Exhibit 10.3
CHROMCRAFT REVINGTON
EMPLOYEE STOCK OWNERSHIP TRUST
THIS AGREEMENT is made and entered into on the 15th day of February, 2002,
but effective as of January 1, 2002, by and between CHROMCRAFT REVINGTON, INC. a
Delaware corporation (the "Company"), and GREATBANC TRUST COMPANY, and its
successor or successors and assigns in the trust hereby evidenced, as Trustee
(the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company maintains a defined contribution plan that constitutes
an employee stock ownership plan as described in Section 4975(e)(7) of the
Internal Revenue Code of 1986, as amended (the "Code'), which is intended to be
a stock bonus plan and which will be invested primarily in stock of the Company
("Company Stock"); and
WHEREAS, the Plan is maintained for the exclusive benefit of eligible
employees of the Company and those of any Affiliate (as defined in Article VII)
which adopts the Plan and becomes a party to the Trust Agreement as provided in
Article VII (the Company and the Affiliates that are parties hereto are
sometimes referred to below collectively as the "Employers" and individually as
an "Employer"); and
WHEREAS, on January 31, 2002, the Company and the Trustee entered into a
Trustee Engagement Agreement (the "Engagement Agreement"); and
WHEREAS, the Company has determined to adopt this Trust Agreement and to
appoint the Trustee as trustee hereunder with the effect that, except as
otherwise provided in paragraph 4.11 hereof, the Engagement Agreement shall be
superseded by this Trust Agreement;
NOW, THEREFORE, pursuant to the authority delegated to the undersigned
officers of the Company by resolution of its Board of Directors (the "Board"),
IT IS AGREED, by and between the parties hereto, that the trust provisions
contained herein shall constitute the agreement between the Company and the
Trustee in connection with the Plan; and
IT IS FURTHER AGREED, by and between the parties hereto as follows:
ARTICLE I
Name
This Trust Agreement and the Trust hereby evidenced shall be known as the
"CHROMCRAFT REVINGTON EMPLOYEE STOCK OWNERSHIP TRUST."
1
ARTICLE II
Management and Control of Trust Assets
2.1 The Trust. The Trust as of any date means all property of every kind
then held by the Trustee. The Trustee may manage, invest and account for all
contributions made by the several Employers under the Plan as one Trust. If, for
any reason, it becomes necessary to determine the portion of the Trust allocable
to each of the employees and former employees of any Employer as of any date,
the Plan Administrator (as defined in paragraph 2.7) shall specify such date as
an Accounting Date, and after all adjustments required under the Plan as of that
Accounting Date have been made, the portion of the Trust attributable to each of
the employees and former employees shall be determined by the Plan
Administrator, and shall consist of an amount equal to the aggregate of the
account balances of each employee and former employee of that Employer plus an
amount equal to any allocable contributions made by that Employer since the
close of the immediately preceding Accounting Date.
2.2 Responsibility of Trustee. The Trustee shall not be responsible in any
way for the adequacy of the Trust to meet and discharge any or all liabilities
under the Plan or for the proper application of distributions made or other
action taken upon the written direction of the Plan Administrator. The powers,
duties and responsibilities of the Trustee shall be limited to those set forth
in this Trust Agreement, and nothing contained in this Trust Agreement, either
expressly or by implication, shall be deemed to impose any additional powers,
duties or responsibilities on the Trustee.
2.3 General Powers. Subject to the provisions of paragraphs 2.6 and 2.7 and
Article III, with respect to the Trust, the Trustee shall have the following
powers, rights and duties in addition to those provided elsewhere in this Trust
Agreement or by law:
(a) To receive and to hold all contributions paid to it under the Plan;
provided, however, that the Trustee shall have no right, duty or
obligation to require or demand that any contributions be made to it
by the Employers or to determine that the contributions received by it
comply with the provisions of the Plan or with any resolution of the
Board providing therefor.
(b) As directed by the Plan Administrator, to retain in cash (pending
investment, reinvestment or the distribution of dividends) such
reasonable amount as may be required for the proper administration of
the Trust and to invest such cash as provided in paragraph 3.1;
provided, however, that pending receipt of directions from the Plan
Administrator, the Trustee may retain reasonable amounts of cash, in
its discretion, without any liability for interest.
