EXHIBIT 10.9
FEDERAL DATA CORPORATION
DEFERRED BASIC SALARY
SUPPLEMENT PLAN
TRUST AGREEMENT
TRUST AGREEMENT
THIS AGREEMENT, made this 27th day of December, 1994 by and among
FEDERAL DATA CORPORATION, a Delaware corporation (the "Company") and XXXXXXX X.
XXXXXX, XX, XXXXXX XXXXX, XXXXX XXXXXX, XXXXXX XXXXX and XXXX XXXXXXXXX (each,
individually, a "Trustee" and collectively, the "Trustees," which term shall
include all additional and successor Trustees who may hereafter be appointed in
accordance with the provisions hereof).
W I T N E S S E T H :
WHEREAS, the Company has adopted and maintains the Federal Data
Corporation Deferred Basic Salary Supplement Plan (the "Plan"); and
WHEREAS, the Company has appointed the Trustees herein named; and
WHEREAS, under the Plan, funds will be delivered to the Trustees, the
same to be held as a trust fund for the benefit of persons who are Participants
and Beneficiaries (as those terms are defined in the Plan); and
WHEREAS, the Company desires the Trustees to hold and administer such
money and other property as now and hereafter may constitute the Trust Fund, and
the Trustees are willing to do so under the terms of this Agreement,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed by and between the Company and the
Trustees as follows:
ARTICLE I.
ESTABLISHMENT OF THE TRUST
Sec. 1.01. CORPUS OF THE TRUST. The Company hereby establishes
with the Trustees the trust consisting of such sums of money and property as
shall from time to time be delivered or paid to the Trustees under the Plan, and
such earnings, profits, increments, additions and appreciation thereto and
thereon as may accrue from time to time. All such sums of money, all
investments made therewith or proceeds thereof, and all earnings, profits,
increments, appreciation and additions thereto and thereon, less the payments
which shall have been made by the Trustees, as authorized herein to carry out
the Plan, are referred to herein as the "Trust Fund."
Sec 1.02. COLLECTION OF TRUST FUNDS. The Trustees shall not be
responsible for the collection of any funds required by the Plan to be paid by
the Company to the Trustees.
Sec. 1.03. DUTIES OF THE TRUSTEES.
(a) INVESTMENT DUTIES. It shall be the duty of the Trustees to
invest, to reinvest, to manage and to administer the Trust Fund for the
exclusive benefit of the Participants and their respective Beneficiaries in
accordance with the provisions of this Agreement.
(b) BENEFIT PAYMENT DUTIES. It shall be the duty of the
Trustees, on written direction of the Plan Administrator, to make payments
out of the Trust Fund to such persons, in such manner, in such amounts, and
for such purposes as may be specified in such written direction. The
Trustees shall be under no liability for any payment made by it pursuant to
such a direction.
(c) ADMINISTRATIVE DUTIES. It shall be the duty of the Trustees
to account for the assets of the Trust Fund as further set forth in this
Agreement, and to apply the assets of the Trust Fund, to the extent
necessary, to defray the reasonable administrative costs of the Plan and of
the Trust established hereunder.
Sec. 1.04. GENERAL NON-REVERSION PROVISIONS. Except as
hereinafter provided in Section 1.05, the Company shall not have any right,
title, interest, claim or demand whatsoever in or to the Trust Fund held by the
Trustees, other than the right to a proper application thereof and accounting
therefor by the Trustees as provided herein, nor shall any assets of the Trust
Fund revert to the Company.
Sec. 1.05. CORRECTIVE REFUNDS. Nothing in this instrument shall
be construed to prevent any refund to the Company or to any Participant of any
amount necessary to prevent or rectify a violation of an applicable statutory
ceiling.
ARTICLE II.
INVESTMENT OF THE TRUST FUND
Sec. 2.01. PRINCIPAL AND INCOME. The Trustees shall invest and
reinvest the principal and income of the Trust Fund and shall keep the same
invested without distinction between principal and income, except, however, that
regardless of the manner in which the Trust Fund is otherwise invested, the
Trustees shall endeavor to retain in cash for distribution to Participants that
portion of the current income of the Trust Fund the distribution of which is
required pursuant to Section 8 . 01 (a) (1) of the Plan.
