First Restated Trust Agreement

EXHIBIT 10.11.2


FIRST RESTATED TRUST AGREEMENT
FOR THE
NEW ENGLAND BUSINESS SERVICE, INC
DEFERRED COMPENSATION PLAN
(Restated Effective April 1, 1998)


This Trust Agreement made as of the 25th day of June, 1994, and restated effective the 1st day of April, 1998, by and between New England Business Service, Inc. (hereinafter called the "Company"), a corporation duly organized in Delaware whose principal office is located in Massachusetts, and Norwest Bank Minnesota, N.A. (hereinafter called the "Trustee"), a corporation with trust powers whose principal office is located in Minnesota, as successor Trustee to the First National Bank of Boston.


WITNESSETH:


WHEREAS, certain designated employees (hereinafter called "Participants" or "Trust Beneficiaries") of the Company and other "Participating Employers" (as defined in the Plan described herein) and the respective beneficiaries (hereinafter called "Trust Beneficiaries") of such Participants are entitled to deferred compensation benefits (hereinafter called "Deferred Compensation") arising under the New England Business Service, Inc. Deferred Compensation Plan, as the same has been or may hereafter be amended or restated, or any successor thereto (hereinafter called the "Deferred Compensation Plan" or the "Plan"), attached hereto as Exhibit A and by this reference made a part hereof; and


WHEREAS, the amount and timing of Deferred Compensation to which each Trust Beneficiary is entitled is specified in the Deferred Compensation Plan; and


WHEREAS, the Company wishes to establish a trust fund (hereinafter called the "Trust Fund" or the "Fund") and to transfer to the Trust Fund assets which shall be held therein, subject to the claims of the Participating Employers' creditors in the event of any Participating Employer's Insolvency (as defined herein), until paid to the Trust Beneficiaries as Deferred


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Compensation Benefits in such manner and at such times as specified in the Deferred Compensation Plan; and


WHEREAS, it is the obligation of the Company, or other Participating Employer to make contributions to the Trust Fund of amounts deferred by Participants pursuant to the Deferred Compensation Plan as soon as is administratively feasible after such deferral amounts are withheld by the Company or other Participating Employer;


WHEREAS, it is the intention of the Company and the Trustee hereby to restate the Trust pursuant to this restated Trust Agreement;


NOW, THEREFORE, the parties do hereby establish the Trust Fund and agree that the Trust Fund be comprised, held and disposed of as follows:


Section 1. Trust Fund.
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1.1 Establishment of Trust Fund. Subject to the claims of creditors as
--------------------------- set forth in Section 3, the Company hereby deposits with the Trustee in trust One Dollar ($1.00) which shall become the principal of the Trust Fund to be held, administered and disposed of by the Trustee as provided in this Trust Agreement.


1.2 Irrevocable Trust. The Trust hereby established shall be irrevocable.
-----------------


1.3 Grantor Trust. The Trust is intended to be a grantor trust, within
------------- the meaning of Section 671 of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be construed accordingly.


1.4 Use of Trust Assets. The principal of the Trust, and any earnings
------------------- thereon which are not paid to the Participating Employers as provided in Section 5, shall be held separate and apart from other funds of the Participating Employers and shall be used exclusively for the uses and purposes herein set forth. Neither any Trust Beneficiary nor the Deferred Compensation Plan shall have any preferred claim on, or any beneficial ownership interest in, any assets of the Trust Fund prior to the time such assets are paid to such Trust Beneficiary as Deferred Compensation as provided in Section 2, and all rights created under the Deferred Compensation


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Plan and this Trust Agreement shall be mere unsecured contractual rights of a Trust Beneficiary against the relevant Participating Employer.


1.5 Contributions to Trust Fund. To the extent required under the Deferred
--------------------------- Compensation Plan, the relevant Participating Employer shall from time to time make additional deposits of cash or other property (including but not limited to shares of the Company's common stock) in Trust with the Trustee, to augment the principal to be held, administered and disposed of by the Trustee as provided in this Trust Agreement. When each such deposit is made, the Participating Employer shall inform the Trustee what portion of the total deposit (if any) is for the benefit of each Participant.


