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EXHIBIT 10.38
CHASE CORPORATION DEFERRED PAYMENT PLANS
TRUST AGREEMENT
This TRUST AGREEMENT (hereinafter called the "Agreement") is made by and
among CHASE CORPORATION (hereinafter called the "Company") certain of whose
employees and directors may from time to time participate in certain plans
providing for deferred compensation, and George M. Hughes of Newton,
Massachusetts as trustee (hereinafter in such capacity called the "Trustee ").
WITNESSETH
WHEREAS, the Company has established and maintains a Supplemental Pension
and Savings Plan (hereinafter called the "Plan") which provides certain
executives of the Company (hereinafter called singly a "Participant" and
collectively the "Participants") with retirement benefits;
WHEREAS, the Company desires to establish a trust and to transfer amounts
thereto that shall be held, subject to the claims of the Company's creditors in
the event of its insolvency, to provide for the payment of the compensation and
benefits due under the Plan;
WHEREAS, the Trustee is willing to act as trustee of this trust under the
terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the Company and the Trustee hereby agree as follows:
ARTICLE I
ESTABLISHMENT OF TRUST FUND
1.1 ESTABLISHMENT OF TRUST FUND. The Company hereby establishes with the
Trustee a trust consisting of an initial sum of $100 together with such sums of
money and other property acceptable to the Trustee as shall from time to time be
paid or delivered to the Trustee by the Company, investments, reinvestments and
proceeds thereof and earnings thereon, which, less the payments made by the
Trustee, as authorized herein, are referred to herein as the Trust Fund.
1.2 ACCEPTANCE OF TRUST. The Trustee accepts the trust created hereunder
and agrees to hold, invest, reinvest, manage and administer the Trust Fund in
accordance with the terms of this Agreement.
1.3 STATUS AS GRANTOR TRUST. The trust is intended to be a grantor trust
of which the Company is treated as the owner under Section 671 of the Internal
Revenue Code of 1986, as it may be amended from time to time, and shall be
construed accordingly. The purpose of the trust is to assure that if the Company
fails to provide benefits to Participants pursuant to the terms of the Plan, the
Company's obligations to provide such benefits are fulfilled.
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1.4 DELIVERY OF PLAN. The Company has delivered to the Trustee a copy of
the Plan as currently in effect. If at any time any of the provisions of a Plan
are amended, the Company shall deliver a copy of the instrument amending the
Plan to the Trustee.
ARTICLE II
CONTRIBUTIONS TO TRUST FUND
2.1 DISCRETIONARY CONTRIBUTIONS. The Company may at any time and from time
to time make deposits of cash or other property with the Trustee to augment the
principal of the trust, and the Trustee shall hold, administer and dispose of
such deposits as provided in this Agreement.
2.2 IDENTIFICATION OF CONTRIBUTIONS. With respect to each contribution,
the amount being contributed under the Plan and the amount of such contribution
attributable to the benefit of each Participant under the Plan shall be
identified within a reasonable time after the contribution is made.
2.3 MAINTENANCE OF SEPARATE ACCOUNTS. The Trustee shall keep such records
and maintain such books and accounts as shall at all times be sufficient to
indicate, for accounting purposes, the proportionate part of the Trust Fund that
is held on behalf of each Participant under the Plan. For this purpose only, the
Trustee shall maintain separate bookkeeping accounts for each Participant and
shall credit thereto all contributions made by the Company to fund benefits
payable to such Participant and shall charge thereto all payments made to or for
the account of such Participant. The Trustee may hold the Trust Fund as a single
fund and may invest and reinvest the commingled assets and receive the income
and proceeds thereof and make payments therefrom, all without regard to the
source of any part of the commingled assets. No Participant shall have any
preferred claim on, or any beneficial ownership interest in, any account
maintained by the Trustee or in any assets of the trust before such assets are
paid to the Participant as benefits under Article III.
