TRUST AGREEMENT EXHIBIT 10.72
THIS AGREEMENT, made as of the 12th day of September , 1996,
by and between Xxxxxx Building Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Company"), and Xxxxxx X.
Xxxxxxx (the "Trustee").
W I T N E S S E T H :
WHEREAS, Company has incurred and expects to continue to incur certain
unfunded retirement income and death benefit liability to or with respect to
certain key management employees pursuant to the terms of the Executive Deferred
Compensation Plan of Xxxxxx Building Systems, Inc., and any such other plan or
plans of the Company, as the Company may decide to cover under the Trust,
(hereinafter collectively referred to as the "Plan", or individually as a
"plan"), the Plan is intended to be a nonqualified deferred compensation plan
for highly compensated employees as described under the Employee Retirement
Income Security Act of 1974 ("ERISA"); and
Whereas, Company wishes to establish a trust (the "Trust") and to
contribute to the Trust certain funds and assets to be held, administered and
distributed pursuant to the terms hereof; and
WHEREAS, the Company desires to provide additional assurance to some or all
such key management employees (the "Participants") and their surviving spouses,
dependent children, beneficiaries or estates under the Plan (collectively, the
"Beneficiaries") that their unfunded retirement benefits and death benefits
under the Plan will in the future be met or substantially met by the application
of the procedures set forth herein; and
WHEREAS, the Company intends the Trust to be an irrevocable grantor trust
which is not qualified under Sections 401 (a) and 501 (a) of the Internal
Revenue Code, as amended, in order to provide a source of the payments required
under the terms of the Plan; and
WHEREAS, the Company wishes to establish separate accounts (hereinafter the
"Accounts") under the Trust with respect to some or all of the Participants in
each Plan in order to provide a source of the payments required under the terms
of such Plan; and
WHEREAS, amounts transferred to each separate Account, as determined by the
Company from time to time in its sole discretion, and the earnings thereon,
shall be used by the Trustee solely in satisfaction of the liabilities of the
Company with respect to the Participant in each plan for whom such separate
Account has been established and such utilization shall be in accordance with
the procedures set forth herein; and
WHEREAS, any amount transferred by the Company to each separate Account and
the earnings thereon shall revert to the Company only upon satisfaction of all
liabilities of the Company under the Plan with respect to the Plan Participant
in respect of whom such separate Account has been established, except that all
such amounts held at any time under this Agreement shall be subject to the
claims of creditors of the Company as herein provided;
NOW, THEREFORE, in consideration of the premises and mutual and independent
promises herein, the parties hereto covenant and agree as follows:
ARTICLE I
1.1 The Company hereby establishes with the Trustee a Trust consisting of
such sums of money, and other property, including Company stock and insurance
policies, acceptable to the Trustee as shall from time to time be paid or
delivered to the Trustee by the Company, and the earnings and profits thereon.
All such money and property, all investments made therewith and proceeds
thereof, less the payments or other distributions which, at the time of
reference, shall have been made by the Trustee, as authorized herein, are
referred to herein as the "Fund" and shall be held by the Trustee, IN TRUST, in
accordance with the provisions of this Agreement. Except as otherwise expressly
provided herein, this Trust shall be irrevocable and no part of the Fund shall
revert, or be paid to, the Company.
1.2 The Trustee shall hold, manage, invest and otherwise administer the
Fund pursuant to the terms of this Agreement. The Trustee shall be responsible
only for contributions actually received by the Trustee hereunder and the
earnings on such contributions. The amount of each contribution by the Company
to the Fund shall be determined in the sole discretion of the Company, and the
Trustee and the Trustee's Agent shall have no duty or responsibility with
respect thereto, except as otherwise expressly agreed to by the Trustee.
1.3 The Trustee's Agent, as described herein, shall maintain in an
equitable manner a separate Account for each Participant under each plan in
which the Trustee shall keep a separate record of the share of such Participant
under such plan in the Fund. The Company shall certify to the Trustee and the
Trustee's Agent at the time of each contribution to the Fund the amount of
such contribution being made in respect of each Participant under each plan.
The Fund shall be revalued by the Trustee as of the last business day of each
calendar year at current market values, as determined by the Trustee. Each
Participant in each Plan or Beneficiary of such Participant with respect to
whom an Account has been established shall receive from the Trustee's Agent
an annual statement of the value of such Account as of the last business day of
the calendar year.
