefits to such Participants under the Plan and to
Ladehoff under the Ladehoff Agreement.
3.2 Order of Payments. Except as provided in this Section 3.2,
if, at the time a payment is due and payable to a Participant or Ladehoff, the
Separate Accounts are credited with assets, the Trust shall make the required
distributions to the respective Participant and Ladehoff. If a Separate Account
is not credited with an Annuity Contract and is not credited with sufficient
assets to make a distribution to the respective individual, the Trustee shall
make a distribution from the remaining Trust assets (other than from the Annuity
Contracts) and shall proportionately reduce all of the Separate Accounts by such
distribution (but without reducing a Separate Account to the extent that it is
credited with an Annuity Contract). To the extent that an Individual Participant
Separate Account is credited with an Annuity Contract, such Trust asset shall be
used only to make payments to such Participant, except as provided in Article
VI. If the Separate Accounts and the Ladehoff Separate Account are credited with
an amount below the Aggregate Payment Obligation, defined in Section 5.7, the
Company shall make the recalculation and additional contribution required by
Section 5.7. If the Company fails to make required distributions or fails to
make contributions to the Trust as required by Section 5.2 or 5.7, the Trustee,
if instructed by the affected Participant, shall bring an action against the
Company seeking a court order directing the Company to make the payments
required to be made by it under this Section 3.2 and directing the Company to
contribute to the Trust in a lump sum an amount equal to the amount required by
this Trust and the Plan and Ladehoff Agreement.
ARTICLE IV
PAYMENT SCHEDULES UNDER PLAN
4.1 Payment Schedules. In connection with the transfer of
assets to the Trust with respect to a Participant, the Company will list on or
revise and add on Schedule A hereto certain information concerning such
Participant and the payment obligations of the Company to each Participant under
the Plan or such data and other information as is sufficient for the Company to
calculate the payment obligation of the Company to the Participant and the
payment obligations of the Company to Ladehoff under the Ladehoff Agreement (the
"Payment Schedule"). The Company has attached to this Agreement, a true and
accurate copy of the Plan as Schedule B(1) and the Ladehoff Agreement as
Schedule B(2).
4.2 Modified Payment Schedules. On each annual anniversary of
the date specified in Section 4.1, a modified Payment Schedules shall be
delivered by the Company to the Trustee and to each Participant (as it pertains
to such Participant) or Ladehoff reflecting the remaining payment obligations of
the Company. The Trustee shall make payments from the Trust assets to a
Participant or Ladehoff in accordance with the provisions of the Payment
Schedule applicable to such Participant or Ladehoff, as the case may be. In the
event that a Participant or Ladehoff reasonably believes that the Payment
Schedule, as originally issued or as modified, does not properly reflect the
amount payable to such Participant (or Ladehoff) or the formula for determining
such amount or the time of payment in accordance with the Plan (or the Ladehoff
Agreement), such Participant (or Ladehoff) shall be entitled to deliver to the
Trustee written notice (the "Participant's Notice") setting forth payment
instructions for the amount the Participant believes is payable under the
relevant terms of the Plan. The Participant shall also deliver a copy of the
Participant's Notice to the Company within three (3) business days of the
delivery to the Trustee. The Trustee shall promptly confirm with the Company
that the Company has received a copy of the Participant's Notice. If the Company
supplies written objection within the thirty (30) business days, the Trustee
shall resolve the dispute in accordance with the provisions of Section 4.3.
4.3 Resolution of Disputes as to Payment Schedules. If the
Trustee receives written objection from the Company within thirty (30) business
days after the Trustee has confirmed the Company's receipt of the Participant's
Notice, the Trustee shall refer the question of proper calculation to the
Company's independent actuary to determine the Participant's (or Ladehoff's)
entitlement to payment under the Plan (or Ladehoff Agreement). The Trustee shall
rely on the calculation of the Company's actuary as to payment to be made to the
Participant or Ladehoff and shall make payment according to its calculation.
4.4 Records. The Company shall keep true and accurate books
and records with respect to its obligations to the Participants under the Plan
and to Ladehoff under the Ladehoff Agreement and shall provide such information
and access to such books and records to the Trustee at such time or times as the
Trustee shall reasonably request. The Company shall provide the Trustee with any
information stating that payments to a Participant or Ladehoff are to commence.
If at any time the Company fails or refuses to give the Trustee data or
information it requests, or to provide the Trustee access to such books and
records, the Trustee shall be entitled to rely on the Company's independent
actuary in order to establish a true and accurate Payment Schedule.
4.5 Withholdings. The Company shall instruct the Trustee to
make provision for the 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 or the Ladehoff Agreement and the Trustee shall pay such
amounts to the Company. The Company shall then pay amounts withheld to the
appropriate taxing authorities and satisfy the appropriate reporting
requirements, unless otherwise agreed that the Trustee shall be responsible for
the withholding and reporting of such taxes.
