Exhibit 10(w)
X.X. XXXXXX COMPANY
DIRECTORS BENEFIT TRUST
THIS AGREEMENT is made by and between X.X. Xxxxxx Company (the "Company")
and U.S. Bank National Association, a national banking association (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company has established a plan for Directors and may establish
one or more other such plans, each of which is listed on Exhibit A to this
Agreement and is referred to in this Agreement as the "Plan" or collectively as
the "Plans;" and
WHEREAS, the Company desires to establish a trust for the purpose of
implementing the provisions of the Plans;
NOW, THEREFORE, in order to establish a trust under the Plans and in
consideration of the mutual undertakings of the parties, it is agreed as
follows.
ARTICLE 1
RULES OF CONSTRUCTION
.1 General Definitions. Unless the context otherwise indicates, the
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terms used in this Agreement are given the meanings ascribed to them by the Plan
with respect to which they are being applied.
.2 Grantor Trust. The Trust is intended to be a grantor trust described
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in section 671 of the Internal Revenue Code, and shall be construed accordingly.
.3 "Change in Control." A Change in Control shall be deemed to have
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occurred upon any of the following events:
(a) a change in the control of the Company of a nature that
would be required to be reported in accordance with Regulation 14A
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act"),
whether or not the Company is then subject to such reporting requirement;
(b) a public announcement (which, for purposes hereof, shall
include, without limitation, a report filed pursuant to Section 13(d) of
the Exchange Act) that any individual, corporation, partnership,
association, trust or other entity becomes the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 15% or more of the
Voting Power of the Company then outstanding;
(c) the individuals who, as of the date of this Agreement, are
members of the Board of Directors of the Company (the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board
(provided, however, that if the election or nomination for election by the
Company's shareholders of any new director was approved by a vote of at
least a majority of the Incumbent Board, such new director shall be
considered to be a member of the Incumbent Board);
(d) the approval of the shareholders of the Company of: (i) any
consolidation, merger, or statutory share exchange of the Company with any
person in which the surviving entity would not have as its directors at
least 60% of the Incumbent Board and as a result of which those persons who
were shareholders of the Company immediately prior to such transaction
would not hold, immediately after such transaction, at least 60% of the
Voting Power of the Company then outstanding or the combined voting power
of the surviving entity's then outstanding voting securities; (ii) any
sale, lease, exchange or other transfer in one transaction or series of
related transactions of substantially all of the assets of the Company; or
(iii) the adoption of any plan or proposal for the complete or partial
liquidation or dissolution of the Company; or
(e) a determination by a majority of the members of the
Incumbent Board, in their sole and absolute discretion, that there has been
a Change in Control of the Company.
.4 "Administrator" shall mean the Plan Administrator designated by the
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Plan or, if not designated by the Plan, the Compensation Committee of the
Company's Board of Directors or the person to whom the Compensation Committee
has delegated the Administrator's duties under the Plan.
.5 "Trustee" shall mean the banking organization that has executed this
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Agreement, or its successor in trust, who is at the relevant time acting as the
Trustee under this Agreement.
.6 "Voting Power," when used with reference to the Company, shall mean
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the voting power of all classes and series of capital stock of the Company now
or hereafter authorized other than the voting power of any of the shares of
Series A preferred stock outstanding as of the date of this Agreement.
ARTICLE 2
APPLICATION OF FUNDS
.1 Segregation of Trust Funds. The Trustee agrees to hold and manage all
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contributions received from the Company or any other source and the income and
increment of such contributions. The Trust estate shall be held separate and
apart from other funds of the Company and shall be used exclusively for the
purposes set forth in this Agreement.
.2 Payment of Benefits. Subject to the provisions of Sections 2.3, 3.1,
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and 4.1, the Trustee shall distribute Trust funds to the Plan participants and
their beneficiaries as directed by the Administrator. If the assets of the
Trust are not sufficient to make payments of benefits pursuant to the Plan to
participants and their beneficiaries, the Company shall make the balance of each
such payment as it becomes due.
.3 Reversion of Excess Assets. If, prior to a Change in Control, the
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Company determines, on the basis of reasonable actuarial assumptions selected by
an independent actuary appointed by the Company, that a portion of the Trust's
assets or future earnings allocated to an account for a Plan will not be
required to pay benefits to participants and their beneficiaries under the terms
of the Plan in effect at the time of the determination, all or any part of such
portion of assets or future Trust earnings shall be returned to the Company upon
the direction of the Company; provided that no part of any assets or future
Trust earnings shall be paid to the Company after the occurrence of a Change in
Control except as provided in Section 5.2 or 10.3.