2.4 CHANGE IN CONTROL DEFINITION. For purposes of this Agreement, a Change
in Control shall mean
(a) any transaction or series of transactions, as a result of
which any "person" (as defined in Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder) is
or becomes a "beneficial owner" (as defined in Rule 13d3 under such act)
directly or indirectly, of the Company securities representing thirty percent
(30%) or more of the combined voting power of the Company's then outstanding
voting securities; provided, however, that a Change in Control shall not be
deemed to have occurred solely because of the acquisition of the Company's
securities by (i) one or more employee benefit plans established for the benefit
of the employees of any Company; or (ii) any person when such acquisition (A) is
effected primarily to prevent the Company from being declared insolvent and (B)
is approved by the Board of Directors of the Company, Inc. (the" Board "); or
(b) the change, during any period of two consecutive years, in
a majority of the individuals who, at the beginning of such period, constituted
the Board, unless the election or
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the nomination for election by the Company's stockholders of each new director
was approved by a vote of at least a majority of the directors then still in
office who were in office at the beginning of the period; or
(c) the approval by the Company's stockholders of a merger,
consolidation, liquidation, dissolution, sale of all or substantially all of the
Company's assets or similar transaction that would result in less than fifty
percent (50%) of the members of the board of directors of the surviving entity
having been nominated by the Company (or otherwise constituting the Company
representatives).
2.5 CONTRIBUTIONS UPON CHANGE IN CONTROL. In the event the Board
determines there has been a Change in Control, the Company shall calculate for
each Participant under the Plan the amount necessary to fully fund benefits
payable under the Plan. For benefits payable under the Plan, the amount needed
to fully fund the benefits shall be the actuarial equivalent present value of
the payments to which the Participant would be entitled under the Plan assuming
that the Participant has satisfied any conditions that give rise to the
obligation of the Company to pay such amounts to the Participant under the Plan,
using the actuarial factors applicable for the determination of benefits under
the Company's Retirement Plan on the date of determination. The Company shall
then promptly contribute to the Trustee an amount equal to the excess, if any,
of the amount needed to fully fund the benefits for Participants for whom it has
an obligation to make payments under the Plan over the fair market value of the
assets then held by the Trustee and allocated to fund the payment of benefits to
such Participants under the Plan, plus such additional amounts as may be needed
to pay the anticipated expenses of the trust. The Company shall recalculate the
amount needed to fully fund the benefits every six months from the date of the
Change in Control. If the amount so calculated exceeds the fair market value of
the assets then held in trust, the Company shall promptly (and in no event later
than 30 days from the date of such six-month recalculation date) contribute to
the Trustee an amount equal to such excess.
ARTICLE III
PAYMENTS TO PARTICIPANTS
3.1 PAYMENTS WHILE SOLVENT. Subject to the availability of the assets in
the trust and provided the Company obligated to make such payment is not then
"insolvent" (as hereinafter defined), the Trustee shall make all payments to
Participants as they fall due in accordance with the Plan, if and to the extent
the amount allocated to the Participant's account is sufficient therefor. All
payments to Participants shall be made in cash. If the amount allocated to a
Participant's account is not sufficient to make all payments required to be made
to the Participant pursuant to the Plan, the Company that has the obligation to
make payments under the Plan shall make the balance of such payments as they
fall due.
3.2 DEFINITION OF INSOLVENCY. The Company shall be deemed to be
"insolvent" for purposes of this
Agreement upon the occurrence of any of the following:
(a) the Company is unable to pay its debts as they mature; or
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(b) the Company is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code or any similar law of any state.
3.3 PAYMENTS WHILE INSOLVENT. At all times during the continuance of the
trust, the principal and income attributable to amounts contributed by the
Company shall be subject to claims of general creditors of the Company, but only
to the extent hereinafter set forth. If at any time the Trustee has actual
knowledge that the Company is insolvent, the Trustee shall deliver any
undistributed principal and income in the trust allocated to fund the payment of
benefits to Participants for whom it has an obligation to make payments under a
Plan to satisfy such claims as a court of competent jurisdiction may direct. The
board and the chief executive officer of the Company shall inform the Trustee of
the Company's insolvency as soon as practicable after either of them knows of
the Company's insolvency. If the Company or 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 independently determine, within 30 days after
receipt of such writing, whether the Company is insolvent. Pending such
determination, the Trustee shall discontinue payments to Participants. The
Trustee shall have no duty to inquire whether the Company is insolvent unless
the Trustee has actual knowledge of [acts indicating that the Company may be
insolvent or has received an allegation of insolvency as provided in this
section. The Trustee may in all events rely on such evidence concerning the
Company's solvency that in the opinion o[ the Trustee provides a reasonable
basis [or making a determination concerning the Company's solvency. Nothing in
this Agreement shall in any way diminish or augment any rights of Participants
to pursue their rights as general creditors o[ the Company with respect to the
payments to which they arc entitled under the Plan.
