The Xxxxxxx Xxxxx Non-Qualified Deferred
Compensation Plan Trust Agreement
TRUST UNDER:
XXXXXXXXX TECHNOLOGIES INC. SUPPLEMENTAL
RETIREMENT PLAN(1)
THIS TRUST AGREEMENT, made this 15th day of November, 1999, by and between
Xxxxxxxxx Technologies Inc. (the "Company") and Xxxxxxx Xxxxx Trust Company, FSB
(the "Trustee");
WHEREAS, the Company has adopted the Xxxxxxxxx Technologies Inc.
Supplemental Retirement Plan (hereinafter referred to as the "Plan"); and
WHEREAS, the Company has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
and
WHEREAS, the Company wishes to establish a trust (hereinafter referred to
as the "Trust") and to contribute to the Trust assets that shall be held therein
subject to the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to the Plan 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,
as amended; and
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(1) This trust is intended to comply with the model grantor trust requirement
of Revenue Procedure 92-64. While Xxxxxxx Xxxxx believes that this Trust
Agreement complies with the Revenue Procedure it provides no assurance that
modifications to the terms contained herein would not be required by the
Internal Revenue Service during the review process in the event the Company
were to apply for a ruling as to the tax consequences of its plan and this
trust. If the Company desires to obtain such a ruling from the Internal
Revenue Service, a copy of this Trust Agreement with all substituted or
additional language underlined as required by the Revenue Procedure is
available through your Xxxxxxx Xxxxx Financial Consultant.
WHEREAS, it is the intention of the Company to make contributions to the
Trust to provide itself with a source of funds to assist it in meeting its
liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust.
(a) The Company hereby deposits with the Trustee in trust such cash and/or
marketable securities, if any, listed in Appendix A, which shall
become the principal of the Trust to be held, administered and
disposed of by the Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the Company is
the grantor, within the meaning of subpart E, Part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Company and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan 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 Plan participants and their beneficiaries
against the Company. Any assets held by the Trust will be subject to
the claims of the Company's general creditors under federal and state
law in the event of Insolvency, as defined in Section 3(a) herein.
(e) The Company, in its sole discretion, may at any time; or from time to
time, make additional deposits of cash or other property 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.
Neither the Trustee nor any Plan participant or beneficiary shall have
any right to compel such additional deposits.
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After a Change of Control, if the Trust assets become insufficient to
pay all amounts to which participants are entitled under the Plan, as
determined by the benefit determiner described in Section 2(b) (the
"Benefit Determiner"), the Company shall contribute to the Trust the
additional amounts necessary to fully fund the liabilities under the
Plan as determined by the Benefit Determiner. A copy of any such
determination by the Benefit Determiner shall be provided to the
Trustee. For purposes of this Trust Agreement, the term "Change in
Control" shall have the meaning assigned thereto under the Plan.
(f) The Trustee shall not be obligated to receive such cash and/or
property unless prior thereto the Trustee has agreed that such cash
and/or property is acceptable to the Trustee and the Trustee has
received such reconciliation, allocation, investment or other
information concerning, or representation with respect to, the cash
and/or property as the Trustee may require. The Trustee shall have no
duty or authority to (a) require any deposits to be made under the
Plan or to the Trustee; (b) compute any amount to be deposited under
the Plan to the Trustee; or (c) determine whether amounts received by
Trustee comply with the Plan. Assets of the Trust may, in the
Trustee's discretion, be held in an account with an affiliate of the
Trustee.
Section 2. Payments to Plan Participants and Beneficiaries.
(a) With respect to each participant of the Plan, the Company (or, after a
Change of Control, the Benefit Determiner) shall deliver to the
Trustee a schedule (the "Payment Schedule") that (i) indicates the
amounts payable in respect of the participant (and his or her
beneficiaries), (ii) that provides a formula or other instructions
acceptable to the Trustee for determining the amounts so payable,
(iii) provides the form in which such amounts are to be paid (as
provided for or available under the Plan), and (iv) provides the time
of commencement for payment of such amounts. The Payment Schedule
shall be delivered to the Trustee not more than 30 business days nor
fewer than 15 business days prior to the first date on which a payment
is to be made to the Plan participant. Any change to a Payment
Schedule shall be delivered to the Trustee not more than 30 days nor
fewer than 15 days prior to the date on which the first payment is to
be made in accordance with the changed Payment Schedule. Except as
otherwise
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provided herein, the Trustee shall make payments to Plan participants
and their beneficiaries in accordance with such Payment Schedule. The
Trustee shall make provision for the reporting and withholding of any
federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the Plan
and shall pay amounts withheld to the appropriate taxing authorities
or determine that such amounts have been reported, withheld and paid
by the Company, it being understood among the parties hereto that (1)
the Company shall on a timely basis provide the Trustee specific
information as to the amount of taxes to be withheld and (2) the
Company shall be obligated to receive such withheld taxes from the
Trustee and properly pay and report such amounts to the appropriate
taxing authorities.