ARTICLE II
2.1 If, at any time while the Trust is still in existence, the Company
becomes bankrupt or insolvent (as herein defined) the Trustee upon written
notice and proper substantiation thereof shall pay or transfer to the Company,
or the Company's estate in bankruptcy, all cash and other assets then held in
the Fund, after deduction of the Trustee's fees and expenses and any other
expenses of the Trust, including taxes accrued and unpaid at the time. The
Company shall be considered to be bankrupt or insolvent only upon the entry
of an order, judgment or decree under the Bankruptcy Act of the United
States or the bankruptcy laws of any state adjudicating the Company to be
bankrupt or insolvent, regardless of whether such proceedings were initiated by
the Company, its creditors or any third party. It is expressly understood by the
parties hereto that this Article II is intended to subject any and all property
held by the Trustee under this Agreement to the claims of creditors of the
Company in the event the Company is adjudicated to be bankrupt or insolvent.
2.2 The Company represents and agrees that the Trust established under
this Agreement does not fund and is not intended to fund any or all of the Plan
or any other employee benefit plan or program of the Company. The Trust is, and
is intended to be, a depository arrangement with the Trustee for the setting
aside of cash and other assets of the Company as and when the Company
determines, in its sole discretion, for the meeting of part or all of its future
retirement and death benefit obligations to some or all of the Participants and
their Beneficiaries under the Plan. Contributions by the Company to the Trust
shall be in amounts determined solely by the Company. The Company further
represents that the Plan is a deferred compensation plan for a select group of
management and highly compensated employees and as such is exempt from the
application of the Employee Retirement Income Security Act of 1974 ("ERISA"),
except for the disclosure requirements applicable to such plans for which the
Company bears full responsibility as to compliance. The Company further
represents that the Plan is not qualified under Section 401 of the United States
Internal Revenue Code requirements and therefore is not subject to any of the
Code requirements applicable to tax-qualified plans.
ARTICLE III
3.1 By its acceptance of this Trust, the Trustee hereby agrees to the
designation by the Company of Compass Financial Corporation as the Trustee's
agent ("Trustee's Agent") under this Agreement. The Trustee shall have no
responsibility for the performance of the duties of the Trustee's Agent.
3.2 The "Executive Benefits Committee" of the Company for purposes hereof
shall be the persons holding the positions with the Company of (1) President/
Chief Executive Officer, (2) any Vice President, (3) Secretary, (4) Treasurer,
(5) Chief Financial Officer and (6) Human Resources Director. In the event any
person ceases to hold any of said positions with the Company, said person shall
immediately cease to be a member of the Executive Benefits Committee. A person
being elected or appointed to any of said positions with Company shall
immediately become a member of the Executive Benefits Committee, and shall
remain a member of the Executive Benefits Committee so long as such person
remains in that position with the Company.
3.3 The Trustee's Agent may resign at any time by delivery of written
notice of resignation to the Trustee and the Company. Also, the Trustee's Agent
may be removed by the Trustee at any time by delivery of written notice of such
removal to the Trustee's Agent and the Company. Any such resignation or removal
shall take effect as of a future date specified in the notice of same, which
date shall not be earlier than the date 60 days after the day on which the
notice is sent, or such earlier date as may be agreed to by the Trustee's Agent
and the Trustee. Upon such resignation or removal, the Trustee shall appoint a
successor Trustee's Agent. As soon as practicable after a Trustee's Agent has
resigned or has been removed hereunder, it shall deliver to the successor
Trustee's Agent all reports, records, documents and other written information
in Trustee's Agent's possession regarding the Plan, the Fund and the
Participants in the Plan, and thereupon shall be entitled to all unpaid fees,
compensation and reimbursements to which it is entitled under this Agreement
and shall be relieved of all responsibilities and duties under this Agreement.
3.4 The Trustee's Agent shall maintain or cause to be maintained all the
Plan Participant records contemplated by this Agreement. The Trustee's Agent
shall also prepare and distribute Participant's statements which shall include
income tax information, if that information is supplied to the Trustee's Agent
by the Company or its delegate, with respect to payments to Participants and
their Beneficiaries and shall perform such other duties and responsibilities as
the Trustee determines is necessary or advisable to achieve the objectives of
this Agreement. Any tax information applicable to a Participant or Beneficiary,
including any required tax withholding, shall be supplied to the Trustee's Agent
by the Company and the Trustee's Agent shall have no responsibilities for the
accuracy of such information.