ARTICLE 3
INSOLVENCY
.1 Creditors' Claims. At all times during the term of this Trust, the
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principal and income of the Trust shall be subject to the claims of general
creditors of the Company, and at any time the Trustee has actual knowledge, or
has determined, that the Company is insolvent, the Trustee shall deliver any
undistributed principal and income in the Trust to satisfy such claims as a
court of competent jurisdiction or a person appointed by the court may direct.
The Board of Directors and the Chief Executive Officer of the Company shall have
the duty to inform the Trustee of the Company's insolvency. If the Company or 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 independently
determine, within thirty days after receipt of such notice, whether the Company
is insolvent and, pending such determination, the Trustee shall discontinue
payments of benefits under the Plans, shall hold the Trust assets for the
benefit of the Company's general creditors, and shall resume payments of
benefits under the terms of the Plans only after the Trustee has determined that
the Company is not insolvent (or is no longer insolvent, if the Trustee
initially determined the Company to be insolvent). Unless the Trustee has actual
knowledge of the Company's insolvency, the Trustee shall have no duty to inquire
whether the Company is insolvent. The Trustee may in all cases
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rely on such evidence concerning the Company's solvency as may be furnished to
the Trustee which will give the Trustee a reasonable basis for making a
determination concerning the Company's solvency. Nothing in this Trust Agreement
shall in any way diminish any rights of a participant to pursue his rights as a
general creditor of the Company with respect to the benefits to which he is
entitled under the Plan, but the Trustee shall not, except upon direction of a
court of competent jurisdiction or a person appointed by the court, pay to any
participant any amounts representing the participant's priority claim for wages
or employee benefits.
.2 Restoration of Benefits. If the Trustee discontinues payments of
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benefits from the Trust pursuant to the provisions of Section 3.1, and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments that would
have been made to the participant during the period of such discontinuance, less
the aggregate amount of payments made to the participant by the Company in lieu
of the payments that would have been provided from this Trust during any such
period of discontinuance.
.3 "Insolvency." The Company shall be considered "insolvent" for
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purposes of this Trust Agreement if (a) the Company is unable to pay its debts
as they mature, or (b) the Company is subject to a pending proceeding as a
debtor under the Bankruptcy Code.
ARTICLE 4
CHANGE IN CONTROL
.1 Administration after Change in Control. Upon and after the Trustee
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receives notice of the occurrence of a Change in Control, the Trustee shall
administer the Trust as follows:
(a) The Trustee shall segregate in a separate share of the Trust
the assets of the Trust held to provide benefits for all participants who
were participants in the Plans immediately prior to the Change in Control,
including any contributions received for such participants following the
Change in Control. A separate share of the Trust shall be created for
assets held to provide benefits for persons who become participants in the
Plans after the Change in Control. The assets of the separate shares shall
not be commingled, and in no event shall assets of such a share be used to
provide benefits under another share unless all benefits to participants
under the first share have been paid.
(b) The provisions of Section 3.1, relating to payments to
general creditors of the Company in the event of insolvency, shall not
apply to the separate share of the Trust that includes assets held prior to
the Change in Control until each other separate share has been exhausted by
such payments.
(c) The provisions of Section 2.2 ("Payment of Benefits") shall
cease to apply, and the Trustee shall distribute the Trust fund to Plan
participants and their beneficiaries in accordance with the provisions of
the Plan. If the Administrator fails to provide the Trustee with
information sufficient for it to determine the amount or timing of any
distribution within thirty days after the Trustee's receipt of notice of
the occurrence of the event entitling the participant or beneficiary to
receive such distribution, the Trustee shall be entitled to conclusively
rely upon information provided by the participant or beneficiary. If the
assets of the Trust are not sufficient to make payments of benefits
pursuant to the Plan to participants and their beneficiaries, the Company
shall make the balance of each such payment as it becomes due.
.2 Notice. The Trustee shall be deemed to have received notice of the
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occurrence of a Change in Control only upon actual delivery to the Trustee of a
written notice of such occurrence signed by an officer of the Company, member of
the Board of Directors of the Company or a participant in any Plan. If,
following its receipt of such a notice, the Trustee determines that no Change in
Control has in fact occurred, it shall continue to administer the Trust as if
such notice had not been received.
