Exhibit 10.6
POLAROID NON-QUALIFIED
DEFERRED COMPENSATION TRUST
THIS AGREEMENT is made as of the 31 day of March, 1997, by
and between POLAROID CORPORATION, a corporation having its
principal office at (the "Company") and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company having its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has incurred and expects to continue
to incur certain unfunded deferred compensation liabilities to
or with respect to members of its Board of Directors and
certain employees pursuant to supplemental executive retirement
plans (SERPS) including elective deferred compensation plans
identified on Exhibit A attached hereto, together with such
additional deferred compensation plans as may be designated in
writing by the Company to the Trustee from time to time
(hereinafter the "Plans");
WHEREAS, the Company desires to provide additional
assurance to some or all such employees (the "Participants") and
their beneficiaries or estates under the Plans (collectively,
the "Beneficiaries") that their unfunded deferred compensation
rights under the Plans will in the future be met or
substantially met by application of the procedures set forth
herein;
WHEREAS, the Company wishes to establish a trust
(hereinafter called "Trust'') and to contribute to the Trust
assets that shall be held therein, subject to the claims of
Company's creditors in the event of Company's Insolvency, as
herein defined, until paid to Participants and their
beneficiaries in such manner and at such times as specified in
the Plans;
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect
the status of the Plans as an unfunded plan maintained for the
purpose of providing deferred compensation for non-employee
members of the Board of Directors or a select group of
management or highly compensated employees for purposes of Title
I of the Employee Retirement Income Security Act of 1974;
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WHEREAS, it is the intention of Company to make
contributions to the Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under the
Plans;
WHEREAS, the Company wishes to establish separate accounts
(hereinafter the "Accounts") with respect to Participants in
order to provide a source of payments as such are required under
the terms of such Plans;
WHEREAS, contributions credited to each separate Account,
as determined by the Company from time to time in its sole
discretion, and the earnings thereon shall be used by the
Trustee solely in satisfaction of the liabilities of the Company
with respect to the Participant for whom such Account has been
established and expenses as provided herein and such utilization
shall be in accordance with the procedures set forth herein;
WHEREAS, upon satisfaction of all liabilities of the
Company with respect to a Participant in respect of whom an
Account has been established, the balance, if any, remaining in
the Account of such Participant shall be allocated to the
Accounts of other Participants for whom Accounts have been
established in accordance with the procedures set forth herein;
WHEREAS, upon satisfaction of all liabilities of the
Company with respect to all Participants in respect of whom
separate Accounts have been established, the balance, if any,
remaining in such Accounts shall revert to the Company, except
that all amounts in all such Accounts shall at all times be
subject under this Agreement to the claims of the Company's
creditors as hereinafter provided;
WHEREAS, the Trustee has agreed to act as Trustee of the
trust fund created hereunder and to hold and administer such
assets as may be delivered to it as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and mutual
and independent promises herein, the parties hereto do hereby
establish the Trust and covenant and agree that the Trust shall
be comprised, held and disposed of as follows:
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ARTICLE I
ESTABLISHMENT OF TRUST
1.01 Establishment of Trust.
(a) The Company hereby establishes with the Trustee a grantor
trust consisting solely of such sums of money and such property
acceptable to the Trustee as shall from time to time be paid or
delivered to the Trustee and the earnings and profits thereon.
(b) Company hereby deposits with Trustee in the trust
approximately 5,580,000 which shall become the principal of the
Trust to be held, administered and disposed of by Trustee as
provided in this Trust Agreement.
(c) The Trust established hereunder shall be known as the
Polaroid Deferred Compensation Trust.
(d) All such money and property, all investments made therewith
and proceeds thereof, less the payments or other distributions
which, at the time of reference, shall have been made by the
Trustee, as authorized herein, are referred to herein as the
"Fund" and shall be held by the Trustee, in trust, in accordance
with the provisions of this Agreement.
(e) The Trust hereby established shall be irrevocable.