(b) Prior to a Change of Control, the entitlement of a participant in the
Plan (or his or her beneficiaries) to benefits under the Plan shall be
determined by the Company. On and after a Change in Control, the
entitlement of a participant (or his or her beneficiaries) to benefits
under the Plan shall be determined by a Benefit Determiner appointed
by the Company (or his successor appointed in accordance with Section
2(e)). The Trustee shall not be responsible for any action taken
pursuant to a direction, request or approval given by the Benefit
Determiner which is in conformity with, the terms of this Trust
Agreement and is given in writing by the Benefit Determiner and
Trustee may rely on any calculation made by the Benefit Determiner in
accordance with the terms of the Plan. The fees and expenses of the
Benefit Determiner shall be paid by the Company.
(c) The Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan.
The Company shall notify the Trustee and the Benefit Determiner of its
decision to make payment of benefits directly prior to the time
amounts are payable to participants or their beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are
not sufficient to make payments of benefits in accordance with the
terms of the Plan, the Company shall make the balance of each payment
as it falls due. The Trustee shall notify the Company where principal
and earnings are not sufficient.
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(d) The Trustee shall have no responsibility to determine whether the
Trust is sufficient to meet the liabilities under the Plan, and shall
not be liable for payments or Plan liabilities in excess of the value
of the Trust's assets.
(e) In the event that the Benefit Determiner resigns or dies after a
Change of Control, the Company shall designate a successor Benefit
Determiner; provided, however, that any successor Benefit Determiner
designated by the Company shall be independent of the Company; and
provided further, however, that if the Company fails to appoint a
successor Benefit Determiner within fifteen (15) days following the
effective date of the Benefit Determiner's resignation or death, the
Plan participants may appoint a successor Benefit Determiner. The
Benefit Determiner may resign at any time upon sixty (60) days written
notice to the Company.
Section 3. Trustee Responsibility Regarding Payments to the Trust Beneficiary
When Company is Insolvent.
(a) The Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is insolvent. The Company shall be
considered "insolvent" for purposes of this Trust Agreement if:
(i) the Company is unable to pay its debts as they become due; or
(ii) the Company is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof the principal and income of the Trust shall be
subject to claims of general creditors of the Company under federal
and state law as set forth below:
(i) The Board of Directors and the Chief Executive Officer of the
Company (or, if there is no Chief Executive Officer, the highest
ranking officer of the Company) shall have the duty to inform the
Trustee in writing of the Company's Insolvency. If a person
claiming to be a creditor of the Company alleges in writing to
the Trustee that the Company has become Insolvent, the Trustee
shall determine whether the Company is Insolvent
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and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants or
their beneficiaries.
(ii) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a
person claiming to be a creditor alleging that the Company
is Insolvent, the Trustee shall have no duty to inquire
whether the Company is Insolvent. The Trustee may in all
events rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee and that
provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
(iii) If at any time the Trustee has determined that the Company
is Insolvent, the Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the
assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of
the Company with respect to benefits due under the Plan or
otherwise.
(iv) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with
Section 2 of this Trust Agreement only after the Trustee has
determined that the Company is not insolvent (or is no
longer insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof
and subsequently resumes such payments, the first payment following
such discontinuance shall include the aggregate amount of all payments
due to Plan 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 Plan participants or their beneficiaries by
the Company in lieu of the payments provided for hereunder during any
such period of discontinuance; provided that the Company has given the
Trustee the information with respect to such payments made during the
period of discontinuance prior to resumption of payments by the
Trustee.
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Section 4. Payments to Company. Except as provided in Section 3 hereof, since
the Trust is irrevocable in accordance with Section 1(b) hereof, the Company
shall have no right or power to direct the Trustee to return to the Company or
to divert to others any of the Trust assets before all payment of benefits have
been made to Plan participants and their beneficiaries pursuant to the terms of
the Plan.
