49
EXHIBIT 10.6
SAVINGS PLAN FOR THE EMPLOYEES
OF
ETHYL CORPORATION
TRUST AGREEMENT
As Amended and Restated
Effective November 1, 1993
and
Amendment No. 1
Effective March 1, 1994
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TABLE OF CONTENTS
Section Page
ARTICLE I GENERAL DUTIES OF THE PARTIES
1.01. General Duties of Company. . . . . . . . . . . . . . . 2
1.02. General Duties of Trustee. . . . . . . . . . . . . . . 3
ARTICLE II POWERS AND DUTIES OF TRUSTEE IN
INVESTMENT FUND, ADMINISTRATION, AND
DISBURSEMENT OF TRUST FUND
2.01. Division of the Trust Fund . . . . . . . . . . . . . . 4
2.02. Investment of the Trust Fund . . . . . . . . . . . . . 4
2.03. Investment Transfers . . . . . . . . . . . . . . . . . 4
2.04. Investment Charges . . . . . . . . . . . . . . . . . . 5
2.05. Valuation of Funds . . . . . . . . . . . . . . . . . . 5
2.06. Additional Investment Powers and Duties of
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 5
2.07. Administrative Powers and Duties of Trustee. . . . . . 6
2.08. Trustee's Authority. . . . . . . . . . . . . . . . . . 8
2.09. Payments from Trust Fund . . . . . . . . . . . . . . . 8
2.10. Records. . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III FOR PROTECTION OF TRUSTEE
3.01. Evidence of Action by Company. . . . . . . . . . . . . 10
3.02. Advice of Counsel or Company . . . . . . . . . . . . . 10
3.03. Miscellaneous. . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV TAXES, EXPENSES AND COMPENSATION
OF TRUSTEE
4.01. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 12
4.02. Expenses and Compensation. . . . . . . . . . . . . . . 12
ARTICLE V SETTLEMENT OF ACCOUNTS, ENFORCEMENT
OF TRUST, LEGAL PROCEEDINGS
5.01. Settlement of Accounts of Trustee. . . . . . . . . . . 13
5.02. Determination of Rights and Benefits . . . . . . . . . 13
ARTICLE VI RESIGNATION, REMOVAL, AND SUBSTITUTION
OF TRUSTEE
6.01. Resignation of Trustee . . . . . . . . . . . . . . . . 15
6.02. Removal of Trustee . . . . . . . . . . . . . . . . . . 15
6.03. Appointment of Successor Trustee . . . . . . . . . . . 15
6.04. Transfer of Investment to Successor. . . . . . . . . . 15
ARTICLE VII DURATION, TERMINATION AND AMENDMENT
OF TRUST
7.01. Termination of Trust or Plan . . . . . . . . . . . . . 17
7.02. Distribution upon Termination of the Plan. . . . . . . 17
7.03. Action of Trustee. . . . . . . . . . . . . . . . . . . 17
7.04. Automatic Termination of the Trust . . . . . . . . . . 18
7.05. Amendment. . . . . . . . . . . . . . . . . . . . . . . 18
7.06. Succession of Plan . . . . . . . . . . . . . . . . . . 18
7.07. Merger or Consolidation of the Trustee . . . . . . . . 19
7.08. Merger or Consolidation of the Company . . . . . . . . 19
7.09. Impossibility of Diversion . . . . . . . . . . . . . . 19
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ARTICLE VIII DENIAL OF EXISTENCE OF GUARANTEES
8.01. No Guarantee of Benefits . . . . . . . . . . . . . . . 20
8.02. No Guarantee of Employment . . . . . . . . . . . . . . 20
ARTICLE IX TRANSFERS . . . . . . . . . . . . . . . . . . . . 21
ARTICLE X MISCELLANEOUS
10.01. Laws of Virginia to Govern . . . . . . . . . . . . . . 22
10.02. Titles and Headings Not to Control . . . . . . . . . . 22
10.03. Prohibition of Assignment of Interest. . . . . . . . . 22
10.04. Adoption by Affiliate. . . . . . . . . . . . . . . . . 22
10.05. Definitions and Incorporation by Reference . . . . . . 23
EXHIBIT I INVESTMENT FUNDS
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TRUST AGREEMENT BETWEEN ETHYL CORPORATION AND
NATIONSBANK OF GEORGIA, N.A.
This Agreement, effective as of the 1st day of
November, 1993, by and between ETHYL CORPORATION, a Virginia
corporation, whose principal office is at 330 South Fourth
Street, Richmond, Virginia, and NATIONSBANK OF GEORGIA, N.A.,
with an office at 715 Peachtree Street, Atlanta, Georgia
30308, shall be called the Savings Plan For The Employees
Of Ethyl Corporation Trust Agreement and is hereinafter
referred to as the Trust Agreement.