4.6 Further Assurances. The Trustee shall, at any time and
from time to time, administer this Trust as may be necessary or proper to
effectuate the purposes of this Trust. If the Trustee receives a substantially
unqualified opinion of tax counsel selected by the Trustee, which opinion states
that the Participants or Ladehoff are subject to Federal income tax on amounts
held in this Trust prior to the distribution to the Participants or Ladehoff of
such amounts, the Trustee shall, to the extent practicable, take such action and
administer the Trust Fund in such a manner so as to prevent the Trust Fund from
being immediately taxable income to the Participants or Ladehoff before making
any distributions pursuant to Section 4.7, provided that the Trustee shall not
return any portion of the Trust Fund to the Company.
4.7 Distributions in the Event of Taxability. In the event of
any final determination by the Internal Revenue Service or a court of competent
jurisdiction (meaning the determination is not appealable or the time for appeal
or protest of which has expired), or the receipt by the Trustee of a
substantially unqualified opinion of tax counsel selected by the Trustee, which
determination determines, or which opinion opines, that the Participants or any
particular Participant or Ladehoff, is subject to Federal income taxation on
amounts held in the Trust prior to the distribution to the Participants or
Participant or Ladehoff of such amounts and no curative action is available
under Section 4.6, the Trustee shall, on receipt by the Trustee of such opinion
or notice of such determination, pay to each Participant or Ladehoff the portion
of the Trust assets includable in such Participant's or Ladehoff's Federal gross
income, provided as a condition of receiving such payment the Participant
receiving such payment or Ladehoff with respect to amounts distributed to him
deliver to the Trustee a written agreement stating that the payment being made
is in satisfaction of the obligations of the Company due to him in respect of
which the payment is made, after taking into consideration that such payment is
being made prior to the required distribution date, and the Company concurs in
such agreement which concurrence shall not be unreasonably withheld.
Any benefit to which a Participant becomes entitled following
the payment by the Trust pursuant to this Section 4.7 shall be offset by taking
into account the amount previously distributed pursuant to the preceding
provisions of this Section 4.7 determined on a future value basis calculated
based on the rate of return equal to the average of the Lehman Brothers Long
T-Bond rate as stated in the Wall Street Journal on the first business day of
February and August during the applicable period or, if no such index exists, on
a comparable index. The amount payable pursuant to this paragraph shall be
calculated by the Company.
ARTICLE V
THE TRUST FUND AND FUNDING
5.1 Receipt and Holding of the Trust Fund. The Trustee will
accept and hold all cash contributions, Annuity Contracts, and other property
transferred and delivered to the Trustee by the Company or at the Company's
direction. All contributions and property received by the Trustee, plus income
and appreciation, constitute the trust fund (the "Trust Fund").
5.2 Funding of Trust. The Trust shall be funded with respect
to the Company's obligations under the Plan and the Ladehoff Agreement as
follows: (i) on the date this Trust is established, the Company shall contribute
$1,000 to the Trust which shall be allocated to the Group Separate Account; (ii)
thereafter and prior to a Change of Control, the Company shall deliver to the
Trustee additional contributions of cash and property as the Company shall from
time to time determine or shall be required to deliver to the Trustee under the
Plan or the Ladehoff Agreement, and (iii) upon the occurrence of a Change of
Control, the Company shall contribute to the Trust such additional cash or
property as may be required so that after giving effect to such contribution,
the Trust is Fully Funded. In accordance with Section 3.5 of the Plan, an
Executive Participant, may instruct the Trust to purchase and credit such
Participant's Individual Participant Separate Account with an Annuity Contract.
5.3 Allocation of Contributions. Cash, property, Annuity
Contracts, and proceeds of Annuity Contracts shall be allocated by the Trustee
to separate accounts established under this Trust for the benefit of Ladehoff
(the "Ladehoff Separate Account"), for the benefit of any Participant on behalf
of whom the Company has directed that cash, Annuity Contracts, or other property
be held in a separate account maintained for such Participant (an " Individual
Participant Separate Account"), or for the benefit of all Participants for whom
individual separate accounts have not been established (the "Group Separate
Account"), as follows:
(a) Any Annuity Contracts relating to Ladehoff and any
survivor thereunder shall be allocated to the Ladehoff Separate Account;
(b) Any other Annuity Contract relating to a particular
Participant and any survivor thereunder shall be allocated to that
Participant's Individual Participant Separate Account;
(c) Cash contributions or contributions of other property,
excluding Annuity Contracts, pursuant to Section 5.2(ii) shall be
credited to the Separate Account specified by the Company at the time of
contribution or if not specified at the time of contribution, then in
accordance with the allocation formula at subsection (d) of this
Section;
(d) Contributions to the Trust pursuant to Sections 5.2(iii)
shall be allocated to the Separate Accounts as follows:
(i) First, to the Separate Accounts of those
Participants for whom the Net Present Value Amount, of unpaid
payment obligations of the Company to the Participants under the
Plan and to Ladehoff pursuant to Section 6(a) of the Ladehoff
Agreement exceeds the account balance of the Separate Accounts
of such Participants and Ladehoff in an amount equal to the
total of such excesses (or the amount of such subsequent
contribution if less), with such allocations made in the ratio
that such excesses in respect of each such Separate Account
bears to the total of such excesses of all such Separate
Accounts; and
(ii) Next, there shall be allocated that amount
necessary to equalize the Separate Accounts of all Participants
so that the ratio of the Net Present Value Amount, of unpaid
payment obligations of the Company to a particular Participant
to the account balance of the Separate Account for such
Participant is, to the extent practicable, the same for all
Separate Accounts.
