Common use of Payments to Company Clause in Contracts

Payments to Company. 4.1 After the occurrence of a Change in Control (as defined in Article XIV), except to the extent expressly contemplated by Sections 2.3, 1.7 and this Article IV, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Benefits have been made to all Trust Beneficiaries as provided in this Trust Agreement; provided, however, as set forth in Section 1.7, the Company may direct repayment of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance Plan. The Trustee shall be entitled to rely conclusively upon the Company's written certification that all such payments have been made or that the Participant is no longer entitled to a Benefit. 4.2 Prior to a Change in Control of the Company (as defined in Article XIV), the Company may request the return of all or a portion of any amounts contributed to the Trust. From time to time after a Change in Control (as defined in Article XIV), the Company may determine for purposes of this Section 4.2 the maximum value of the Benefits that could become payable under the Agreements and the Executive Severance Plan (the “Fully Funded Amount”) with respect to the Trust Beneficiaries and the fair market value of the Trust assets. The Company shall pay the fees of any appraiser engaged to value any property held in the Trust. Thereafter, upon the direction of the Company, the Trustee shall pay to the Company the excess, if any, of the fair market value of the Trust assets over 110% of the Fully Funded Amount; provided, however, that if such payment would leave the Trustee with insufficient liquid assets to pay all premiums due and to become due on any life insurance policies held in the Trust, Trustee fees and expenses then due and owing (and for a period of twenty-four months thereafter), or any other amounts due and payable under the Trust, the Trustee may (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Company. 4.3 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 assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.

Payments to Company. 4.1 After the occurrence of a Change in Control (as defined in Article XIV), except Except to the extent expressly contemplated by Sections 2.3, 1.7 Section 2.3 and this Article IV, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Benefits have been made to all Trust Beneficiaries as provided in this Trust Agreement; provided, however, as set forth in Section 1.7, the Company may direct repayment of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance Plan. The Trustee shall be entitled to rely conclusively upon the Company's ’s written certification that all such payments have been made or that the Participant is no longer entitled to a Benefitmade. 4.2 Prior to a Change in Control of the Company (as defined in Article XIV), the Company may request the return of all or a portion of any amounts contributed to the Trust. From time to time after a Change in Control (as defined in Article XIV)time, the Company may determine for purposes of this Section 4.2 the maximum present value of the Benefits (regardless of vesting) that could become payable under each of the Agreements and the Executive Severance Plan Plans (the “Fully Funded Amount”) with respect to the all Trust Beneficiaries and the fair market value of the Trust assets. For purposes of calculating the Fully Funded Amount, (a) with respect to a Plan that is an account balance plan, the maximum present value of Benefits payable to each Trust Beneficiary is the value of the account balances (including contributions and earnings through the last completed calendar quarter) of the Trust Beneficiaries under the Plan and (b), with respect to a Plan, other than an account balance plan, the maximum present value of Benefits payable to each Trust Beneficiary shall be the present value (determined as of the last day of the last completed calendar quarter) of all future Benefits payable under the Plan based on reasonable actuarial assumptions established by the Company. The Company shall pay the fees of any appraiser engaged to value any property held in the Trust. Thereafter, upon the direction of the Company, the Trustee shall pay to the Company the excess, if any, of the fair market value of the Trust assets over 110% of the Fully Funded Amount; provided, however, that if such payment would leave the Trustee with insufficient liquid Amount plus sufficient assets to pay (a) all premiums due and to become due on any life insurance policies held in the Trust, Trust and (b) Trustee fees and expenses then due and owing (and expenses, for a period of the next twenty-four months thereafter)months, or any other amounts due provided, however, that such request must be accompanied by a statement from the Company that sets forth the basis for the determination of such excess and payable under identifies the Trust, professional advisor used to calculate the Trustee may (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Companyexcess. 4.3 The Company shall have the right at any timeanytime, and from time to time in its sole discretion, to substitute assets of equal fair market value for any assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.