(f) The Trust is intended to be a grantor trust, of which
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter I, subtitle A of the Internal Revenue Code
of 1986, as amended, and shall be construed accordingly.
(g) The principal of the Trust, and any earnings thereon shall
be held separate and apart from other funds of Company and shall
be used exclusively for the uses and purposes of Plan
participants and general creditors as herein set forth.
(h) 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 Plans and this
Trust Agreement shall be mere unsecured contractual rights of
Plan participants and their beneficiaries against Company.
(i) Any assets held by the Trust will be subject to the claims
of Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.4 herein.
(j) Company, 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 the Trust
Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional
deposits.
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1.02 Change of Control. To the extent that the some of the
Plans to which this Trust applies are not fully funded, the
Company shall 10 days prior to a Change of Control, as
defined herein, make an irrevocable contribution to the
Trust in an amount that is sufficient to pay each Plan
participant or beneficiary the benefits to which Plan
participants or their beneficiaries would be entitled
pursuant to the terms of the Plans as of the date on which
the Change of Control occurred.
1.03 Trustee Responsibilities.
(a) The Trustee shall hold, manage, invest and otherwise
administer the Fund pursuant to the terms of this Agreement.
(b) The Trustee shall be responsible only for contributions
actually received by it hereunder. The amount of each
contribution made by the Company to the Fund shall be determined
in the sole discretion of the Company, and the Trustee shall have
no duty or responsibility with respect thereto.
(c) Except as otherwise specifically agreed to by the Trustee,
the Trustee shall not be responsible for the administration of
any Plan (including without limitation the determination of Plan
participation rights of employees of the Company and the
determination of benefits of the Participants of any Plan);
provided, however, that upon a Change in Control the Trustee
shall maintain Participant Accounts as provided in Sections 1.05
and 2.05, and shall make payments to Participants as provided in
Section 3.01.
(d) The Trustee shall not have any authority or obligation to
determine the adequacy of or to enforce the collection from the
Company of any contribution to the Fund. Except to the extent
that the Trustee has otherwise specifically agreed in writing,
the Trustee shall not be responsible, directly or indirectly, for
the investment or reinvestment of the assets of the Fund, which
investment and reinvestment shall be the sole responsibility of
the Company unless otherwise delegated by the Company as provided
in this Agreement, however, that upon a Change in Control the
Trustee shall become responsible for the investment and
reinvestment of the assets of the Fund as elsewhere provided
herein.
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1.04 Participant Accounts. Depending upon the Plan to which
this Trust applies, the Company shall maintain a separate
Account for each Participant. Appendix A shall set forth
by Plan, the terms and conditions of this Trust which shall
apply.
1.05 Participant Accounts Following Change in Control.
(a) Notwithstanding the foregoing, upon a "Change in Control",
the Trustee shall become responsible for the maintenance of a
separate Account for each Participant under each Plan and for the
periodic adjustments of such Accounts in accordance with the
procedures described herein.
(b) The Trustee may select and retain a third party
administrator to maintain such Accounts. The full expense
incurred by the Trustee in maintaining such separate Accounts
shall be paid by the Company, and until so paid shall constitute
a charge upon the Fund.
(c) "Change in Control" shall have the same meaning as "Trigger
Date" in the Polaroid Extended Severance Plan (set forth as
Appendix B which may be amended from time to time). In such
event the Trustee will be notified within 24 hours, such
notification shall be conclusive and may be relied upon by the
Trustee. Should the Company fail to provide the Trustee notice
and the Trustee through independent means reasonably determine
that a Change in Control has occurred, the Company or its
successor shall indemnify the Trustee in making this decision.
(d) As soon as practicable following a Change in Control, the
Trustee shall distribute to each Participant the full cash value
of his account.
ARTICLE II
MAINTENANCE OF TRUST
2.01 Funding of Trust and Plans.
(a) The Company represents and agrees that the Trust established
under this Agreement does not fund and is not intended to fund
the Plans or any other employee benefit plan or program of the
Company but shall be utilized by the Company in a manner set
forth in Appendix A below, subject to the other terms and
conditions of this Plan.