The Company adopted the Savings Plan For The
Employees Of Ethyl Corporation, effective September 1, 1961,
for the exclusive benefit of certain of its employees,
pursuant to which the Company and such employees make
contributions. The Plan has been amended and restated on
several occasions to conform to changes in the law and to
reflect certain design changes. The Plan is currently
amended and restated effective November 1, 1993.
The Company desires to amend and restate the Trust
Agreement, heretofore created to hold such funds and other
property as the Company may deliver to the Trustee consti-
tuting Company and Member contributions to the Plan, the
earnings and profits thereon, and the stock, securities and
other property acquired by the Trustee with such funds (the
"Trust" or "Trust Fund"). The Company intends that the Trust
shall constitute a part of the Plan, qualifying under
sections 401(a) and 501(a) of the Internal Revenue Code of
1986, as amended.
The Company and the Trustee agree that the Trust will
be administered in accordance with the terms and conditions
set forth in this Trust Agreement.
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ARTICLE I
GENERAL DUTIES OF THE PARTIES
1.01. General Duties of Company
(a) The Company or its delegatees shall have complete
responsibility for the operation and administration of the
Plan and, by way of example and not by way of limitation,
shall determine eligibility for participation, receive all
elections or notices of Members, direct the Trustee to make
distributions, and furnish the Trustee with such information
as it may require to carry out its duties under the Plan and
this Trust Agreement.
(b) The Company or its delegatees shall make all
reports concerning the Plan to state and federal agencies
and to Members and their Beneficiaries other than those
specifically imposed on the Trustee by law, the Plan, or this
Trust Agreement, or those which the Trustee agrees in writing
to prepare.
(c) With respect to the voting of Ethyl Corporation
common stock as described in Plan section 5.09, the Company
shall ensure that (1) a fiduciary shall be designated to
maintain the confidentiality procedures relating to
transactions with respect to the Ethyl Stock Fund and (2)
an independent fiduciary shall be appointed to monitor those
procedures in situations which involve a potential for undue
employer influence upon a Member's or Beneficiary's exercise
of his shareholder rights.
(d) Any action by the Company with respect to the
Trustee pursuant to this Trust Agreement or the Plan shall
be taken by those persons and entities authorized to take
such action on behalf of the Company and shall be evidenced
in writing and signed by a duly authorized representative
of the Company. From time to time the Company shall certify
to the Trustee the names and specimen signatures of the
persons authorized to act for the Company hereunder and shall
promptly notify the Trustee if any such person shall cease
to act. Until such latter notice is received the Trustee
shall be fully protected in relying on the authority of each
such person.
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(e) The Company or its delegatees shall furnish the
Trustee with such information as it may require to carry out
its duties under the Plan and the Trust Agreement, or those
duties it has undertaken to perform on behalf of the Plan.
(f) The Company shall cause to be established and
maintained a separate Account for each Member. Each Member's
Account shall be subdivided into subaccounts as provided
under Plan section 4.01. The Company or its delegatees shall
credit or debit all appropriate amounts to the applicable
Account, including each such Account's share of
distributions, contributions, net earnings, and realized and
unrealized gains or losses of the applicable investment fund.
(g) The Company or its delegatees shall receive the
directions of Members with respect to the investment of
Member contributions as provided in Plan section 5.05 and
forward notice of such directions to the Trustee within
sufficient time for the Trustee to act thereon. The Trustee
shall have no responsibility to comply with any such
directions it has not received or for timely compliance with
any such directions which are not forwarded to it in
sufficient time for it to act thereon.
(h) Contributions to the Trust Fund may be in cash
or in other property acceptable to the Trustee.
1.02. General Duties of Trustee
The Trustee shall hold all property received by it,
which, together with the income therefrom and the stock,
securities, and other property acquired therewith and less
payments and distributions therefrom, shall constitute the
Trust Fund. It shall manage, invest, and reinvest the Trust
Fund, collect the income thereof, and make payments
therefrom, all as hereinafter provided. The Trustee shall
be responsible only for the property actually received by
it as Trustee hereunder. It shall have no duty or authority
to compute any amount to be paid to it by the Company or to
bring any action or proceeding to enforce the collection from
the Company of any contribution to the Trust Fund.
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ARTICLE II
POWERS AND DUTIES OF TRUSTEE IN INVESTMENT FUND,
ADMINISTRATION, AND DISBURSEMENT OF TRUST FUND
2.01. Division of the Trust Fund
(a) The Trust Fund shall be composed of the
Investment Funds described in Exhibit I to the Trust
Agreement. The Board of Directors of the Company or its
delegatees may add or delete investment funds from time to
time.
(b) For each contribution allocated to a Member's
Account, the Company or its delegatees shall advise the
Trustee in writing as to the amount of such contribution
which shall be allocated to each of said Funds in accordance
with the provisions of Plan sections 5.03 and 5.05 and the
Trustee shall hold and invest the amount so specified as a
part of the Investment Fund to which it was allocated.