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.3 Investments. Upon and after the occurrence of a Change in Control,
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the Trustee shall not be subject to the direction of the Company in the
acquisition, investment and disposition of the Trust's assets, and the Trustee
shall thereafter acquire, invest and dispose of Trust assets in such manner as
it deems prudent and in the best interests of the Plans' participants and their
beneficiaries.
.4 Contributions. Within ten business days following the occurrence of a
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Change in Control, the Company shall make an irrevocable cash contribution to
the Trust in an amount which, when added to the then fair market value of the
Trust's assets, is not less than the present value of the payments which are
then due or which may thereafter become due to participants or beneficiaries
pursuant to the terms of each Plan. The amount of such contribution shall be
determined by assuming that each Plan participant who is a Director of the
Company at the time of the Change in Control will become entitled to receive
benefit payments on the earliest date as of which the participant could receive
his benefits without reductions based on the participant's age or length of
service. Present value shall be determined using the following actuarial
assumptions:
Interest: The average interest rate on 30-year U.S. Treasury obligations
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as of the last day of the second month preceding the month in
which the Change in Control occurs.
Mortality: Postretirement: 1983 Group Annuity Mortality Table.
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Preretirement: None.
As of each yearly anniversary of the occurrence of a Change in Control
("Valuation Date"), the Company shall determine the amount of the contribution
which would have been required pursuant to this Section 4.4 if the Change in
Control had occurred on such Valuation Date. If the amount so determined exceeds
the fair market value of the Trust assets on such Valuation Date, the Company
shall, within ten business days following such Valuation Date, make an
irrevocable cash contribution to the Trust in an amount which is not less than
such excess.
ARTICLE 5
EARLY TERMINATION
.1 Early Termination. Notwithstanding anything herein to the contrary,
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if there is a final determination that the existence of this Trust would cause
the Plan participants to be taxed on their benefits before they actually receive
them, the Trust shall terminate and the Trustee shall distribute to each
participant the present value of his benefits under each Plan. For the purposes
of this Section 5.1:
(a) a "final determination" means a determination by the
Internal Revenue Service or a court of competent jurisdiction from which no
further appeal may be taken, either because there is no further appeal
available or because the time to take such appeal has expired; and
(b) "present value" shall be determined as provided in
Section 4.4.
.2 Allocations upon Termination. Upon any distribution to participants
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under Section 5.1, the Trustee shall make distributions with respect to benefits
under any Plan from the account for such Plan to the extent of the balance of
such account. If such account is insufficient to pay such benefits in full, the
deficiency shall be allocated among the participants in proportion to the
present value of the accrued benefit of each participant under the Plan. If the
balance of the account exceeds the amount of benefits payable under the Plan,
the excess shall first be allocated to participants in proportion to the
aggregate amount of deficiencies allocated to each participant with respect to
other Plans, and second, if the assets of the Trust exceed the value of all
accrued benefits under the Plans, the excess shall be returned to the Company.
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ARTICLE 6
ACCOUNTS
.1 Separate Plan Accounts. The Trustee shall establish a separate
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account within the Trust to evidence contributions made pursuant to each
separate Plan and the earnings and losses attributable to such contributions.
The Company shall instruct the Trustee as to the account or accounts to which
each contribution is to be allocated. Each account shall reflect an undivided
interest in the assets of the Trust, except that if an insurance policy is
acquired under a specific Plan, such policy shall be credited to the account for
such Plan. A single policy may be allocated in specified portions to accounts
for two or more Plans in accordance with the directions of the Company. Earnings
and losses of the Trust, except those attributable to an insurance policy (or a
portion of a policy) allocated to a specific account, shall be apportioned among
the accounts in proportion to their balances, exclusive of insurance policies,
as of the first day of an accounting period. All distributions in satisfaction
of benefits under a Plan, including those payable to a participant or
beneficiary as a general creditor of the Company, shall be charged against the
account of such Plan. Expenses of the Trust and any distributions other than
Plan benefits to the Company's general creditors shall be charged against the
accounts in proportion to their balances, including the value of any insurance
policies. Insurance policies shall be valued at their surrender value as of the
valuation date.