Section 5. Investment Authority.
(a) The Trustee shall invest and reinvest the principal and income of the
Trust as directed by the Company (including directions that the
Trustee follow Plan participants' deemed investment elections made in
accordance with the terms of the Plan), which directions may be
changed from time to time, all in accordance with procedures
established by the Trustee. The Trustee may limit the categories of
assets in which the Trust may be invested.
(b) The Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by the Company. All rights
associated with assets of the Trust shall be exercised by the Trustee
or the person designated by the Trustee, and shall in no event be
exercisable by or rest with Plan participants, except that voting
rights with respect to Trust assets will be exercised by the Company
unless an investment adviser has been appointed pursuant to Section
5(d) and voting authority has been delegated to such investment
adviser.
(c) The Company shall have the right at any time, and from time to time in
its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust. This right is exercised by the
Company in a nonfiduciary capacity without the approval or consent of
any person in a fiduciary capacity.
(d) The Company may appoint one or more investment managers, including any
entities affiliated with the Trustee, who shall have the power to
manage, acquire, or dispose of such portion of the assets of the Trust
as the Company shall determine subject to the following:
(i) An investment manager shall act in accordance with the provisions
of an investment management agreement entered into between it and
the
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Company, an executed copy of which investment management
agreement shall be filed with the Trustee;
(ii) Each such investment manager must be registered as an
investment adviser under the investment Advisers Act of
1940; and shall provide investment advice on a discretionary
or nondiscretionary basis with respect to that portion of
the assets of the Trust as the Company shall specify from
time to time by written direction(s) to the Trustee;
(iii) The indicia of ownership of the assets of the Trust shall be
held by the Trustee at all times;
(iv) Any entity affiliated with the Trustee may act as broker or
dealer to execute transactions, including the purchase of
any securities directly distributed, underwritten, or issued
by an entity affiliated with the Trustee, at standard
commission rates, xxxx-ups or concessions, and to provide
other management or investment services with respect to such
trust, including the custody of assets;
(v) Any direction given to the Trustee by an investment manager
shall be given in writing or given orally and confirmed in
writing as soon as practicable. Alternatively, an investment
manager may provide investment instructions directly to the
broker or dealer and receipt by the Trustee of a
confirmation of the transaction from the broker or dealer
shall be conclusive evidence of such transactions. In either
case, the Trustee shall have the authority within 24 hours
of receipt of such direction from the investment manager or
confirmation of a transaction to instruct the investment
manager to rescind the transaction if the Trustee finds that
the investment is inconsistent with its operational or
administrative requirements; and
(vi) The Trustee may pay any such investment manager for any such
services from the assets at the Trust without reduction for
any fees or compensation paid to the Trustee for its
services as trustee.
Notwithstanding any other provision of the Agreement, with
respect to the
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investment of the assets of the Trust managed by an
investment manager, the Trustee shall have only the duty to
follow the directions of the investment manager and the
Trustee shall not be liable to anyone:
(1) for an act or omission of the investment manager with
respect to the investment of such assets;
(2) for failing to act with respect to the investment of
such assets absent direction from the investment
manager; or
(3) for failing to invest, periodically review or otherwise
deal with the investment of such assets.
In the event the Company is "insolvent" for purposes of
Section 3 of this Trust Agreement and the Company fails to
provide effective investment instructions to the Trustee as
provided in Section 5(a) of this Trust Agreement, the
Trustee may appoint one or more investment advisers who are
registered as investment advisers under the Investment
Advisers Act of 1940, who may be affiliates of Trustee, to
provide investment advice on a discretionary or
non-discretionary basis with respect to all or a specified
portion of the assets of the Trust.
