EXHIBIT 10.4
TRUST AGREEMENT TO THE
ASTROPOWER, INC. 401(K) SAVINGS PLAN
PREPARED AS OF MAY 1, 1995
TABLE OF CONTENTS
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ARTICLE I Page No.
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Establishment of Trust Fund....................................... 1
ARTICLE II
Disbursement of Funds............................................. 2
ARTICLE III
Investment of Trust Fund.......................................... 3
ARTICLE IV
Powers of Trustees................................................ 5
ARTICLE V
Compensation, Expenses and Taxes.................................. 8
ARTICLE VI
Maintenance of Records............................................ 9
ARTICLE VII
Removal, Resignation or Death of Trustees and
Appointment of Successor Trustees................................. 10
ARTICLE VIII
Immunity of Trustees.............................................. 11
ARTICLE IX
Qualified Investment Manager...................................... 13
ARTICLE X
Concerning Insurance Companies.................................... 14
ARTICLE XI
Amendment and Termination......................................... 15
ARTICLE XII
Spendthrift Provisions............................................ 16
ARTICLE XIII
Adoption by Other Business Entities............................... 17
ARTICLE XIV
Construction of Agreement......................................... 18
ARTICLE XV
Miscellaneous Provisions.......................................... 19
TRUST AGREEMENT (the "Agreement") made as of January 1, 1994, by and between
AstroPower, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (the "Trustees").
WITNESSETH:
-----------
WHEREAS, effective September 1, 1990, the Company established the
AstroPower, Inc. 401(k) Savings Plan (the "Plan"); and
WHEREAS, pursuant to the terms of the Plan and effective as of the same
date, the Company entered into the AstroPower, Inc. 401(k) Savings Plan
Trust Agreement (the "Trust"); and
WHEREAS, effective January 1, 1994 the Plan was amended in its entirety and
restated into the AstroPower, Inc. 401(k) Savings Plan, copy of which is
annexed hereto; and
WHEREAS, the Company and Trustees desire to amend the Trust in its
entirety;
NOW, THEREFORE, based on the foregoing premises it is mutually agreed by
and between the Company and the Trustees as follows:
ARTICLE I
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ESTABLISHMENT OF TRUST FUND
---------------------------
1.01 The Company hereby establishes with the Trustees a trust fund (the "Fund")
consisting of cash and such other property acceptable to the Trustees as
shall, from time to time, be paid or delivered to the Trustees and the
earnings and profits thereon. The Fund shall be held, managed and
administered by the Trustees in trust in accordance with the provisions of
this Agreement without distinction between principal and income. At no
time shall any part of the Fund (whether by reason of any amendment of
this Agreement, or otherwise) be used for, or diverted to, purposes other
than the exclusive benefit of participants of the Plan or their
beneficiaries; provided, however, that contributions made by the Company
by mistake of fact or which are not deductible under Section 404 of the
Internal Revenue Code of 1986 (the "Code") shall be returned to the
Company within one year of the mistaken payment of contribution or the
date of disallowance of the deduction, as the case may be.
1
ARTICLE II
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DISBURSEMENT OF FUNDS
---------------------
2.01 Disbursement of Funds
---------------------
The Trustees shall, from time to time, on the written directions of the
committee provided for in the Plan (the "Committee"), make payments out of
the Fund to such persons, in such manner, in such amounts and for such
purposes as may be specified in the written directions of the Committee,
and upon any such payment being made, the amount thereof shall no longer
constitute a part of the Fund. The Trustees shall not be responsible in
any way with respect to the application of such payments or for the
administration of the Plan. The Trustees shall be under no duty to enforce
payment of any contributions to the Fund and shall not be responsible for
the adequacy of the Fund to meet and discharge any and all liabilities
under the Plan.
2.02 Excess Contributions
--------------------
Notwithstanding anything contained herein to the contrary, the amount of
"excess contributions" (as such term is defined by Section 401(k)(8)(B) of
the Code), "excess aggregate contributions" (as such term is defined by
Section 401(m)(6)(B) of the Code), and excess annual additions under
Section 415 of the Code may be returned to the Company or distributed to
"highly compensated employees" (as such term is defined by Section 414(q)
of the Code), as the case may be, pursuant to Section 401(k)(8) of the
Code and regulations thereunder.