5.4 Maintenance of Separate Accounts. The Separate Accounts
shall be credited with the following items as indicated below:
(a) the full amount of any payments under an Annuity Contract
principally related to a particular Participant and any survivor
thereunder shall be credited to the Individual Participant Separate
Account for such Participant;
(b) the allocable share of contributions as provided in
Section 5.2(ii) or 5.2(iii);
(c) the allocable share of Trust Fund income and gains as
provided in Section 5.5; and
(d) the allocable share of Separate Account reallocations
as provided in Section 5.6.
The Separate Accounts of the Participants or Ladehoff, as the
case may be, shall be charged with the following items:
(a) any payments to the Participants or Ladehoff from the
Trust; and
(b) the allocable share of expenses and losses of the
Trust as provided in Section 5.5.
All payments to a Participant or Ladehoff in respect of the
Plan or the Ladehoff Agreement shall be charged solely to the Individual
Separate Participant Account of the Participant in the case of a Participant
with such a separate account, the Ladehoff Separate Account in the case of a
payment to Ladehoff, or, if the Participant does not have a Individual
Participant Separate Account, then the Group Separate Account.
5.5 Trust Gains and Losses. Income, gains, expenses and losses
of the Trust shall be allocated among the Separate Accounts annually. Such
amounts shall be allocated ratably to the Separate Accounts in the ratio that
the prior fiscal year-end account balance of a particular Separate Account bears
to the account balances of all Separate Accounts, not taking into account
Annuity Contracts credited to any Separate Accounts.
5.6 Reallocation of Separate Account Balances. When all of the
Company's payment obligations to a Participant under the Plan have been
satisfied, any balance remaining in the Individual Participant Separate Account
of such Participant shall be reallocated among the other Separate Accounts of
Participants who are still entitled to payments under the Plan. Except as
provided in Article VI and Section 13.1, Company shall have no right or power to
direct Trustee to return to Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan participants and
their beneficiaries pursuant to the terms of the Plan(s).
5.7 Additional Funding. If Trust Funds have been delivered to
the Trustee pursuant to 5.2(iii), then the Company shall, as soon as practicable
after the end of each Fiscal Year, recalculate the amount necessary to Fully
Fund the Separate Accounts with respect to the amounts payable to Participants
under the Plan and to Ladehoff under the Ladehoff Agreement and in accordance
with the Payment Schedules for the Participants and Ladehoff delivered to the
Trustee pursuant to Sections 4.1 and 4.2 (herein referred to as the "Aggregate
Payment Obligation"), provided that to the extent that an Annuity Contract is
credited to an Individual Participant Separate Account or the Ladehoff Separate
Account such account is deemed Fully Funded and the Aggregate Payment Obligation
shall not include benefits to be funded with such Annuity Contract. If the
Aggregate Payment Obligation exceeds the fair market value of the assets
credited to the Separate Accounts (excluding any Annuity Contracts) at the end
of the most recently completed Fiscal Year, then there exists a funding
deficiency to the extent of such excess; and the Company shall by no later than
90 days after the end of such Fiscal Year contribute to the Trustee additional
cash, property, or any combination of the foregoing having a fair market value
equal to the amount of the funding deficiency.
5.8 Transfer to Another Trustee. The Company may direct the
Trustee to transfer the Trust Fund to a successor trustee as set forth in
Section 11.1. The Trustee immediately will comply with that direction. When that
transfer is completed, the Trustee will be relieved from all further obligations
in connection with the Trust Fund.
ARTICLE VI
STATUS OF TRUST AND TRUSTEE
RESPONSIBILITY WHEN COMPANY IS INSOLVENT
6.1 Grantor Trust. The Trust is intended to be exempt from the
participation, vesting, funding and fiduciary requirements of the Employee
Retirement Income Security Act of 1974, as amended. Unless otherwise agreed to
by the Trustee and the Company, the trust shall not file an Internal Revenue
Service Form 1041 nor be treated as a trust within the meaning of Section 671 of
the Internal Revenue Code. All income and deductions attributable to the Trust
Fund shall be reported by the Company. The Trust Fund shall at all times be
subject to the claims of the creditors of the Company as set forth in Section
6.3.