Sec. 2.02. INVESTMENT DIRECTION. The selection, retention or
disposition of any investment of assets of the Trust Fund shall be determined by
the Trustees, who shall have exclusive authority to manage and control the
assets of the Trust Fund. The Trustees may receive investment suggestions from
any Participant with respect to the Account of that Participant, but they shall
not be bound by any such suggestion or suggestions. To the extent that they
receive and attempt to honor any such suggestion, they shall be fully protected
from all liability for having done so and shall be indemnified and held harmless
by the Participant for losses experienced or gains not achieved by reason of the
actions they take, attempt to take or forebear from taking in connection with
any such suggestion.
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Sec. 2.03. POWERS OF THE TRUSTEES. The Trustees shall have the
following powers in addition to the powers customarily vested in trustees by
law, and in no way in derogation thereof:
(a) With any cash at any time held by them, to purchase or
subscribe for any authorized investment, and to retain such authorized
investment in the Trust Fund;
(b) To retain uninvested all or any part of the Trust Fund and
to deposit the same in an interest bearing account in any banking or
savings institution;
(c) To cause any investment in the Trust Fund to be registered
in, or transferred into, their names as Trustees or the name of their
nominee or nominees or to retain such investments unregistered or in form
permitting transfer by delivery, but the books and records of the Trustees
shall at all times show that all such investments are part of the Trust
Fund, and the Trustees shall cause the indicia of ownership to be
maintained within the jurisdiction of the district courts of the United
states, except as may otherwise be permitted pursuant to regulations
promulgated by the Secretary of Labor;
(d) To do all acts which they may deem necessary or proper and
to exercise any and all powers of the Trustees under this Agreement upon
such terms and conditions as they may deem to be in the best interests of
the Trust Fund;
(e) To apply for, purchase, hold, transfer, pay premiums on,
surrender, and exercise all incidents of ownership of any annuity contract;
and
(f) To invest in shares or units of any registered investment
company the investments of which are limited to authorized investments (as
defined herein).
Sec. 2.04. AUTHORIZED INVESTMENTS. "Authorized Investments"' as
used in this Article shall mean only the following:
(a) debt obligations of the United States government having a
maturity not later than December 31, 2002 or one year from date of
purchase, whichever is later;
(b) debt obligations of any agency or instrumentality of the
United States government or of a political subdivision of the United States
if (1) such debt obligation is fully guaranteed as to repayment of
principal and payment of interest by the government of the United States
and (2) the maturity of such obligation is not later than the later of (A)
December 31, 2002, or (B) one year from date of purchase;
(c) such high grade obligations of domestic corporations in
amounts having maturity dates corresponding to the amounts and dates
described in (a) hereof, and having a rating published by Standard &
Poor's Corporation of not less than AA or a rating published by Xxxxx'x
Investors Service, Inc. of not less than Aa;
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(d) prime commercial paper issued by domestic corporations and
having a rating published by Standard & Poor's Corporation of not less than
A-2 or a rating published by Xxxxx'x Investors Service, Inc. of not less
than prime-2 (P-2), and prime certificates of deposit issued by domestic
or foreign banks or trust companies, each of which banks shall have a
combined capital and surplus of at least $100,000,000, and which
instruments mature in amounts and at dates corresponding to the maturation
date schedule described in (a) hereof; and
(e) guaranteed investment contracts or other annuity contracts
issued by an underwriter licensed to do business in the State of Maryland
and having a Best's rating not lower than A+ at the time of contract
issuance, which contracts shall impose no penalty, back-end load, special
administrative service fee, market value adjustment or other special charge
associated with the termination or surrender of such contract (1) upon the
death or total disability of the Participant with respect to whom issued,
or (2) upon the surrender thereof after the seventh anniversary of the
date of issue thereof, and which contracts shall provide that upon
surrender thereof prior to the seventh anniversary of the date of issuance
for reasons other than the death or total disability of the person with
respect to whose life the contract is issued, (A) the aggregate of all
such penalty, back-end load, special administrative service fees, and
other special charges upon surrender shall not exceed 7% of premium if the
contract is surrendered within one year of issuance; 6% of premium if the
contract is surrendered within two years of issuance but not within one
year of issuance; 5% of premium if the contract is surrendered within three
years of issuance but not within two years of issuance; 4% of premium if
the contract is surrendered within four years of issuance but not within
three years of issuance; 3% of premium if the contract is surrendered
within five years of issuance but not within four years of issuance; 2% of
premium if the contract is surrendered within six years of issuance but not
within five years of issuance, and 1% of premium if the contract is
surrendered within seven years of issuance but not within six years of
issuance, and (B) the market value adjustment of which shall be not greater
than 12% of the excess, if any, of (i) the face amount of 8-year U.S.