Payments to Company. 4.1 After the occurrence of a Change in Control (as defined in Article XIV), except to the extent expressly contemplated by Sections 2.3, 1.7 and this Article IV, the Company shall have no right or power to direct the Trustee to return to Company or to divert to others any of the Trust assets to the Company before all payments of Supplemental Benefits have been made to all Trust Beneficiaries Beneficiary pursuant to Appendix A, except as otherwise provided in Section 1(b) and this Section. Notwithstanding any provision of this Trust Agreement; providedAgreement to the contrary and prior to a "Change in Control," (as hereinafter defined), howeverif it is determined by Trustee that certain Trust assets will never be required to pay Supplemental Benefits to Trust Beneficiary (because, as set forth in Section 1.7for example, the Company may direct repayment of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance Plan. The Trustee difference between actual requirements and expected actuarial requirements), such excess assets shall be entitled returned to rely conclusively upon the Company's written certification that all such payments have been made or that the Participant is no longer entitled to a Benefit. 4.2 Prior to a Change in Control of the Company , but (as defined in Article XIV), the Company may request the return of all or a portion of any amounts contributed i) only to the Trust. From time to time after a Change in Control (as defined in Article XIV), extent that such return does not cause the Company may determine for purposes of this Section 4.2 the maximum value of the Benefits that could become total Trust assets to be less than one hundred thirty percent (130%) of the present value of projected Supplemental Benefits, and (ii) only if the assets of each other trust of which Trustee serves as trustee and established pursuant to Appendix A are at least one hundred thirty percent (130%) of the present value of projected supplemental benefits payable under the Agreements and the Executive Severance such Plan (the “Fully Funded Amount”) with respect to the beneficiary(ies) of such trust, in each case, with such present value to be determined on the basis of actuarial assumptions applied by mutual agreement of Company and Trustee. Upon and after a "Change in Control" (as hereinafter defined), such assets may be returned to Company only after all Supplemental Benefits have been fully distributed to or on behalf of Trust Beneficiaries Beneficiary and all other supplemental benefits under Appendix A have been fully distributed to or on behalf of all other trust beneficiaries under all other trusts for which Trustee serves as trustee and established pursuant to Appendix A. Trustee may transfer all or any portion of such excess assets to one or more other trusts established pursuant to Nonqualified Plan to the fair market extent deemed necessary by Trustee to enable such other trusts to pay supplemental benefits under such Plan to the beneficiaries of such trusts, but only to the extent that such transfer does not cause the value of the total Trust assets. The Company shall pay the fees of any appraiser engaged assets to value any property held in the Trust. Thereafter, upon the direction be less than one hundred thirty (130%) percent of the Companypresent value of projected Supplemental Benefits, with such present value to be determined (i) prior to a "Change in Control" (as hereinafter defined), on the basis of actuarial assumptions applied by mutual agreement of Company and Trustee shall pay to and (ii) upon and after a "Change in Control" (as hereinafter defined), on the basis of actuarial assumptions applied by mutual agreement of Company the excessand Employee (or, if anyEmployee is dead, of the fair market value of the Trust assets over 110% of the Fully Funded Amounthis beneficiaries under Nonqualified Plan); provided, however, that upon and after such Change in Control, no such transfer may be made without the consent of Employee (or, if Employee is dead, his beneficiaries under Nonqualified Plan) to any such other trust which was not in existence prior to the date of such Change in Control; provided, further, that if such payment would leave excess assets are attributable to a termination of the Trust pursuant to Section 11(b) occasioned by Employee's resignation or termination of employment for Cause (within the meaning of Appendix A), then Trustee with insufficient liquid assets shall transfer the full amount of such excess assets, on a pro rata basis, to pay all premiums due of such other trusts established pursuant to Appendix A and to become due on any life insurance policies held for which Trustee serves as trustee (or, in the case of a transfer occurring on or after a Change in Control, to all of such other trusts established pursuant to Appendix A for which Trustee serves as trustee which were in existence prior to the date of such Change in Control), irrespective of the funding status of such other trusts. For purposes of this Trust, Trustee fees a "Change in Control" of Company shall occur if (i) any "person" (as such term is used in Sections 13(d) and expenses 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) other than a trustee or other fiduciary holding securities under an employee benefit plan of Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Company representing 33-1/3% or more of the combined voting power of Company's then due and owing outstanding securities; or (and for a ii) during any period of twentytwo consecutive years individuals who at the beginning of such period constitute the board of directors of Company and any new director (other than a director designated by a person who has entered into an agreement with Company to effect a transaction described in clauses (i) or (iii) of this sentence) whose election by such board of directors or nomination for election by Company's shareholders was approved by a vote of at least two-four months thereafter)thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or (iii) the shareholders of Company approve a merger or consolidation of Company with any other amounts due and payable under corporation, other than a merger or consolidation which would result in the Trust, the Trustee may voting securities of Company outstanding immediately prior thereto continuing to represent (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Company. 4.3 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 assets held either by the Trust. This right is exercisable remaining outstanding or by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.being converted

