Contract
2
(a) The Company hereby deposits with
Trustee in trust $100.00, which shall become the principal
of the Trust to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement. The
Company shall have the right to make additional deposits
from time to time in its sole discretion.
(b) The Trust hereby established shall only
be revocable as expressly provided in Section 13.
(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 I,
subtitle A of the Internal Revenue Code of 1986, as
amended (the “Internal Revenue Code”), and shall be
construed accordingly.
(d) The 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 the Participants and
their beneficiaries against their Employer. 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 Trustee agrees to accept additional
deposits made by the Company pursuant to Section 1 (a)
hereof, and contributions that are paid to it by the
Company in accordance with the terms of this Trust
Agreement. Such additional deposits and contributions
shall be in cash or in such other form that may be
acceptable to the Trustee, including but not limited to
policies of life insurance. The Trustee shall have no duty
to determine or collect contributions under the Plan and
shall have no responsibility for any property until it is
received and accepted by the Trustee. The Company shall
have the sole duty and responsibility for the determination
of the accuracy and sufficiency of the deposits and
contributions to be made under the Plan, the transmittal of
the same to the Trustee and compliance with any statute,
regulation or rule applicable to contributions.
(f) Company shall furnish the Trustee with
a written list of the names, signatures and extent of
authority of all persons authorized to direct Trustee and
otherwise act on behalf of the Company and the
Participants under the terms of this Trust Agreement
(“Authorized Agents”). The Trustee shall be entitled to
rely on and shall be fully protected in acting upon
direction from Authorized Agents until notified in writing
by the Company, as appropriate, of a change of the
identity of an Authorized Agent.
Section 2. PAYMENTS TO PARTICIPANTS
AND THEIR BENEFICIARIES
(a) From time to time, the Company or its
Authorized Agents may deliver to the Trustee a schedule
(the “Payment Schedule”) that indicates the amounts
payable in respect of each Participant (and his or her
beneficiaries), that provides a formula or other
instructions for determining the amounts payable, the
form in which such amounts are to be paid (as provided
for or available under the Plan), and the time of
commencement for payment of such amounts. Except as
otherwise provided herein, the Trustee shall make
payments to the 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 Payment Schedule and shall pay
amounts withheld to the appropriate taxing authorities or
determine that such amount have been reported, withheld
and paid by the Company. 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
Payment Schedule, the Company shall make the balance
of each such payment as it falls due. The Trustee shall
notify the Company where principal and earnings are not
sufficient.
(b) Upon the receipt by the Trustee of (i) a
written notice from the Company, indicating that the Plan
has been completely terminated and (ii) a Payment
Schedule, indicating how payments shall be made as a
result of the termination of the Plan, the Trustee shall pay
to each Participant his or her account balance under the
Plan in accordance with the terms of such Payment
Schedule. Notwithstanding the foregoing, upon the
termination of the Plan the Company shall be entitled to
make payment of benefits directly to the Participant or
their beneficiaries in accordance with subsection (e)
below.
(c) The Company hereby agrees that the
Authorized Agents (as defined Section 1(f)) shall have the
exclusive responsibility, and the Trustee shall not have
any responsibility or duty under this Trust Agreement for
determining that the Payment Schedule is in accordance
with the terms of the Plan and applicable law, including
without limitation, the amount, timing or method of
payment and the identity of each person to whom such
payments shall be made. The Trustee shall have no
responsibility or duty to determine the tax effect of any
payment or to see to the application of any payment.
(d) The entitlement of a Participant or his
or her beneficiaries to the benefits under the Plan shall be
determined by the Company or such Authorized Agent as
it shall designate under the Plan, and any claim for such
benefits shall be considered and reviewed under the
procedures set out in the Plan.
3
(e) The Company may make payment of
benefits directly to the Participants or their beneficiaries
as they become due under the terms of the Plan. The
Company shall notify the Trustee of its decision to make
payment of benefits directly to Participants or their
beneficiaries. If the Company makes payments according
to this subsection the Company 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.
(f) In accordance with the procedures
mutually acceptable to the Company and Trustee, all
directions and instructions to the Trustee from an
Authorized Agent, including but not limited to the
Payment Schedule, shall be in writing, transmitted by
mail or by facsimile or shall be an electronic transmission,
provided the Trustee may, in its discretion, accept oral
directions and instructions and may require confirmation
in writing (“Authorized Instructions”).
Section 3. TRUSTEE RESPONSIBILITY
REGARDING PAYMENT TO TRUST
BENEFICIARY WHEN COMPANY IS
INSOLVENT
(a) The Trustee shall cease payment of
benefits to the Participants who are current or former
employees of the Company and their beneficiaries if it
receives notice that 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 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 and, pending such determination, the Trustee
may discontinue payment of benefits to the 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 of benefits to the
Participants and 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 the 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 the 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). The Trustee may rely on evidence
concerning Insolvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning
Insolvency. If there is a dispute about Insolvency, the
Trustee shall have the right to require the Company to
employ and pay for the services of an independent
expert to render a written opinion to the Trustee
addressing the question of Insolvency.