Treasury Notes in the same face amount as the premium paid on the subject
contract where such U.S. Treasury securities are issued at the next
issuance date for such securities following the date of issuance of the
contract over (ii) the fair market value of the same securities on the
date of surrender of the contract, as reported in the Wall Street Journal.
Sec. 2.05. INDIVIDUAL PARTICIPANT RECORDS AND ACCOUNTS. In
general, the maintenance of individual Participant and Beneficiary records
shall be the duty of the Trustees. However, to the extent that the Plan
Administrator is other than the Trustees, and that the Trustees and the Plan
Administrator have entered into a separate written agreement providing for the
maintenance of such records, such records may be maintained by the Plan
Administrator, and the Trustees are absolved from maintaining the same.
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ARTICLE III.
TRUSTEES' ACCOUNTS
Sec. 3.01. INVESTMENT AND ASSET BOOKS AND RECORDS. The Trustees
shall keep accurate and detailed accounts of all investments, receipts and
disbursements and other transactions hereunder, including such specific records
as shall be required by law and such additional records as may be agreed upon in
writing between the Plan Administrator and the Trustees. All accounts, books and
records relating thereto shall be open to inspection and audit by any person or
persons designated by the Plan Administrator or the Company at all reasonable
times.
Sec. 3.02. ACCOUNTINGS . Within ninety ( 90 ) days following the
close of each year of the Plan or the receipt of the Company' s contribution (or
notice that there shall be no such contribution) for such year, whichever is the
later, and within ninety (90) days after the effective date of the removal or
resignation of any Trustee, the Trustees shall file with the Plan Administrator
a written account, setting forth all investments, receipts and disbursements,
and other transactions effected by it during such year of the Plan or during the
period from the close of the last preceding year of the Plan to the date of such
removal or resignation, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales, and showing all cash, securities and other property held at the end of
such year or as of the date of removal or resignation, as the case may be. None
of the Company nor the Plan Administrator nor any other person shall have the
right to demand or to be entitled to any further or different accounting by the
Trustees, except as may be required by statute or by regulations published by
Federal government agencies with respect to reporting and disclosure.
Sec. 3.03. TRUSTEE LIABILITY. Except with respect to alleged
breaches of fiduciary responsibility under ERISA or other applicable law, upon
the expiration of ninety (90) days from the date of filing such annual or other
account, the Trustees shall be forever released and discharged from any
liability or accountability to anyone with respect to the propriety of its acts
or transactions shown in such account, except with respect to any acts or
transactions which the Plan Administrator shall within such ninety (90) day
period file with the Trustees a written statement claiming negligence, willful
misconduct, lack of good faith, breach of fiduciary responsibility or other
violation of applicable law on the part of the Trustees . In the event such a
statement is filed, the Trustees shall, unless the matter is compromised by
agreement between the Plan Administrator and the Trustees, file their account
covering the period from the date of the most recent annual account to which no
objection was made in any court of competent jurisdiction for audit or
adjudication. With respect to alleged breaches of ERISA, the Trustees shall be
entitled to rely upon the statutes of limitations set forth therein.
Sec. 3.04. VALUATIONS . The Trustees shall value the assets of the
Trust Fund as of the last day of each Plan Year and at such frequency or on such
other occasions as may be directed by the Plan Administrator. Plan assets shall
be valued at fair market value, and, in addition where appropriate, at book or
other value consistent with generally accepted accounting principles or with
applicable statutory or regulatory provisions.
