EXHIBIT 10.14
PLEXUS CORP
EXECUTIVE DEFERRED COMPENSATION PLAN TRUST
THIS AGREEMENT made this 1st day of April, 2003, by and between PLEXUS
(the "Employer") and BANKERS TRUST COMPANY (the "Trustee");
WHEREAS, Employer has adopted the Plexus Corp Executive Deferred
Compensation Plan (the "Plan") to provide benefits to certain eligible employees
of the Employer and its designated affiliates; and
WHEREAS, Employer has incurred or expect to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan
and certain of its subsidiaries who adopt the Plan may likewise incur or expect
to incur such liabilities; and
WHEREAS, Employer wishes to establish a trust (the "Trust") and to
contribute to the Trust assets to be held therein, subject to the claims of the
creditors of the Employer and all contributing subsidiaries, in the event of
Insolvency, as defined herein, of the Employer or any contributing subsidiary,
until paid to Plan participants and their beneficiaries in such manner and at
such times as specified in the Plan; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
WHEREAS, it is the intention of Employer and certain of its
subsidiaries to make contributions to the Trust to provide a source of funds to
assist in the meeting of liabilities under the Plan;
NOW, THEREFORE, the parties do hereby create the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST
(a) Employer shall make an initial contribution to the Trust, which
shall become the principal of the Trust to be held, administered and disposed of
by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Employer is
the grantor, within the meaning of subpart E, part 1, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Employer or any of its subsidiaries and
shall be used exclusively for
the uses and purposes of Plan participants and general creditors as herein set
forth. Plan 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 Plan participants and their beneficiaries against
Employer. Any assets held by the Trust will be subject to the claims of general
creditors of the Employer and any contributing subsidiary under federal and
state law in the event of Insolvency, as defined in Section 3(a) herein.
(e) Employer, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with Trustee
to augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits.
(f) Upon a Change of Control, as defined in the Plan, Company shall,
as soon as possible, but in no event longer than 60 days following the Change of
Control, make an irrevocable contribution to the Trust in any amount that is
sufficient to pay each Plan participant or beneficiary would be entitled
pursuant to the terms of the Plan(s) as of the date on which the Change of
Control occurred.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
(a) Employer shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions acceptable to Trustee for determining the amounts so payable, the
form in which such amount is 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, Trustee shall make payments to the Plan participants
and their beneficiaries in accordance with such Payment Schedule. Trustee shall
make provision with the Employer 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(s) and shall pay
amounts withheld to the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by Employer.
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan shall be determined by Employer or such party 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.
(c) Employer may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. Employer shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, 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 Plan, Employer shall make the balance of each such payment as it
falls due. Trustee shall notify Employer where principal and earnings are not
sufficient.
- 2 -
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN EMPLOYER IS INSOLVENT.
(a) Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if Employer or any contributing subsidiary is Insolvent.
Whenever the term "Employer" is used in this Section 3, it shall also be deemed
to mean any contributing subsidiary of the Employer. Employer shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) Employer is
unable to pay its debts as they become due, or (ii) Employer 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 Employer under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of
Employer shall have the duty to inform Trustee in writing of
Employer's Insolvency. If a person claiming to be a creditor of
Employer alleges in writing to Trustee that Employer has become
Insolvent, Trustee shall determine whether Employer is Insolvent and,
pending such determination, Trustee shall discontinue payment of
benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Employer's
Insolvency, or has received notice from Employer or a person claiming
to be a creditor alleging that Employer is Insolvent, Trustee shall
have no duty to inquire whether Employer is Insolvent. Trustee may in
all events rely on such evidence concerning Employer's solvency as
may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Employer's
solvency.
(3) If at any time Trustee has determined that Employer is
Insolvent, Trustee shall discontinue payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the
benefit of Employer's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of Plan participants
or their beneficiaries to pursue their rights as general creditors of
Employer with respect to benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of
this Trust Agreement only after Trustee has determined that Employer
is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Employer in lieu of the payments provided
for hereunder during any such period of discontinuance.
- 3 -
SECTION 4. PAYMENTS TO EMPLOYER.
Except as provided in Section 3 hereof, Employer shall have no right or
power to direct Trustee to return to Employer or to divert to others any of the
Trust assets before all payment of benefits have been made to Plan participants
and their beneficiaries pursuant to the terms of the Plan.
SECTION 5. INVESTMENT AUTHORITY.
(a) In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by Employer, other than a de
minimis amount held in common investment vehicles in which Trustee invests. All
rights associated with assets of the Trust shall be exercised by the Trustee or
the person designated by the Trustee, and except as described in (c) below,
shall in no event be exercisable by or rest with Plan participants.
(b) Subject to (a) above and unless directed by the Employer under (c)
below, Trustee shall invest and reinvest the principal and income of the Trust
fund in any and all common stocks, preferred stocks, bonds, notes, debentures,
mortgages, equipment trust certificates, investment trust certificates, common,
collective or group trust investments or mutual fund investments (including any
such trusts or funds as may be established by Trustee or any of its affiliates),
real and personal property wherever situated, and in such other property,
investments and securities of any kind, class or character as Trustee may deem
suitable for the Trust. Trustee shall have the power, in its sole discretion, to
do all such acts, execute all such instruments, take all such proceedings and
exercise all rights and privileges with respect to any property or asset
constituting a part of the Trust fund as if Trustee were the absolute owner
thereof.