2.02. Investment of the Trust Fund
Subject to the provisions of the Plan, the Trustee
shall from time to time and at such time as it, in its
discretion, shall determine, invest and reinvest the
contributions allocated to each of the Investment Funds
described in Exhibit I to the Trust Agreement and all
proceeds, interest, income, or other payments with respect
to such Fund.
2.03. Investment Transfers
From time to time the Company or its delegatees may
direct the Trustee in writing to transfer a specified amount
of cash or liquidate and transfer a specified number of whole
shares of stock from any Investment Fund to any other
Investment Fund or Funds in such proportions as may be
specified in such directions. Such directions to the Trustee
shall be in accordance with Member directions to the Company
or its delegatees pursuant to Plan sections 5.03, 5.04 and
5.05. Subject to the provisions of the Plan and this Trust
Agreement the Trustee shall comply with all such directions
received. If necessary to effect such transfer the Trustee
shall sell or otherwise liquidate all or any part of the
investments then held in the Investment Fund from which such
transfer is to be made. The Trustee shall comply with any
such directions as soon as reasonably practicable after the
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receipt thereof; provided, however, that in making purchases
or sales of investments, whether pursuant to such directions
of the Company, its delegatees or otherwise, the Trustee
shall have discretion to limit the daily volume of its
purchases or sales of any investment, and to effect such
purchases and sales over such period of time, as it may deem
to be in the best interests of Members and their
Beneficiaries.
2.04. Investment Charges
When incurred, brokerage commissions, transfer taxes,
and other charges and expenses in connection with the
purchase or sale of investments or securities shall be added
to the cost of such investments or securities or deducted
from the proceeds thereof, as the case may be; and in the
case of a distribution shall be borne by the Investment Fund
from which the distribution is made.
2.05. Valuation of Funds
(a) The Trustee shall periodically report to the
Company the assets held in each of the Investment Funds and
shall determine and include in such report for the assistance
of the Company in administering the Plan the fair market
value of each such asset as of the applicable Valuation Date.
The Company or its delegatees also shall credit the net
income, gains, or losses of the Trust Fund to the Accounts
of the various Members or Beneficiaries as provided in Plan
section 6.03.
(b) In determining such fair market values the
Trustee shall use such market quotations and other informa-
tion as are available to it and as may in its discretion be
appropriate. The report of any such valuation shall not
constitute a representation by the Trustee that the amounts
reported as fair market values would actually be realized
upon the liquidation of any Investment Fund. The Trustee
shall not be accountable to the Company or to any Member or
Beneficiary or to any other person on the basis of any such
valuation, but its accountability shall be in accordance with
Trust section 5.01.
2.06. Additional Investment Powers and Duties of Trustee
Subject to the provisions of the Plan and Trust
sections 2.01 and 2.02, the Trustee shall have, with respect
to any property at any time held by it and constituting part
of the Trust Fund, power in its discretion:
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(a) To keep, retain and safeguard any property at
any time received by it and to dispose of such property by
sale, exchange or otherwise;
(b) To sell, exchange, transfer, convey or otherwise
dispose of any property at any time held by it at either
public or private sale for cash or on credit, grant options
for the purchase or exchange thereof and make, execute,
acknowledge and deliver any instruments of conveyance and
transfer or any other instrument that may be necessary or
appropriate;
(c) Subject to the provisions of the Plan with
respect to Ethyl Corporation common stock, to participate
in any plan of reorganization, consolidation, merger,
combination, tender, exchange or other similar plan relating
to such property and to consent to, or to oppose, any such
plan and any action thereunder, or any contract, lease,
mortgage, purchase, sale or other action by any corporation
in accordance with the Plan;
(d) To deposit any such property with any protective,
reorganization or similar committee; to delegate
discretionary power thereto and to pay and agree to pay part
of its expenses and compensation and any assessments levied
with respect to any such property so deposited;
(e) To exercise all conversion and subscription
rights pertaining to any such property;
(f) To extend the time of payment of any obligation;
and
(g) To enter into stand-by agreements for future
investment of trust funds, either with or without a stand-by
fee.