.2 Participant Accounts. The Administrator shall maintain accounts for
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each participant (and for the beneficiary of each deceased participant) as
provided in the Plan. As of each valuation date under the Plan the Trustee shall
adjust such accounts for imputed gains and losses in the manner provided in the
Plan or, if the Plan does not otherwise provide, in a reasonable manner
determined by the Trustee.
.3 Expense Account. The Company, in its discretion, may direct the
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Trustee to establish a separate account (the "Expense Account") for the payment
of expenses incurred by the Trustee in administering the Trust, and it may
contribute to the Expense Account such amounts as it shall determine from time
to time, in its sole and absolute discretion. Notwithstanding anything herein to
the contrary:
(a) Prior to the occurrence of a Change in Control, amounts
credited to the Expense Account shall be used solely for the payment of
expenses incurred by the Trustee in administering the Trust, to the extent
the same have not been paid by the Company, including, without limitation,
the Trustee's compensation and expenses incurred by the Trustee in
connection with litigation undertaken pursuant to Section 7.3(f).
(b) After the occurrence of a Change in Control, amounts
credited to the Expense Account shall be used primarily for the payment of
expenses described in paragraph (a); provided, that if the Trustee
determines that the amounts from time to time credited to the Expense
Account exceed the amount of its reasonably anticipated expenses, it may
use the excess amounts to pay any benefits due under the Plans.
(c) Prior to the occurrence of a Change in Control, all or any
part of the amounts credited to the Expense Account shall be paid to the
Company upon the direction of the Company.
(d) No part of the amounts credited to the Expense Account shall
be paid to the Company after the occurrence of a Change in Control, except
as provided in Section 5.2 or 10.3.
ARTICLE 7
POWERS AND DUTIES OF TRUSTEE
.1 Investments. The Trustee shall invest the assets of the Trust in the
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manner directed by the Company. The Company may contribute to the Trust, or
direct the Trustee to obtain, one or more policies of insurance on the life of a
participant, former participant, or employee or against the disability of any
participant and to allocate such policy to a Plan, or to allocate specified
interests in such policy to two or
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more Plans. The Trustee shall have no discretion with respect to the
acquisition, disposition or allocation of any such policy and shall act only at
the direction of the Company. To the extent a policy is acquired with funds
allocated to a separate account for a Plan, an interest in the policy
proportionate to the funds provided from such account for such acquisition shall
be allocated to such account. The Trustee shall be the owner and beneficiary of
each such policy. If the Company fails to direct the Trustee as to the
investment of any assets of the Trust, the Trustee shall invest such assets in
such manner as it deems prudent pending the receipt of investment directions
from the Company; provided, that the Trustee shall retain each insurance policy
contributed to the Trust or acquired pursuant to the Company's direction until
the Company directs the Trustee to surrender or otherwise dispose of such
policy. The Company may, at any time, direct the Trustee to borrow funds under
the loan provisions of any such policy and to apply the proceeds of such loan to
the premiums payable with respect to such policy or to invest such proceeds in
another manner directed by the Company.
.2 General Powers. Except as otherwise directed by the Company, the
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Trustee shall have the following powers with respect to the funds held pursuant
to this Agreement, in addition to those which it possesses as a matter of law
and those granted to it elsewhere in this Agreement:
(a) to sell properties held in the Trust fund at public or
private sale for cash or on credit; to exchange such properties; and to
grant options for the purchase or exchange of such properties;
(b) to exercise all conversion and subscription rights
pertaining to properties held in the Trust fund;
(c) to exercise all voting rights with respect to properties
held in the Trust and in connection with such rights to grant proxies,
discretionary or otherwise;
(d) to cause securities and other properties to be registered
and held in the name of a nominee for the Trustee or in such form that
title will pass by delivery;
(e) to borrow money for the purposes of the Plan if, in its sole
discretion, the Trustee deems borrowing to be advisable; for sums so
borrowed to issue its promissory note as Trustee and to secure repayment by
pledging securities held in the Trust for which the funds were borrowed;
and to pay or charge interest at a reasonable rate upon sums so borrowed;
but the Trustee shall never be required to exercise the power to borrow
except as directed by the Company pursuant to Section 7.1 of this
Agreement;
(f) to consent to and participate in any plan of reorganization,
consolidation, merger, extension or other similar plan affecting property
held in the Trust fund; to consent to any contract, lease, mortgage,
purchase, sale or other action by any corporation pursuant to any such
plan; to accept and retain property issued under any such plan; and
(g) to pay any premium due on any policy of insurance held in
the Trust if such premium is not paid by the Company.