6.2 Cessation of Payments and Insolvency. The Trustee shall
cease payment of benefits to Participants and Ladehoff if the Company is
Insolvent. The Company shall be considered "Insolvent" for purposes of this
Trust if (i) the Company is unable to pay its debts as they become due, or (ii)
the Company is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
6.3 Subject to Claims of Creditors of the Company. At all
times during the continuance of this Trust, the principal and income of the
Trust shall be subject to claims of general creditors of the Company under
federal and state law as set forth below.
(a) The Board of Directors and the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in writing of the
Company's Insolvency. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee that the Company has become
Insolvent, the Trustee shall appoint a nationally recognized accounting
firm ("Accounting Firm") to determine whether the Company is Insolvent
and, during such determination process, the Trustee shall discontinue
payment of benefits to Participants and Ladehoff.
(b) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent, the
Trustee shall have no duty to inquire whether the Company is Insolvent.
The Trustee may conclusively rely upon the determination of the
Accounting Firm pursuant to this Section 6.3 hereof, and the Trustee's
sole responsibility with respect to determination of Insolvency shall
be prudent selection of the Accounting Firm in the event such selection
is required hereunder.
(c) If at any time the Trustee has knowledge (through notice
from the Board of Directors and the Chief Executive Officer of the
Company or written notice from a person claiming to be a creditor of
the Company) that the Company is Insolvent, the Trustee shall
discontinue payments to Participants and Ladehoff and shall hold the
assets of the Trust for the benefit of Company's general creditors.
Nothing in this Trust shall in any way diminish any rights of
Participants and Ladehoff to pursue their rights as general creditors
of the Company with respect to benefits due under the Plan or
otherwise.
(d) The Trustee shall resume the payment of benefits to
Participants and Ladehoff in accordance with this Trust only after the
Trustee has received the following certification or an order that the
Company is not Insolvent (or is no longer Insolvent):
(i) the Trustee receives written certification from
the Accounting Firm appointed pursuant to this Section 6.3
hereof that the Company is not Insolvent: or
(ii) the Trustee receives an order from a federal
regulatory agency or a court of competent jurisdiction directing
such payment of benefits or other dispositions of Trust assets.
Notwithstanding any provisions of the Trust to the contrary, the
Trustee shall not make any distributions if such distribution would
violate an order issued by a court of competent jurisdiction.
(e) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section
6.3 and subsequently resumes such payments, the first payments
following such discontinuance shall include the aggregate amount of all
payments due to Participants and Ladehoff under the terms of the Plan
for the period of such discontinuance, less the aggregate amount of any
payments made to Participants and Ladehoff by the Company in lieu of
the payments provided for hereunder during any such period of
discontinuance.
6.4 Participant of Subsidiary Corporation. With respect to a
Participant employed or formerly employed by a subsidiary corporation of the
Company, this Article VI shall apply (a) on the basis that an amount of assets
in the Trust sufficient to Fully Fund the payments to be made to such
Participant or, the assets, if any, in the Separate Account of such Participant
is a [grantor trust] of such subsidiary corporation, (b) with the general
creditors of the Company and the subsidiary corporation of the Company having a
claim on the assets in such Separate Account and (c) based on the Insolvency of
the Company or the subsidiary corporation of the Company.
ARTICLE VII
THE TRUSTEE'S ACCOUNTING
7.1 Books and Records. The Trustee shall keep accurate and
detailed accounts of all investments, receipts, disbursements and other
transactions in respect of the Trust Fund. Those accounts and related records
may be inspected by any person designated by the Company. The Trustee shall
retain those records and supporting data for the period required by law. Except
for Annuity Contracts, all Trust assets may be commingled for purposes of
investment.
7.2 Trustee's Report. Within 60 days after the end of each
Fiscal Year, the Trustee shall file a written report with the Company
containing:
(a) A description of investments, receipts, disbursements
and other transactions effected by the Trustee during the most recently
completed Fiscal Year;
(b) An exact description of any asset transferred to the
Trustee or transferred by the Trustee to any other person during such
Fiscal Year;
(c) An exact description of assets sold or purchased by the
Trustee during such Fiscal Year, the cost of each item purchased and the
net proceeds of each item sold;
(d) An exact description of all assets held by the Trustee as
of the close of business on the last day of such Fiscal Year, and the
cost and fair market value of each item (other than Life Insurance
Policies and Annuity Policies) determined as of the same date; and
(e) Any other information required by law to be filed on be-
half of the Trust.
The information described in subsections (a), (b) and (c),
above, may be given in the form of monthly or quarterly reports, if those
reports, taken together, contain the required information.
7.3 Availability of Reports to the Participants. Any reports
delivered to the Company pursuant to this Article VII shall be delivered to the
Participant and Ladehoff upon his written request to the Trustee, with a copy of
such request being furnished to the Company by the Trustee.