2.07. Administrative Powers and Duties of Trustee
The Trustee shall have power and authority:
(a) To exercise all voting rights with respect to
stocks, bonds or other securities held in any investment and
to grant proxies, discretionary or otherwise, provided,
however, that the Trustee shall grant proxies to vote the
Ethyl Corporation common stock in accordance with
instructions received from Members of the Plan having
interests in the Ethyl Stock Fund and, in the absence of
receipt of such instructions, in accordance with the
58
recommendations of management contained in the proxy material
issued by the Company;
(b) To cause any investments to be registered and
held in the name of one or more of its nominees, without
increase or decrease of liability; provided that the books
and records of the Trustee shall at all times show that such
investments are part of the Trust Fund;
(c) To collect and receive any and all money and
other property due to the Trust Fund and to give full
discharge and acquittance therefor;
(d) To settle, compromise, or submit to arbitration
any claims, debts or damages due or owing to or from the
Trust; to commence or defend suits or legal proceedings
whenever, in its judgment, any interest of the Trust requires
it; and to represent the Trust in all suits or legal
proceedings in any court of law or equity or before any other
body or tribunal;
(e) To make permitted investments of moneys held by
it until the same shall be invested or disbursed as otherwise
provided in the Plan and this Trust Agreement, and if such
permitted investments shall not be feasible to hold moneys
uninvested without liability for interest thereon. Permitted
investments shall include: commercial paper rated either
prime-1 or prime-2 by Moody's Investors Services, Inc., or
A-1 or A-2 by Standard & Poor's Corporation, and variable
amount notes of borrowers which have such commercial paper
outstanding; certificates of deposit in United States
commercial banks (having capital and surplus in excess of
$40,000,000), in each case due within one year from the date
of purchase, obligations of the Government of the United
States or any agency of the United States, and obligations
guaranteed by the Government of the United States; and money
market funds which limit their holdings to commercial paper
rated either prime-1 by Moody's Investors Services, Inc.,
or A-1 by Standard & Poor's Corporation, certificates of
deposit, bankers' acceptances, U. S. Government securities,
and repurchase agreements fully collateralized by U. S.
Government securities.
(f) For the purposes of the Trust Fund, to borrow
money from others, including the entity which then is serving
as Trustee hereunder, to issue its promissory note or notes
for the same, and to secure the repayment thereof by pledging
any property in its possession; provided, however, that no
such advance shall be made by the entity which then is
59
serving as Trustee hereunder unless and until the Company
has approved the terms and conditions thereof except that,
without such approval, the entity which then is serving as
Trustee hereunder may make temporary advances to the Trust
Fund, on a cash or overdraft basis, on which no interest is
payable; and
(g) Generally to do all acts, whether or not
expressly authorized, which shall be necessary to carry out
the powers specified herein and perform its duties under the
Plan and this Trust Agreement and which the Trustee may deem
necessary or desirable for the protection of the Trust Fund.
2.08. Trustee's Authority
Persons dealing with the Trustee shall be under no
obligation to see to the proper application of any money paid
or property delivered to the Trustee or to inquire into the
Trustee's authority as to any transaction.
2.09. Payments from Trust Fund
(a) The Trustee shall make such payments and dis-
tributions from the Trust Fund at such time or times, to such
person, persons or entity (including the Company or a paying
agent or agents designated by the Company) and in such
amounts as the Company or its delegatees shall direct in
writing including, by way of example and not limitation,
payments to Members who request withdrawals of all or part
of their contributions pursuant to Plan section 7.07. In
directing the Trustee to make payments and distributions,
the Company or its delegatees shall follow the provisions
of the Plan so that it shall be impossible, either during
the existence or upon the discontinuance of the Plan, for
any part of the Trust Fund to be used for or diverted to
purposes other than for the exclusive benefit of Members or
their Beneficiaries, pursuant to the provisions of the Plan,
at any time prior to the satisfaction of all liabilities with
respect to such Members and their Beneficiaries under the
Plan. Any sums so paid to the Company or any paying agent
shall be held in trust by such payee until disbursed in
accordance with the Plan and the Trustee shall have no
responsibility with respect to such sums.
(b) Any written direction of the Company or its
delegatees shall be deemed to constitute a certification upon
which the Trustee may rely that the payment or distribution
so directed is one which the Company or its delegatees is
authorized to direct under the terms of the Plan, and the
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Trustee need make no further investigation. The Trustee
shall have no authority concerning the entitlement of any
Member or Beneficiary to benefits or the amount of any
Member's or Beneficiary's benefits.
(c) The Trustee may make any payment required to be
made by it hereunder by mailing a check and any stock
certificates to the person or entity to whom such payment
is to be made, at such address as may have been last
furnished to the Trustee, or if no such address shall have
been so furnished, to such person in care of the Company.
Alternatively, the Trustee may provide such checks and stock
certificates to the Company for forwarding to the payee.
2.10. Records
The Trustee shall keep, or cause to be kept by its
agents, records regarding the administration of the Trust,
which records may be examined at any reasonable time by the
Company or its duly authorized representative; and file with
the Company such reports concerning the Plan containing such
information and at such times as the Trustee and the Company
may agree. Further, the Trustee shall furnish the Company
or its delegatees with such information as it may require
and as the Trustee may agree in writing to provide for
purposes of fulfilling any duties concerning reporting to
state and federal agencies and to Members and their
Beneficiaries.
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ARTICLE III
FOR PROTECTION OF TRUSTEE
3.01. Evidence of Action by Company
(a) The Trustee may rely upon any certificate,
notice, or direction purporting to have been signed on behalf
of the Company which the Trustee believes to be genuine and
to have been executed by the person or persons whose
authority has been certified to it by the Company.
(b) Communications to the Trustee shall be sent to
the Trustee's principal office or to such other address as
the Trustee may specify. No communication shall be binding
upon the Trust Fund or the Trustee until it is received by
the Trustee.