3.5 Upon the establishment of this Trust, or as soon thereafter as
practicable, the Company shall furnish to the Trustee's Agent copies of each
plan and all the information necessary to determine the benefits payable to
or with respect to each Participant in the Plan, including any benefits payable
after the Participant's death and the recipient of same. The Company shall
regularly, at least annually, or promptly on the request of the Trustee's
Agent, furnish to the Trustee's Agent revised updated information including
copies of any plan amendment. Based on the foregoing information the Trustee's
Agent shall prepare an annual benefits statement with respect to each
Participant and shall furnish a copy of the same to the Participant or his
Beneficiary and to the Company. In the event the Company refuses or neglects
to provide updated participant information as contemplated herein, the
Trustee's Agent shall be entitled to rely upon the most recent information
furnished to it by the Company. The Trustee's Agent has no responsibility to
verify information provided to it by the Company.
3.6 Upon the direction of the Company or upon the proper application of a
Participant, or Beneficiary of a deceased Participant, the Trustee's Agent shall
prepare a certification to the Trustee that a Participant's benefits under the
Plan have become payable. Such certification shall include the amount of such
benefits, the terms of payment, the amount of any taxes required to be withheld
from such amount, if such information is supplied to the Trustee's Agent by the
Company or its delegate, and the name, address and social security number of
the recipient. Upon the receipt of such certified statement the Trustee shall
commence cash distributions from the Trust Fund in accordance therewith to the
person or persons so indicated and to the Company with respect to taxes
required to be withheld, and the Trustee's Agent shall charge the payments
against the Participant's or Beneficiary's benefits. The Trustee's Agent shall
also furnish a copy of such certification to the Participant or to the
Beneficiary of a deceased Participant. The Company shall have full
responsibility for the payment of all withholding taxes to the appropriate
taxing authority and shall furnish each Participant or Beneficiary with the
appropriate tax information form evidencing such payment and the amount thereof.
3.7 No further benefits shall be payable from the Fund with respect to any
Participant from and after the date the Trustee's Agent determines that each
Account of a Participant has been reduced to a zero balance; provided, however,
no such determination shall eliminate the Company's remaining liability, if any,
under the Plan with respect to such Participant. Upon the death of a Participant
and the Beneficiary, if any, of any deceased Participant entitled to benefits
under this Agreement, or in the event a Participant's rights under the terms
of the Plan are forfeited, the Trustee's Agent shall thereupon prepare a
certification to the Trustee and to the Company showing the balance,if any,
remaining in such Participant's Account(s) and upon receipt of same, the
Trustee's Agent shall reallocate the forfeited amount to the Account of other
Participants and Beneficiaries. Any such allocation to an Account shall be made
in the ratio that the balance in such Account bears to the balances in the
Accounts of all Participants and Beneficiaries. The Trustee and the Trustee's
Agent shall have no responsibility for determining whether any Participant or
Beneficiary has died or whether any Participant's rights under the terms of
the Plan have been forfeited and shall be entitled to rely upon information
furnished by the Company.
3.8 Nothing provided in this Agreement shall relieve the Company of its
liabilities to pay the retirement benefits provided under the Plan except to the
extent such liabilities are met by application of Fund assets. It is the intent
of the Company to have each Account established hereunder treated as a
separate account designed to satisfy in whole or in part the Company's legal
liability under each Plan in respect of the Participant for whom such Account
has been established and to have the balance in the Account of the last
remaining Participant or Beneficiary under the Plan revert to the Company, but
only after the Company's legal liability to such person has been met. The
Company, therefore, agrees that all income, deductions and credits of each
Account belong to it as owner for income tax purposes and will be included on
the Company's income tax returns.
3.9 Any benefit required to be paid out of the trust under the
Supplemental Life Plan shall be limited to the amount of proceeds received on
any policy of insurance held by the Trust on the life of the Participant whose
death gave rise to the benefit payment.
ARTICLE IV
4.1 The Company shall provide the Trustee's Agent with a certified copy
of the Plan and all amendments thereto and of the resolutions of the Board of
Directors of the Company approving the Plan and all amendments thereto, promptly
upon their adoption. After the execution of this Agreement, the Company shall
promptly file with the Trustee and the Trustee's Agent a certified list of the
names and specimen signatures of the officers of the Company, the members of the
Executive Benefits Committee and any person authorized to act for them. The
Company shall promptly notify the Trustee and the Trustee's Agent of the
addition or deletion of any person's name to or from such list, respectively.