Payments to Company. 4.1 After the occurrence of a Change in Control (as defined in Article XIV), except to the extent expressly contemplated by Sections 2.3, 1.7 and this Article IV, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Benefits have been made to all Trust Beneficiaries as provided in this Trust Agreement; provided, however, as set forth in Section 1.7, the Company may direct repayment of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance PlanAgreement. The Trustee shall be entitled to rely conclusively upon the Company's written certification that all such payments have been made or that the Participant is no longer entitled to a Benefit. 4.2 Prior to a Change in Control of the Company (as defined in Article XIV), the Company may request the return of all or a portion of any amounts contributed to the Trust. From time to time after a Change in Control (as defined in Article XIV), the Company may determine for purposes of this Section 4.2 the maximum value of the Benefits that could become payable under the Agreements and the Executive Severance Plan (the “"Fully Funded Amount”") with respect to the Trust Beneficiaries and the fair market value of the Trust assets. The Company shall pay the fees of any appraiser engaged to value any property held in the Trust. Thereafter, upon the direction of the Company, the Trustee shall pay to the Company the excess, if any, of the fair market value of the Trust assets over 110% of the Fully Funded Amount; provided, however, that if such payment would leave the Trustee with insufficient liquid assets to pay all premiums due and to become due on any life insurance policies held in the Trust, Trustee fees and expenses then due and owing (and for a period of twenty-four months thereafter), or any other amounts due and payable under the Trust, the Trustee may (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Company. 4.3 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 assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.

Payments to Company. 4.1 After the occurrence of a Change (a) Except as provided in Control (as defined in Article XIV), except to the extent expressly contemplated by Sections 2.3, 1.7 Section 3 hereof and this Article IVSection 4, the Company shall have no right or power to direct the Trustee to return to Company or to direct to others any of the Trust trust assets to the Company before all payments of Benefits benefits have been made to all Trust Beneficiaries as provided in this Trust Agreement; provided, however, as set forth in Section 1.7, Plan participants and their beneficiaries pursuant to the Company may direct repayment terms of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance Plan. The Notwithstanding any other provision of this Trust, in the event of a Participant's death, if the Trustee has one or more life insurance policies on the life of the Participant, such policies and the proceeds thereof shall be entitled to rely conclusively upon the Company's written certification that all such payments have been made or that the Participant is no longer entitled to a Benefit. 4.2 Prior to a Change in Control constitute general assets of the Company and no person (as defined including but not limited to the Participant or his or her Beneficiary) shall have or acquire any interest in Article XIV)such assets, and promptly after the Participant's death the Trustee shall return or pay to the Company may request the return of all or a any portion of any amounts contributed the proceeds thereof which would not be needed to make the Trust. payments due to such deceased Participant's Beneficiary based on reasonable assumptions as determined by the Company in its sole discretion. (b) From time to time after a Change in Control (as defined in Article XIV)time, if and when requested by the Company to do so, the Trustee shall engage the services of an independent actuary as may be mutually satisfactory to the Company may and to the Trustee, at the expense of the Company, to determine for purposes of this Section 4.2 the maximum actuarial present value of the Benefits maximum future benefits that could become payable under the Agreements Plan and the Executive Severance Plan (the “Fully Funded Amount”) with respect to the Trust Beneficiaries and the fair market actuarial present value of all assets held in the Trust assetsTrust. The Company shall pay the fees of such independent actuary and of any appraiser engaged by, or in connection with the engagement of, such independent actuary to value any property held in the Trust, and such fees shall not be paid by the Trustee or charged against Trust assets. ThereafterThe independent actuary shall make its calculations based on the assumption that all Participants who are employed by the Company on the date of calculation will have salary increases from the date of calculation through the termination of their employment with the Company of 4.5% per year and that no such Participant will leave the employ of the Company for any reason other than (i) death prior to retirement or (ii) retirement after becoming entitled to have the maximum amount of benefits payable to the Plan participant or his or her beneficiary that is possible under the Plan. In addition, the independent actuary shall use the mortality, interest rate, and other actuarial assumptions (including assumptions regarding ages at retirement) then being used for purposes of a qualified retirement plan of the Company (or, if no such actuarial assumptions are available or appropriate, then using such reasonably comparable current actuarial assumptions as the independent actuary may determine) If the actuarial present value of all assets held in the Trust exceeds 125% of the actuarial present value of the maximum future benefits that could become payable under the Plan, then Trustee shall pay the amount of any such excess over 125%, upon the direction request of the Company, the Trustee shall pay to the Company the excessCompany, if any, of the fair market value of the Trust assets over 110% of the Fully Funded Amount; provided, however, except that if payment of all or part of any such payment excess would leave the Trustee with insufficient liquid assets to pay all premiums due and to become due on any life insurance policies held in the Trust, Trustee fees and expenses then due and owing (and for a period of twenty-four months thereafter), or any other amounts due and payable under the Trust, the Trustee may (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Companypremiums. 4.3 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 assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.