(c) Communications to the Company or its delegatees
shall be sent to the Company's principal office or to such
other address as the Company may specify. No communication
shall be binding upon the Company or its delegatees until
received.
3.02. Advice of Counsel or Company
(a) The Trustee may consult with any legal counsel,
including counsel to the Company, with respect to the meaning
or construction of this Trust Agreement, its obligations or
duties hereunder, or any act which it should take or omit
hereunder, and shall be fully protected with respect to any
action taken or omitted by it in good faith pursuant to such
advice.
(b) If at any time the Trustee is in doubt concerning
the course which it should follow in connection with any
matter relating to the administration of this Trust, it may
request the Company to advise it with respect thereto, and
the Trustee shall be protected in relying upon any advice
or direction which may be given to it by the Company.
3.03. Miscellaneous
(a) The Trustee shall use ordinary care and reason-
able diligence, but shall not be liable for any mistake of
judgment or other action taken in good faith. The Trustee
shall not be liable for any loss sustained by the Trust Fund
62
by reason of the purchase, retention, sale, or exchange of
any investment in good faith and in accordance with the
provisions hereof.
(b) The Trustee's powers, duties, rights, and obli-
gations shall be limited to those expressly conferred or
imposed upon it by the provisions of this Trust Agreement
or by law, notwithstanding any reference herein to the Plan.
(c) The Company may at any time employ as its agent
(to perform any act, keep any records or accounts, or make
any computations which are required of the Company by this
Trust Agreement or the Plan) the entity then serving as
Trustee hereunder, and may compensate said entity therefor,
and such employment shall not be deemed to be contrary to
or inconsistent with the provisions of this Trust Agreement.
Nothing done by said entity as agent for the Company shall
change or increase in any manner its responsibility or
liability as Trustee hereunder.
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ARTICLE IV
TAXES, EXPENSES AND COMPENSATION OF TRUSTEE
4.01. Taxes
The Trustee shall deduct from and charge against the
appropriate Investment Fund or Funds of the Trust Fund any
taxes paid by it which may be imposed upon the Trust Fund
or the income thereof or which the Trustee is required to
pay with respect to the interest of any Member or
Beneficiary.
4.02. Expenses and Compensation
The Trustee shall receive for its services as Trustee
the compensation which from time to time may be agreed upon
by the Company and Trustee. Such compensation shall be paid
by the Company but, if not so paid, may be charged against
the Trust Fund. Notwithstanding the foregoing, no employee
of the Company shall be entitled to compensation (other than
reimbursement for expenses properly and actually incurred)
from the Plan for his services with regard to the Plan.
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ARTICLE V
SETTLEMENT OF ACCOUNTS,
ENFORCEMENT OF TRUST, LEGAL PROCEEDINGS
5.01. Settlement of Accounts of Trustee
(a) The Trustee shall keep complete records of all
of its investments, receipts, disbursements and other
transactions. Its books and records relating to the Trust
Fund shall be open to inspection and audit by the Company
or its representatives or delegatees at all reasonable times
during business hours of the Trustee.
(b) Within ninety (90) days after the close of each
calendar year, or any termination of the duties of the
Trustee, the Trustee shall render to the Company an
accounting of the assets of the Trust Fund and of the
investments, receipts, disbursements and other transactions
of the Trust, which accounting shall be certified as to its
accuracy by the Trustee and mailed in duplicate to the
Company.
(c) The Trustee, the Company, or both, shall have
the right to apply at any time to a court of competent
jurisdiction for the judicial settlement of any accounting,
and in any such action or proceeding it shall be necessary
to join as parties thereto only the Trustee and the Company.
Any judgment or decree which may be entered therein shall
be conclusive upon all persons having or claiming to have
any interest in the Trust Fund or under the Plan.
5.02. Determination of Rights and Benefits
The Company shall have complete control and authority
to determine the rights and interests of Members and their
Beneficiaries in the Trust Fund or under the Plan, and the
Trustee shall have no duty to question any direction given
by the Company to the Trustee. The Company shall have
authority to enforce this Trust Agreement on behalf of
Members and their Beneficiaries claiming any interest in the
Trust Fund or under the Plan. To protect the Trust Fund from
expenses which might otherwise be incurred, it is imposed
as a condition for the security of any interest in the Trust
Fund, and it is hereby agreed, that no other person may
institute or maintain any action or proceeding against the
Trustee or the Trust Fund in the absence of written authority
from the Company or a judgment of a court of competent
65
jurisdiction that in refusing such authority the Company has
acted fraudulently or in bad faith. In any action or
proceeding affecting the Trust Fund the only necessary
parties shall be the Company and the Trustee, and no other
person shall be entitled to any notice or process. Any
judgment that may be entered in such action or proceeding
shall be binding and conclusive on all persons claiming to
have any interest in the Trust Fund or under the Plan.