Until receipt by the Trustee and/or the Trustee's Agent of notice that any
person is no longer authorized so to act, the Trustee or the Trustee's Agent may
continue to rely on the authority of the person. All certifications, notices and
directions by any such authorized person or persons to the Trustee or the
Trustee's Agent shall be in writing signed by such person or persons. The
Trustee and the Trustee's Agent may rely on such certification, notice or
direction purporting to have been signed by or on behalf of such person or
persons that the Trustee or the Trustee's Agent reasonably believes to have
been signed thereby. The Trustee and the Trustee's Agent may rely on any
certification, notice or direction of the Company that the Trustee or the
Trustee's Agent reasonably believes to have been signed by a duly authorized
officer or agent of the Company. The Trustee and the Trustee's Agent shall
have no responsibility for acting in reliance upon any notification believed
by the Trustee or the Trustee's Agent to have been so signed by a duly
authorized officer or agent of the Company. The Company shall be responsible for
keeping accurate books and records with respect to the employees of the Company,
their compensation and their rights and interests in the Fund under the Plan.
4.2 The Company shall make its contributions to the Trust in accordance
with appropriate corporate actions and the Trustee shall have no responsibility
with respect thereto, except to add such contributions to the Fund; provided
that the Executive Benefits Committee under each plan my undertake on the behalf
of the Participants such action as is necessary to compel the Company to meet
its legal obligations under the Plan.
4.3 The Company shall indemnify and hold harmless the Trustee, the
Trustee's Agent, and members of the Executive Benefits Committee under the Plan
for any liability or expenses, including without limitation reasonable
attorney's fees, incurred by the Trustee, the Trustee's Agent or the Executive
Benefits Committee under the Plan with respect to holding, managing, investing
or otherwise administering the Trust and/or the Fund, other than by such
person's or entity's negligence or willful misconduct.
ARTICLE V
5.1 The Trustee and the Trustee's Agent shall not be liable in discharging
their duties hereunder, including without limitation in the case of the Trustee
its duty to invest and reinvest the Fund, if the Trustee and the Trustee's Agent
act in good faith and in accordance with the terms of this Agreement and any
applicable Federal or state laws, rules or regulations.
5.2 Subject to investment guidelines agreed to in writing from time to
time by the Company and the Trustee, the Trustee shall have the power in
investing and reinvesting the Fund in its sole discretion:
(a) To invest and reinvest in any property, real, personal or mixed,
wherever situated and whether or not productive of income or
consisting of wasting assets, including without limitation,
common and preferred stocks, bonds, notes, debentures (including
convertible stocks and securities but not including any stock
or security of the Trustee, or any affiliate thereof),
leaseholds, mortgages, certificates of deposit or demand or
time deposits (including any such deposits with the Trustee),
shares of investment companies and mutual funds, interests in
partnerships and trusts, insurance policies and annuity
contracts, and oil, mineral or gas properties, royalties,
interests or rights, without being limited to the classes of
property in which trustees are authorized to invest by any law
or any rule of court of any state and without regard to the
proportion any such property may bear to the entire amount of
the Fund;
(b) To invest and reinvest all or any portion of the Fund
collectively through the medium of any common, collective or
commingled trust fund that may be established and maintained by
the Trustee for plans or programs which are not tax qualified,
subject to the instrument or instruments establishing such trust
fund or funds and with the terms of such instrument or
instruments, as from time to time amended, being incorporated
into this Agreement to the extent of the equitable share of the
Fund in any such common collective or commingled trust fund;
(c) To retain any property at any time received by the Trustee;
(d) To sell or exchange any property held by it at public or private
sale, for cash or on credit, to grant and exercise options for
the purchase or exchange thereof, to exercise all conversion or
subscription rights pertaining to any such property and to enter
into any covenant or agreement to purchase any property in the
future;
(e) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating
to property held by the Trust and to consent to or oppose any
such plan or any action thereunder or any contract, lease,
mortgage, purchase, sale or other action by any person;
(f) To deposit any property held by the Trustee with any protective,
reorganization or similar committee, to delegate discretionary
power thereto, and to pay part of the expenses and compensation