2
ARTICLE III
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INVESTMENT OF TRUST FUND
------------------------
3.01 Investment of Trust Fund
------------------------
The Trustees shall invest and reinvest the Fund, in such securities or in
such property, real or personal wherever situated, as the Trustees shall
deem advisable. Investment of the Fund shall not be limited to the classes
of property in which trustees are authorized to invest by any state or
local law. The assets in which the Fund may be invested include, but are
not limited to, stocks, common or preferred, trust and participation
certificates, bonds and mortgages (including part interests in bonds and
mortgages or notes and mortgages insured by the Federal Housing, Veterans
Administration or similar agencies), group or annuity or insurance company
investment contracts, leaseholds on improved and unimproved real estate,
and other evidence of indebtedness or ownership and interests in any trust
fund that has been or shall be created and maintained for the collective
investment of funds of trusts for employee benefit plans (qualified under
sections 401 and 501 of the Code) and to the extent not prohibited by the
Plan and by section 407 of The Employee Retirement Income Security Act of
1974 (ERISA), qualifying employer securities (as defined in section
407(d)(5) of ERISA) issued by the Company and qualifying employer real
property (as defined in section 407(d)(4) of ERISA).
Without limiting the generality of the foregoing, the Trustees shall, as
and when directed by the Committee, invest a portion of the Fund in (a)
annuity or other insurance policies issued by any insurance company
approved by the Committee and shall deal with such policies as directed by
the Committee; (b) such separate investment fund or funds as designated by
the Committee, approved by the Trustees and established in accordance with
the terms of the Plan; and (c) loans, if any, granted to participants in
accordance with the terms of the Plan.
The Committee shall advise the Trustees in writing of the amounts which
shall be allocated for such annuity or other insurance policies, to each
of said investment fund or funds, and to each of said loans if any. The
Trustees shall hold the amounts so specified as part of the investment
fund to which it shall have been allocated.
The Trustee may invest, if the Trustee is a bank or similar financial
institution supervised by the United States or by a State, if any type of
deposit of the Trustee (or of a bank related to the Trustee within the
meaning of Code Section 414(b) at a reasonable rate of interest or in a
common trust fund, as described in Code Section 584, or in a collective
investment fund, the provisions of which govern the investment of such
assets and which the Plan incorporates by this reference, which the
Trustee (or its affiliate, as defined in Code Section 1504) maintains
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exclusively for the collective investment of money contributed by the bank
(or the affiliate) in its capacity as Trustee and which conforms to the
rules of the Comptroller of the Currency.
3.02 Fiduciary Standard of Conduct
-----------------------------
Each Trustee shall discharge his duties in the investment of the Fund
solely in the interest of the participants and their beneficiaries for the
exclusive purpose of providing benefits to participants and their
beneficiaries and defraying reasonable expenses of administering the Plan.
Each Trustee shall act with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent man, acting in a like
capacity and familiar with such matters, would use in conducting an
enterprise of like character and with like aims, and shall diversify
investments of the Fund so as to minimize the risk of large losses, unless
under the circumstances it is clearly prudent not to do so.
From time to time the Committee shall communicate to the Trustees and to
any investment manager information relating to the liquidity needs of the
Plan so that investment discretion can be exercised to effect specified
objectives.
4
ARTICLE IV
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POWERS OF TRUSTEES
------------------
The Trustees shall have the following powers and authority in the administration
of the trust hereby created:
4.01 Purchase of Property
--------------------
To purchase, or subscribe for, any security or property and to retain the
same in trust.
4.02 Sale, Exchange, Conveyance and Transfer of Property
---------------------------------------------------
To sell or otherwise dispose of, by private or public sale, any real or
personal property held by the Trustees. No person dealing with the
Trustees shall be bound to verify the application of the purchase money or
to inquire into the validity, expediency or propriety of any such sale or
other disposition.
4.03 Exercise of Owner's Rights
--------------------------
To exercise any ownership rights relating to any assets of the Fund
including, but not limited to, any rights as owner of any securities or
any interest in real property which are part of the Fund.
4.04 Right to Borrow
---------------
To borrow or raise monies for the purposes of the trust in such amount,
and upon such terms and conditions, as the Trustees in absolute discretion
may deem advisable; and, for any sums borrowed, to issue a promissory note
as Trustees and to secure the repayment thereof by pledging all, or any
part of, the Fund, provided, however, that if any borrowing is made
against life insurance policies (other than such policies which are
specifically allocated to participants in accordance with the terms of the
Plan), the interests of all participants shall be adjusted to reflect such
borrowing on a pro rata basis. No person lending money to the Trustees
shall be bound to verify the application of the money lent or to inquire
into the validity, expediency or propriety of any such borrowing.