1.6 Separate Accounts.
-----------------


(a) Establishment By Plan Administrator Prior to Change of Control.
-------------------------------------------------------------- On behalf of the Company and each Participating Employer, the Retirement Committee appointed pursuant to the Deferred Compensation Plan shall establish and maintain in an equitable manner a separate account (an "Account") for each Participant in which it shall keep a separate record of the assets available in the Trust Fund to pay the Participant's Deferred Compensation. As agent for the Company, the Retirement Committee may select and retain a third party administrator to maintain such Accounts. The Company or other relevant Participating Employer shall certify to the Trustee at the time of each contribution to the Trust Fund the amount of such contribution being made in respect of each Participant under the Plan. The Fund shall be revalued periodically by the Trustee at current market values, as determined by the Trustee in accordance with Section 6.5. The Trustee shall certify to the Company the results of each such valuation, whereupon each Participant's Account shall be equitably adjusted by the Company to reflect its share of income, expense, appreciation and depreciation since the preceding valuation date. The Company shall provide the Trustee with a compilation of all such adjusted Account balances as of each such valuation date. Each Participant (or Trust Beneficiary of a deceased Participant) shall receive a statement of the value of the Participant's separate Account at least annually.


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Such statement shall be provided by the Company prior to a Change of Control and by the Trustee after a Change of Control.


(b) Maintenance By Trustee After Change of Control. Notwithstanding
---------------------------------------------- the foregoing, upon a "Change of Control" (as defined in Section 1.8), the Trustee shall become responsible for the maintenance of a separate Account for each Participant under the Deferred Compensation Plan and for the periodic adjustment of such Accounts in accordance with the procedures described herein. The Trustee may select and retain a third party administrator to maintain such Accounts. The full expense incurred by the Trustee in maintaining such separate Accounts shall be paid by the Company, and until so paid shall constitute a charge upon the Trust Fund.


1.7 Definition of "Plan Administrator". The "Plan Administrator" shall be
---------------------------------- the Retirement Committee appointed pursuant to the Deferred Compensation Plan.


1.8 Definition and Determination of "Change of Control".
---------------------------------------------------


(a) Definition and Presumption. "Change of Control" means the
-------------------------- occurrence of a "Business Combination" (as such term is defined in Article 14 of the Company's Certificate of Incorporation as in effect on the Effective Date of the Supplemental Plan) in circumstances requiring the affirmative vote of the holders of at least eighty percent (80%) of the Company's issued and outstanding common stock pursuant to the provisions of Article 14 of the Company's Certificate of Incorporation as in effect on the Effective Date of the Supplemental Plan. The Trustee shall have no duty to inquire whether a Change of Control has occurred, but shall presume for all purposes under this Trust Agreement that a Change of Control has occurred if it either has actual knowledge of a Change of Control or receives written notice to that effect from any source (including any Trust Beneficiary) until the Company demonstrates the contrary to the Trustee's reasonable satisfaction.


(b) Procedure After Notice. If the Trustee receives notice of a
---------------------- Change of Control from any source other than the Company (through its board of directors or a senior executive officer) or the Plan Administrator, the Trustee shall promptly so notify the Company.


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If the Company disputes the occurrence of any Change of Control presumed by the Trustee pursuant to this Section, the Company shall furnish such evidence as the Trustee reasonably requests for the purpose of determining whether a Change of Control has occurred. The Trustee may rely on such evidence concerning the matter as may be furnished to the Trustee which will give the Trustee a reasonable basis for determining whether the Company has demonstrated that no Change of Control occurred.


(c) Conclusive Determination. In performing any of its obligations
------------------------ or taking any discretionary action under this Trust Agreement which is dependent upon a Change of Control having occurred, The Trustee may rely on its determination, including an opinion of counsel (who may be counsel to the Trustee), that a Change of Control has occurred. Unless such a determination arises out of the Trustee's gross negligence or willful misconduct, the Trustee's determination as to whether a Change of Control has occurred shall be binding and conclusive on all persons to the extent of determining their respective interests, rights and duties under this Trust Agreement.