ARTICLE VIII
ADMINISTRATION OF THE TRUST FUND
8.1 Ownership and Investment of the Trust Fund. (a) The
Trustee is the legal owner of all Trust Fund assets and, subject to this
Article, shall invest and reinvest the Trust Fund. Any amounts reasonably
necessary to meet contemplated payments or to be transferred from the Trust Fund
may be deposited temporarily in the commercial department of any bank or trust
company. The Trustee will not be liable for any interest on those deposits
except for interest actually paid by the bank or trust company or, if the
deposit is with the Trustee's own commercial department, interest at the legally
permitted rate agreed to by the Trustee and the Company. Alternatively, the
Trustee may make temporary deposits in governmental obligations, certificates of
deposit, commercial paper, commercial paper master notes or a common trust fund
maintained by the Trustee for temporary cash investments.
(b) Except (i) as provided in Section 8.2(a) and (ii) with
respect to the purchase of an annuity policy in accordance with the parameters
of Section 3.5 of the Plan and the instructions of an Executive Participant, as
discussed in Section 5.2 hereof, all investment decisions associated with the
Annuity Contracts shall be exercised by the Company. After the acquisition of an
Annuity Contract, the Trustee shall have no duty or obligation to review the
Annuity Contracts so acquired, nor to make any recommendations with respect to
the investment, reinvestment or retention thereof.
8.2 Powers of the Trustee. Subject to this Article, Article 5
and Sections and 9.2 and in addition to the powers generally given to trustees
by law, the Trustee:
(a) May own the Annuity Contracts as Trust investments and
take such action with respect to such contracts as necessary to carry
out the terms of the Trust, including but not limited to the payment of
premiums, but at any time that the Trustee determines that it is
necessary to surrender or borrow against the Annuity Contracts,
including without limitation partial surrenders, in order to raise
funds to pay current or future benefits to the individual in whose
Separate Account the Annuity Contracts are credited, the Trustee shall
give written notification to the Company stating its intention.
Thereupon, the Company shall have thirty (30) days in which to
contribute additional assets to the Trust in the amount stated in the
Trustee's written notification, and the Trustee shall then refrain from
making surrenders until such subsequent time(s), if any, that the
Trustee determines that it is necessary to make surrenders, whereupon
the Trustee shall again give written notification of intention to
surrender an Annuity Contract and the Company shall again have the
right to make additional contributions of assets in the manner set
forth above.
(b) May invest and reinvest the Trust Fund (except as provided
in subsection (a), above, with respect to Annuity Contracts) in (i)
obligations issued or guaranteed by the United States or by any person
controlled or supervised by and acting as an instrumentality of the
United States pursuant to authority granted by Congress; (ii)
obligations issued or guaranteed by any state or political subdivision
thereof having a rating equal to or higher than the current A rating
classification of Moody's Investors Service, Inc. or the current A
rating classification of Standard & Poor's Corporation, both of New
York, New York, or their successors; (iii) commercial or finance paper
of any corporation (through mutual funds or directly) having a net
worth of $50,000,000 and having a rating classification equal to or
higher than the current P-1 rating classification of Moody's Investors
Service, Inc. or the current A-1 rating classification of Standard &
Poor's Corporation, both of New York, New York or their successors;
(iv) bankers' acceptance drawn on and accepted by banks or trust
companies organized under the laws of the United States of America or
any state thereof, having a reported capital and surplus of at least
$50,000,000 in dollars of the United States of America or bankers'
acceptance drawn on and accepted by the Trustee; (v) certificates of
deposit maturing within twelve months of the Trustee or of banks or
trust companies, organized under the laws of the United States of
America or any state thereof, having a reported capital and surplus of
at least $50,000,000 in dollars of the United States of America and
which has a rating at least equal to the rating required in (iii)
above; and (vi) repurchase agreements collateralized with obligations
described in (i) above; (vii) money market funds the assets of which
are of the types specified above; and (viii) preferred or common stock
of any company (other than the Company or any successor thereto),
provided that at the time any such security is acquired (directly or
through a mutual fund) (1) the security is listed for trading upon the
New York Stock Exchange, Inc., or such securities are owned by a mutual
fund that has at least 50% of its assets invested in securities listed
for trading upon the New York Stock Exchange, Inc. (2) no more than 2%
of the assets of the Trust, determined at the time the investment is
made, are invested in the preferred or common stock of any one company,
unless the investment is owned through a mutual fund and (3) no more
than 30% of the assets of the Trust are invested, determined at the
time an investment pursuant to this clause is made, in preferred or
common stock; provided that any such investment or deposit is not
prohibited by law.