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ARTICLE VI
RESIGNATION, REMOVAL, AND SUBSTITUTION OF TRUSTEE
6.01. Resignation of Trustee
The Trustee may resign its duties hereunder by
delivering to the Company its written resignation. No such
resignation shall take effect until a successor shall have
been appointed in the manner provided in Trust section 6.03.
6.02. Removal of Trustee
The Trustee may be removed by the Company at any time,
upon sixty (60) days' notice to the Trustee, but such notice
may be waived by the Trustee. Such removal shall be effected
by delivering to the Trustee a written notice of its removal
executed by the Company, and by giving notice to the Trustee
of the appointment of a successor in the manner provided in
Trust section 6.03.
6.03. Appointment of Successor Trustee
(a) The appointment of a successor Trustee shall take
effect upon the delivery to the resigning or removed Trustee
of (1) an instrument in writing appointing such successor,
executed by the Company, and (2) an acceptance in writing
executed by the successor. All of the provisions set forth
herein with respect to the Trustee shall relate to each such
successor so appointed with the same force and effect as if
such successor had been originally named herein as the
Trustee hereunder.
(b) If a successor trustee shall not have been
appointed within sixty (60) days after notice of resignation
shall have been given under the provisions of this Trust
section 6.03, the resigning Trustee or the Company may apply
to any court of competent jurisdiction for the appointment
of a successor.
6.04. Transfer of Investment to Successor
Upon the appointment of a successor trustee, the
Trustee shall endorse, transfer, assign, convey and deliver
to such successor trustee all of the funds, securities and
other property constituting the Trust Fund, reserving such
67
sum as the Trustee shall deem necessary to provide for pay-
ment of its expenses in settling its accounts, any of its
compensation due and unpaid, and any obligation of the Trust
Fund for which the Trustee may be liable. If the Trustee
shall propose to reserve any such sum, it shall so notify
the Company in writing, specifying the amount to be reserved
and the reasons for such reservation and the Company may at
its election deposit with the Trustee, or in escrow, a bond
or other security acceptable to the Trustee in such amount,
on terms that will assure the payment of such expenses,
compensation, and obligations. In the event that such bond
or other security is so deposited, the Trustee shall transfer
and deliver the remaining balance of the Trust Fund to such
successor trustee. If the sum so reserved, or such bond or
other security, shall not be sufficient to provide for
payment of such expenses, compensation, or obligations, the
Trustee shall be entitled to recover the amount of any
deficiency from either the Company or the successor trustee
or both. After the final accounting of the Trustee has been
received as provided in Trust section 5.01, the Trustee shall
transfer and deliver to such successor trustee the remainder
of any sums reserved by it under this Trust Agreement section
which were not needed for the purposes for which they were
reserved.
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ARTICLE VII
DURATION, TERMINATION
AND AMENDMENT OF TRUST
7.01. Termination of Trust or Plan
This Trust Fund shall continue for such time as may
be necessary to accomplish the purpose for which it was
created; provided, however, that the Company reserves the
right to terminate the Plan, or to terminate this Trust
Agreement without terminating the Plan, or to terminate both
the Plan and the Trust Agreement by action of its Board of
Directors. In the event of a termination of the Plan or
Trust Agreement or both, the Company shall notify the Trustee
of such termination in writing together with a copy of the
resolution of the Board of Directors authorizing such action.
7.02. Distribution upon Termination of the Plan
(a) In the event that the Plan is terminated, the
Trustee, upon the direction of the Company, shall liquidate
the Trust Fund to the extent required for distribution and,
after the final accounting of the Trustee has been received
as provided in Trust section 5.01, shall distribute all cash,
securities and other property then constituting the Trust
Fund, less any amounts constituting charges and expenses
payable from the Trust Fund, on the date or dates specified
by the Company to or for the benefit of such Member,
Beneficiary, person or entity and in such manner as the
Company may direct.
(b) In the absence of Company direction with respect
to any or all assets held in the Trust Fund, the Trustee
shall distribute amounts in accordance with the Plan or in
such manner as may be directed by a judgment or decree of
a court of competent jurisdiction. Upon making such
distributions, the Trustee shall be relieved from all further
liability with respect to amounts so paid. The powers of
the Trustee hereunder shall continue so long as any assets
remain in the Trust Fund.
7.03. Action of Trustee
The Trustee shall take no action on the termination
of the Plan which it knows or should know would adversely
affect the qualified and exempt status of the Plan and Trust
under Code sections 401(a) and 501(a) and any other statute
69
of similar import, or that will not comply with any
applicable provisions of ERISA. This Trust section shall
not prevent the Trustee from liquidating the Trust Fund
pursuant to Trust section 7.02; provided, however, that the
Trustee reserves the right to seek direction from a court
of competent jurisdiction as to the proper method of
distribution of the Trust Fund upon termination of this Trust
Agreement.
7.04. Automatic Termination of the Trust
This Trust shall terminate automatically when there
are no remaining assets in the Trust Fund.
