TRUST AGREEMENT Between Cree, Inc. And FIDELITY MANAGEMENT TRUST COMPANY Cree, Inc. Directors’ Deferred Compensation Plan TRUST Dated as of February 1, 2006
Exhibit
10.2
Between
_____________________________________
Cree,
Inc.
And
FIDELITY
MANAGEMENT TRUST COMPANY
______________________________________
Cree,
Inc. Directors’ Deferred Compensation Plan
TRUST
Dated
as
of February 1, 2006
TABLE
OF CONTENTS
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Section
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Page
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1
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Definitions
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1
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2
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Trust
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3
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(a)
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Establishment
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3
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(b)
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Grantor
Trust
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3
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(c)
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Trust
Assets
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3
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(d)
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Non-Assignment
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4
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3
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Payments
to Sponsor
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4
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4
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Disbursements
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4
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(a)
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Directions
from Administrator
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4
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(b)
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Limitations
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4
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5
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Investment
of Trust
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5
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(a)
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Selection
of Investment Options
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5
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(b)
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Available
Investment Options
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5
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(c)
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Investment
Directions
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5
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(d)
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Funding
Mechanism
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5
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(e)
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Mutual
Funds
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5
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(f)
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Trustee
Powers
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6
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6
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Recordkeeping
and Administrative Services to Be Performed
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7
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(a)
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General
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7
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(b)
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Accounts
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8
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(c)
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Inspection
and Audit
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8
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(d)
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Effect
of Plan Amendment
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8
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(e)
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Returns,
Reports and Information
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8
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7
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Compensation
and Expenses
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9
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8
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Directions
and Indemnification
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9
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(a)
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Identity
of Administrator
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9
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(b)
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Directions
from Administrator
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9
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(c)
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Directions
from Participants
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9
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(d)
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Indemnification
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10
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(e)
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Survival
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10
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9
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Resignation
or Removal of Trustee
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10
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(a)
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Resignation
and Removal
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10
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(b)
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Termination
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10
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(c)
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Notice
Period
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10
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(d)
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Transition
Assistance
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10
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(e)
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Failure
to Appoint Successor
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11
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10
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Successor
Trustee
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11
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(a)
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Appointment
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11
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(b)
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Acceptance
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11
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(c)
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Corporate
Action
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11
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11
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Resignation,
Removal, and Termination Notices
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11
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12
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Duration
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12
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13
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Insolvency
of Sponsor
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12
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14
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Amendment
or Modification
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13
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15
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Electronic
Services
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13
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16
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General
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14
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(a)
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Performance
by Trustee, its Agents or Affiliates
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14
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(b)
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Entire
Agreement
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14
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(c)
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Waiver
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14
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(d)
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Successors
and Assigns
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14
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(e)
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Partial
Invalidity
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14
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(f)
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Section
Headings
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15
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17
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Assignment
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15
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18
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Force
Majeure
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15
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19
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Confidentiality
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15
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20
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Governing
Law
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16
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(a)
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Massachusetts
Law Controls
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16
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(b)
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Trust
Agreement Controls
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16
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TRUST
AGREEMENT, dated as of February 1, 2006 , between Cree, Inc., a North
Carolina corporation, having an office at 0000 Xxxxxxx Xxxxx, Xxxxxx, XX
00000-0000 (the “Sponsor”), and FIDELITY MANAGEMENT TRUST
COMPANY, a Massachusetts trust company, having an office at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the “Trustee”).
WITNESSETH:
WHEREAS,
the Sponsor is the sponsor of the Cree, Inc. Directors’ Deferred Compensation
Plan (the “Plan”); and
WHEREAS,
the Sponsor wishes to establish an irrevocable trust and to contribute to the
trust assets that shall be held therein, subject to the claims of Sponsor’s
creditors in the event of Sponsor’s Insolvency, as herein defined, until paid to
Participants and their beneficiaries in such manner and at such times as
specified in the Plan; and
WHEREAS,
it is the intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status, of the Plan as an unfunded plan
maintained for the purpose of providing deferred compensation for a select
group
of management or highly compensated employees for purposes of Title I of the
Employee Retirement Income Security Act of 1974 (“ERISA”); and
WHEREAS,
it is the intention of the Sponsor to make contributions to the trust to provide
itself with a source of funds to assist it in the meeting of its liabilities
under the Plan; and
WHEREAS,
the Trustee is willing to hold and invest the aforesaid plan assets in trust
among several investment options selected by the Sponsor; and
WHEREAS,
the Sponsor wishes to have the Trustee perform certain ministerial recordkeeping
and administrative functions under the Plan; and
WHEREAS,
Cree, Inc. (the “Administrator”) is the administrator of the Plan;
and
WHEREAS,
the Trustee is willing to perform recordkeeping and administrative services
for
the Plan if the services are purely ministerial in nature and are provided
within a framework of plan provisions, guidelines and interpretations conveyed
in writing to the Trustee by the Administrator.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the Sponsor and the Trustee agree
as
follows:
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1 Definitions
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The
following terms as used in this Trust Agreement have the meaning indicated
unless the context clearly requires otherwise:
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(a) “Administrator”
shall mean, with respect to the Plan, the person or entity which is the
“administrator” of such Plan.