thereof and any assessments levied with respect to any such
property so deposited;
(g) To extend the time of payment of any obligation held by the
Trustee;
(h) To hold uninvested any moneys received by the Trustee, without
liability for interest thereon, until such moneys shall be
invested, reinvested or disbursed;
(i) To exercise all voting or other rights with respect to any
property held by the Trustee and to grant proxies, discretionary
or otherwise;
(j) For the purposes of the Trust, to borrow money from others, to
issue its promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by the Trustee;
(k) To manage, administer, operate, insure, repair, improve, develop,
preserve, mortgage, lease or otherwise deal with, for any period,
any real property or any oil, mineral or gas properties,
royalties, interests or rights held by the Trustee directly or
through any corporation or partnership, either alone or by
joining with others, using other Trust assets for any such
purposes, to modify, extend, renew, waive or otherwise adjust any
provision of any such mortgage or lease and to make provision for
amortization of the investment in or depreciation of the value of
such property;
(l) To employ suitable agents and counsel, who may be counsel to the
Company or the Trustee, and to pay their reasonable expenses and
compensation from the Fund to the extent not paid by the Company;
(m) To cause any property held by the Trustee to be registered and
held in the name of one or more nominees, with or without the
addition of words indicating that such securities are held in a
fiduciary capacity, and to hold securities in bearer form;
(n) To settle, compromise or submit to arbitration any claims, debts
or damages due or owing to or from the Trust, respectively, to
commence or defend suits or legal proceedings to protect any
interest of the Trust, and to represent the Trust in all suits
or legal proceedings in any court or before any other body or
tribunal; provided, however, that the Trustee shall not be
required to take any such action unless the Trustee and the Trust
shall have been indemnified by the Company to the Trustee's
reasonable satisfaction against liability or expenses the Trust
and the Trustee might incur therefrom;
(o) To organize under the laws of any state a corporation or trust
for the purpose of acquiring and holding title to any property
which the Trust is authorized to acquire hereunder and to
exercise with respect thereto any or all of the powers set
forth herein;
(p) To pay premiums on any insurance policy, or annuity policy, at
the direction of the Executive Benefits Committee under the Plan,
in order to safeguard the benefits payable to the Participant and
Beneficiary under the Plan or to borrow against the cash value of
any insurance or annuity policy or policies held by the Trustee,
only if the Trustee is directed to do so by the Executive
Benefits Committee under the Plan;
(q) To change the insured individual of any insurance policy held by
the Trustee, if the insured ceases to be entitled to benefits
under the Plan, to another employee entitled to benefits under
the Plan, as directed by the Executive Benefits Committee under
the Plan;
(r) To change the terms of any policies of insurance, as directed by
the Executive Benefits Committee under the Plan and as agreed to
by the insurance carrier; and
(s) Generally, to do all acts, whether or not expressly authorized,
that the Trustee may deem necessary or desirable for the
protection of the Fund.
5.3 No person dealing with the Trustee shall be under any obligation to
see to the proper application of any money paid or property delivered to the
Trustee or to inquire into the Trustee's authority as to any transaction.
5.4 The Trustee shall distribute cash or property from the Fund in
accordance with Article III hereof. The Trustee may make any distribution
required hereunder by mailing a check for the specified amount, or delivering
the specified property, to the person to whom such distribution or payment is to
be made, at such address as may have been last furnished to the Trustee, or if
no such address shall have been so furnished, to such person in care of the
Company, or (if so directed by the Company) by crediting the account of such
person or by transferring funds to such person's account by bank or wire
transfer.
5.5 If any life insurance premiums cannot be paid from the Fund, the
Trustee shall elect the policy option which, in the written opinion of the
insurance company issuing such policy, is the policy option which will extend
the current amount of life insurance protection for the longest period.
5.6 If at any time there is no person authorized to act under this
Agreement on behalf of the Company, the Board of Directors of the Company shall
have the authority to act hereunder.
5.7 Notwithstanding any other contrary provision, any shares of stock of
the Company held by the Trustee may be sold only pursuant to the written
direction of the Executive Benefits Committee under the Plan.
ARTICLE VI
6.1 The Company shall pay any Federal, state and local taxes on the Fund,
or any part thereof, and on the income therefrom.