1.9 Definition and Determination of "Insolvent". A Participating Employer
------------------------------------------- shall be considered "Insolvent" for purposes of this Trust Agreement if (a) the Participating Employer is unable to pay its debts as they come due or (b) the Participating Employer is subject to a pending proceeding as a debtor under the federal Bankruptcy Code or under the insolvency laws of any state. The procedures set forth in Section 3.1 shall be followed in determining whether a Participating Employer is Insolvent.


Section 2. Payments to Trust Beneficiaries.
-------------------------------


2.1 Benefit Payments from Trust Fund. The Trustee shall make payments of
-------------------------------- Deferred Compensation to an eligible Trust Beneficiary from the assets of the Trust Beneficiary's separate Account in the Trust Fund, but only (a) if and to the extent such assets are available for distribution, (b) upon the direction of the Plan Administrator (except if there has been a Change of Control), (c) subject to the tax withholding requirements of Section 6.4, and (d) so long as no Participating Employer is Insolvent. Notwithstanding the foregoing, if a


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Change of Control occurs, so long as no Participating Employer is Insolvent the Trustee shall determine the benefits payable from time to time under the Deferred Compensation Plan as in effect on the day before such Change of Control occurred and, subject to the tax withholding requirements of Section 6.4, shall pay from the assets in a Trust Beneficiary's separate Account in the Trust Fund all such benefits of the Trust Beneficiary as they become due and without regard to any lack of direction or inconsistent direction from the Plan Administrator or any other person.


2.2 Benefit Payments from Participating Employers. If the Trustee
--------------------------------------------- cannot or does not make full payment of Deferred Compensation to a Trust Beneficiary from his or her separate Account in accordance with Section 2.1 as such payments are due, then the relevant Participating Employer shall make the balance of each such payment as it falls due; provided, however, that all Participating Employers shall be jointly and severally liable to make such payments to the extent that they are not made by the relevant Participating Employer. To the full extent that Deferred Compensation Benefits are paid from the Trust Fund, the Participating Employers' obligation to pay such Deferred Compensation shall be deemed to have been satisfied.


Section 3. Trustee's Responsibility Regarding Payments to Trust
Beneficiaries When any Participating Employer Is Insolvent
----------------------------------------------------------


3.1 Procedure if a Participating Employer Is Insolvent.
---------------------------------------------------


(a) Benefits Unsecured. At all times during the continuance of this
------------------ Trust, the principal and income of the Trust Fund shall be subject to claims of general creditors of each Participating Employer as hereinafter set forth. All Trust Beneficiaries shall have the rights under this Trust Agreement of unsecured general creditors of the Participating Employers and shall not have any preferred claim on, or any beneficial interest in, the Trust Fund other than in amounts as they become due and payable as Deferred Compensation under Section 2.1. Nothing in this Trust Agreement shall in any way diminish any rights of any Trust Beneficiary to pursue


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his or her rights as an unsecured general creditor of the Participating Employers with respect to the Deferred Compensation or otherwise.


(b) Procedure if Notice Is Given. At any time that the Trustee has
---------------------------- received notice that a Participating Employer is Insolvent, the Trustee shall immediately discontinue payment of all Deferred Compensation and shall thereafter deliver any undistributed principal and income of the Trust Fund to satisfy all claims of general creditors (including the Trust Beneficiaries) as a court of competent jurisdiction may direct; provided, however, that the Trustee may deduct or continue to deduct its fees and other expenses of the Trust Fund (as provided for in Section 6.11), including taxes, pending receipt of such court direction.


(c) Duty to Give Notice; Reliance by Trustee. The Company (by its
---------------------------------------- board of directors and chief executive officer) and the Plan Administrator shall have the duty to inform the Trustee immediately in writing if any Participating Employer becomes Insolvent, and the Trustee may rely on such notice (except as provided in the following paragraph) without making an independent determination. Unless the Trustee has actual knowledge of a Participating Employer's insolvency, the Trustee shall have no duty to inquire whether any Participating Employer is Insolvent.