.3 Other Provisions Relating to the Trustee. The Trustee accepts the
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Trust created under this instrument but only upon the express terms and
conditions of this Agreement, including the following:
(a) Whenever in the administration of the Plan a certification is
required to be given to the Trustee, or the Trustee shall deem it necessary
that a matter be proved prior to taking, suffering or omitting any action
hereunder, such certification shall be duly made and said matter may be
deemed to be conclusively proved by an instrument, signed in the name of
the Company, by its Chief Executive Officer, its President, a Vice
President or by any other person specified in writing by the Company, but
in its discretion the Trustee may, in lieu thereof, accept other evidence
of the matter from a participant or may require such further evidence as it
may deem reasonable.
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Generally, the Trustee shall be protected in acting upon any notice,
resolution, order, certificate, opinion, telegram, letter or other document
believed by the Trustee to be genuine and to have been signed by the proper
party or parties.
(b) The Trustee may consult with legal counsel (who may be
counsel for the Company) with respect to the construction of this Agreement
or its duties as Trustee, or with respect to any legal proceeding or any
question of law.
(c) The Trustee may make any payment required by this Agreement
by mailing its check by first class mail in a sealed envelope addressed to
the person to whom such payment is to be made. The Trustee shall not be
required to make any investigation to determine or verify the identity or
mailing address of any person entitled to benefits under this Agreement and
shall be entitled to withhold making payments until the identity and
mailing addresses of persons entitled to benefits are certified to it. If
any dispute arises as to the identity or rights of persons entitled to
benefits, the Trustee may withhold payment of benefits until such dispute
shall have been determined by arbitration or by a court of competent
jurisdiction or shall have been settled by written stipulation of the
parties concerned.
(d) The Trustee shall receive for its services compensation in
accordance with its separate agreement with the Company; provided, that
upon and after the occurrence of a Change in Control, the Trustee shall be
compensated in accordance with the fee schedule attached hereto as Exhibit
B. Such compensation, together with all other expenses of the Trustee
incurred in its administration of the Trust, shall be charged to and paid
by the Company or, if not so paid, shall be paid from the Trust as an
administrative expense.
(e) The Trustee shall keep full records of its administration of
the Trust, which the Company shall have the right to examine at any time
during the Trustee's regular business hours. Within sixty days following
the close of each calendar year, the Trustee shall furnish to the Company a
statement of account, and the Company shall promptly notify the Trustee in
writing of its approval or disapproval of such statement. Each such
statement shall include sufficient information for the Company to include
in its income tax returns all items of income, deduction and credit
attributable to the Trust fund. If the Company fails to disapprove any such
statement within sixty days after its receipt, the Company shall be
considered to have approved the statement. Except to the extent
inconsistent with law, the approval by the Company of any statement of
account shall be binding, as to all matters embraced in the statement, on
the parties to this Agreement and on all participants, to the same extent
as if the account of the Trustee had been settled by judgment or decree in
an action for a judicial settlement of its accounts in a court of competent
jurisdiction in which the Trustee, the Company, the Administrator, and all
persons having or claiming any interest in the Trust were parties;
provided, however, that no provision of this Agreement shall deprive the
Trustee of its right to have its accounts judicially settled.
(f) Following prior written notice to the Company, the Trustee
may accept, compromise, settle, enforce or contest any obligation or
liability due to or from it as Trustee, including any claim that may be
asserted for taxes under any present or future law and any claim that the
Trust may have for contributions under Section 4.4; but it shall not be
required to institute or continue litigation unless it is in possession of
funds suitable for that purpose or unless it has been indemnified to its
satisfaction against its counsel fees and all other expenses and
liabilities to which it may in its judgment be subjected in such action.
The Trustee shall be entitled, out of the recoveries of any litigation, to
reimbursement for its expenses in connection with such litigation.
(g) A third party dealing with the Trustee shall not be required
to inquire whether the Company, the Administrator or a participant has
instructed the Trustee, or whether the Trustee is otherwise authorized to
take or omit any action; or to follow the application by the Trustee of any
money or property that may be paid or delivered to the Trustee.