(c) As directed by the Plan Administrator, to make distributions from the
Trust to such persons, in such manner, at such times and in such forms
(Company Stock, cash or property, or a combination of each) as
directed by the Plan Administrator without inquiring as to whether a
payee is entitled to the payment, or as to whether a payment is
proper, and without liability for a payment made in good faith without
actual notice or knowledge of the changed condition or status of the
payee. If any payment of benefits made from the Trust by the Trustee
is not claimed, the Trustee shall notify the Plan Administrator of
that fact promptly. The Plan Administrator shall make a diligent
effort to ascertain the whereabouts of the payee or distributee of
benefits returned unclaimed. The Trustee shall dispose of such
payments as the Plan Administrator shall direct. The Trustee shall
have no obligation to search for or ascertain the whereabouts of any
payee or distributee of benefits from the Trust.
(d) As directed by the Plan Administrator, to vote any stocks (including
Company Stock, which shall be voted as provided in Article XII of the
Plan, as that Article may be amended from time to
2
time), bonds or other securities held in the Trust, or otherwise
consent to or request any action on the part of the issuer in person,
by proxy or power of attorney.
(e) To contract or otherwise enter into transactions between itself, as
Trustee, and the Company, any Company shareholder or any third-party,
for the purpose of acquiring or selling Company Stock and, subject to
the provisions of paragraph 2.6, to retain such Company Stock.
(f) To compromise, contest, arbitrate, settle or abandon claims and
demands by or against the Trust.
(g) To begin, maintain or defend any litigation necessary in connection
with the investment, reinvestment and administration of the Trust;
and, to the extent not paid from the Trust, pursuant to paragraph
4.11, the Company shall indemnify the Trustee against all expenses and
liabilities reasonably sustained or anticipated by it by reason
thereof (including reasonable attorneys' fees).
(h) To retain any funds or property to any dispute without liability for
the payment of interest, or to decline to make payment or delivery
thereof until final adjudication is made by a court of competent
jurisdiction.
(i) To report to the Company as of the last day of each Plan Year of the
Plan (which shall be the same as the Trust's fiscal year), as of any
Accounting Date (or as soon thereafter as practicable) or at such
other times as may be required under the Plan, the then "Net Worth" of
the Trust, which is defined as the fair market value of all property
held in the Trust, reduced by any liabilities, other than liabilities
to participants in the Plan (the "Participants") and their
beneficiaries, as determined by the Trustee.
(j) To furnish to the Company and the Plan Administrator an annual written
account and accounts for such other periods as may be required under
the Plan, showing the Net Worth of the Trust at the end of the period,
all investments, receipts, disbursements and other transactions made
by the Trustee during the period, and such other information as the
Trustee may possess which the Company requires in order to comply with
Section 103 of ERISA. The Trustee shall keep accurate accounts of all
investments, earnings thereon, and all accounts, books and records
related to such investments shall be open to inspection by any person
designated by the Company or the Plan Administrator. All accounts of
the Trustee shall be kept on an accrual basis. If, during the term of
this Trust Agreement, the Department of Labor issues regulations under
ERISA regarding the valuation of securities or other assets for
purposes of the reports required by ERISA, the Trustee shall use such
valuation methods for purposes of the accounts described by this
subparagraph. If shares of Company Stock are not traded with
sufficient volume or frequency, as determined by the Plan
Administrator, to be considered as being readily tradable on a
national securities market or exchange, all valuations of shares of
Company Stock shall originally be made by an "Independent Appraiser"
(as described in Code Section 401(a)(28)(C)) retained by the Trustee,
and reviewed and finalized by the Trustee in accordance with Section
3(18)(B) of ERISA. The Company may approve such accounting by written
notice of approval
3
delivered to the Trustee or by failure to express objection to such
accounting in writing delivered to the Trustee within 45 days from the
date upon which the accounting was delivered to the Company. Upon the
receipt of a written approval of the accounting, or upon the passage
of the period of time within which objection may be filed without
written objections having been delivered to the Trustee, such
accounting shall be deemed to be approved, and the Trustee shall be
released and discharged as to all items, matters and things set forth
in such account, as fully as if such accounting had been settled and
allowed by decree of a court of competent jurisdiction in an action or
proceeding in which the Trustee, the Company and all persons having or
claiming to have any interest in the Trust or under the Plan were
parties.
(k) As directed by the Plan Administrator, to pay any estate, inheritance,
income or other tax, charge or assessment attributable to any benefit
which it shall or may be required to pay out of such benefit; and, to
require before making any payment such release or other document from
any taxing authority and such indemnity from the intended payee as the
Trustee shall deem necessary for its protection.