(b) ‘‘Agreement”
shall mean this Trust Agreement, as the same may be amended and in effect from
time to time.
(c) “Business
Day” shall mean any day on which the New York Stock Exchange (NYSE) is
open.
(d) “Code”
shall mean the Internal Revenue Code of 1986, as it has been or may be amended
from time to time.
(e) “ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as it has been
or may be amended from time to time.
(f) “Fidelity
Mutual Fund” shall mean any investment company advised by Fidelity
Management & Research Company or any of its affiliates.
(g) “Mutual
Fund” shall refer both to Fidelity Mutual Funds and Non-Fidelity Mutual
Funds.
(h) “Non-Fidelity
Mutual Fund” shall mean certain investment companies not advised by Fidelity
Management &. Research Company or any of its affiliates.
(i) “Participant”
shall mean, with respect to the Plan, any employee (or former employee) with
an
account under the Plan, which has not yet been fully distributed and/or
forfeited, and shall include the designated beneficiary(ies) with respect to
the
account of any deceased employee (or deceased former employee) until such
account has been fully distributed and/or forfeited.
(j) “Permissible
Investment” shall mean the investments specified by the Employer as
available for investment of assets of the Trust and agreed to by the Trustee
and
the Prototype Sponsor. The Permissible Investments under the Plan shall be
listed in the Service Agreement.
(k) “Plan”
shall mean the Cree, Inc. Directors’ Deferred Compensation Plan.
(1) “Reconciliation
Period” shall mean the period beginning on the date of the initial transfer
of assets to the Trust and ending on the date of the completion of the
reconciliation of Participant records.
(m) “Reporting
Date” shall mean the last day of each calendar quarter, the date as of which
the Trustee resigns or is removed pursuant to this Agreement and the date as
of
which this Agreement terminates pursuant to Section 9 hereof.
(n) “Service
Agreement” shall mean the agreement between the Trustee aid the Sponsor for
the Trustee, through certain affiliates and related companies, to provide
administrative and recordkeeping services for the Plan.
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(o) “Sponsor”
shall mean Cree, Inc., a North Xxxxxxxx corporation, or any successor to all
or
substantially all of its businesses which, by agreement, operation of law or
otherwise, assumes the responsibility of the Sponsor under this
Agreement.
(p) “Trust”
shall mean the Cree, Inc. Directors’ Deferred Compensation Plan Trust, being the
trust established by the Sponsor and the Trustee pursuant to the provisions
of
this Agreement.
(q) “Trustee”
shall mean Fidelity Management Trust Company, a Massachusetts trust company
and
any successor to all or substantially all of its trust business. The term
Trustee shall also include any successor trustee appointed pursuant to this,
agreement to the extent such successor agrees to serve as Trustee under this
Agreement.
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2 Trust
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(a) Establishment
The
Sponsor hereby establishes the Trust, with the Trustee. The Trust shall consist
of an initial contribution of money or other property acceptable to the Trustee
in its sole discretion, made by the Sponsor or transferred from a previous
trustee under the Plan, such additional sums of money as shall from time to
time
be delivered to the Trustee under the Plan, all investments made therewith
and
proceeds thereof, and all earnings and profits thereon, less the payments that
are made by the Trustee as provided herein, without distinction between
principal and income. The Trustee hereby accepts the Trust on the terms and
conditions set forth in this Agreement. In accepting this Trust, the Trustee
shall be accountable for the assets received by it, subject to the terms and
conditions of this Agreement
(b) Grantor
Trust
The
Trust
is intended to be a grantor trust, of which the Sponsor is the grantor, within
the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the
Code, as amended, and shall be construed accordingly,
(c) Trust
Assets
The
principal of the Trust, and any earnings thereon shall be held separate and
apart from other funds of the Sponsor and shall be used exclusively for the
uses
and purposes of Participants and general creditors as herein set forth.
Participants and their beneficiaries shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be mere unsecured contractual
rights of Participants and their beneficiaries against the Sponsor. Any assets
held by the Trust will be subject to the claims of the Sponsor’s general
creditors under federal and state law in the event of Insolvency, as defined
in
this Agreement.
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(d) Non-Assignment
Benefit
payments to Participants and their beneficiaries funded 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.
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3 Payments
to Sponsor
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Except
as
provided under this Agreement, the Sponsor shall have no right to retain or
divert to others any of the Trust assets before all payment of benefits have
been made to the Participants and their beneficiaries pursuant to the terms
of
the Plan.