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(h) The Trustee shall discharge its duties solely in the
interest of the participants and their beneficiaries, with the care, skill,
prudence and diligence in the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters would use
in the conduct of a like character and with like aims.
(i) The liability of the Trustee to make the payments specified
by the Plan shall be limited to the funds which have come into its hands as
Trustee.
(j) The Trustee may segregate any part or portion of the assets
of the Trust for the purpose of administration or distribution thereof and
may hold such part or portion uninvested whenever and for so long as is
required for the payment in cash of Plan benefits normally expected to
become payable in the near future. The Trustee may hold uninvested
reasonable amounts of cash whenever the Trustee deems it desirable to do so
to facilitate disbursements, pending investments, or for other operational
reasons and may deposit the same, without any liability for interest earned
thereon, for reasonable periods in the banking department of the Trustee or
of any other bank, trust company or other financial institution, including
those affiliated in ownership with the Trustee, notwithstanding the banking
department's or other entity's receipt of "float" from such uninvested
cash.
.4 Employment of Agents. The Trustee may employ agents, experts, and
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counsel to the extent necessary to the performance of its duties and
responsibilities hereunder, and it may reasonably compensate such agents,
experts, and counsel out of the assets of the Trust.
.5 Indemnification. Prior to a Change in Control, the Company shall
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indemnify the Trustee and hold it harmless against any liabilities, losses, or
expenses (including reasonable attorneys' fees) incurred by it as a result of
any action taken by it pursuant to the instructions of the Company or the
Administrator, or by reason of its failure to act upon any matter as to which it
has no power to act when no such instructions have been received, except to the
extent any such action or failure to act was negligent or in bad faith. Upon or
after the occurrence of a Change in Control, the Company shall indemnify the
Trustee and hold it harmless against any liabilities, losses, or expenses
(including reasonable attorneys' fees) incurred by it as a result of any action
taken or omitted by it pursuant to this Agreement, except to the extent any such
action or omission was grossly negligent or in bad faith.
ARTICLE 8
CHANGE OF TRUSTEE
.1 Resignation. The Trustee may resign at any time upon delivering to
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the Chief Executive Officer or President of the Company a written notice of
resignation, to take effect not less than thirty days after its delivery, unless
such notice shall be waived.
.2 Removal. The Trustee may, with the written consent of a majority of
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the participants in all Plans for which a separate account is then maintained
under this Agreement, be removed by the Chief Executive Officer or President of
the Company and by delivery of a written notice of such action to the Trustee,
together with written notice of removal, to take effect at a date specified in
such notice, which shall not be less than thirty days after its delivery, unless
the Trustee waives such notice.
.3 Discharge. A Trustee which has resigned or has been removed shall
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have the right to a settlement of accounts, which may be made at the option of
the Trustee either by judicial settlement in an action instituted by the Trustee
in a court of competent jurisdiction or by agreement of settlement between the
Trustee, the Company and the participants of any Plan for which an account is
maintained.
.4 Appointment of Successor. The Company covenants that it will, upon
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receipt or giving of notice of the resignation or removal of a Trustee,
forthwith appoint, by action of its Chief Executive Officer or President, a
successor Trustee, which shall be independent of the Company and not subject to
the control of the Company or the participants. Such successor shall not, except
with the written consent of a
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majority of the participants in the Plans for which the Trustee maintains
separate accounts under this Agreement, be a person other than a bank or trust
company. Any successor Trustee so appointed may qualify as such by executing,
acknowledging and delivering to the Chief Executive Officer or President of the
Company and to the resigning or removed Trustee, an instrument accepting such
appointment, and such successor shall, without further act, become vested with
all the estate, rights, powers, discretion and duties of the predecessor Trustee
with like effect as if originally named as Trustee.
ARTICLE 9
AMENDMENTS OF TRUST AND PLANS
.1 Trust Amendment. Except as limited below, the Chief Executive Officer
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of the Company and the Chairman of the Compensation Committee of the Company's
Board of Directors shall have the right to amend this Trust Agreement at any
time. Such amendment shall be stated in an instrument in writing, executed by
such Chief Executive Officer and Chairman. Upon delivery of an executed
counterpart of such instrument to the Trustee, the Trust shall be deemed to have
been amended in the manner set forth in such instrument, and all participants
and the Company shall be bound by the amendment; provided, however, that:
(a) no amendment shall increase the duties or liabilities of the
Trustee without its written consent;
(b) no amendment shall reduce, impair or otherwise adversely
affect any Plan participant's rights or protections under a Plan or this
Agreement unless the participant consents in writing to such amendment;
(c) no amendment shall cause the Trust to be terminated prior to
the time set forth in Section 10.3; and
(d) no amendment shall cause or permit any assets of the Trust
to revert to the Company, except as permitted in Sections 2.3, 5.2, and
10.3.