(l) To employ and to reasonably rely upon information and advice furnished
by agents, attorneys, Independent Appraisers, accountants or other
persons of its choice for such purposes as the Trustee considers
desirable.
(m) To assume, until advised to the contrary, that the Trust evidenced by
this Agreement is qualified under Code Section 401(a) and is entitled
to tax exemption under Section 501(a) thereof.
(n) To have the authority to invest and reinvest the assets of the Trust,
upon direction from the Plan Administrator, in personal property of
any kind, including, but not limited to, bonds, notes, debentures,
mortgages, equipment trust certificates, investment trust
certificates, guaranteed investment contracts, preferred or common
stock, and registered investment companies; provided, however, that
all investments in Company Stock shall be undertaken pursuant to the
provisions of paragraph 3.1. The Trustee shall follow the directions
of the Plan Administrator and shall have no duty or obligation to
review the assets from time to time so acquired, nor to make any
recommendations with respect to the investment, reinvestment or
retention thereof.
(o) To exercise any purchase rights, options, subscription rights, calls
and other privileges with respect to Trust assets (including Company
Stock), or to assign such rights, subject to the provisions of Article
III.
(p) To register ownership of any securities or other property held by it
in its own name or in the name of a nominee, with or without the
addition of words indicating that such securities are held in a
fiduciary capacity, and may hold any securities in bearer form, but
the books and records of the Trustee shall at all times reflect that
all such investments are part of the Trust.
(q) To incur a Loan and borrow such sum or sums from time to time as the
Trustee considers necessary or desirable and in the best interest of
the Trust, including to purchase Company Stock, and for that purpose
to pledge the Company Stock so purchased (subject to the provisions of
Code Section 4975(c) and the regulations issued thereunder).
(r) To deposit securities with a clearing corporation as defined in
Article 8 of the Delaware Uniform Commercial Code. The certificates
representing securities, including those in bearer form, may be held
in bulk form with, and may be merged into, certificates of the same
class of the same issuer which constitute assets of other accounts or
owners, without certification as to the ownership attached.
Utilization of a book-entry system may be made for the transfer or
pledge of securities held by the Trustee or by a clearing corporation.
The Trustee shall at all times, however, maintain a separate and
distinct record of the securities owned by the Trust.
(s) To participate in and use the Federal Book-Entry Account System, a
service provided by the Federal Reserve Bank for its member banks for
deposit of Treasury securities.
(t) To receive and hold in the Trust earnings, dividends (including cash
dividends on Company Stock), distributions and other payments or
adjustments to the assets in the Trust or, in the case of cash
dividends on Company Stock to use such dividends to make payments on a
Loan incurred by the Trustee the proceeds of which were used to
purchase the shares of Company Stock on which such dividends are paid,
as provided in Section 4.11 of the Plan.
4
(u) To accept an assignment of the assignor's option or right to purchase
shares of Company Stock.
(v) To perform any and all other acts which are necessary or appropriate
for the proper management, investment and distribution of the Trust.
2.4. Compensation and Expenses. The Trustee shall be entitled to reasonable
compensation for its services, as agreed to between the Company and the Trustee
from time to time in writing, and to reimbursement of all reasonable expenses
incurred by the Trustee in the administration of the Trust. The Trustee is
authorized to pay from the Trust all expenses of administering the Plan and
Trust which are properly payable by the Plan and Trust, including its
compensation and any financial advisory and legal expenses, to the extent they
are not paid directly by the Employers. The payment of Plan and Trust fees and
expenses shall include the reimbursement of the Company for fees and expenses
paid by the Company on behalf of the Plan and Trust which are properly payable
by the Plan and Trust. Such fees and expenses (or the portion thereof properly
allocable to the Plan) shall include without limitation, the following:
(a) Trustee and custodial fees.
(b) Investment management and advisory fees, including (i) asset
allocation, (ii) preparation and review of investment policy
statements, (iii) review of investment performance, (iv) participant
investment education services and related materials, and (v) meetings
with participants.
(c) Brokerage fees and commissions.
(d) Plan administration and record-keeping, including (i) allocation of
contributions, forfeitures and earnings, and (ii) making
distributions.
(e) Discrimination and other testing required to be performed by the Code.
(f) Telephone and on-line administration.
(g) Preparation and distribution of participant account statements.
(h) Financial advisory and valuation services, including (if applicable)
periodic valuation updates.