6.2 The Trustee shall not be entitled to compensation and fees for his
services under this Agreement. The Trustee's Agent shall be entitled to such
compensation for its services under this Agreement as is agreeable to the
Company, the Trustee and the Trustee's Agent. Such expenses and compensation
shall be a charge on the Fund. Such compensation, fees and reimbursement for
expenses and liability described in Section 4.3 above, shall be paid to the
Trustee or the Trustee's Agent by the Company directly; but if the Company
shall fail to do so, the Trustee shall be entitled to withdraw all amounts to
which it is entitled from the Fund, to the extent the Fund is sufficient, and to
the extent the Fund is not sufficient, the additional amounts due shall
constitute a lien against the Fund. If the Trustee is paid from the Fund, the
Company shall reimburse the Fund for any such payments.
ARTICLE VII
7.1 The Trustee shall maintain records with respect to the Fund that show
all the Trustee's receipts and disbursements hereunder. The records of the
Trustee with respect to the Fund shall be open to inspection by the Company and
Plan Participants, or their representatives, at all reasonable times during
normal business hours and may be audited not more frequently than once each
fiscal year by an independent certified public accountant engaged by the
Company.
7.2 Within a reasonable time after the close of each fiscal year of the
Company (or, in the Trustee's discretion, at more frequent intervals), or of any
termination of the duties of the Trustee hereunder, the Trustee shall prepare
and deliver to the Company and the Trustee's Agent a statement of transactions
reflecting Trustee's acts and transactions as Trustee during such fiscal year,
portion thereof or during such period from the close of the last fiscal year
or last statement period to the termination of the Trustee's duties,
respectively, including a statement of the then current value of the Fund. Any
such statement shall be deemed an account stated and accepted and approved by
the Company, and the Trustee shall be relieved and discharged, as if such
account had been settled and allowed by a judgment or decree of a court or
competent jurisdiction, unless protested by written notice to the Trustee
within sixty (60) days of receipt thereof by the Company. The Trustee shall
have the right to apply at any time to a court of competent jurisdiction for
judicial settlement of any account of the Trustee not previously settled as
herein provided or for the determination of any question of construction or for
instructions. In any such action or proceeding it shall be necessary to join as
parties only the Trustee and the Company (although the Trustee may also join
such other parties as the Trustee may deem appropriate), and any judgment or
decree entered therein shall be conclusive.
ARTICLE VIII
8.1 The Trustee may resign at any time by delivering written notice
thereof to the Company; provided, however, that no such resignation shall take
effect until the earlier of (i) thirty (30) days from the date of delivery of
such notice to the Company or (ii) the appointment of a successor trustee.
8.2 The Trustee may be removed at any time by the Company, pursuant to a
resolution of the Board of Directors of the Company, upon delivery to the
Trustee of a certified copy of such resolution and thirty (30) days written
notice, unless such notice period is waived in whole or in part by the Trustee,
of (i) such removal and (ii) the appointment of a successor trustee.
8.3 Upon the resignation or removal of the Trustee, a successor trustee
shall be appointed by the Company. Such appointment shall take effect upon the
delivery to the Trustee of (a) a written appointment of such successor trustee,
duly executed by the Company, and (b) a written acceptance by such successor
trustee, duly executed thereby. Any successor trustee shall have all the
rights, powers and duties granted the Trustee hereunder.
8.4 If, within thirty (30) days of the delivery of the Trustee's written
notice of resignation, a successor trustee shall not have been appointed, the
Trustee may apply to any court of competent jurisdiction for the appointment of
a successor trustee.
8.5 Upon the resignation or removal of the Trustee and the appointment of
a successor trustee, and after the acceptance and approval of the Trustee's
account, the Trustee shall transfer and deliver the Fund to such successor.
ARTICLE IX
9.1 The Trust may be terminated at any time by the Company, pursuant to a
resolution of the Board of Directors thereof, with the written consent of a
majority of the then Plan Participants (excluding beneficiaries), upon delivery
to the Trustee of a certified copy of such resolution and a written instrument
of termination duly executed and acknowledged in the same form as this
Agreement, together with a certification, in such form as the Trustee may
require, that the consent of Plan Participants has been obtained. However,
the Trust may not be terminated and no distributions other than normal benefit
payments may be made in the event that any bankruptcy or other judicial
proceeding is pending that could result in the Company being determined bankrupt
or insolvent within the meaning of Article 2.1.