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4 Disbursements
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(a)
Directions from Administrator
(i) If
it is indicated in the Service Agreement that the Trustee will make
distributions of Plan benefits directly to Participants and beneficiaries,
the
Trustee shall disburse monies to Participants and their beneficiaries for
benefit payments in the amounts that the Administrator directs from time to
time
in writing. The Trustee shall have no responsibility to ascertain whether the
Administrator’s direction complies with the terms of the Plan or of any
applicable law. The Trustee shall be responsible for Federal or State income
tax
reporting or withholding with respect to such Plan benefits. The Trustee shall
not be responsible for FICA (Social Security and Medicare), any Federal or
State
unemployment or local tax with respect to Plan distributions.
(ii) If
it is indicated in the Service Agreement that the Sponsor shall be responsible
for making distributions of benefits to Participants and beneficiaries, then
the
Trustee shall disburse monies to the Administrator for benefit payments in
the
amounts that the Administrator directs from time to time in writing. The Trustee
shall have no responsibility to ascertain whether the Administrator’s direction
complies with the terms of the Plan or any applicable law. The Trustee shall
not
be responsible for: (1) making benefit payments to Participants under the Plan,
(2) any federal, State or local income tax reporting or withholding with respect
to such Plan benefits, and (3) FICA (Social Security and Medicare) or any
Federal or State unemployment tax with respect to Plan
distributions.
(b) Limitations
The
Trustee shall not be required to make any disbursement in excess of the net
realizable value of the assets of the Trust at the time of the disbursement.
The
Trustee shall not be required to make any disbursement in cash unless the
Administrator has provided a written direction as to the assets to be converted
to cash for the purpose of making the disbursement.
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5 Investment
of Trust
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(a) Selection
of Investment Options
The
Trustee shall have no responsibility for the selection of investment options
under the Trust and shall not render investment advice to any person in
connection with the selection of such options.
(b) Available
Investment Options
The
Sponsor shall direct the Trustee as to what investment options the Trust shall
be invested in (i) during the Reconciliation Period, and (ii) following the
Reconciliation Period, subject to the following limitations. The Sponsor may
determine to offer as investment options only Permissible Investments as
described in the Service Agreement; provided, however, that the Trustee shall
not be considered a fiduciary with investment discretion. The Sponsor may add
or
remove investment options with the consent of the Trustee and upon mutual
amendment of the Service Agreement to reflect such additions.
(c) Investment
Directions
In
order
to provide for an accumulation of assets comparable to the contractual
liabilities accruing under the Plan, the Sponsor may direct the Trustee in
writing to invest the assets held in the Trust to correspond to the hypothetical
investments made for Participants in accordance with their direction under
the
Plan.
(d) Funding
Mechanism
The
Sponsor’s designation of available investment options uinder paragraphs (a) and
(b) above, the maintenance of accounts for each Plan Participant and the
crediting of investments to such accounts, and the exercise by Participants
of
any powers relating to investments under this Section 5 are solely for the
purpose of providing a mechanism for measuring the obligation of the Sponsor
to
any particular Participant under the applicable Plan. As further provided in
this Agreement, no Participant or beneficiary will have any preferential claim
to or beneficial ownership interest in any asset or investment held in the
Trust, and the rights of any Participant and his or her beneficiaries under
the
applicable Plan and this Agreement are solely those of an unsecured general
creditor of the Sponsor with respect to the benefits of the Participant under
the Plan.
(e) Mutual
Funds
The
Sponsor hereby acknowledges that it has received from the Trustee a copy of
the
prospectus for each Mutual Fund selected by the Sponsor as a Plan investment
option. Trust investments in Mutual Funds shall be subject to the following
limitations:
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5
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(i) Execution
of Purchases and Sales
Purchases
and sales of Permissible Investments (other than for Exchanges) shall be made
on
the date on which the Trustee receives from the Sponsor in good order all
information and documentation necessary to accurately effect such purchases
and
sales (or in the case of a purchase, the subsequent date on which the Trustee
has received a wire transfer of funds necessary to make such purchase).
Exchanges of Permissible Investments shall be made on the same Business Day
that
the Trustee receives a proper direction if received before market close
(generally 4:00 p.m. eastern time); if the direction is received after market
close (generally 4:00 p.m. eastern time), the exchange shall be made the
following Business Day.
(ii) Voting
At
the
time of mailing of notice of each annual or special stockholder’s meeting of any
Mutual Fund, the Trustee shall send a copy of the notice and all proxy
solicitation materials to the Sponsor, together with a voting direction form
for
return to the Trustee or its designee. The Trustee shall vote the shares held
in
the Trust in the manner as directed by the Sponsor. The Trustee shall not vote
shares for which it has received no corresponding directions from the Sponsor.
The Sponsor shall also have the right to direct the Trustee as to the manner
in
which all shareholder rights, other than the right to vote, shall be exercised.
The Trustee shall have no duty to solicit directions from the
Sponsor.
(f) Trustee
Powers
The
Trustee shall have the following powers and authority:
(i) Subject
to paragraphs (b), (c) and (d) of this Section 5, to sell, exchange, convey,
transfer, or otherwise dispose of any property held in the Trust, by private
contract or at public auction. No person dealing with the Trustee shall be
bound
to see to the application of the purchase money or other property delivered
to
the Trustee or to inquire into the validity, expediency, or propriety of any
such sale or other disposition.