4.05 Settlement of Claims and Debts
------------------------------
To settle, compromise or submit to arbitration any claim, debt or damage
due or owing to or from the Fund; to commence or defend suits or legal or
administrative proceedings; and to represent the Fund in all suits and
legal and administrative proceedings.
5
4.06 Retention of Cash
-----------------
To keep such portion of the Fund in cash or cash balances as the Trustees
may, from time to time, deem to be in the best interests of the trust
created hereby, it being understood that the Trustees shall not be
required to pay any interest on any such cash balances.
4.07 Retention of Property Acquired
------------------------------
To accept and retain for such time as the Trustees may deem advisable any
security or other property received or acquired by the Trustees as
Trustees hereunder, whether or not such security or other property is
productive of income or would normally be purchased as investments
hereunder.
4.08 Maintaining Real Estate
-----------------------
To repair, alter, improve or lease any building or structure on any real
property forming part of the Fund, including, but not necessarily limited
to, the right to erect entirely new buildings or structures.
4.09 Mortgage Powers
---------------
To renew or extend or to participate in the renewal or extension of any
mortgage upon such terms as may be deemed advisable, and to agree to a
reduction in the rate of interest charged on any mortgage or to any other
modification or change in the terms of any mortgage or of any guarantee
pertaining thereto in any manner and to any extent that may be deemed
advisable for the protection of the Fund or the preservation of the value
of the investment; to waive any default, whether in the performance of any
covenant or condition of any mortgage or in the performance of any
guarantee, or to enforce any such default, in such manner and to such
extent as may be deemed advisable; to exercise and enforce any and all
rights of foreclosure; to bid on property in foreclosure; to take a deed
in lieu of foreclosure with or without paying a consideration therefore
and in connection therewith to release the obligation on the bond secured
by such mortgage; and to exercise and enforce in any action, suite or
proceeding at law or in equity any rights or remedies in respect to any
mortgage or guarantee.
4.10 Registration of Investments
---------------------------
To register any investment held as part of the Fund in the name of the
Trustees or in the name of a nominee and to hold any investment in bearer
form, but the books and records of the Trustees shall at all times show
that all such investments are part of the Fund.
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4.11 Employment of Agents and Counsel
--------------------------------
To employ suitable agents and counsel (who may be counsel for the Company
or any Trustees in his individual capacity) and to pay their reasonable
expenses and compensation.
4.12 Execution of Instruments
------------------------
To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers herein granted.
Any instrument or document to be executed by the Trustees, may be made,
executed, acknowledged and delivered by the majority of individuals
appointed as the Trustees; and as a result, any person, firm, or
corporation, including any insurance company or bank, may rely upon and
shall be protected in relying upon the signature(s) of the majority of
individuals appointed as the Trustees, with the same force and effect as
though all Trustees had signed.
4.13 Power to do Any Necessary Act
-----------------------------
To do all such acts, undertake all such proceedings and exercise all such
rights and privileges, although not specifically mentioned herein, as
necessary or proper for the accomplishment of the foregoing powers or
otherwise in the best interests of the Fund.
7
ARTICLE V
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COMPENSATION, EXPENSES AND TAXES
--------------------------------
5.01 The Company may elect to pay (a) the expenses incurred by the Trustees in
performance of appropriate duties, including reasonable fees for legal
services rendered to the Trustees; (b) such compensation to the Trustees,
other than to a Trustee who is a full-time paid employee of the Company,
as may be agreed upon in writing from time to time between the Company and
the Trustees; (c) all other proper charges and disbursements of the
Trustees; (d) administrative expenses of the Plan including premiums for
any surety bond covering fiduciaries of the Plan and trust which may be
required under Section 412 of ERISA and (e) the fees and retainers of the
Plan's actuary, consultant, custodian, administrator and counsel. If the
Company does not elect to pay all or part of these expenses, the Trustees
shall pay these expenses and charge the payment thereof against the assets
of the Fund. Until paid, any such fees and expenses shall constitute a
charge against the Fund. All taxes of any kind whatsoever that may be
levied or assessed under existing or future laws upon, or in respect of,
the Fund or the income thereof, and any expense directly relating to the
investments of the Fund such as brokerage commissions and registration
charges, shall be paid from the Fund.