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ARTICLE IV.
THE TRUSTEES
Sec. 4.01. CONDITIONS OF ACCEPTANCE OF TRUSTEESHIP. The Trustees,
as Named Fiduciaries, accept the Trust hereby created and agree to perform the
duties hereby required of them, subject, however, to the following conditions:
(a) The Trustees shall receive as compensation for their
services such amounts as may be agreed upon at the time of execution of
this Agreement, subject to change at any time and from time to time by
agreement between the Plan Administrator and the Trustees. The Trustees'
compensation shall be paid by the Plan, and shall be a proper charge
against the Trust Fund, except to the extent that the Company elects to pay
such amount or any part thereof. All other proper expenses of the Trust
Fund (unless payable out of the Trustees ' compensation), including,
without limitation, all real and personal property taxes, income taxes,
transfer taxes, and other taxes of any and all kinds whatsoever that may be
levied or assessed under existing or future laws of any jurisdiction upon
or in respect of the Trust hereby created, or any money, property or
securities forming a part thereof, shall be paid out of the Trust Fund.
Notwithstanding the foregoing, no person who is either an employee of the
Company or a Participant in the Plan shall receive any compensation for his
or her services as a Trustee.
(b) The Trustees shall not be answerable for any action taken
pursuant to any direction, consent, request, or other paper or document on
the belief that the same is genuine and signed by the proper person if such
direction, consent, request or other paper or document relates to a matter
with respect to which the purported initiator or signatory has authority
under the Plan or this Agreement.
(c) Each of the Trustees shall be indemnified by the Company
against his or her prospective costs, expenses, and liability in connection
with all litigation relating to the Plan, this Agreement or the Trust Fund.
Notwithstanding the foregoing, no such indemnification shall extend or
exist to the extent such costs, expenses and liability are covered by
insurance or would be so covered if any policy then in force included a
waiver of subrogation by the underwriter, nor shall any such
indemnification apply where there is a determination by a court of
competent jurisdiction that the Trustee is guilty of fraud or willful
misconduct.
(d) Nothing in this Agreement shall preclude the purchase by or
for the Trustees of one or more policies of insurance to protect the
Trustees from liability for breach of fiduciary or co-fiduciary duty;
provided, however, that if such insurance shall be purchased by the Trust
Fund utilizing the assets thereof to pay any premiums, such insurance must
permit recourse by the insurer against a Trustee in the case of a breach by
the Trustee of his or her fiduciary duties; and further provided that no
such insurance shall be purchased without the explicit written consent of
the Company .
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Sec. 4.02. CHANGES IN TRUSTEES . Each Trustee shall cease to be a
Trustee upon the earliest to occur of:
(a) declaration of his legal incompetence by a court of
competent jurisdiction;
(b) his death;
(c) his ineligibility to serve as a Trustee by reason of the
operation of section 411 of ERISA, or the occurrence of an event that would
make him ineligible to serve as a Trustee if section 411 of ERISA applied;
(d) the effective date of his resignation from the position of
Trustee, which resignation shall not be retroactive, and which resignation
shall not become effective until completion of the dissolution of the Trust
if, after giving effect to such resignation, there would be fewer than
three Trustees in office (including in such Trustee count the automatic
successor Trustee identified in the following paragraph) .
Upon the cessation of service of the first Trustee to cease to be a Trustee,
Xxxxxxx X. Xxxxxx, III shall be the successor to such Trustee if Xxxxxxx X.
Xxxxxx, III is then living and is not otherwise disqualified by reason of the
provisions of this Section, and is willing to serve as Trustee. Upon qualifying
as a successor Trustee by delivering to the remaining Trustees in office a
written acceptance of his appointment as a Trustee, the said Xxxxxxx X. Xxxxxx,
III shall, without further act, become vested with all the rights, powers,
discretion and duties of the predecessor Trustee, with the same effect as though
he had been originally named as Trustee herein.