(e) Subject to Section 5(a), Trustee, or the Trustee's designee, is
authorized and empowered:
(i) To invest and reinvest Trust assets, together with the income
therefrom, in common stock, preferred stock, convertible
preferred stock, bonds, debentures, convertible debentures and
bonds, mortgages, notes, commercial paper and other evidences of
indebtedness (including those issued by the Trustee), shares of
mutual funds (which funds may be sponsored, managed or offered by
an affiliate of the Trustee), guaranteed investment contracts,
bank investment contracts, other securities, policies of life
insurance, annuity contracts, options, options to buy or sell
securities or other assets, and all other property of any type
(personal, real or mixed, and tangible or intangible);
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(ii) To deposit or invest all or any part of the assets of the
Trust in savings accounts or certificates of deposit or
other deposits in a bank or savings and loan association or
other depository institution, including the Trustee or any
of its affiliates, provided with respect to such deposits
with the Trustee or an affiliate the deposits bear a
reasonable interest rate;
(iii) To hold, manage, improve, repair and control all property,
real or personal, forming part of the Trust; to sell,
convey, transfer, exchange, partition, lease for any term,
even extending beyond the duration of this Trust, and
otherwise dispose of the same from time to time;
(iv) To hold in cash, without liability for interest, such
portion of the Trust as is pending investments, or payment
of expenses, or the distribution of benefits;
(v) To take such actions as may be necessary or desirable to
protect the Trust from loss due to the default on mortgages
held in the Trust including the appointment of agents or
trustees in such other jurisdictions as may seem desirable,
to transfer property to such agents or trustees, to grant to
such agents such powers as are necessary or desirable to
protect the Trust, to direct such agent or trustee, or to
delegate such power to direct, and to remove such agent or
trustee;
(vi) To settle, compromise or abandon all claims and demands in
favor of the or against the Trust;
(vii) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees
generally under the laws of the state in which the Trustee
is incorporated as set forth above, so that the powers
conferred upon the Trustee herein shall not be in limitation
of any authority conferred by law, but shall be in addition
thereto;
(viii) To borrow money from any source and execute promissory
notes, mortgages or other obligations and pledge or mortgage
any Trust assets as security; and
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(ix) To maintain accounts at, execute transactions through, and lend
on an adequately secured basis stocks, bonds or other securities
to, any brokerage or other firm, including any, firm that is an
affiliate of the Trustee.
Section 6. Additional Powers of the Trustee. To the extent necessary or which it
deems appropriate to implement its powers under Section 5 or otherwise to
fulfill any of its duties and responsibilities as Trustee of the Trust, the
Trustee shall have the following additional powers and authority:
(a) To register securities, or any other property, in its name or in the
name of any nominee, including the name of any affiliate or the
nominee name designated by any affiliate, with or without indication
of the capacity in which property shall be held, or to hold securities
in bearer form and to deposit any securities or other property in a
depository or clearing corporation;
(b) To designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel
and accountants as the Trustee considers necessary or appropriate, any
of whom may be an affiliate of the Trustee or a person who renders
services to such an affiliate, and, as a part of its expenses under
the Trust Agreement, to pay their reasonable expenses and
compensation;
(c) To make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in
writing necessary or appropriate for the accomplishment of any of the
powers listed in this Trust Agreement; and
(d) Generally to do all other acts that the Trustee deems necessary or
appropriate for the protection of the Trust.
Section 7. Disposition of Income. During the term of this Trust, all income
received, by the Trust, net of expenses and taxes, shall be accumulated and
reinvested.
Section 8. Accounting by Trustee. The Trustee shall keep accurate and detailed
records of all investments, receipts, disbursements, and all other transactions
required to be made
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including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within ninety (90) days following the close of
each calendar year and within ninety (90) 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 effected by it, 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. The Trustee may satisfy
its obligation under this Section 8 by rendering to the Company monthly
statements setting forth the information required by this Section
separately for the month covered by the statement.
Upon a change of control, all written accounts or statements provided to
the Company shall also be provided to the Benefit Determiner at an address
provided to the Trustee by the Benefit Determiner.
Section 9. Responsibility of Trustee.
(a) 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 any
person for any action taken pursuant to a direction, request or
approval given by the Company which is contemplated by, and in
conformity with, the terms of the Plan or this Trust and is given in
writing by the Company or in such other manner prescribed by the
Trustee. The Trustee shall also incur no liability to any person for
any failure to act in the absence of direction, request or approval
from the Company which is contemplated by, and in conformity with, the
terms of this Trust. In the event of a dispute between the Company and
a party, the Trustee may apply to a court of competent jurisdiction to
resolve the dispute.