(ii) To
cause any securities or other property held as part of the Trust to be
registered in the Trustee’s own name, in the name of one or more of its
nominees, or in the Trustee’s account with the Depository Trust Company of New
York and to hold any investments in bearer form, but the books and records
of
the Trustee shall at all times show that all such investments are part of the
Trust.
(iii) To
keep that portion of the Trust in cash or cash balances as the Sponsor or
Administrator may, from time to time, deem to be in the best interest of the
Trust.
(iv) To
make, execute, acknowledge, and deliver any and all documents of transfer or
conveyance and to carry out the powers herein granted.
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(v) To
borrow funds from a bank or other financial institution not affiliated with
the
Trustee in order to provide sufficient liquidity to process Plan transactions
in
a timely fashion, provided that the cost of borrowing shall be allocated in
a
reasonable fashion to the investment fund(s) in need of liquidity.
(vi) To
settle, compromise, or submit to arbitration any claims, debts, or damages
due
to or arising from the Trust; to commence or defend suits or legal or
administrative proceedings; to represent the Trust in all suits and legal and
administrative hearings; and to pay all reasonable expenses arising from any
such action, from the Trust if not paid by these Sponsor.
(vii) To
employ legal, accounting, clerical, and other assistance as may be required
in
carrying out the provisions of this Agreement and to pay their reasonable
expenses and compensation from the Trust if not paid by the
Sponsor.
(viii) To
do all other acts although not specifically mentioned herein, as the Trustee
may
deem necessary to carry out any of the foregoing powers and the purposes of
the
Trust.
Notwithstanding
any powers granted to Trustee pursuant to this Trust Agreement or to applicable
law, Trustee shall not have any power that could give this Trust the objective
of carrying on a business and dividing the gains therefrom, within the meaning
of Section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
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6 Recordkeeping
and Administrative Services to Be
Performed
|
(a) General
The
Trustee shall perform those recordkeeping and administrative functions described
in the Service Agreement attached hereto. These recordkeeping and administrative
functions shall be performed within the framework of the Administrator’s written
directions regarding the Plan’s provisions, guidelines and
interpretations.
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(b) Accounts
The
Trustee shall keep accurate accounts of all investments, receipts,
disbursements, and other transactions hereunder, and shall report the value
of
the assets held in the Trust as of the last day of each fiscal quarter of the
Plan and, if not on the last day of a fiscal quarter, the date on which the
Trustee resigns or is removed as provided in this Agreement or is terminated
as
provided in this Agreement, Within thirty (30) days following each Reporting
Date or within sixty (60) days in the case of a Reporting Date caused by the
resignation or removal of the Trustee, or the termination of this Agreement,
the
Trustee shall file with the Administrator a written account setting forth all
investments, receipts, disbursements, and other transactions effected by the
Trustee between the Reporting Date and the prior Reporting Date, and setting
forth the value of the Trust as of the Reporting Date. Except as otherwise
required under applicable law, upon the expiration of six (6) months from the
date of filing such account with the Administrator, the Trustee shall have
no
liability or further accountability to anyone with respect to the propriety
of
its acts or transactions shown in such account, except with respect to such
acts
or transactions as to which the Sponsor shall within such six (6) month period
file with the Trustee written objections.
(c) Inspection
and Audit
All
records generated by the Trustee in accordance with paragraphs (a) and (b)
shall
be open to inspection and audit, during the Trustee’s regular business hours
prior to the termination of this Agreement, by the Administrator or any person
designated by the Administrator. Upon the resignation or removal of the Trustee
or the termination of this Agreement, the Trustee shall provide to the
Administrator, at no expense to the Sponsor, in the format regularly provided
to
the Administrator, a statement of each Participant’s accounts as of the
resignation, removal, or termination, and the Trustee shall provide to the
Administrator or the Plan’s new recordkeeper such further records as are
reasonable, at the Sponsor’s expense.
(d) Effect
of Plan Amendment
The
Trustee’s provision of the recordkeeping and administrative services set forth
in this Section shall be conditioned on the Sponsor delivering to the Trustee
a
copy of any amendment to the Plan as soon as administratively feasible following
the amendment’s adoption, and on the Administrator providing the Trustee on a
timely basis with all the information the Administrator deems necessary for
the
Trustee to perform the recordkeeping and administrative services and such other
information as the Trustee may reasonably request.
(e) Returns,
Reports and Information
Except
as
set forth in the Service Agreement, the Administrator shall be responsible
for
the preparation and filing of all returns, reports, and information required
of
the Trust or Plan by law. The Trustee shall provide the Administrator with
such
information as the Administrator may reasonably request to make these filings.
The Administrator shall also be responsible for making any disclosures to
Participants required by law.