Sec. 4.03. EMERGENCY TRUSTEESHIP. If an event occurs that
results in there being no Trustees in office, the Participants in the Plan shall
be the successor Trustees, each to have the same authority and duties as though
initially appointed as a Trustee. If an event occurs that results in there being
no Trustees in office and no living Participants, the Beneficiaries shall be the
successor Trustees, each to have the same authority and duties as though
initially appointed as a Trustee. If there continues to exist a Trust Fund at
a time when no person is qualified and willing to serve as a Trustee
pursuant to this provision, application shall be made by the Company to a
court of competent jurisdiction for the appointment of a Trustee to wind up the
affairs of the Trust and to distribute all of the remaining assets of the Trust
Fund.
Sec. 4.04. ACTIONS OF THE TRUSTEE. The Trustees shall act by a
majority of their number, either at a meeting, or by writing, telegram,
cablegram or other electronic or telephonic communication without a meeting.
The Trustees may elect a chairperson from among their number and may appoint
a secretary who need not be a Trustee. Any act of the Trustees shall
be sufficiently evidenced if certified by not less than a majority of the
Trustees then serving or by the person then holding the office of Secretary.
Any Trustee may authorize any other Trustee to act in his stead and on his
behalf in his absence.
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Sec. 4.05. BONDING. Each Trustee shall be bonded to the extent
required by law, but no bond shall be required beyond that required by law (if
any). Premiums for bonds covering individuals serving as Trustee shall be
treated as expenses of the Plan.
ARTICLE V.
DELEGATION OF DUTIES AND RESPONSIBILITIES
Sec. 5.01. DELEGATION OF DUTIES. The Trustees may delegate to any
qualified person or entity any of its duties hereunder other than those
identified as "trustee duties" under ERISA. The Trustees shall be fully
protected to the extent permissible by law in so doing.
ARTICLE VI.
CONCERNING INSURANCE COMPANIES
Sec. 6.01. INSURANCE COMPANIES NOT PARTIES . If, on any occasion
as provided in the Plan, the Trustees purchase one or more guaranteed income or
other type of annuity contract from an insurance company, the insurance company
from which such contract is purchased shall not be deemed a party to this
Agreement. No insurance company shall have any obligation to determine that any
person with respect to whom the Trustees make an application for a contract is,
in fact, eligible for benefits or participation under the Plan, nor shall the
insurer have any obligation to determine any fact, the determination of which is
necessary or desirable for the proper issuance of such contracts. Any such
insurance company shall be fully protected in acting upon any advice,
representation or other instrument executed by the Trustees. In no event shall
the insurer be responsible for any lack or failure of proper authority in the
establishment or maintenance of the Plan. The responsibilities of the insurer
shall be limited to the terms of its policies. Notice of modification, change or
termination of this Agreement shall not be effective notice to the insurer until
actual receipt thereof at its home of f ice . The insurer may expect the Trust
established under this Agreement to continue in force as is, and the named
Trustees to continue as the Trustees of the Trust until notified otherwise in
writing at its home office.
Sec. 6.02. ACCEPTANCE OF CERTIFICATIONS . A certification in
writing to the insurer by the Trustees, by the Plan Administrator or by the
Company as to the occurrence of any event contemplated by this Agreement or the
Plan shall constitute conclusive evidence of such occurrence, and the insurer
shall be fully protected in accepting and relying upon such certification and
shall incur no liability or responsibility for so doing.
Sec. 6.03. INSURER ABSOLVED. The insurer shall not be responsible
to see that any action taken by the Trustees with respect to any contract is
authorized by the terms of this Agreement or by the Plan. Any change made or
action taken by the insurer under any contract upon the written direction of the
Trustees shall fully discharge such insurer from all liability with respect
thereto, and the insurer shall not be obligated to see to the distribution or
further application of any moneys paid by it to the Trustees or in accordance
with the written direction of the Trustees .
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ARTICLE VII.