(b) The Company hereby indemnifies the Trustee and each of its affiliates
(collectively, the "Indemnified Parties") against, and shall hold them
harmless
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from, any and all loss, claims, liability, and expense, including
reasonable attorneys' fees, imposed upon or incurred by any
Indemnified Party as a result of any acts taken, or any failure to act
in accordance with the directions from the Company or any designee of
the Company or by reason of the Indemnified Party's good faith
execution of its duties with respect to the Trust, including, but not
limited to, its holding of assets of the Trust, the Company's
obligations in the foregoing regard to be satisfied promptly by the
Company, provided that in the event the loss, claim, liability or
expense involved is determined by a no longer appealable final
judgment entered in a lawsuit or proceeding to have resulted from the
gross negligence or willful misconduct of the Trustee, the Trustee
shall promptly on request thereafter return to the Company any amount
previously received by the Trustee under this Section with respect to
such loss, claim, liability or expense. If the Company does not pay
such costs, expenses and liabilities in a reasonably timely manner,
the Trustee may obtain payment from the Trust without direction from
the Company.
(c) The Trustee may consult with legal counsel (who may also be counsel
for the Company generally) with respect to any of its duties or
obligations hereunder.
(d) The Trustee may hire agents, accountants, actuaries, investment
advisers, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers conferred on the
Trustee by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of
the Trust, the Trustee shall have no power to name a beneficiary of
the policy other than the Trust, to assign the policy (as distinct
from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any
borrowing against such policy.
(f) However, notwithstanding the provisions of Section 9(e) above, the
Trustee may loan to the Company the proceeds of any borrowing against
an insurance policy held as an asset of the Trust.
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(g) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any
power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of
Section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
(h) The Trustee hereby indemnifies the Company and shall hold the Company
harmless from, any and all loss, claims liability and expense,
including reasonable attorney's fees, asserted against the Company by
a non-party to this Agreement, to the extent that such claim, loss,
liability or expense directly results from the negligence or willful
misconduct of the Indemnified Parties in the performance of its
services under this Agreement.
Section 10. Compensation and Expenses of the Trustee. The Trustee is authorized,
unless otherwise agreed by the Trustee, to withdraw from the Trust without
direction from Company, the amount of its fees in accordance with the fee
schedule agreed to by the Company and the Trustee. The Company shall pay all
administrative expenses, but if not so paid, the expenses shall be paid from the
Trust.
Section 11. Resignation and Removal of Trustee.
(a) The Trustee may resign at any time by written notice to the Company,
which shall be effective thirty (30) days after receipt of such notice
unless the Company and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company upon thirty (30) days notice
or upon shorter notice accepted by the Trustee; provided, however,
that the Company may not remove the Trustee at any time following a
Change in Control (as defined in the Plan) without the written consent
of a majority of Plan participants.
(c) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within sixty (60)
days after receipt of notice of resignation, removal or transfer,
unless the Company extends the time limit,
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provided that the Trustee is provided assurance by the Company
satisfactory to the Trustee that all fees and expenses reasonably
anticipated will be paid.
(d) If the Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 12 hereof, by the effective date of the
resignation or removal under paragraph (a) or (b) of this section. If
no such appointment has been made, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
(e) Upon settlement of the account and transfer of the Trust assets to the
successor Trustee, all rights and privileges under the Trust Agreement
shall vest in the successor Trustee and all responsibility and
liability of the Trustee with respect to the Trust and assets thereof
shall terminate subject only to the requirement that the Trustee
execute all necessary documents to transfer the Trust assets to the
successor Trustee.
Section 12. Appointment of Successor.
(a) If the Trustee resigns (or is removed) in accordance with Section
11(a) or (b) hereof, the Company may appoint any third party, such as
a bank trust department or other party that may be granted corporate
trustee powers under state law, as a successor to replace the Trustee
upon resignation or removal; provided, however, that following a
Change in Control (as defined in the Plan), the Company may not
appoint a successor trustee without the consent of a majority of
participants of the Plan. The appointment shall be effective when
accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in
the Trust assets. The former Trustee shall execute any instrument
necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsib1e for and the Company shall indemnify and defend the
successor Trustee from any claim or liability resulting
15
from any action or inaction of any prior Trustee or from any other
past event, or any condition existing at the time it becomes successor
Trustee.
Section 13. Amendment or Termination.
(a) This Trust may be amended by a written instrument executed by the
Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan, make the Trust
revocable, since the Trust is irrevocable in accordance with Section
1(b) hereof, or otherwise impair any of the rights of participants and
beneficiaries under the Plan or this Agreement. In addition,
notwithstanding anything herein to the contrary, the Agreement may not
be amended following a Change in Control (as defined in the Plan)
unless a majority of Plan participants consent to such amendment or
termination.
(b) This Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of this
Trust any assets remaining in this Trust shall be returned to the
Company.