8
ARTICLE VI
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MAINTENANCE OF RECORDS
----------------------
6.01 The Trustees shall keep accurate and detailed accounts of all investments,
receipts, disbursements and other transactions hereunder, so as to reflect
each separate investment fund, if applicable, and all accounts, books and
records relating thereto shall be open to inspection and audit at all
reasonable times by any person designated by the Company.
Within 60 days following the close of the fiscal year of the Plan and
within 60 days after the removal or resignation of the Trustees as
provided in Article VII hereof, the Trustees shall file with the Company a
written account setting forth all investments, the receipts, the
disbursements and other transactions effected by the Trustees during such
fiscal year or during the period from the close of the last fiscal year to
the date of such removal or resignation, and setting forth the current
value of the Fund. Upon the expiration of 60 days from the date of filing
such annual or other account the Trustees shall, to the extent permitted
by law, be forever released and discharged from all liability and
accountability to anyone with respect to the propriety of the acts and
transactions shown in such account, except with respect to such acts or
transactions to which the Company shall file with the Trustees written
objections within such 60 day period.
No person other than the Company may require an accounting or bring an
action against the Trustees with respect to the trust created hereby or
the actions as Trustees, except to the extent permitted by law.
9
ARTICLE VII
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REMOVAL, RESIGNATION OR DEATH OF TRUSTEES AND APPOINTMENT
---------------------------------------------------------
OF SUCCESSOR TRUSTEES
---------------------
7.01 A Trustee may be removed by the Company at any time upon written notice to
such Trustee and the remaining Trustees, if any. A Trustee may resign at
any time upon written notice to the Company and the remaining Trustees.
Such resignation shall take effect upon the expiration of 60 days (or at
any other time agreed upon by the Trustee and the Company).
In the event of a vacancy in the office of Trustees as the result of a
Trustee's death, removal, resignation, refusal or inability to act, the
Company shall appoint a successor individual or corporate trustee, who,
upon acceptance of such appointment, shall have the same powers and duties
as those conferred upon the original Trustees hereunder; and, the title to
all funds and properties constituting the Fund shall vest jointly in
whoever shall from time to time be the Trustees hereunder. Pending the
appointment of any successor trustee and acceptance of such appointment,
the remaining Trustees, if any, shall have full power to take any action
hereunder.
10
ARTICLE VIII
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IMMUNITY OF TRUSTEES
--------------------
8.01 Protection of Trustees
----------------------
The Trustees shall be fully protected in relying upon a certification of a
member of the Committee with respect to any instruction or direction of
the Committee, in relying upon the certification of an officer or agent of
the Company as to the membership of the Committee as it then exists, and
in continuing to rely upon such certification until a subsequent
certification is filed with the Trustees.
The Trustees shall be fully protected in acting upon any instrument,
certificate or paper believed by them to be genuine and to be signed or
presented by the proper person or persons, and the Trustees shall be under
no duty to make any investigation or inquiry as to any statement contained
in any such writing, but may accept the same as conclusive evidence of the
truth and accuracy of the statements therein contained.
The Trustees shall not be liable for the proper application of any part of
the Fund if action is taken by the Trustees in accordance with written
directions of the Committee as herein provided.
8.02 Limitation of Liability
-----------------------
The Trustees shall not be liable for the making, retention or sale of any
investment or reinvestment made by them, in their own discretion, nor for
any loss to, or diminution of the Fund, except due to Trustee's own
negligence, willful misconduct, lack of good faith or failure to discharge
the Trustee's duties in accordance with Section 3.02, nor shall a Trustee
be liable for the breach of responsibility of a co-trustee, if any, the
Committee or other fiduciary of the Plan except as provided by law and in
the following circumstances:
(a) if he knowingly participates in or knowingly conceals an act or
omission of the co-trustee, the Committee or other fiduciary, knowing
such act or omission to be a breach;
(b) if by failure to discharge his duties in accordance with Section
3.02, he has enabled such other fiduciary to commit a breach; or
(c) if he has knowledge of a breach by such other fiduciary and fails to
make reasonable efforts under the circumstances to remedy the breach.