(c) May abandon, adjust, arbitrate, compromise, or otherwise
settle any obligation or liability due to or from it as Trustee,
including any tax claim, and/or enforce or contest any claim in legal
or administrative proceedings. The Trustee shall not be required to
contest any claim unless it has been indemnified against the costs and
expenses of that action or unless available Trust Fund assets are
sufficient to pay those expenses.
(d) May compensate from the Trust Fund, agents, accountants,
brokers and counsel (who may be counsel for the Company) and other
assistants and advisors which it believes are necessary or desirable
for the proper administration of the Trust Fund.
(e) May temporarily deposit uninvested funds in a commingled
temporary deposit medium maintained by the Trustee, which is composed
of certificates of deposit or other obligations issued by the Trustee.
(f) May do all other acts, not specifically mentioned above
which are necessary to administer the Trust Fund and to carry out the
purposes of the Trust.
8.3 Situs of Assets. Except as permitted by law, the Trustee
may not maintain in the Trust Fund any assets located outside the jurisdiction
of the district courts of the United States.
8.4 Entire Agreement. The Trustee will have only those
powers, duties, or responsibilities set forth in this Agreement.
ARTICLE IX
RELATING TO THE TRUSTEE
9.1 Liability of the Trustee. The Trustee will exercise its
powers and perform its duties with the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with those matters would use in the conduct of an
enterprise of a like character and with like aim. Except as provided with
respect to Annuity Contracts at Section 8.1(b), the Trustee also will diversify
Trust Fund investments to minimize the risk of large loss unless under the
circumstances the Trustee believes it clearly would be prudent not to diversify.
Wherever this Trust Agreement provides that the Trustee must follow directions
of the Company, the Board, the legal counsel of the Company, or any person or
entity appointed by the Company or its legal counsel to give any information,
instruction, discretion or opinion to the Trustees or that the Trustee has no
duty or power concerning a matter, the Trustee will not be liable for any harm
caused by a direction or lack of a direction or by any exercise or non-exercise
of power by another unless the Trustee knowingly participates in or knowingly
undertakes to conceal an act or omission of another fiduciary with respect to
the Plan or the Trust.
9.2 Obligations under Law. Regardless of any general or
specific power or authority granted to it, the Trustee may not engage in any
transaction, exercise any power or perform any duty under this Trust in
violation of any law (including the Internal Revenue Code and Employee
Retirement Income Security Act), or any regulations or rulings issued under
those laws.
9.3 Bond. Unless required by law, the Trustee is not re-
quired to furnish a bond for the faithful performance of its duties.
9.4 Compensation. The Trustee will be compensated reasonably
as agreed to by the Company and the Trustee. That compensation and all
reasonable expenses of administration will be paid directly by the Company. Upon
failure of the Company to pay such compensation and expenses, the Trustee may
satisfy such obligations out of the Trust Fund; in such event, the Company shall
immediately upon demand by the Trustee deposit into the Trust Fund a sum equal
to the amount paid from the Trust Fund for such compensation and expenses.
9.5 Indemnification. The Company agrees to indemnify and hold
harmless the Trustee from and against any and all damages, losses, claims or
expenses as incurred, including expenses of investigation and fees and
disbursements of counsel to the Trustee and any taxes imposed on the Trust Fund
or income of the Trust (the "Indemnified Amounts"), arising out of or in
connection with the performance by the Trustee of its duties hereunder provided
the Indemnified Amounts do not arise out of, and are not connected with, a harm
as to which the Trustee may be liable under Section or is judicially determined
to arise from the Trustee's gross negligence or wilful misconduct in its
performance of responsibilities.
The indemnification pursuant to this Section 9.5 shall include
any liabilities, losses, damages and expenses resulting from:
(a) the failure of the Company, its Board, or any person or
entity appointed by any of them to make timely disclosure to the
Trustee of information which any of them or any appointee knows or
should know if it acted in a reasonably prudent manner; or
(b) any breach of fiduciary duty by the Company, its Board, or
any person or entity appointed by any of them, other than such a breach
which is cause by a failure of the Trustee to perform its duties under
this Agreement.
Any amount payable to the Trustee under this Section 9.5 and
not previously paid by the Company shall be paid by the Company promptly upon
demand therefor by the Trustee.
9.6 Acceptance. The Trustee accepts the Trust established
under this agreement on the terms and subject to the provisions set forth
herein, and agrees to discharge and perform fully and faithfully all of the
duties and obligations imposed upon it under this Trust.
9.7 No Business Activity. Notwithstanding any powers granted
to the Trustee pursuant to this Trust Agreement or 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.
ARTICLE X
MISSING PERSONS; INCAPACITATED PARTICIPANTS;
DIRECTIONS; AND NOTICES
10.1 Missing Persons. If any payment to be made by the
Trustee to a Participant is not claimed or accepted by the Participant, the
Trustee shall notify the Company. The Trustee shall not have any obligation to
search for or ascertain the whereabouts of any Participant.