.2 Additional Plans. The Company may, without the consent of any
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participant, cause funds for one or more additional Plans to be held and
administered pursuant to this Agreement by delivering to the Trustee a revised
Exhibit A listing such additional Plans, executed in the manner of an amendment.
.3 Plan Amendment. The Company covenants that it will promptly furnish
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or cause to be furnished to the Trustee an executed counterpart of each document
amending a Plan.
ARTICLE 10
MISCELLANEOUS PROVISIONS
.1 Exclusive Benefit. Except as otherwise provided in the Plans or in
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this Agreement, prior to the payment of all benefits under the Plans, in no
circumstance shall any part of the Trust fund revert to the Company or otherwise
be used for or diverted to any purpose other than the payment of benefits under,
and administrative expenses associated with, the Plans and other than for the
exclusive benefit of the participants or their beneficiaries.
.2 Nonassignment. In no event shall any participant's or beneficiary's
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interest in the Trust, while undistributed in fact, be alienated, assigned,
encumbered or anticipated in any manner, or be subject to garnishment,
attachment, execution or bankruptcy proceedings or to claims for alimony or
support or to any other claims of any person against such participant or
beneficiary.
.3 Termination of Trust. The Trust shall terminate when the entire Trust
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fund has been disbursed by the Trustee in accordance with the terms of the Plans
and this Agreement or, if earlier, when
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all benefits that may become payable under the Plans have been paid. Any
property held by the Trustee upon termination of the Trust shall be distributed
to the Company or its successors or assigns.
.4 Name. The Trust evidenced by this Agreement may be referred to as the
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"X.X. Xxxxxx Company Directors Benefit Trust."
.5 Governing Law. Except to the extent that state law has been preempted
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by provisions of any laws of the United States, as they may be amended from time
to time, this Agreement shall be construed and enforced according to the laws of
the State of Minnesota.
.6 Enforcement. This Trust Agreement shall be binding upon and inure to
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the benefit of the parties and their respective successors in interest and may
be enforced by any participant or beneficiary to whom benefits are payable from
the Trust funds.
* * * * *
IN WITNESS WHEREOF, the Company and the Trustee have executed this
instrument as of the date written below.
X.X. XXXXXX COMPANY
Dated: February 10, 1999 By /s/ Xxxxxx X.X. Xxxxxxxxx
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Chief Executive Officer
Dated: February 10, 1999 By /s/ Xxxxxxx X. Xxxx
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Chairman of the Compensation Committee
U.S. BANK NATIONAL ASSOCIATION
Dated: May 12, 1999 By /s/ Xxxxxx X. Xxxxxx
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Vice President
Dated: May 12, 1999 By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Vice President
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X.X. XXXXXX COMPANY
DIRECTORS BENEFIT TRUST
SCHEDULE A
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1. Retirement Plan for Directors of X.X. Xxxxxx Company
X.X. XXXXXX COMPANY
DIRECTORS BENEFIT TRUST
SCHEDULE B
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Upon and after the occurrence of a Change in Control, the Trustee shall be
compensated in accordance with the following fee schedule:
TRUSTEE FEES
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Domestic Market Value
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First $1,000,000 .30%
Next $4,000,000 .20%
Next $5,000,000 .15%
Next $15,000,000 .10%
Excess over $15,000,000 .05%
The assets of this trust shall be aggregated with the assets of the X.X.
Xxxxxx Company Executive Benefit Trust for the purpose of determining the
Trustee Fees during such periods as U.S. Bank National Association is
serving as the Trustee of both of such trusts.
PARTICIPANT SERVICES
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Recurring Distributions $ 2.50 per transaction
Lump Sum Distributions $10.00 per transaction
(Automated)
Lump Sum Distributions $15.00 per transaction
(Non-automated)
ACH Distributions $ 1.50 per transaction
ACH Distributions w/advice $ 2.00 per transaction
OUT OF POCKET EXPENSES
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Pass Through of Cost
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