(c) The Trustee's responsibility for investment and diversification of
the assets in the Trust shall be subject to, and is limited by, any investment
instructions issued to it by Employer or any investment guidelines agreed to by
Employer and Trustee. The Employer may direct Trustee as to the investment of
some or all of the Trust fund for the purpose of adhering to Participant deemed
investment directions which may be available under the Plan or otherwise. When
investment directions are provided by the Employer, the Trustee shall have no
liability for it or any other person properly following such directions or
failing to act in the absence of any such directions. Notwithstanding the
foregoing, Trustee shall remain ultimately responsible for the investment of
Trust assets and may disregard any direction under this (c) to the extent
Trustee determines such direction is inconsistent with Trustee's fiduciary
duties hereunder.
SECTION 6. 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 7. ACCOUNTING BY TRUSTEE.
Trustee shall keep or cause to be maintained accurate and detailed
accounts of all investments, receipts and disbursements and other transactions
hereunder, and all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times by any person or persons designated
by Employer. Trustee shall file with Employer annually or
- 4 -
more frequently if requested by Employer (and within 60 days following the
removal or resignation of Trustee) a written report setting forth all
investments, receipts and disbursements, and other transactions effected by it
to the date covered by the report, and showing all cash and other property
held at the end of such period. At the request of Employer, Trustee shall
establish and maintain separate records on contributions made hereunder by
Employer and any contributing subsidiary. Such funds may be commingled,
invested and reinvested hereunder in all respects as a commingled single fund,
but Trustee, to the extent it is maintaining separate records hereunder as to
the contributing entity, shall always maintain separate accounts within the
Trust showing the value of the separate interests of each contributing entity,
on a pro rata basis. In connection with the Plan, which provides for a
separate bookkeeping account for the interests of each participant therein,
Trustee shall maintain such separate account records for each participant and
beneficiary as it considers necessary or desirable for the proper
administration of the Trust.
SECTION 8. RESPONSIBILITY OF TRUSTEE.
(a) 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
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by Employer which is contemplated by, and
in conformity with, the terms of the Plan or this Trust and is given in writing
by Employer. In the event of a dispute between Employer and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
(b) Trustee may consult with legal counsel, who may be counsel for
Employer or in the employ of Employer, in respect to any of its rights, duties
and obligations hereunder.
(c) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(d) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as a asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(e) Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, 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.
- 5 -
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
Employer shall pay all administrative and Trustee's fees and expenses
as shall be agreed to from time to time by Employer. If not so paid, the fees
and expenses shall be paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to Employer,
which shall be effective 60 days after receipt of such notice unless Employer
and Trustee agree otherwise.
(b) Trustee may be removed by Employer on 60 days' notice or upon
shorter notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 60 days after receipt of notice
of resignation removal or transfer, unless Employer extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraphs (a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
If Trustee resigns or is removed in accordance with Section 10(a) or
(b) hereof, Employer may appoint any third party, such as a bank or trust
department or other party that may be granted corporate trust powers under state
law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee, who
shall have all of the rights and powers of the former Trustee, including
ownership rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Employer or the successor
Trustee to evidence the transfer.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Employer. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan. Upon termination of the Trust any assets remaining in
the Trust shall be returned to Employer.
- 6 -
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, Employer may terminate
this Trust prior to the time all benefit payments under the Plan have been made.
All assets in the Trust at termination shall be returned to Employer.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or
in equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Wisconsin and of the United States of America.
(d) If the Internal Revenue Service (the "IRS") makes a final
determination that a Plan participant or beneficiary is subject to federal
income tax with respect to the value of any amounts held in accounts under this
Trust prior to the actual distribution to such participant or beneficiary, or
the Trustee receives an opinion of counsel satisfactory to it that it is likely
that the IRS will determine that such federal income tax will be payable as
described above, then the Employer may, at the written request of a participant
or beneficiary accompanied by evidence reasonably satisfactory to the Employer,
notify and direct the Trustee to make distribution of such amounts to the
participant or beneficiary as soon thereafter as practicable.
SECTION 14. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be the date first
above set forth.
PLEXUS CORP.
BY: /s/
--------------------------------
ATTEST: /s/
--------------------------------
BANKERS TRUST COMPANY
BY: /s/
--------------------------------
ATTEST: /s/
--------------------------------
- 7 -
INVESTMENT AGREEMENT
WHEREAS, PLEXUS CORP. (the Company) has retained Bankers Trust Company, N.A. Des
Moines, (BTC) as Trustee of the Trust Fund (the Trust) established with respect
to certain plans established to provide deferred compensation, for certain of
its employees.
AND WHEREAS, that Trust is evidenced by certain Trust Agreement by virtue of
which BTC has agreed to serve as Trustee,
AND WHEREAS, that section 5(c) of the Trust authorized BTC to act pursuant to
investment guidelines agreed to in writing form time to time by the Company and
BTC,
NOW, THEREFORE, in consideration of mutual promises and covenants contained
herein and the performance thereof, it is hereby agreed by and between these
Parties:
1. All contribution to the aforementioned Plan and all assets of the Trust
will be held in certain annuity contracts, mutual fund shares, or other
instruments issued by Principal Life Insurance Company or other
companies which are members of The Principal Financial Group.
2. BTC will not be liable for the acts or omission of Principal Life
Insurance Company or other companies which are members of The Principal
Financial Group with regard to the investment of the contributions of
the aforementioned plans and all assets of the Trust.
3. That this agreement shall run for the full term of the Trust unless
superseded by a subsequent written agreement between the Parties. This
Agreement shall be terminated immediately and without notice if the
Trust is terminated, or if BTC resigns or is removed from its role as
Trustee.
4. That this agreement shall be construed, interpreted, and governed by
the laws of the State of Iowa.
This Agreement shall be effective on this 1st day of February, 2003.
AGREED & ACCEPTED:
/s/ /s/
--------------------------------------- --------------------------------
Plexus Corp. Bankers Trust Company, N.A.
Title Vice President, Human Resources Trust Officer
Date 4/1/03 Date 4-11-03
---------------------------------- ---------------------------