9.2 Upon the termination of the Trust, the Trustee shall, after the
acceptance and approval of its account, distribute in accordance with the
written directions of the Trustee's Agent the amount to the credit of each
Account in the Fund to the Plan Participants or, if any Participant is dead
or incompetent, to his Beneficiary; provided, however, that after satisfaction
of all liabilities with respect to all Participants in the Plan and their
Beneficiaries as certified to by the Trustee's Agent, the Trustee shall
distribute the Fund to the Company upon its written direction. Upon completing
such distribution, the Trustee shall be relieved and discharged. The powers of
the Trustee shall continue as long as any part of the Fund remains in its
possession.
ARTICLE X
10.1 This Agreement may be amended, in whole or in part, at any time and
from time to time, by the Company, pursuant to a resolution of the Board of
Directors thereof, by delivery to the Trustee of a certified copy of such
resolution and a written instrument duly executed and acknowledged in the form
as this Agreement, except that the duties and responsibilities of the Trustee
shall not be increased without the Trustee's written consent; provided, however,
any such amendment adversely affecting any benefit due a Participant or his
Beneficiary, or the procedures for distribution thereof, shall not become
effective unless such Participant or Beneficiary consents thereto in writing.
ARTICLE XI
11.1 This Agreement shall be construed and interpreted under, and the Trust
hereby created shall be governed by, the laws of the state of Indiana, insofar
as such laws do not contravene any applicable Federal laws, rules or
regulations.
11.2 Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude gender or number when a different gender or number
would be appropriate.
11.3 No right or interest of any Participant under any Plan under the Trust
shall be transferable or shall be subject to alienation, anticipation or
encumbrance, and no right or interest of any Participant or Beneficiary in any
such Plan shall be subject to any garnishment, attachment or execution.
Notwithstanding anything to the contrary, the Fund shall at all times remain
subject to claims of creditors of the Company in the event the Company is
adjudicated to be bankrupt or insolvent as provided herein.
11.4 The Company agrees that by the establishment of this Trust it hereby
foregoes any judicial review certification by the Trustee's Agent as to the
benefit payable to any persons hereunder. If a dispute arises as to the amounts
or timing of any such benefits or the persons entitled thereto under the Plan or
this Agreement, the Company agrees that such dispute shall be resolved by
binding arbitration proceedings initiated in Elkhart, Indiana , in accordance
with the rules of the American Arbitration Association, and that the results
of such proceedings shall be conclusive and shall not be subject to judicial
review. It is expressly understood that pending the resolution of any such
dispute, payment of benefits shall be made and continued by the Trustee in
accordance with the certification of the Trustee's Agent and that the Trustee
and the Trustee's Agent shall have no liability with respect to such payments.
The Company also agrees to pay the entire cost of any arbitration or legal
proceeding initiated by it or by the Trustee's Agent or by any Plan Participant
or Beneficiary, including the legal fees of the Trustee and the Trustee's Agent,
regardless of the outcome of any such proceeding, and until so paid the expenses
thereof shall be a charge on and lien against the Fund.
11.5 This Agreement shall be binding upon and inure to the benefit of any
successor to the Company or business as the result or merger, consolidation,
reorganization, transfer of assets or otherwise and any subsequent successor
thereto. In the event of any such merger, consolidation, reorganization,
transfer of assets or other similar transaction, the successor to the Company or
its business or any subsequent successor thereto shall promptly notify the
Trustee in writing of its successorship and furnish the Trustee and the
Trustee's Agent with the information specified in Section 4.1 of this
Agreement. In no event shall any such transaction described herein suspend or
delay the rights of Plan Participants or the Beneficiaries of deceased
participants to received benefits hereunder.
11.6 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to an original, but all of which shall together constitute
only one Agreement.
11.7 Notwithstanding any other provision of this Agreement, the Trustee
shall automatically and immediately terminate the Trust and distribute the Fund
to the Participants in the amount of their respective Account(s), upon the
occurrence of any one or more of the following events:
(a) any of the Company's usual lines of credit become
terminated, accelerated and/or unavailable and cannot be
replaced within 120 days;
(b) the Company's debt to net worth ratio exceeds 3:1;
(c) there is a hostile takeover that results in a change in more
than five (5) of the seats on the board of directors of the
Company during any twelve (12) month period; or
(d) the majority of the Executive Benefits Committee agree that
certain situations exist or actions have been taken that
jeopardize the continuance of the Plan.
(signatures on following page)
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed in Elkhart, Indiana, on the day and year first above written.
"COMPANY"
Xxxxxx Building Systems, Inc.
By: \Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
"TRUSTEE"
\Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