10.2 Incapacitated Participants. While a Participant who is
entitled to a payment or distribution hereunder is under a legal disability or,
in the Trustee's opinion, in any way is incapacitated so as to be unable to
manage his financial affairs, the Trustee may make any required distribution to
a Participant by making it (i) directly to the Participant, (ii) a legal
guardian of the Participant, or (iii) in such other manner as the Trustee deems
in the best interest of the Participant.
10.3 Form. All directions, notices, certifications and
amendments to the Trust given by the Company will be in writing; if given by the
Company, they will be signed on behalf of the Company.
10.4 Proof of any Matter. If required by the Trustee, any
matter may be proved conclusively by certification by the Company. The Trustee
also may accept or require any other or further evidence it believes to be
sufficient or necessary.
10.5 Absence of Directions. If the Trustee believes that it
must take action under this Trust, it may act in its sole discretion unless
direction is provided under this Trust.
ARTICLE XI
RESIGNATION OR REMOVAL OF TRUSTEE
11.1 Successor Trustee. The Trustee may resign and be
discharged from its duties hereunder at any time by giving notice in writing of
such resignation to the Company and each Participant specifying a date (not less
than thirty (30) days after the giving of such notice) when such resignation
shall take effect. Promptly after such notice, the Company shall appoint a
successor trustee, such trustee to become Trustee hereunder upon the resignation
date specified in such notice. The Trustee shall continue to serve until its
successor accepts the trust and receives delivery of the Trust Fund. The Company
may at any time substitute a new trustee by giving thirty (30) days notice
thereof to the Trustee then acting. The Trustee and any successor thereto
appointed hereunder shall be a commercial bank or trust company which is not an
affiliate of the Company, and which has equity in excess of $50,000,000.
11.2 Final Account. If the Trustee resigns or is removed, and
unless the Company accepts without exception the Trustee's final account, the
Trustee (or his representative) may settle its account either (a) by beginning
an action to procure a judicial settlement or (b) by agreeing on a settlement
with the Company.
11.3 Transfer and Discharge. If a successor trustee is
appointed, the Trustee will transfer the Trust Fund to the successor along with
true copies of all relevant records reasonably requested by the successor. The
Trustee also will execute all documents necessary to the transfer of the Trust
Fund. When it has completed those actions, the Trustee will not be further
accountable for any matters covered in its accounting.
11.4 Effective Date of Appointment of Successor Trustee.
Appointment of a successor trustee will be effective when it delivers to the
Company and to the former trustee written acceptance of the appointment. When
delivered, this Trust will be interpreted as if the successor trustee had been
originally named Trustee. However, the successor trustee will not be liable or
responsible for anything done or omitted in the administration of the Trust
before its appointment.
11.5 Merger or Consolidation. If the Trustee engages in a
corporate reorganization, the resulting corporation automatically will be the
Trustee's successor.
ARTICLE XII
PROTECTION FOR THIRD PERSONS
12.1 Protection for Third Persons. In dealing with the
Trustee, no one other than the Company is required to inquire into the Trustee's
authority to take any action authorized by this Trust. Those persons may assume
that the Trustee is authorized to take any action which it undertakes and will
not be liable for any act done under written direction of the Trustee. Also,
those persons may assume that the Trustee is authorized to receive any money or
property paid to the Trustee, or paid under the Trustee's written direction.
Written certification by the Company of the Trustee's name will be conclusive
evidence that the Trustee is qualified to act as Trustee at the date of that
certification.
ARTICLE XIII
TERMINATION; AMENDMENT; AND WAIVER
13.1 Termination. This Trust shall be terminated upon the
earliest of any of the following events: (i) the exhaustion of the Trust Fund;
or (ii) the final payment of all amounts payable to all of the Participants
pursuant to all of the Plan. Promptly upon termination of this Trust, any
remaining portion of the Trust Fund shall be paid to the Company.
13.2 Amendment and Waiver. This Trust is irrevocable and may
not be amended except by an instrument in writing signed on behalf of the
parties hereto together with the written consent of the Participants having at
least sixty-five percent (65%) of all amounts then held in the Trust credited to
their accounts except that in the event a proposed amendment relates to only one
of the Participants, then the written consent of Participants required to adopt
such an amendment shall mean the written consent of such Participant. The
parties hereto, together with the consent of Participants having at least
sixty-five percent (65%) of all amounts then held in the Trust credited to their
accounts, may at any time waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto or a
Participant to any such waiver shall be valid if set forth in an instrument in
writing signed by or on behalf of such party or Participant. Notwithstanding the
foregoing, any such amendment or waiver may be made by written agreement of the
parties hereto without obtaining the consent of the Participants if such
amendment or waiver does not, in the written opinion of qualified counsel
addressed to the Company and the Trustee, adversely affect the rights of the
Participants hereunder. No amendment or waiver relating to this Trust may be
made which only affects a particular Participant or Ladehoff unless such
Participant or Ladehoff has agreed in writing to such amendment or waiver.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Ohio Trust. The Trust will be construed and enforced
according to the laws of the State of Ohio and the United States.