(i) Employee communication services, including publications, materials and
meetings.
(j) Required forms and filings, including (i) Forms 5500 and all related
schedules, and (ii) Forms 1099R.
(k) Preparation of annual plan audit.
(l) ERISA bond premiums.
(m) ERISA fiduciary liability insurance premiums (other than that portion
of the premiums attributable to the policies' non-recourse provisions
- - which shall be paid by the Employers).
(n) Legal fees, including fees associated with (i) claims for benefits,
(ii) interpretation of Plan and Trust provisions, (iii) amendments to
the Plan and Trust, (iv) the legal status of the Plan and Trust, and
(v) Internal Revenue Service determination letter filings.
5
(o) Reimbursement of the Employers for the (i) direct costs they incur in
connection with the administration of the Plan, and (ii) payment by
the Employers, in the first instance, of the fees and expenses
described in subparagraphs (a) through (n) and (p).
(p) Such other fees and expenses associated with the administration of the
Plan which the Employers and the Trustee determine to be properly
payable from the Trust.
Notwithstanding the foregoing provisions of this paragraph 2.4 or of any
provision of this Trust, the Employers may determine, in their sole discretion,
to pay directly any of the fees and expenses described in subparagraphs (a)
through (n) and (p) above.
2.5. Procedures for Payment of Fees and Expenses. The Plan Administrator
and the Trustee shall adopt written procedures for payment from the Trust of the
fees and expenses associated with the administration of the Plan and the Trust.
2.6. Exercise of Trustee's Duties. The Trustee shall discharge its duties
hereunder solely in the interest of the Plan's Participants and other persons
entitled to benefits under the Plan, and:
(a) For the exclusive purpose of:
(i) providing benefits to Participants and other persons entitled to
benefits under the Plan; and
(ii) defraying reasonable expenses of administering the Plan.
(b) With the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims.
(c) In accordance with the documents and instruments governing the Plan
unless, in the good faith judgment of the Trustee, the documents and
instruments are not consistent with the provisions of ERISA.
2.7. Plan Administration. The Plan shall be administered by a benefits
committee (the "Plan Administrator" or "Committee"), as described in Article
VIII of the Plan document. Except as provided in subparagraphs 2.3(a), (e), (f),
(g), (h), (i), (j), (l), (m), (o), (p), (q), (r), (s), (t), (u) and (v), the
Trustee shall have no authority to act unless directed by the Plan
Administrator. The Plan Administrator may authorize one or more individuals to
sign all communications between the Plan Administrator and Trustee and shall at
all times keep the Trustee advised of the identity of the individuals authorized
to sign on behalf of the Plan Administrator, and provide specimen signatures
thereof. With the Trustee's prior written consent, the Plan Administrator may
authorize the Trustee to act without specific directions or other directions or
instructions from the Plan Administrator on any matter or class of matters with
respect to which directions or instructions from the Plan Administrator are
called for hereunder. The Trustee shall be fully protected in relying on any
communication sent by any authorized person and shall not be required to verify
the accuracy or validity of any signature unless the Trustee has reasonable
grounds to doubt the authenticity of any signature. If the Trustee requests any
directions hereunder and does not receive them, the Trustee shall act or refrain
from acting, as it may determine, and shall be indemnified by the Company for
such action or inaction pursuant to paragraph 4.11.
2.8. Continuation of Powers Upon Trust Termination. Notwithstanding
anything to the contrary in this Trust Agreement, upon termination of the Trust,
the powers, rights and duties of the Trustee hereunder shall continue until all
Trust assets have been liquidated and distributed.
6
ARTICLE III
Contributions and
Provisions Related to Investment in Company Stock
3.1. Contributions. The Employer contributions made under the Plan shall be
paid to the Trustee from time to time in accordance with the terms of the Plan.
The Employer shall make contributions or declare and pay cash dividends that, in
the aggregate, are adequate to enable the Trustee to satisfy its obligations
under any Loan and to fund distributions to Plan participants.