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8
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7 Compensation
and Expenses
|
Sponsor
shall pay to Trustee, within thirty (30) days of receipt of the Trustee’s xxxx,
the fees for services in accordance with the Service Agreement. All fees for
services are specifically outlined in the Service Agreement and are based on
any
assumptions identified therein.
All
reasonable expenses of plan administration as shown on the Service Agreement,
as
amended from time to time, shall be a charge against and paid from the
appropriate plan Participants’ accounts, except to the extent such amounts are
paid by the Plan Sponsor in a timely manner.
All
expenses of the Trustee relating directly to the acquisition and disposition
of
investments constituting part of the Trust, and all taxes of any kind whatsoever
that may be levied or assessed under existing or future laws upon or in respect
of the Trust or the income thereof, shall be a charge against and paid from
the
appropriate Participants’ accounts.
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8 Directions
and Indemnification
|
(a) Identity
of Administrator
The
Trustee shall be fully protected in relying on the fact that the Administrator
under the Plan is the individual or persons named as such above or such other
individuals or persons as the Sponsor may notify the Trustee in
writing.
(b) Directions
from Administrator
Whenever
the Administrator provides a direction to the Trustee, the Trustee shall not
be
liable for any loss, or by reason of any breach, arising from the direction
if
the direction is contained in a writing (or is oral and immediately confirmed
in
a writing) signed by any individual whose name and signature have been submitted
(and not withdrawn) in writing to the Trustee by the Administrator in the manner
described in the Service Agreement, provided the Trustee reasonably believes
the
signature of the individual to be genuine. Such direction may be made via
electronic data transfer (“EDT”) in accordance with procedures agreed to by the
Administrator and the Trustee; provided, however, that the Trustee shall be
fully protected in relying on such direction as if it were a direction made
in
writing by the Administrator. The Trustee shall have no responsibility to
ascertain any direction’s (i) accuracy, (ii) compliance with the terms of the
Plan or any applicable law, or (iii) effect for tax purposes or
otherwise.
(c) Directions
from Participants
The
Trustee shall not be liable for any loss, which arises, from any Participant’s
exercise or non-exercise of rights under this Agreement over the hypothetical
assets in the Participant’s accounts.
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9
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(d) Indemnification
The
Sponsor shall indemnify the Trustee against, and hold the Trustee harmless
from,
any and all loss, damage, penalty, liability, cost, and expense, including
without limitation, reasonable attorneys’ fees and disbursements, that may be
incurred by, imposed upon, or asserted against the Trustee by reason of any
claim, regulatory proceeding, or litigation arising from any act done or omitted
to be done by any individual or person with respect to the Plan or Trust,
excepting only any and all loss, etc., arising solely from the Trustee’s
negligence or bad faith.
(e) Survival
The
provisions of this Section 8 shall survive the termination of this
Agreement.
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9 Resignation
or Removal of Trustee
|
(a) Resignation
and Removal
(i) The
Trustee may resign at any time in accordance with the notice provisions set
forth below.
(ii) The
Sponsor may remove the Trustee at any time in accordance with the notice
provisions set forth below.
(b) Termination
This
Agreement may be terminated at any time by the Sponsor upon prior written notice
to the Trustee in accordance with the notice provisions set forth
below.
(c) Notice
Period
In
the
event either party desires to terminate this Agreement or any Services
hereunder, the party shall provide at least sixty-(60) days prior written notice
of the termination date to the other party; provided, however, that the
receiving party may agree, in writing, to a shorter notice period.
(d) Transition
Assistance
In
the
event of termination of this Agreement, if requested by Sponsor, Fidelity shall
assist Sponsor in developing a plan for the orderly transition of the Plan
Data,
cash and assets then constituting the Trustee and Services provided by Fidelity
hereunder to Sponsor or its designee. Fidelity shall provide such assistance
for
a period not extending beyond sixty (60) days from the termination date of
this
Agreement, Fidelity shall provide to Sponsor, or to any person designated by
Sponsor, at a mutually agreeable time, one file of the Plan Data prepared and
maintained by Fidelity in the ordinary course of business, in Fidelity’s format.
Fidelity may provide other or additional transition assistance as mutually
determined for additional fees, which shall be due and payable by the Sponsor
prior to any termination of this Agreement.
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10
-
(e) Failure
to Appoint Successor
If,
by
the termination date, the Sponsor has not notified the Trustee in writing as
to
the individual or entity to which the assets and cash are to be transferred
and
delivered, the Trustee may bring an appropriate action or proceeding for leave
to deposit the assets and cash in a court of competent jurisdiction. The Trustee
shall be reimbursed by the Sponsor for all costs and expenses of the action
or
proceeding including, without limitation, reasonable attorneys’ fees and
disbursements.
|
10 Successor
Trustee
|
(a) Appointment
If
the
office of Trustee becomes vacant for any reason, the Sponsor may in writing
appoint a successor trustee under this Agreement. The successor trustee shall
have all of the rights, powers, privileges, obligations, duties, liabilities,
and immunities granted to the Trustee under this Agreement. The successor
trustee and predecessor trustee shall not be liable for the acts or omissions
of
the other with respect to the Trust.