14.2 Nonalienation of Benefits. Benefits payable to
Participants, Ladehoff and their beneficiaries under this Trust 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. Participants, Ladehoff 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 Plan participants and their
beneficiaries against Company.
14.3 Severability. In the event that any provision of this
Trust or the application thereof to any person or circumstances shall be
determined by a court of proper jurisdiction to be invalid or unenforceable to
any extent, the remainder of this Trust, or the application of such provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision of this Trust
shall be valid and enforced to the fullest extent permitted by law.
14.4 Arbitration. Any dispute between the Participants or
Ladehoff and the Company or the Trustee as to the interpretation or application
of the provisions of this Trust and amounts payable hereunder shall be
determined exclusively by binding arbitration in Dayton, Ohio, in accordance
with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court of competent jurisdiction.
14.5 Notices. Any notice, report, demand or waiver required or
permitted hereunder shall be in writing and shall be given personally or by
prepaid registered or certified mail, return receipt requested, addressed as
follows:
If to the Company: Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45458
Attn: Corporate Secretary
If to the Trustee: Fifth Third Bank, Western Ohio
P. O. Box
Piqua, OH 45356
Attn: Neill Haas
If to a Participant, to the address of such Participant as listed next to his
name on Schedule A hereto.
A notice shall be deemed received upon the date of delivery if
given personally or, if given by mail, upon the receipt thereof.
14.6 Trust Beneficiaries. Each Participant and Ladehoff are an
intended beneficiary under this Trust, and shall be entitled to enforce all
terms and provisions hereof with the same force and effect as if such person had
been a party hereto.
14.7 Headings. The headings and subheadings in this Agree-
ment are inserted for convenience of reference only and are not to be considered
in the construction of its provisions.
14.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which is an original; all counterparts
constitute the same instrument, sufficiently evidenced by any one counterpart.
IN WITNESS WHEREOF, the Company and the Trustee have caused
this instrument to be executed this 27th of September, 2000.
"Company"
Amcast Industrial Corporation
By /s/ DENIS G. DALY
--------------------
Name: Denis G. Daly
Title: Vice President
General Counsel
And Secretary
Attest /s/ FRANCESCO FERRANTE
-----------------------------
"Trustee"
Fifth Third Bank,
By /s/ JOHN M. FOLTZ
--------------------
Name: John M. Foltz
Title: Assistant Vice President
<PAGE>
A-1
SCHEDULE A - PAYMENT SCHEDULE
AMCAST INDUSTRIAL CORPORATION
TRUST AGREEMENT
, 2000
1. Persons who are Participants in the Amcast Industrial Corporation
Nonqualified Supplementary Benefit Plan ("Plan"):
-----------------------------------------------------------------
Name and Address for
Date of Birth Notices and Payments Social Security No.
------------- -------------------- -------------------
2. Payment Obligation of Company to each Participant:The Company has
furnished to the Trustee true and accurate copies of the Plan.
Under the Plan, a monthly retirement benefit is payable at the
same time a monthly benefit is payable to the Participant under
the Amcast Industrial Corporation Merged Pension Plan. The amount
of the benefit is determined based on formulas contained in the
Plan. On the dates specified in Sections 4.1 and 4.2, the Company
shall furnish to the Trustee a Payment Schedule and a Modified
Payment Schedule setting forth the specific amount of the
required payments and the period over which payments are to be
made. In the event the Company fails to furnish a Payment Sched-
ule or a Modified Payment Schedule, the Trustee may act pursuant
to Sections 4.3, 4.4 and 10.5. The Company represents and
warrants that it will maintain accurate books and records with
respect to the Company's payment obligations to Participants
under the Plan and provide the Trustee with access to such books
and records as may be necessary for the Trustee to carry out its
responsibilities under the Trust, including the calculation of
benefits payable to an Participant in the event that the Company
fails to furnish a Modified Payment Schedule to the Trustee on a
timely basis.
3. Set forth below is the Company's payment obligation to Ladehoff:
---------------------------------------------------------------
The undersigned Company hereby certifies the accuracy of the
foregoing Schedule A this __ day of ____________2000.
Amcast Industrial Corporation
By
------------------------------
Name:
------------------------
Title:
------------------------
<PAGE>
B-1
SCHEDULE B(1) - AMCAST INDUSTRIAL CORPORATION
NONQUALIFIED SUPPLEMENTARY BENEFIT PLAN
<PAGE>
B-2
SCHEDULE B(2) - EXECUTIVE AGREEMENT BETWEEN
AMCAST INDUSTRIAL CORPORATION AND
LEO W. LADEHOFF, DATED MARCH 3, 1995 AND
AMENDED AND RESTATED EFFECTIVE AS OF AUGUST 1, 1997