3.2. Investment of Cash. If an Employer's contribution made pursuant to the
provisions of Sections 3.1, 3.2 or 3.3 of the Plan for any Plan Year is in cash,
such cash shall be used by the Trustee first to make any scheduled amortization
payment on a Loan and, if any amounts remain thereafter, as the Trustee is
directed in writing by the Plan Administrator. Subject to the provisions of
paragraph 2.6, any cash dividends received by the Trustee on Company Stock held
in the Trust shall be applied, after the receipt of such cash dividends, as
directed by the Plan Administrator pursuant to Section 4.11 of the Plan. The
Trustee may purchase Company Stock with the assets contained in Participants'
Other Investments Accounts upon the direction of the Plan Administrator. The
Trustee may purchase Company Stock from the Company or from any shareholder, and
such stock may be outstanding, newly issued or treasury stock. All such
purchases must be at a price not in excess of fair market value. In addition, if
shares of Company Stock are not traded with sufficient volume or frequency, as
determined by the Plan Administrator, to be considered as readily tradeable on
an established securities market or exchange, all valuations of shares of
Company Stock shall be determined by the Trustee after reference to a valuation
report issued by an Independent Appraiser. Pending investment of cash in Company
Stock, such cash may be invested in savings accounts, certificates of deposit,
high-grade short-term securities, common or preferred stocks, bonds or other
investments or may be held in cash. Such investments may include any common or
collective trust funds or mutual funds (including a common, collective, or
mutual fund for which the Trustee or one of the affiliates of the Trustee serves
as investment advisor) maintained as a short-term investment fund or in other
types of short-term investments.
3.3. Stock Dividends, Splits and Other Capital Reorganizations. Any Company
Stock received by the Trustee from a stock split or dividend or as a result of a
reorganization or other recapitalization of the Company shall be allocated as of
each Accounting Date under the Plan in proportion to the Company Stock to which
it is attributable.
3.4. Voting of Shares and Tender or Exchange Offers. Company Stock held in
the Trust shall be voted by the Trustee in the manner set forth in Article XII
of the Plan. If any tender or exchange or similar offer to purchase all or any
portion of outstanding Company Stock is made by any person, the Trustee shall be
governed by the provisions of Article XII of the Plan.
3.5. Put Option. If the distribution of a Participant's Plan account is to
be made in cash, if a Participant exercises his or her rights under Section 6.3
of the Plan (to the extent applicable), or the Trustee expects to incur
substantial Trust expenses which will not be paid directly by the Employers, and
the Trustee determines that the Trust has insufficient cash to make anticipated
distributions or pay Trust expenses, the Trust shall have a "put option" on
Company Stock it holds to the Company for the purpose of making such anticipated
distributions and paying such expenses.
7
ARTICLE IV
Miscellaneous
4.1. Disagreement as to Acts. If there is a disagreement between the
Trustee and anyone as to any act or transaction reported in any accounting, the
Trustee shall have the right to have its account settled by a court of competent
jurisdiction.
4.2. Persons Dealing with Trustee. No person dealing with the Trustee shall
be required to see to the application of any money paid or property delivered to
the Trustee, or to determine whether or not the Trustee is acting pursuant to
any authority granted to it under this Trust Agreement or the Plan.
4.3. Benefits May Not Be Assigned or Alienated. The interests under the
Plan and this Trust Agreement of Participants and other persons entitled to
benefits under the Plan are not subject to the claims of their creditors and may
not be voluntarily or involuntarily assigned, alienated or encumbered, except to
the extent that the Plan Administrator directs the Trustee that any such
interests are subject to a qualified domestic relations order, as defined in
Code Section 414(p) or subject to a judgment or settlement described in Code
Section 401(a)(13)(C).
4.4. Evidence. Evidence required of anyone under this Trust Agreement may
be by certificate, affidavit, document or other instrument which the person
acting in reliance thereon considers pertinent and reliable, and signed, made or
presented by the proper party.
4.5. Waiver of Notice. Any notice required under this Trust Agreement may
be waived in writing by the person entitled thereto.
4.6. Counterparts. This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and no other
counterparts need be produced.
4.7. Governing Laws and Severability. This Trust Agreement shall be
construed and administered according to the laws of the State of Indiana,
without regard to the choice of law principles thereof, to the extent such laws
are not preempted by the laws of the United States of America. If any provision
of this Trust Agreement is held illegal or invalid, the illegality or invalidity
shall not affect the remaining provisions of the Trust Agreement, but shall be
severable, and the Trust Agreement shall be construed and enforced as if the
illegal or invalid provision had never been inserted herein.
4.8. Successors, Etc. This Trust Agreement shall be binding on the
Employers, and any successor thereto by virtue of any merger, sale, dissolution,
consolidation or reorganization; on the Trustee and its successor; and, on all
persons entitled to benefits under the Plan and their respective heirs and legal
representatives.