8.03 Power to Allocate Responsibilities
----------------------------------
If at any time two or more persons serve as Trustee, they are specifically
authorized, by written agreement, to allocate specific responsibilities,
obligations
11
or duties between themselves, to be effective upon delivery of such
agreement to the Company for retention with other Plan documents. In the
event such agreement is entered into, it shall be deemed a part of this
Trust and no Trustee shall be liable either individually or as a Trustee
for any loss resulting from the acts or omissions of another Trustee with
respect to responsibilities, obligations or duties allocated to such other
Trustee, except as provided in Section 8.02.
8.04 Evidence of Action of Company
-----------------------------
Except as otherwise herein specifically provided, any action by the
Company in accordance with any of the provisions of this Agreement shall
be evidenced by:
(a) a resolution of its board of directors (or similar governing body)
certified to the Trustees over the signature of its secretary or
assistant secretary or other duly authorized agent; or
(b) an appropriate written authorization of any person or committee to
which the board of directors has delegated the authority to take such
action, and the Trustees shall be fully protected in acting in
accordance with any such resolution or other authorization.
8.05 Reliance on Counsel
-------------------
The Trustees may from time to time consult with counsel (who may be
counsel for the Company, corporate Trustee, if applicable, or any Trustee
in his individual capacity) and shall be fully protected in acting upon
the advice of counsel.
8.06 Indemnification
---------------
The Company agrees to indemnify the Fund and Trustees against any
liability imposed as a result of a claim asserted by any person or persons
under the community property or other laws of any state where the Trustee
has acted in good faith in reliance on a written direction of the Company
or Committee. Claims against the Trustees by persons dealing with the
Trustees shall be limited to the Fund, and each Trustee shall not be
responsible for such claims in his individual capacity.
12
ARTICLE IX
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QUALIFIED INVESTMENT MANAGER
----------------------------
9.01 Appointment and Acknowledgement
-------------------------------
The Company may appoint a qualified investment manager to manage and
control the investment and reinvestment of the Fund or a portion of the
Fund in his sole discretion in accordance with Article III. The accounts,
books, and records of the Trustees shall reflect the segregation of said
portion of the Fund in separate investment management accounts. Such
investment manager shall accept his appointment and acknowledge his status
as a fiduciary under the Plan in writing to the Trustees and shall be
subject to the standard of conduct described in Section 3.02.
9.02 Qualification
-------------
A qualified investment manager shall be (a) an investment adviser
currently registered under the Investment Advisers Act of 1940; (b) a
bank, as defined in the Act, or (c) an insurance company qualified to
perform investment management services under the laws of more than one
state. A certificate evidencing such qualifications shall be delivered to
the Trustees.
9.03 Relation to Trustees
--------------------
The appointed investment manager shall direct the Trustees in exercising
the powers enumerated in Sections 3.01 and Article IV with respect to the
separate investment management accounts under its management and control.
The Trustees shall be under no duty to review such investment directions.
Notwithstanding the provisions of Section 3.02, the Trustees shall not be
liable for acting pursuant to any direction of, or failing to act in the
absence of any direction from the investment manager, except as stated in
Section 8.02.
9.04 Resignation or Removal
----------------------
Until notified by the Company of the resignation or removal of the
Investment manager, the Trustees shall be fully protected in removal on
the acknowledgement and certification as delivered to the Trustees. On
receipt of such notice, the Trustees shall assume management
responsibility for the Fund in accordance with Articles III and IV. The
Trustees shall relinquish management responsibility for the Fund to a
successor investment manager upon receipt of such successor's
acknowledgement and certification.
13
ARTICLE X
---------
CONCERNING INSURANCE COMPANIES
------------------------------
10.01 No insurance company which shall have issued or which shall issue a
contract or policy which forms a part of the Fund shall be deemed a party
to this Agreement. A certification in writing by the Trustees as to the
occurrence of any event contemplated by this Agreement shall be
conclusive evidence thereof and the insurance company shall be protected
in relying upon such certification and shall incur no liability for so
doing. With respect to any action under any such contract, the insurance
company may deal with the Trustees as the sole owner thereof and need not
see that any action of the Trustees is authorized by this Agreement. Any
change made or action taken by an insurance company upon the direction of
the Trustees shall fully discharge the insurance company from all
liability with respect thereto, and it need not see to the distribution
or further application of any monies paid by it to the Trustees or paid
in accordance with the direction of the Trustees.
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ARTICLE XI
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AMENDMENT AND TERMINATION
-------------------------
11.01 Amendment
---------
The Company reserves the right to amend, at any time, in whole or in
part, any or all of the provisions of this Agreement by notice thereof in
writing delivered to the Trustees, provided no such amendment which
affects the rights, duties or responsibilities of the Trustees may be
without the Trustee's consent.