(c) This Agreement may be terminated by the Company if a majority of Plan
participants consent to such termination.
(d) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, the Company may
terminate this Trust prior to the time all benefit payments under the
Plan have been made. All assets in the Trust at termination shall be
returned to the Company.
Section 14. Miscellaneous.
(a) Any provision of this Trust prohibited by law shall be ineffective to
the extent of any such prohibition, without invalidating the remaining
provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
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(c) This Trust shall be governed by and construed in accordance with the
laws of the State of New Jersey.
(d) The provisions of Sections 2(d), 3(b)(3), 9(b) and 15 of this
Agreement shall survive termination of this Agreement.
(e) The rights, duties, responsibilities, obligations and liabilities of
the Trustee are as set forth in this Trust Agreement, and no provision
of the Plan or any other documents shall affect such rights,
responsibi1ities, obligations and liabilities. If there is a conflict
between provisions of the Plan and this Trust Agreement with respect
to any subject involving the Trustee, including but not limited to the
responsibility, authority or powers of the Trustee, the provisions of
this Trust Agreement shall be controlling.
Section 15. Arbitration.
(a) Arbitration is final and binding on the parties.
(b) The parties waive their right to seek remedies in court, including the
right to jury trial.
(c) Pre-arbitration discovery is generally more limited than and different
from court proceedings.
(d) The arbitrator's award is not required to include factual findings or
legal reasoning and any party's right to appeal or seek modification
of rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
Company agrees that all controversies which may arise between Company
and either or both the Trustee and its affiliate Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S") in connection with the
Trust, including, but not limited to, those involving any
transactions, or the construction, performance, or
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breach of this or any other agreement between Company and either or
both the Trustee and MLPF&S, whether entered into prior, on, or
subsequent to the date hereof, shall be determined by arbitration. Any
arbitration under this Agreement shall be conducted only before the
New York Stock Exchange, Inc., the American Stock Exchange, Inc., or
arbitration facility provided by any other exchange of which MLPF&S is
a member, the National Association of Securities Dealers, Inc., or the
Municipal Securities Rulemaking Board, and in accordance with its
arbitration rules then in force. Company may elect in the first
instance whether arbitration shall be conducted before the New York
Stock Exchange, Inc., the American Stock Exchange, Inc., other
exchange of which MLPF&S is a member, the National Association of
Securities Dealers, Inc., or the Municipal Securities Rulemaking
Board, but if the Company fails to make such election, by registered
letter or telegram addressed to Xxxxxxx Xxxxx Trust Company, Employee
Benefit Trust Operations, X.X. Xxx 00000, Xxx Xxxxxxxxx, Xxx Xxxxxx
00000-0000, before the expiration of five days after receipt of a
written request from MLPF&S and/or the Trustee to make such election
then MLPF&S and/or the Trustee may make such election. Judgment upon
the award of arbitrators may be entered in any court, state or
federal, having jurisdiction. No person shall bring a putative or
certified class action to arbitration, nor seek to enforce any
pre-dispute arbitration agreement against any person who has initiated
in court a putative class action; who is a member of putative class
who has not opted out of the class with respect to any claims
encompassed by the putative class action until:
(i) the class certification is denied;
(ii) the class is decertified; or
(iii) the customer is excluded from the class by the court. Such
forbearance to enforce an agreement to arbitrate shall not
constitute a waiver of any rights under this agreement except to
the extent stated herein.
Section 16. Effective Date. The effective date of this Trust shall be as first
above written.
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IN WITNESS WHEREOF, the Company and the Trustee have executed this Trust
Agreement each by action of a duly authorized person.
By signing this Agreement, the undersigned Company acknowledges (1) that,
in accordance with Section 15 of this Agreement, the Company is agreeing in
advance to arbitrate any controversies which may arise with either or both the
Trustee or MLPF&S and (2) receipt of a copy of this Agreement.
XXXXXXXXX TECHNOLOGIES INC.
By: /s/ Xxxxxxx X Xxxxxxxxx
----------------------------
(Signature)
Name/Title: Xxxxxxx X Xxxxxxxxx
--------------------
Vice Pres - Finance
Chief Financial Officer
XXXXXXX XXXXX TRUST COMPANY, FSB
By: Xxxxxxx Xxxxxxx
----------------------------
(Signature)
Name/Title: Xxxxxxx Xxxxxxx
New Account Trust Officer
--------------------
"Company Copy"
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