(b) Acceptance
When
the
successor trustee accepts its appointment under this Agreement, title to and
possession of the Trust assets shall immediately vest in the successor trustee
without any further action on the part of the predecessor trustee. The
predecessor trustee shall execute all instruments and do all acts that
reasonably may be necessary or reasonably may be requested in writing by the
Sponsor or the successor trustee to vest title to all Trust assets in the
successor trustee or to deliver all Trust assets to the successor
trustee.
(c) Corporate
Action
Any
successor of the Trustee or successor trustee, through sale or transfer of
the
business or trust department of the Trustee or successor trustee, or through
reorganization, consolidation, or merger, or any similar transaction, shall,
upon consummation of the transaction, become the successor trustee under this
Agreement.
|
11 Resignation,
Removal, and Termination
Notices
|
All
notices of resignation, removal, or termination under this Agreement must be
in
writing and mailed to the party to which the notice is being given by certified
or registered mail, return receipt requested, to the Sponsor at the address
designated in the Service Agreement, and to the Trustee x/x Xxxx X. Xxxxxx,
Xxxxxxxx Xxxxxxxxxxx, 00 Xxxxxxxxxx Xxxxxx, X0X. Xxxxxx, Xxxxxxxxxxxxx 00000,
or
to such other addresses as the parties have notified each other of in the
foregoing manner.
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11
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|
12 Duration
|
This
Trust shall continue in effect without limit as to time, subject, however,
to
the provisions of this Agreement relating to amendment, modification, and
termination thereof.
|
13 Insolvency
of Sponsor
|
(a) Trustee
shall cease disbursement of funds for payment of benefits to Participants and
their beneficiaries if the Sponsor is Insolvent. Sponsor shall be considered
“Insolvent” for purposes of this Trust Agreement if (i) Sponsor is unable to pay
its debts as they become due, or (ii) Sponsor is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) 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 Sponsor under
federal and state law as set forth below.
(i) The
Board of Directors and the Chief Executive Officer of the Sponsor shall have
the
duty to inform Trustee in writing of Sponsor’s Insolvency. If a person claiming
to be a creditor of the Sponsor alleges in writing to Trustee that Sponsor
has
become Insolvent, Trustee shall determine whether Sponsor is Insolvent and,
pending such determination, Trustee shall discontinue disbursements for payment
of benefits to Participants or their beneficiaries.
(ii) Unless
Trustee has actual knowledge of Sponsor’s Insolvency, or has received notice
from Sponsor or a person claiming to be a creditor alleging that Sponsor is
Insolvent, Trustee shall have no duty to inquire whether Sponsor is Insolvent.
Trustee may in all events rely on such evidence concerning Sponsor’s solvency as
may be furnished to Trustee and that provides Trustee with a reasonable basis
for making a determination concerning Sponsor’s solvency.
(iii) If
at any time Trustee has determined that Sponsor is Insolvent, Trustee shall
discontinue disbursements for payments to Participants or their beneficiaries
and shall hold the assets of the Trust for the benefit of Sponsor’s general
creditors. Nothing In this Trust Agreement shall in any way diminish any rights
of Participants or their beneficiaries to pursue their rights as general
creditors of Sponsor with respect to benefits due under the Plan or
otherwise.
(iv) Trustee
shall resume disbursement for the payment of benefits to Plan Participants
or
their beneficiaries in accordance with this Agreement only after Trustee has
determined that Sponsor is not Insolvent (or is no longer
Insolvent).
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12
-
(c) Provided
that there are sufficient assets, if Trustee discontinues the payment of
benefits from the Trust pursuant to (a) hereof and subsequently resumes such
payments, the first payment following such discontinuance shall include the
aggregate amount of all payments due to Participants or their beneficiaries
under the terms of the Plan for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their beneficiaries
by
Sponsor in lieu of the payments provided for hereunder during any such period
of
discontinuance.
|
14 Amendment
or Modification
|
This
Agreement may be amended or modified at any time and from time to time only
by
an instrument executed by both the Sponsor and the Trustee.
|
15 Electronic
Services
|
(a) The
‘Trustee may provide communications and services (“Electronic Services”) and/or
software products (“Electronic Products”) via electronic media, including, but
not limited to Fidelity Plan Sponsor WebStation. The Sponsor and its agents
agree to use such Electronic Services and Electronic Products only in the course
of reasonable administration of or participation in the Plan and to keep
confidential and not publish, copy, broadcast, retransmit, reproduce,
commercially exploit or otherwise re disseminate the Electronic Products or
Electronic Services or any portion thereof without the Trustee’s written
consent, except, in cases where Trustee has specifically notified the Sponsor
that the Electronic Products or Services are suitable for delivery to Sponsor’s
Participants, for non-commercial personal use by Participants or beneficiaries
with respect to their participation in the Plan or for their other retirement
planning purposes.