Payments to Company. 4.1 After the occurrence of a Change in Control (as defined in Article XIV), except Except to the extent expressly contemplated by Sections 2.3, 1.7 and this Article IV, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Benefits have been made to all Trust Beneficiaries as provided in this Trust Agreement; provided, however, as set forth in Section 1.7, the Company may direct repayment of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance Plan. The Trustee shall be entitled to rely conclusively upon the Company's written certification that all such payments have been made or that the Participant is no longer entitled to a Benefit. 4.2 Prior to a Change in Control of the Company (as defined in Article XIV), the Company may request the return of all or a portion of any amounts contributed to the Trust. From time to time after a Change time, if and when requested by the Company to do so and/or in Control (as defined in Article XIV)order to comply with Section 7.2 hereof, the Trustee shall engage the services of Xxxxxx Associates or such other independent actuary as may be mutually satisfactory to the Company may and to the Trustee to determine for purposes of this Section 4.2 the maximum value actuarial present values of the future Benefits that could become payable under the Agreements and the Executive Severance Plan (the “Fully Funded Amount”) with respect to the Trust Beneficiaries and each Director. The Trustee shall determine the fair market value values of the Trust assetsassets allocated to the account of each Director pursuant to Section 7.2 hereof. The Company shall pay the fees of such independent actuary and of any appraiser engaged by the Trustee to value any property held in the Trust. The independent actuary shall make its calculations based upon the assumptions that (i) the annual retainer payable to each active Director shall increase by 10% per year, and (ii) each Director shall commence payments from the Plan at an age at which the actuarial present value of the Director’s future Benefits are at a maximum. In addition, the independent actuary shall use the 1983 Group Annuity Mortality Table, an interest rate of 8%, Gross National Product Price Deflator increases of 4%, with such other assumptions as are recommended by such actuary and approved by the Company and, after the date of a Change of Control, a majority of the Directors (subject to the provision of Section 10.2 hereof). For purposes of this Agreement, (A) the “Fully Funded” amount with respect to the account of a Director maintained pursuant to Section 7.2 hereof shall be equal to the “Threshold Percentage,” as defined below, multiplied by the maximum actuarial present value of the future Benefits that could become payable under the Plan with respect to the Director, and (B) the “Account Excess” with respect to such account shall be equal to the excess, if any, of the fair market value of the assets held in the Trust allocated to a Director’s account over the respective Fully Funded amount. Unless otherwise provided, prior to a Change of Control the Threshold Percentage shall be equal to 110%, and following a Change of Control the Threshold Percentage shall be equal to 140%. The Trustee shall allocate any Account Excess in accordance with Section 7.2 hereof. Thereafter, upon the direction request of the Company, the Trustee shall pay to the Company the excess, if any, of the fair market value of aggregate account balances over the Trust assets over 110% of the aggregate Fully Funded Amount; provided, however, that if such payment would leave amounts computed upon the Trustee with insufficient liquid assets basis of a Threshold Percentage equal to pay all premiums due and to become due on any life insurance policies held in the Trust, Trustee fees and expenses then due and owing (and for a period of twenty-four months thereafter), or any other amounts due and payable under the Trust, the Trustee may (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Company140%. 4.3 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 assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.

Payments to Company. 4.1 After the occurrence of a Change in Control (as defined in Article XIVSection 1.3), except to the extent expressly contemplated by Sections 2.3, 1.7 and this Article IV, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Benefits have been made to all Trust Beneficiaries as provided in this Trust Agreement; provided, however, as set forth in Section 1.7, the Company may direct repayment of any amount allocated to an account with respect to any Participant whose Benefit has been paid in full or to any Participant who is no longer entitled to a Benefit under any Agreement or the Executive Severance Plan. The Trustee shall be entitled to rely conclusively upon the Company's written certification that all such payments have been made or that the Participant is no longer entitled to a Benefit. 4.2 Prior to a Change in Control of the Company (as defined in Article XIVSection 1.3), the Company may request the return of all or a portion of any amounts contributed to the Trust. From time to time after a Change in Control (as defined in Article XIVSection 1.3), the Company may determine for purposes of this Section 4.2 the maximum aggregate value of all account balances (vested and non-vested) of the Benefits that could become payable Trust Beneficiaries under the Agreements and the Executive Severance Plan Plans (the “"Fully Funded Amount”") with respect to the Trust Beneficiaries and the fair market value of the Trust assets. The Company shall pay the fees of any appraiser engaged to value any property held in the Trust. Thereafter, upon the direction of the Company, the Trustee shall pay to the Company the excess, if any, of the fair market value of the Trust assets over 110% of the Fully Funded Amount; provided, however, that if such payment would leave the Trustee with insufficient liquid assets to pay all premiums due and to become due on any life insurance policies held in the Trust, Trustee fees and expenses then due and owing (and for a period of twenty-four months thereafter), or any other amounts due and payable under the Trust, the Trustee may (but shall not be required to) retain sufficient liquid assets to pay such amounts. The Company shall be solely responsible for any appraisals performed hereunder, and the Trustee may conclusively rely on any direction to return excess funds to the Company. 4.3 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 assets held by the Trust. This right is exercisable by the Company in a nonfiduciary capacity without the approval or consent of any person in a fiduciary capacity. The Trustee shall have no responsibility for determining whether such right has been properly exercised or for any investment losses that may result from its exercise.