7.05. Amendment
By an instrument in writing delivered to the Trustee
and executed pursuant to the order of the Board of Directors
(or, to the extent permitted by law, the Executive Committee
of such Board), the Company shall have the right at any time
and from time to time to amend this Trust Agreement in whole
or in part; provided, however, that the duties and
responsibilities of the Trustee set forth in this Agreement
shall not be modified without the Trustee's written consent.
Except to return to the Company suspense account assets
(established pursuant to Plan section 8.01) attributable to
Company contributions, no such amendment shall divert any
part of the Trust Fund to purposes other than the exclusive
benefit of the Members or their Beneficiaries at any time
prior to the satisfaction of all liabilities with respect
to such Members and their Beneficiaries under the Plan and
this Trust Agreement. Any such amendment shall become
effective as of the date specified therein upon (i) the
delivery to the Trustee of the written instrument of
amendment, and (ii) the endorsement thereon by the Trustee's
endorsement of its receipt thereof, together with its written
consent thereto, if such consent is required.
7.06. Succession of Plan
The merger or consolidation of the Plan with or a
transfer of assets or liabilities of the Plan from this Trust
Fund to another employee benefit plan is not permitted unless
each Member is entitled to receive immediately after the
merger, consolidation, or transfer, a benefit equal to or
greater than the benefit to which the Member would have been
entitled if the Plan had terminated immediately before the
merger, consolidation, or transfer.
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7.07. Merger or Consolidation of the Trustee
Any entity into which the Trustee may be merged or
with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the
Trustee is a party, or any entity succeeding to the trust
business of the Trustee, shall become the successor of the
Trustee hereunder, without the execution or filing of any
instrument or the performance of any further act on the part
of the parties hereto.
7.08. Merger or Consolidation of the Company
Any corporation into which the Company may be merged
or with which it may be consolidated, or any corporation
succeeding to all or a substantial part of the business
interests of the Company may become the Company hereunder
if it elects to continue the Plan and this Trust Agreement
and files a notice in writing to that effect with the
Trustee. After that, every reference in the Trust Agreement
is treated as a reference to the surviving or purchasing
corporation or other legal entity.
7.09. Impossibility of Diversion
At no time shall any part of the Trust Fund be
diverted to purposes other than for the exclusive benefit
of Members and their Beneficiaries. Nothing provided herein,
however, shall prevent (i) in the event of the termination
of the Plan, the return to the Company of Company
contributions held in a suspense account established pursuant
to Plan section 8.01 or (ii) the return to the Company of
its contributions pursuant to Plan section 12.01.
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ARTICLE VIII
DENIAL OF EXISTENCE OF GUARANTEES
8.01. No Guarantee of Benefits
Neither the Trustee nor the Company in any way
guarantees the adequacy of the Trust Fund for the payment
of any amount that may become due under the Plan to any
Member or Beneficiary. Each Member or Beneficiary shall look
solely to the assets constituting the Trust Fund for the
payment of benefits under the Plan.
8.02. No Guarantee of Employment
Participation in the Plan shall not give any Member
the right to be retained in the Company's employ or any right
or interest in the Trust Fund other than as provided herein
or in the Plan.
72
ARTICLE IX
TRANSFERS
With the consent of the Company, the Trustee may
transfer the vested account of a terminated Member to another
trust established to implement a plan qualified under Code
section 401(a), and if the Plan so provides and the Company
so authorizes, may accept funds from such a trust for the
Account of a Member of the Plan, either directly or through
a rollover from an individual retirement account established
pursuant to Code section 408. Amounts transferred to the
Trust Fund pursuant to this article shall be separately
accounted for by the Trustee and shall be nonforfeitable.
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ARTICLE X
MISCELLANEOUS
10.01. Laws of Virginia to Govern
This Agreement and the Trust hereby created shall be
construed, administered and governed in all respects under
and by the laws of the Commonwealth of Virginia (other than
its choice-of-law rules) to the extent not otherwise required
by federal law.
10.02. Titles and Headings Not to Control
The titles to articles and the headings of Trust
sections in this Trust Agreement are used for convenience
of reference only and in case of any conflict the text of
the Trust Agreement, rather than such titles or headings,
shall control. Wherever appropriate, words used in this
Trust Agreement in the singular shall include the plural
where the meaning is appropriate. The masculine gender shall
include the feminine, unless the context clearly indicates
otherwise.
10.03. Prohibition of Assignment of Interest
No interest, right, or claim in or to any part of the
Trust Fund or any payment therefrom shall be alienable,
assignable, transferable or subject to purchase or hypothe-
cation, nor shall they be subject to the claims of any
creditors except as may be provided by law, and any attempt
to alienate, assign, transfer, or hypothecate the same shall
be void and no such benefit will in any manner be subject
to the debts, contracts, liabilities, engagements or torts
of such person, nor shall it be subject to legal notice for
or against such person nor shall the same be recognized by
the Trustee except to the extent required by law.
10.04. Adoption by Affiliate
Any affiliate, subsidiary or division of the Company
which has adopted the Plan shall also be deemed to have
adopted the Trust Agreement.