(b) The
Sponsor shall be responsible for installing and maintaining all Electronic
Products, (including any programming required to accomplish the installation)
and for displaying any and all content associated with Electronic Services
on
its computer network and/or intranet so that such content will appear exactly
as
it appears when delivered to Sponsor. All Electronic Products and Services
shall
be clearly identified as originating from the Trustee or its affiliate. The
Sponsor shall promptly remove Electronic Products or Services from its computer
network and/or intranet, or replace the Electronic Products or Services with
updated products or services provided by the Trustee, upon written notification
(including written notification via facsimile) by the Trustee.
(c) All
Electronic Products shall be provided to the Sponsor without any express or
implied legal warranties or acceptance of legal liability by the Trustee, and
all Electronic Services shall be provided to the Sponsor without acceptance
of
legal liability related to or arising out of the electronic nature of the
delivery’ or provision of such Services. Except as otherwise stated in this
Agreement, no rights are conveyed to any property, intellectual or tangible,
associated with the contents of the Electronic Products or Services and related
material. The Trustee hereby grants to the Sponsor a non-exclusive,
non-transferable revocable right and license to use the Electronic Products
and
Services in accordance with the terms and conditions of this
Agreement
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13
-
(d) To
the extent that any Electronic Products or Services utilize Internet services
to
transport data or communications, the Trustee will take, and Sponsor agrees
to
follow, reasonable security precautions, however, the Trustee disclaims any
liability for interception of any such data or communications. The Trustee
reserves the right not to accept data or communications transmitted via
electronic media by the Sponsor or a third party if it determines that the
media
does not provide adequate data security, or if it is not administratively
feasible for the Trustee to use the data security provided. The Trustee shall
not be responsible for, and makes no warranties regarding access, speed or
availability of Internet or network services, or any other service required
for
electronic communication. The Trustee shall not be responsible for any loss
or
damage related to or resulting from any changes or modifications to the
Electronic Products or Services after delivering it to the Sponsor.
|
16 General
|
(a) Performance
by Trustee, its Agents or Affiliates
The
Sponsor acknowledges and authorizes that the services to be provided under
this
Agreement shall be provided by the Trustee, its agents or affiliates, including
but not limited to Fidelity Investments Institutional Operations Company, Inc.
or its successor, and that certain of such services may be provided pursuant
to
one or more other contractual agreements or relationships
(b) Entire
Agreement
This
Agreement contains all of the terms agreed upon between the parties with respect
to the subject matter hereof.
(c) Waiver
No
waiver
by either party of any failure or refusal to comply with an obligation hereunder
shall be deemed a waiver of any other or subsequent failure or refusal to so
comply.
(d) Successors
and Assigns
The
stipulations in this Agreement shall inure to the benefit of, and shall bind,
the successors and assigns of the respective parties.
(e) Partial
Invalidity
If
any
term or provision of this Agreement or the application thereof to any person
or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons
or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by
law.
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14
-
(f) Section
Headings
The
headings of the various sections and subsections of this Agreement have been
inserted only for the purposes of convenience and are not part of this Agreement
and shall not be deemed in any manner to modify, explain, expand or restrict
any
of the provisions of this Agreement.
|
17 Assignment
|
This
Agreement, and any of its rights and obligations hereunder, may not be assigned
by any party without the prior written consent of the other party(ies), and
such
consent may be withheld in any party’s sole discretion. Notwithstanding the
foregoing, Trustee may assign this Agreement in whole or in part, and any of
its
rights and obligations hereunder, to a subsidiary or affiliate of Trustee
without consent of the Sponsor. All provisions in this Agreement shall extend
to
and be binding upon the parties hereto and their respective successors and
permitted assigns.
|
18 Force
Majeure
|
No
party
shall be deemed in default of this Agreement to the extent that any delay or
failure in performance of its obligation(s) results, without its fault or
negligence, from any cause beyond its reasonable control, such as acts of God,
acts of civil or military authority, embargoes, epidemics, war, riots,
insurrections, fires, explosions, earthquakes, floods, unusually severe weather
conditions, power outages or strikes. This clause shall not excuse any of the
parties to the Agreement from any liability which results from failure to have
in place reasonable disaster recovery and safeguarding plans adequate for
protection of all data each of the parties to the Agreement are responsible
for
maintaining for the Plan.
|
19 Confidentiality
|
Both
parties to this Agreement recognize that in the course of implementing and
providing the services described herein, each party may disclose to the other
confidential information. All such confidential information, individually and
collectively, and other proprietary information disclosed by either party shall
remain the sole property of the party disclosing the same, and the receiving
party shall have no interest or rights with respect thereto if so designated
by
the disclosing party to the receiving party. Each party agrees to maintain
all
such confidential information in trust and confidence to the same extent that
it
protects its own proprietary information, and not to disclose such confidential
information to any third party without the written consent of the other party.