4.9. Action. Any action required or permitted to be taken by the Company
under this Trust Agreement shall be by resolution of its Board of Directors (the
"Board")or by a person or persons authorized by resolution of its Board of
Directors (the "Board"). The Trustee shall not recognize or take notice of any
appointment of any representative of the Company or Plan Administrator unless
and until the Company or the Plan Administrator shall have notified the Trustee
in writing of such appointment and the extent of such representative's
authority. The Trustee may assume that such appointment and authority continue
in effect until it receives written notice to the contrary from the Company or
Plan Administrator. Any action taken or omitted to be taken by the Trustee by
authority of any representative of the Company or Plan Administrator within the
scope of his authority shall be as effective for all purposes hereof as if such
action or nonaction had been authorized by the Company or Plan Administrator.
8
4.10. Conformance With Plan. Unless otherwise indicated in this Trust
Agreement, all capitalized terms shall have the meaning stated in the Plan. To
the extent the provisions of the Plan and this Trust Agreement conflict, the
provisions of the Plan shall govern; provided however, that the Trustee's duties
and obligations shall be determined solely under this Trust Agreement.
4.11. Indemnification. The Company shall indemnify and save harmless the
Trustee, its directors, officers, employees, successors and assigns from and
against any and all liability, including all expenses reasonably incurred in its
defense, pursuant to the indemnification provisions of the Engagement Agreement,
a copy of which is attached hereto as Exhibit A. This Trust Agreement replaces
and supersedes the Engagement Agreement with respect to all matters regarding
the Plan and Trust which arise after the date first above written; provided,
however, that the provisions of Sections 10, 13, 14, 15, 16, 17 and 18 of the
Engagement Agreement shall survive the termination thereof and remain in effect
hereunder, subject to the provisions hereof.
4.12. Headings. The headings of the paragraphs of this Trust Agreement are
for convenience of reference only and shall have no substantive effect on the
provisions of this Trust Agreement.
ARTICLE V
No Reversion to Company
No part of the corpus or income of the Trust shall revert to any Employer
or be used for, or diverted to, purposes other than for the exclusive benefit of
Participants and other persons entitled to benefits under the Plan; provided,
however, that:
(a) Each Employer's contribution under the Plan is conditioned on the
initial qualification of the Plan as applied to that Employer under
Code Section 401(a) and if the Plan does not so initially qualify, the
Trustee shall, upon written direction of the Plan Administrator,
return to that Employer the amount of such contribution and any
increment thereon within one calendar year after the date that
qualification of the Plan, as applied to that Employer, is denied, but
only if the application for qualification is submitted within the time
prescribed by law.
(b) If, upon termination of the Plan with respect to any Employer, any
amounts are held in a Code Section 415 limitation account which are
attributable to the contributions of such Employer and such amounts
may not be credited to the Accounts of Participants, such amounts,
upon the written direction of the Plan Administrator, will be returned
to that Employer as soon as practicable after the termination of the
Plan with respect to that Employer.
(c) Employer contributions under the Plan are conditioned upon the
deductibility thereof under Code Section 404, and, to the extent any
such deduction of an Employer is disallowed, the Trustee shall, upon
the written direction of the Plan Administrator, return the amount of
the contribution (to the extent disallowed), reduced by the amount of
any losses thereon, to the Employer within one year after the date the
deduction is disallowed.
(d) If a contribution or any portion thereof is made by an Employer by a
mistake of fact, the Trustee shall, upon written direction of the Plan
Administrator, return the amount of the contribution or such portion,
reduced by the amount of any losses thereon, to the Employer within
one year after the date of payment to the Trustee; provided, however,
the Trustee shall have no responsibility to determine the sufficiency
of the Trust to provide any distribution to any Employer under this
Article V.
9
ARTICLE VI
Change of Trustee
6.1. Resignation. The Trustee may resign at any time by giving 30 days'
advance xxxxxx notice to the Company and the Plan Administrator.
6.2. Removal of the Trustee. The Company may remove the Trustee by action
of the Board including the unanimous written consent of all of the members of
the Board and by giving 30 days' advance written notice to the Trustee, subject
to providing the removed Trustee with satisfactory written evidence of the
appointment of a successor Trustee and of the successor Trustee's acceptance of
the Trusteeship.