10.05. Definitions and Incorporation by Reference
Any term used in this Trust Agreement that is defined
in Article I or elsewhere in the Plan shall have the same
74
meaning herein as set forth in the Plan. The provisions of
the Plan are incorporated by reference into this Trust
Agreement.
IN WITNESS WHEREOF, the Company and NATIONSBANK OF
GEORGIA, N.A. have caused their duly authorized officers to
execute this document on the 26th day of October, 1993.
ETHYL CORPORATION
By: /s/ Charles B. Walker
Charles B. Walker
Executive Vice President
NATIONSBANK OF GEORGIA, N.A.
By: /s/ Bert R. Carmody
Bert R. Carmody
Vice President
75
SAVINGS PLAN FOR THE EMPLOYEES OF
ETHYL CORPORATION
TRUST AGREEMENT
AMENDMENT NO. 1
FIRST, the Introduction to the Trust Agreement is
amended, effective March 1, 1994, to revise the last sentence
of the second paragraph to read as follows:
The Plan is currently amended and restated
effective March 1, 1994.
SECOND, Exhibit I of the Trust Agreement is amended,
effective March 1, 1994, as set forth in Exhibit A attached
hereto.
As evidence of the adoption of this Amendment 1, the Company
and NATIONSBANK of GEORGIA, N. A. have caused their duly
authorized officers to execute this document.
ETHYL CORPORATION
By: /s/ Charles B Walker 1/27/95
Charles B. Walker Date
Vice Chairman
NATIONSBANK OF GEORGIA, N. A.
By: /s/ W Pettway 1/26/97
Wayne Pettway Date
76
EXHIBIT I
INVESTMENT FUNDS
Effective March 1, 1994, The Trust Fund shall be composed of
five Active Investment Funds and three Inactive Investment Funds:
Active Investment Funds
Indexed Bond Fund. The investment objective of the Indexed
Bond Fund is to provide an investment return commensurate
with the return of a diversified portfolio of investment
grade bonds or their equivalent. The assets of this Fund
are invested and reinvested in government and corporate
fixed income securities comprising a particular bond index,
thus mirroring the return of such index. Such investments
include obligations of the U.S. Treasury, U.S. Government
agencies, U.S. investment-grade corporate debt, mortgage-
backed obligations and U.S. dollar denominated obligations
of foreign governments (Yankee Bonds).
Indexed Equity Fund. The investment objective of the
Indexed Equity Fund is to provide an investment return
commensurate with the return of the general equity market,
including both long-term capital appreciation and some
current income. The assets of this Fund are invested and
reinvested in a diversified portfolio of the stocks
comprising the Standard & Poors 500 Common Stock Index,
therefore mirroring the return of such index.
Prime Fund. The investment objective of the Prime Fund is
to maximize current income to the extent consistent with the
preservation of capital and the maintenance of liquidity.
The assets of the Fund are invested and reinvested in bills,
notes and bonds issued directly by the U.S. Government as
well as a broad range of other U.S. Government obligations,
bank and commercial instruments that may be available in the
money markets.
Balanced Fund. The investment objective of the Balanced
Fund is to provide a total investment return through a
combination of growth of capital and current income
consistent with the preservation of capital. The Fund's
investments are allocated between the Indexed Bond Fund, the
Indexed Equity Fund and the Prime Fund.
Ethyl Stock Fund. The Ethyl Stock Fund is invested and
reinvested in common stock of Ethyl Corporation. The
objective of this Fund is to provide long-term capital
appreciation potential through investment in the Company.
Except upon written directions from the Company, or in the
case of fractional shares received as a result of a stock
77
dividend, stock split, recapitalization, or as necessary in
order to make any distribution of transfer from the Trust
Fund, or to correct an administrative error, as directed by
the Company, the Trustee shall have no power or duty to sell
or otherwise dispose of any stock acquired for the Ethyl
Stock Fund. When the sale of any stock acquired for the
Ethyl Stock Funds is permitted within the exceptions of the
preceding sentence, the Trustee may offer such shares to the
Company in accordance with ERISA section 408.
Inactive Investment Funds
Tredegar Stock Fund. The Tredegar Stock Fund is invested
solely in common capital stock of Tredegar Industries, Inc.,
received as a result of the July 11, 1989, spin-off of
Tredegar Industries, Inc. from Ethyl Corporation.
First Colony Stock Fund. The First Colony Stock Fund is
invested and reinvested in common stock of First Colony
Corporation. The Fund contains common capital stock of
First Colony Corporation received as a result of the July 1,
1993, spin-off of First Colony Corporation from Ethyl
Corporation as well as the stock purchased with Member
Contributions through March 1, 1994.
Albemarle Stock Fund. The Albemarle Stock Fund is invested
solely in common capital stock of Albemarle Corporation
received as a result of the February 28, 1994, spin-off of
Albemarle Corporation from Ethyl Corporation.