Each party further agrees to take all reasonable precautions to prevent any
unauthorized disclosure of confidential information. In addition, each party
agrees not to disclose or make public to anyone, in any manner, the terms of
this Agreement, except as required by law, without the prior written consent
of
the other party.
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15
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|
20 Governing
Law
|
(a) Massachusetts
Law Controls
This
Agreement is being made in the Commonwealth of Massachusetts, and the Trust
shall be administered as a Massachusetts trust. The validity, construction,
effect, and administration of this Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
except to the extent those laws are superseded under Section 514 of
ERISA.
(b) Trust
Agreement Controls
The
Trustee is not a party to the Plan, and in the event of any conflict between
the
provisions of the Plan and the provisions of this Agreement, the provisions
of
this Agreement shall control.
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16
-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
| Plan Sponsor Name: | Cree, Inc. | |
|
By:
|
/s/
Xxxx X. Xxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxx
|
|
|
Title:
|
Vice
President, Legal
|
|
|
Date:
|
December
8, 2005
|
| FIDELITY MANAGEMENT TRUST COMPANY | ||
|
By:
|
/s/
Xxxx X. Xxxxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
Date:
|
12/12/2005
|
|
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17
-
AMENDMENT
TO
TRUST
AGREEMENT
Between
CREE,
INC.
And
FIDELITY
MANAGEMENT TRUST COMPANY
THIS
AMENDMENT, effective the
1st day of February, 2006, by CREE, INC. (the “Sponsor”) and FIDELITY
MANAGEMENT TRUST COMPANY (the “Trustee”);
WITNESSETH:
WHEREAS,
the Sponsor and the Trustee
entered into a certain Trust Agreement dated February 1, 2006 (the “Trust
Agreement”); and
WHEREAS,
the Sponsor and the Trustee
desire to amend the Trust Agreement to modify the indemnification provisions
thereof.
NOW,
THEREFORE, in consideration of the
premises herein contained, the Sponsor and the Trustee agree to amend the Trust
Agreement by deleting subparagraph (d) of Section 8 of the Trust Agreement
and
substituting in lieu thereof the following:
(d) Indemnification.
Except
as provided below, Sponsor shall defend and indemnify Trustee, its affiliates
and their respective directors, officers, employees and agents and hold them
harmless against that portion of any and all liabilities, losses, costs or
expenses (including reasonable legal fees and expenses) of whatsoever kind
and
nature which may be imposed on, incurred by or asserted against Trustee at
any
time if such liability, loss, cost or expense results from the Sponsor’s
negligence, or willful misconduct relating to or arising out of the Sponsor’s
obligations under this Agreement or the Sponsor’s breach of this Agreement.
Notwithstanding the foregoing, Trustee shall be entitled to no indemnification
hereunder to the extent its liabilities, losses, costs or expenses are
attributed to its own gross negligence or willful misconduct.
Trustee
shall defend and indemnify the Sponsor, its affiliates and their respective
directors, officers, employees and agents and hold them harmless against that
portion of any and all liabilities, losses, costs or expenses (including
reasonable legal fees and expenses) of whatsoever kind and nature which may
be
imposed on, incurred by or asserted against the Sponsor at any time if such
liability, loss, cost or expense results from Trustee’s negligence, bad faith,
or willful misconduct relating to or arising out of the Trustee’s obligations
under this Agreement or Trustee’s breach of this Agreement. Notwithstanding the
foregoing, the Sponsor shall be entitled to no indemnification hereunder to
the
extent its liabilities, losses, costs or expenses are attributed to its own
gross negligence or willful misconduct.
The
party
seeking indemnification above must notify the indemnifying party within 30
days
in writing of any actual or threatened action, suit or proceeding to which
it
claims such indemnification applies. Failure to so notify the indemnifying
party
shall not be deemed a waiver of the right to seek indemnification, unless the
actions of the indemnifying party have been prejudiced by the failure of the
other party to provide notice within the required time period. The indemnifying
party may then take steps to be joined as a party to such proceeding, and the
party seeking indemnification shall not oppose any such joinder. Whether or
not
such joinder takes place, the indemnifying party shall provide the defense
with
respect to claims to which this section applies and in doing so shall have
the
right to control the defense and settlement with respect to such claims. The
party seeking indemnification may assume responsibility for the direction of
its
own defense at any time, including the right to settle or compromise any claim
against it without the consent of the indemnifying party, provided that in
doing
so it shall be deemed to have waived its right to indemnification except in
cases where the indemnifying party has declined to defend against the
claim.
IN
WITNESS WHEREOF, the Sponsor and the
Trustee have caused this instrument to be executed by their duly authorized
officers as of the day and year first above written.
| CREE, INC. | ||
|
By:
|
/s/
Xxxx X. Xxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxx
|
|
|
Title:
|
Vice
President, Legal
|
|
|
Date:
|
December
8, 2005
|
|
| FIDELITY MANAGEMENT TRUST COMPANY | ||
|
By:
|
/s/
Xxxx X. Xxxxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
Date:
|
12/12/2005
|
|