(d) Duty to Make an Independent Determination. Notwithstanding the
----------------------------------------- foregoing, if the Trustee receives such notice that a Participating Employer is Insolvent at any time after a Change of Control has occurred or receives a written allegation of an event of insolvency from a third party considered by the Trustee to be reliable and responsible, the Trustee shall independently determine, as soon as practicable after receipt of such notice or allegation, whether such Participating Employer is Insolvent, and the Company shall furnish such evidence as the Trustee reasonably requests for the purpose of making such determination. The Trustee may in all events rely on such evidence concerning any Participating Employer's solvency as may be furnished to the Trustee which will give the Trustee a reasonable basis for making a determination concerning the Participating Employer's solvency. For purposes of this Trust Agreement, the Trustee (if it is a bank) shall be considered to possess any knowledge and


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information concerning the Participating Employers in the possession of the Trustee's Banking Department or other department that can reasonably be imputed to the Trustee under normal bank procedures.


(e) Procedure While a Determination Is Being Made. Pending such
--------------------------------------------- determination by the Trustee if one is required pursuant to paragraph (d) above, the Trustee shall suspend payment of Deferred Compensation to every Trust Beneficiary who is then in pay status, shall hold the Trust assets for the benefit of each Insolvent Participating Employer's general creditors and the payment of fees and expenses (as provided for in Section 6.11), and shall resume payments of Deferred Compensation to Trust Beneficiaries in accordance with Section 2 of this Trust Agreement only after the Trustee has determined that no Participating Employer is Insolvent (or remains Insolvent, if the Trustee initially determined any Participating Employer to be Insolvent).


(f) Conclusive Determination or Notice. In performing any of its
---------------------------------- obligations or taking any discretionary action under this Trust Agreement which is dependent on a Participating Employer being Insolvent, the Trustee may rely on its determination (if such was required under paragraph (d) above), including an opinion of counsel (who may be counsel to the Trustee), that a Participating Employer is Insolvent or on a written notice of insolvency from any Participating Employer or the Plan Administrator. Unless such a determination arises out of the Trustee's gross negligence or willful misconduct, the Trustee's determination as to whether a Participating Employer is Insolvent shall be binding and conclusive on all persons to the extent of determining their respective interests, rights and duties under this Trust Agreement.


3.2 Procedure Following Insolvency.
------------------------------


(a) Resumption of Trustee's Duties. If the Trustee suspends or
------------------------------ discontinues payments of Deferred Compensation from the Trust Fund pursuant to Section 3.1 and each Insolvent Participating Employer later becomes solvent again without the entry of a court order concerning the disposition of the Trust Fund, the Company shall so inform the Trustee


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immediately in writing and the Trustee shall thereupon resume all of its duties and responsibilities under this Trust Agreement.


(b) Resumption of Benefit Payments. The first payment of Deferred
------------------------------ Compensation following any suspension or discontinuance of payments pursuant to Section 3.1 shall include the aggregate amount of all payments which would have been made to each Trust Beneficiary in accordance with the Deferred Compensation Plan during the period of such suspension or discontinuance, plus interest on the delayed payments (at a rate which the Trustee determines to be reasonable under the circumstances at its sole discretion) and less the aggregate amount of payments made to the Trust Beneficiary by the Participating Employers in lieu of the payments provided for hereunder during any such period of suspension or discontinuance.


Section 4. Payments to Participating Employers.
-----------------------------------


The Participating Employers shall have no right or power to direct the Trustee to return to them or to divert to others any of the Trust Fund assets in a separate Account established pursuant to Section 1 before all payments of Deferred Compensation have been made to all eligible Trust Beneficiaries of such separate Account pursuant to the Deferred Compensation Plan. If it is determined by the Trustee that assets remaining in any separate Account will clearly never be required to pay Deferred Compensation to any Trust Beneficiary of such separate Account (because, for example, no such Trust Beneficiary can be found after reasonable efforts have been made), then such excess assets shall be returned to the relevant Participating Employer.


Section 5. Disposition of Income.
---------------------


During the term of this Trust, except as provided in Section 3.1 all income received by the Trust Fund, net of fees, expenses and taxes not paid by the Participating Employers, shall be accumulated and reinvested unless the Trustee determines that future income allocable to any separate Account will clearly never be required to pay Deferred Compensation to any Trust Beneficiary of such separate Account, in which event future net income allocable to ...