11.02 Termination
-----------
This Agreement and the trust created hereby may be terminated by the
Company, upon 60 days prior notice in writing to the Trustees, as of the
last business day of any month. Upon such termination or upon the
dissolution or liquidation of the Company, the Fund shall be paid out by
the Trustees as and when directed by the Committee in accordance with the
provisions of Section 2.01 hereof and, to the extent directed by the
Committee, shall be used to purchase annuity or other contracts issued by
an insurance company approved by the Committee.
15
ARTICLE XII
-----------
SPENDTHRIFT PROVISIONS
----------------------
12.01 No benefit, which shall be payable out of the Fund to any person
(including a participant of the Plan or his beneficiary), shall be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any such attempt shall be
void. No benefit shall in any manner be subject to the debts, contracts,
liabilities, engagements or torts of any member of the Plan or his
beneficiary, nor shall any benefit be subject to attachment or other
legal process for or against such person, and any such attempt shall not
be recognized by the Trustees except with respect to (a) the debts of a
participant of the Plan to the Trustees, (b) a Qualified Domestic
Relations Order as defined in Section 414(b) of the Code and (c) such
other instances as required by law.
16
ARTICLE XIII
------------
ADOPTION BY OTHER BUSINESS ENTITIES
-----------------------------------
13.01 Any corporation or other business entity may, with the approval of the
board of directors (or similar governing body) of the Company, by
resolution of its own board of directors (or similar governing body),
adopt the Trust hereby created if such corporation or other business
entity shall have adopted the Plan. Contributions made by such business
entity shall be invested and maintained together with the contributions
made hereunder by the Company and any other adopting business entity.
17
ARTICLE XIV
-----------
CONSTRUCTION OF AGREEMENT
-------------------------
14.01 This agreement and the trust created hereby shall be administered,
construed and enforced according to the laws of the State of Delaware,
and the Trustees shall be liable to account only in the courts of that
state. All transfers of funds or other property to the Trustees shall be
deemed to take place in the State of Delaware. The Trustees may at any
time initiate an action or proceeding for the settlement of the Trust
accounts or for the determination of any question of construction which
may arise or for instructions, and the only necessary parties defendant
to such action or proceeding shall be the Company and the Committee,
except that the Trustees may, if the Trustees so elects, bring in as
parties defendant any other person or persons.
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ARTICLE XV
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MISCELLANEOUS PROVISIONS
------------------------
15.01 Disposition of Unclaimed Benefits
---------------------------------
In the event that any check in payment of benefits under the Plan
remains outstanding at the expiration of six months from the date of
mailing of such check to the last known address of the payee, the
Trustees, upon written notification from the Committee, shall stop
payment of all such outstanding checks and shall suspend the issuance of
any further checks, if any, to such payee. If, during the three-year
period from the date of mailing of the first such check, the Committee
cannot establish contact with the payee by taking such action as it
deems appropriate and the payee does not make contact with the
Committee, the Committee shall notify the Trustees to dispose of such
unpaid benefits in the manner prescribed by the Plan.
15.02 Severability
------------
Should any provisions of this Agreement or any regulation adopted
hereunder be deemed or held to be unlawful or invalid for any reason,
such fact shall not adversely affect the other provisions herein or
regulations hereunder contained unless such invalidity shall render
impossible or impractical the functioning of this Agreement and, in such
case, the appropriate parties shall immediately adopt a new provision or
regulation to take the place of the one held illegal or invalid.
15.03 Titles, Headings, Number, and Gender
------------------------------------
The titles and headings of the Sections in this instrument are for
convenience of reference only and, in the event of any conflict, the
text of this instrument, rather than such titles and headings, shall
control. Wherever used, the masculine pronoun shall include the feminine
and the feminine pronoun shall include the masculine and the singular
shall include the plural and the plural shall include the singular.
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15.04 Counterparts as Original
------------------------
This Agreement may be executed in counterparts, in which case each
counterpart so executed shall be construed as original.
IT WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed this _____ day of _____________________ 1996.
ATTEST: ASTROPOWER, INC.
___________________________ By:_____________________________
President
WITNESSED:
___________________________ ________________________________
Trustee ▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________ ________________________________
Trustee ▇▇▇▇▇▇ ▇▇▇▇▇
___________________________ ________________________________
Trustee ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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