3.4 RESUMPTION OF PAYMENTS. The Trustee shall resume payments to a
Participant only after the Trustee has determined that the Company is not
insolvent (or is no longer insolvent, if the Trustee initially determined the
Company to be insolvent). Upon resumption of payments, the first payment shall
include the aggregate amount of all payments that would have been made to the
Participant in accordance with the Plan during the period payments were
discontinued (together with interest at the rate credited on amounts deferred
under the Plan or, if no such rate is specified, at a rate equal to the prime
rate as published in the Wall Street Journal from time to time), less the
aggregate amount of any payments made to such Participant by the Company in lieu
of the payments provided for hereunder.
ARTICLE IV
GENERAL DUTIES OF TRUSTEE
4.1 INVESTMENT OF TRUST FUND. Before a Change in Control, the Trustee
shall invest the principal of the Trust Fund and any earnings thereon in
accordance with such investment objectives, policies and restrictions as the
Company may from time to time communicate to the Trustee, or, if the Company has
appointed an investment manager or managers to direct the investment of some or
all of the assets of the Trust Fund, in accordance with the directions of such
investment manager. The Trustee is authorized to invest the assets of the trust
in a common, collective or pooled trust fund maintained by the Trustee. The
Trustee shall have no duty to inquire into or review the investment objectives,
policies, or restrictions, or the investments made pursuant to the directions of
an investment manager. However, assets held in trust shall not be
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invested in securities or obligations issued by the Company or its subsidiaries.
Following a Change in Control, the Trustee shall invest the assets of the Trust
Fund as it determines in its sole discretion, in any form of tangible or
intangible property, real or personal, or in the securities or obligations of
any form of enterprise wherever it may be located (other than in securities or
obligations of the Company or its subsidiaries.)
4.2 DISPOSITION OF TRUST FUND. At all times during the continuance of the
trust, all principal amounts contributed to the trust and all interest thereon,
net of expenses, will, unless paid as distributions to Participants under
Section 3.1 or to creditors of the Company under Section 3.3, be accumulated and
reinvested for the purposes provided herein. Except as provided in Section 3.3
or Section 7.2, the Company shall not have the right or power to direct the
Trustee to return to the Company or to direct to others any of the trust assets
before all payments have been made to Participants for whom the Company has an
obligation to make payments under the Plan. Upon payment of all such amounts,
the Trustee shall return to the Company all amounts, if any, then remaining in
the Trust allocable to Participants for whom the Company had an obligation to
make payments under the Plan.
4.3 ACCOUNTING. The Trustee shall keep accurate and detailed records of
all investments, receipts, disbursements, and all other transactions of the
trust, including such specific records as shall be agreed upon in writing
between the Company and the Trustee. All such accounts, books and records shall
be open to inspection and audit at all reasonable times by the Company and the
accounts, books and records relating to Participants for whom the Company has an
obligation to make payments under the Plan shall be open to inspection and audit
at all reasonable times by the Company. Within 60 days following the close of
each calendar year and within 60 days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Company a written account of its
administration of the trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all investments, receipts, disbursements and other transactions of the
trust, including a description of all securities and investments purchased and
sold with the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash, securities and
other property held in the trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
4.4 RESPONSIBILITY OF TRUSTEE. The Trustee shall act with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims; provided,
however, that the Trustee shall incur no liability to anyone for any action
reasonably taken in accordance with a written direction, request, or approval
given by the Company or by an investment manager appointed by the Company that
is contemplated by and complies with the terms of this Agreement, including
distributions made in accordance with the Plan and to that extent shall be
relieved of the prudent person rule for investments.
4.5 CONSULTATION WITH LEGAL COUNSEL. The Trustee may consult with legal
counsel (who may also be counsel for the Trustee generally or counsel to the
Company) with respect to any of its duties or obligations hereunder, including
any determination as to whether a Change in Control has occurred or as to
whether the Company is insolvent, and shall not be held
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responsible for acting or refraining from acting in accordance with the advice
of any such counsel selected with reasonable care.
4.6 AGENTS, ETC. The Trustee may hire such agents, legal counsel,
accountants, actuaries, investment managers and financial consultants as may be
reasonably necessary to administer the trust.
4.7 POWERS OF TRUSTEE. The Trustee shall have, without exclusion, all
powers conferred on trustees by applicable law unless expressly provided
otherwise herein.
ARTICLE V
COMPENSATION AND EXPENSES OF TRUSTEE
5.1 ENTITLEMENT TO COMPENSATION. The Trustee shall be entitled to receive
such reasonable compensation for its services as the Company and the Trustee
agree upon in writing. The Trustee shall also be entitled to receive its
reasonable expenses incurred with respect to the administration of the trust and
any taxes required to be paid by the Trustee in respect of the trust.