AMENDMENTS TO TRUST AGREEMENT
Sec. 7.01. AMENDMENTS. The provisions of this Agreement may be
amended at any time and from time to time by the same parties and by the same
process as amendments to the Plan provided that:
(a) No such amendment shall be effective unless the Plan and
this Agreement, as so amended, shall be for the exclusive benefit of the
Participants and their respective Beneficiaries;
(b) No such amendment shall operate to deprive a Participant of
any rights or benefits irrevocably vested in him under the Plan or this
Agreement prior to such amendment, unless such amendment is specifically
required by law; and
(c) Each such amendment shall be effective as of the date
specified therein by the enacting party; provided, however, that if the
amendment affects the Trustees, such amendment must be consented to or
ratified by the Trustees.
Sec. 7.02. DISCONTINUANCE OF THE PLAN. In the event of the
termination of the Plan, the Trustees shall continue to hold the Trust Fund in
trust to be applied and distributed in accordance with the terms of the
terminated Plan. The provisions of the Plan relating to the administration
thereof and to the provision of benefits thereunder shall be deemed for this
purpose to have survived the termination of the Plan .
Sec.7.03. AUTOMATIC DISSOLUTION OF THE TRUST. The Trust established
hereunder shall be dissolved and the assets of the Trust Fund delivered to the
respective interest holders therein upon (a) the date specified in any
resolution by the Trustees providing for the dissolutions of the Trust, or (b)
the occurrence of the circumstance requiring such dissolution pursuant to the
provisions of Section 4 . 02 (d) .
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
Sec. 8.01. RELIANCE ON INSTRUMENTS. Any person dealing with the
Trustees may rely upon a copy of this Agreement and any amendments thereto,
certified to be a true and correct copy by the Trustees .
Sec. 8.02 EXCLUSIVE BENEFIT. Other than as specifically provided
elsewhere in this Agreement, in no circumstance, whether upon amendment or
termination of this Agreement or otherwise, shall any part of the Trust Fund be
used for or diverted to any purpose other than the exclusive benefit of the
employees and former employees of the Company who are Participants under the
Plan and their respective Beneficiaries.
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Sec. 8.03. THIS AGREEMENT AS PART OF THE PLAN. This Agreement
shall be deemed a part of the Plan, and shall be considered as incorporated
therein . Any term defined in the Plan shall have the same meaning in this
Agreement unless a different meaning is clearly required by context . The term "
Plan" whenever used in this Agreement, shall mean the Plan as it exists on the
date of adoption of this Agreement, and as it may be from time to time amended.
The Company will cause a copy of the Plan and of each amendment thereto to be
delivered to the Trustees.
Sec. 8.04. RATIFICATION OF THE TRUSTEES' ACTS. The Participants
shall have the right to acknowledge the acts of the Trustees and to ratify or
object to the same, and to approve or decline to approve any action taken by the
Trustees. If there be no Participants but there be Beneficiaries, the
Beneficiaries shall have the rights of the Participants under this Section.
Sec. 8.05. COUNTERPART DOCUMENTS. This Agreement and any amendment
hereto may be executed in multiple counterparts. Each such counterpart document
shall be deemed an original, and the production of any one such counterpart
shall be considered the production of all and shall be sufficient for all legal
purposes.
Sec. 8.06. CONTROLLING LAW. This Agreement shall be construed,
enforced and regulated under Federal law, and to the extent, if any, that state
law is not preempted by Federal law, under the laws of the state of Maryland.
Sec. 8.07 NAME OF THE TRUST. The Trust established hereunder shall
be known as the Federal Data Corporation Deferred Basic Salary Supplement Plan
Trust.
IN WITNESS WHEREOF, the Company and the Trustees have caused this
Agreement to be executed as of the day and date first set forth above.
FEDERAL DATA CORPORATION
Attest:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- --------------------------------
Secretary President
[Corporate Seal]
WITNESS: TRUSTEES:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------- -----------------------------------
Xxxxxxx X. Xxxxxx, XX
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/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
------------------------- -----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxx /s/ Xxxxx Xxxxxx
------------------------- -----------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx, XX /s/ Xxxxxx Xxxxx
------------------------- -----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxx /s/ Xxxx Xxxxxxxxx
------------------------- -----------------------------------
Xxxx Xxxxxxxxx
CONTINGENT TRUSTEE
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------- -----------------------------------
Xxxxxxx X. Xxxxxx, III
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