6.3. Duties of Resigning or Removed Trustee and of Successor Trustee. If
the Trustee resigns or is removed, it shall promptly transfer and deliver the
assets of the Trust to the successor Trustee, and may reserve such amount to
provide for the payment of all fees, expenses and taxes then or thereafter
chargeable against the Trust, to the extent not previously paid by the Company.
The Company shall be obligated to reimburse the Trust for any amount reserved by
the Trustee. Within 120 days, the resigned or removed Trustee shall furnish to
the Company and the successor Trustee an account of its administration of the
Trust and the date of its last account. Each successor Trustee shall succeed to
the title to the Trust vested in its predecessor without the signing or filing
of any further instrument, but any resigning or removed Trustee shall execute
all documents and do all acts necessary to vest such title or record in any
successor Trustee. Each successor shall have all the powers, rights and duties
conferred by this Trust Agreement as if it is the originally named Trustee. No
successor Trustee shall be liable for any act or failure to act of a predecessor
Trustee and no predecessor Trustee shall be liable for any act of a successor
Trustee. With the approval of the Plan Administrator, a successor Trustee may
accept the account rendered and the property delivered to it by its predecessor
Trustee as a full and complete discharge of the predecessor Trustee without
incurring any liability or responsibility for so doing.
6.4. Filling Trustee Vacancy. The Board may fill a vacancy in the office of
Trustee as soon as practicable by a writing filed with the individual or entity
appointed to fill the vacancy.
ARTICLE VII
Additional Employers
7.1. Any Affiliate (as defined below) may become a party to this Trust
Agreement by:
(a) Filing with the Company and the Trustee a certified copy of a
resolution of its board of directors to that effect; and
(b) Filing with the Trustee a certified copy of a resolution of the Board
consenting to such action.
An "Affiliate" is any corporation, trade or business during any period in which
it is, along with the Company, a member of a controlled group of corporations, a
group of trades or business under common control or an affiliated service group,
as described in Code Sections 414(b), 414(c) and 414(m), respectively, or as
described in regulations issued by the Secretary of the Treasury or his delegate
pursuant to Code Section 414(o).
10
ARTICLE VIII
Amendment, Termination and Merger
8.1 Amendment. While the Employers expect to continue the Trust, the
Company reserves the right to amend the Trust at any time pursuant to an action
of the Board, except that no amendment shall change the rights, duties and
liabilities of the Trustee under this Trust Agreement without its prior written
agreement, nor reduce a Participant's benefits to less than the amount such
Participant would be entitled to receive if such Participant had resigned from
the employ of the Employers on the date of the amendment. Amendments to the
Trust shall be effective upon execution of such amendments by both the Company
and the Trustee.
8.2 Termination. The Trust may be terminated as to all Employees on any
date specified by the Company by action of the Board. The Trust will terminate
as to any Employer on the first to occur of the following:
(a) The date it is terminated by that Employer;
(b) The date such Employer's contributions to the Trust are completely
discontinued; or
(c) The date such Employer is judicially declared bankrupt under Chapter 7
of the U.S. Bankruptcy Code.
The Trustee's powers upon termination as described above shall continue until
liquidation and distribution of the Trust, or the portion thereof attributable
to an Employer, as the case may be. Upon termination of the Trust, the Trustee
shall first reserve such reasonable amounts as it may deem necessary to provide
for the payment of any expenses, fees or taxes then or thereafter chargeable to
the Trust, including any Loans taken by the Trust pursuant to subparagraph
2.3(q), which shall be paid with the proceeds of the sale of assets of the
Trust. Subject to such reserve, the balance of the Trust shall be liquidated and
distributed by the Trustee to or for the benefit of the Participants or their
beneficiaries, as directed by the Plan Administrator after compliance with the
applicable requirements of ERISA and the Code, as amended from time to time, or
other applicable law, accompanied by a certification that the disposition is in
accordance with the terms of the Plan and the Trustee need not question the
propriety of such certification. The Company shall have full responsibility to
see that such distribution is proper and within the terms of the Plan and this
Trust.
8.3 Merger. The Company may merge the Trust with the trust of another plan
which meets the requirements of Code Sections 401(a) and 501(a) at any time with
the approval of the Trustee.
11
IN WITNESS WHEREOF, the Company and Trustee, have caused these presents to
be signed and their seals to be hereunto affixed and attested by their
respective duly authorized officers all as of the day and year first above
written.
CHROMCRAFT REVINGTON, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
President
GREATBANC TRUST COMPANY, TRUSTEE
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
President
12