(c) Provided that there are sufficient assets,
if the Trustee discontinues the payment of benefits from
the Trust pursuant to Section 3(a) and (b) hereof and
subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate
amount of all payments due to the Participants or their
beneficiaries according to the terms of the Plan for the
period of such discontinuance, less the aggregate amount
of any payments made to Participants or their
beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of
discontinuance. The Trustee may require a new Payment
Schedule from the Company in such event.
5
general or limited power of attorney, as
directed by an Authorized Party, any right
appurtenant to any authorized investment
held in the Trust.
(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 which is an affiliate of Trustee;
(x) 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 has its
principal place of business 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.
(e) The Trustee may exercise the powers
described in this Section 5(d) with or without
Authorized Instructions, but where the Trustee acts on
Authorized Instructions, the Trustee shall be fully
protected as described in Section 9.
Section 6. ADDITIONAL POWERS OF
TRUSTEE.
(a) 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:
(i) 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;
(ii) Upon receiving the consent of an
Authorized Party, 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 and, as part of its
expenses under this Trust Agreement, to
pay their reasonable expenses and
compensation;
(iii) 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
(iv) Generally to do all other acts which the
Trustee deems necessary or appropriate
for the protection of the Trust.
(v) The Trustee at the direction of the
Company may appoint a Custodian,
acceptable to the Company, to safeguard
the assets of the Trust. The Company
hereby authorizes and directs the Trustee
to enter into such agreements with the
Custodian as may be necessary to
establish an account with the Custodian.
For administrative purposes, contributions
deposited to the appointed Custodian shall
be deemed as contributions deposited with
the Trustee on behalf 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.
(a) The Trustee shall keep accurate and
detailed records of all investments, receipts,
disbursements, and all other transactions required to be
made, including such specific records as shall be agreed
upon in writing between the Company and the Trustee.
Within 90 days following the close of each calendar
quarter, or at such other additional times as may be
reasonably requested by the Company, and within 90 days
after 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.
(b) The Trustee shall be entitled to rely on the
Recordkeeper (the provider of recordkeeping services for
the Plan Administrator) or the Custodial Agent (the
custodian of investments), if any other than Trustee, for the
maintenance and provision of all records specified in this
Section 8.
6
Section 9. RESPONSIBILITY AND
INDEMNITY OF THE TRUSTEE.
(a) The Trustee shall act with the care, skill,
prudence and diligence under the circumstances then
prevailing that a prudent person acting in 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 or its
Authorized Agent which is contemplated by, and in
conformity with, the terms of the Plan(s) and this Trust
and is given in writing by the Company or in such other
manner prescribed by the Trustee. In the absence of
direction, request or approval from the Company, the
Trustee shall also incur no liability to any person for any
failure to perform an act not contemplated by or 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 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 including Authorized Agents, 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 shall 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 negligence or
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 9(b)
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 shall incur no liability to
anyone for any action that it or the Custodian as its delegate
takes pursuant to a direction, request or approval given by
the Company, Authorized Agents, Participants, the
Investment Committee, the Administrator or by any other
party (including, without limitation, the Recordkeeper and
any of its agents) to whom authority to give such directions,
requests or approvals is delegated under the powers
conferred upon the Company, Participants, the Investment
Committee, the Administrator or such other party under this
Agreement.
(d) The Trustee, upon receipt of the consent
of an Authorized Agent, at the expense of the Trust or the
Company, may consult with legal counsel (who may also
be counsel for Company generally) with respect to any of
its duties or obligations hereunder and may rely on any
determination made by such agents and information
provided to it by the Company.
(e) The Trustee, upon receipt of the consent
of an Authorized Agent, may hire agents, accountants,
actuaries, investment advisers, financial consultants or
other professionals to assist it in performing any of its
duties or obligations hereunder.
(f) The Trustee shall have, without exclusion,
all powers conferred on the Trustee by applicable law,
unless expressly provided herein.
(g) Notwithstanding any powers granted to
the Trustee pursuant to this Trust Agreement or 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 shall not be liable for any
expense, loss, claim or damage (including counsel fees)
suffered by the Participants arising out of or caused by
any delay in, or failure of, performance by the Trustee, in
whole or in part, arising out of, or caused by,
circumstances beyond the Trustee’s control, including
without limitation: acts of God, interruption, delay in, or
loss (partial or complete) of electrical power or external
computer (hardware or software) or communication
services (including access to book-entry securities
systems maintained by Federal Reserve Bank of New
York and/or any clearing corporation); act of civil or
military authority; sabotage; natural emergency;
epidemic; war or other government actions; civil
disturbance; flood, earthquake, fire, other catastrophe;
strike or other labor disturbance by employees of
nonaffiliates; governmental, judicial, or self regulatory
organization order, rule or regulation; riot; energy or
natural resource difficulty or shortage; and inability to
obtain materials, equipment or transportation.
(i) If (1) there is any disagreement or dispute
in connection with the Trust or the subject matter hereof,
including any dispute between the Trustee, the Company,
Authorized Agent or any Participant, or between the
Company, Authorized Agent and, any Participant or any
person not a party to the Trust or (2) there are adverse or
inconsistent claims or demands upon, or inconsistent with
instructions to the Trustee, or (3) the Trustee in good faith
is in doubt as to what action to take pursuant to the Trust,