5.2 PAYMENT OF COMPENSATION AND EXPENSES. All such compensation and
expenses shall be paid proportionately by the Company based on the value of the
benefits payable to Participants for whom the Company has an obligation to make
payments under the Plan, but if not paid by the Company shall be a charge
against and may be paid from the assets of the trust allocable to such
Participants. In the event compensation and expenses are paid from the trust,
the Company shall reimburse the trust for any amounts so paid, together with
interest and any attorneys' fees and other expenses incurred in obtaining such
reimbursement.
ARTICLE VI
RESIGNATION AND REMOVAL: SUCCESSOR TRUSTEE
6.1 REMOVAL OR RESIGNATION BEFORE CHANGE IN CONTROL. Before a Change in
Control, the Trustee may be removed at any time by the Company, or may resign,
in either case by at least 30 days' advance notice in writing (unless the
parties waive such notice or agree to a shorter notice period). In the event of
such removal or resignation, the Company shall appoint a new Trustee,
independent and not subject to the control of either the Company or any
Participant.
6.2 REMOVAL OR RESIGNATION FOLLOWING CHANGE IN CONTROL. Following a
Change in Control, the Trustee cannot be removed by the Company. If the Trustee
resigns following a Change in Control, the Trustee shall either appoint a
successor Trustee (which shall be independent and not subject to the control of
either the Company or any Participant) or obtain appointment of such a Trustee
by court order.
6.3 SUCCESSOR TRUSTEE. Upon accepting an appointment, a successor Trustee
shall have the same powers, authority, duties and responsibilities as those
conferred and imposed upon the Trustee hereunder and all property of the Trust
Fund shall be assigned, transferred and paid over to the successor Trustee
together with copies of the records of the Trust Fund. A transfer of property to
a successor Trustee shall not operate as a waiver by a predecessor Trustee of
any
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right, claim or demand it may have with respect to fees, expenses or otherwise.
No Trustee shall be liable or responsible for anything done or omitted in the
administration of the Trust Fund before it became a Trustee or after it ceases
to be a Trustee.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 AMENDMENT. Except as provided in Section 7.2, this Agreement may be
amended at any time and to any extent by a written instrument executed by the
Trustee and the Company, provided that following a Change in Control no
amendment may be made that would materially adversely affect the rights of
Participants.
7.2 REVOCABILITY. The trust shall be irrevocable. However, if at any time
before a Change in Control, the Company obtains an opinion of counsel,
acceptable to the Company and the Trustee, that any Plan would be deemed
"funded" for purposes of Title I of the Employee Retirement Income Security Act
of 1974, as amended, by reason of the trust, or that amounts held in the trust
or contributed thereto, or earnings thereon, would be includable in the income
of Participants before distribution to them from the trust, the trust shall
become revocable. Any revocation shall be accomplished by written notice thereof
from the Company to the Trustee. Upon receipt of such a notice of revocation,
the Trustee shall deliver the assets of the trust to the Company.
7.3 TERMINATION. The trust shall not terminate until the date on which
the last Participant ceases to be entitled to benefits payable under the trust,
unless sooner revoked in accordance with Section 7.2; provided, however, that
the trust shall terminate no later than 21 years following the death of all
individuals who were Participants in the Plan on the date hereof (and their
respective beneficiaries as of such date).
7.4 EFFECT OF TERMINATION. Upon termination of the trust as provided in
Section 7.3 or upon revocation of the trust under Section 7.2, any assets
remaining in the trust shall be returned to the Company.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 SEVERABILITY. Any provision of this Agreement prohibited by law shall
be ineffective to the extent of any such prohibition without invalidating the
remaining provisions hereof.
8.2 ALIENATION. To the extent permitted by law, benefits to Participants
under this Agreement may not be anticipated, assigned (either at law or in
equity), alienated or subject to attachment, garnishment, levy, execution or
other legal or equitable process, and no benefit actually paid to a Participant
by the Trustee shall be subject to any claim for repayment by the Company or the
Trustee.
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8.3 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the Commonwealth of
Massachusetts.
8.4 ENTIRE AGREEMENT. This trust agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, between the parties hereto and
respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company and the Trustee have executed this
Agreement as of the date first written above.
CHASE CORPORATION
By: /s/ Peter R. Chase
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President and CEO
/s/ George M. Hughes
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George M. Hughes, as Trustee and not individually