(b) Such Trust is and is intended to be a depository arrangement
with the Trustee for the setting aside of cash and other assets
of the Company as and when it so determines in its sole
discretion for the meeting of part or all of its future
retirement obligations to the Participants and their
Beneficiaries under the Plans. Contributions by the Company to
the Trust shall be in amounts determined solely by the Company.
The Company shall make its contributions to the Trust in
accordance with appropriate corporate action and the Trustee
shall have no responsibility with respect thereto, except to add
such contributions to the Fund. The purpose of this Trust is to
provide a fund from which retirement benefits may be payable
under the Plans and as to which Participants and their
Beneficiaries may, by exercising the procedures set forth herein,
have access to some or all of their benefits as such become due
without having the payment of such benefits subject to the
administrative control of the Company unless the Company becomes
insolvent as defined below.
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2.02 Company as Owner. Nothing provided in this Agreement
shall relieve the Company of its liabilities to pay the
retirement benefits provided under the Plans except to the
extent such liabilities are met by application of Fund
assets. It is the intent of the Company to have each
Account established hereunder treated as a separate trust
designed to satisfy in whole or in part the Company's legal
liability under the Plan in respect of the Participant for
whom such Account has been established. The Company,
therefore, agrees that all income, deductions and credits
for each such Account belong to it as owner for income tax
purposes and will be included on the Company's income tax
returns.
2.03 Non-ERISA Plans. The Company further represents that
the Plans are either unfunded deferred compensation
arrangements for members of its Board of Directors and a
select group of highly-compensated and management
employees, excess benefit plans or plans not covering
employees, and as such are exempt from the application of
the Employee Retirement Income Security Act of 1978
("ERISA") except for the limited disclosure requirements
applicable to such plans (other than excess benefit and non-
employee plans) for which the Company bears full
responsibility as to compliance. The Company further
represents that the Plans are not qualified under Section
401 of the Internal Revenue Code ("Code") and therefore are
not subject to any of the Code requirements applicable to
tax-qualified plans.
2.04 Participants as Unsecured Creditors. Participants and
their Beneficiaries shall have the rights under this
Agreement of unsecured general creditors of the Company and
shall not have any preferred claim on, or any beneficial
ownership interest in, the Fund prior to the time amounts
in the Fund are paid to such Participants or Beneficiaries
as benefits under this Agreement.
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2.05 Recordkeeping After Change in Control. The Trustee shall
maintain all records dealing with the Fund and its
investment and such other Participant records as are
contemplated by this Agreement, including the maintenance
of the separate Accounts of each Participant under this
Agreement after a Change in Control. All such records
shall be made available promptly on the request of the
Company. After a Change in Control, the Trustee shall also
prepare and distribute Participants' annual statements.
2.06 Information to be Provided to Trustee.
(a) The Company shall maintain and furnish the Trustee with such
reports, documents and information as shall be required by the
Trustee to perform its duties and discharge its responsibilities
under this Agreement, including without limitation a certified
copy of each of the Plans and any and all amendments thereto.
(b) The Company shall also furnish the Trustee written reports
setting forth the name, address, date of birth, and social
security or tax identification number of each Participant and
Beneficiary, a listing of the adjusted value of each separate
Account as of each valuation date on an annual basis listing each
Participants accrued benefit in each Plan set forth in Appendix
A. This information shall also be provided immediately prior to
a Change in Control.
(c) The Trustee shall be entitled to rely on the most recent
reports, documents and information furnished to it by the
Company.
(d) The Company shall be required to promptly notify the Trustee
as to the termination of employment of any Participant by death,
retirement or otherwise.
(e) Notwithstanding the foregoing, at any time after a Change in
Control, the Trustee may rely upon information provided to the
Trustee by the Participant (or the Beneficiary of a deceased
Participant).
(f) The Trustee shall be provided with such valuations and
reports as are necessary to enable the Trustee to fulfill its
obligations under this Agreement from each Investment Manager and
insurance companies holding contracts held by this Trust, and the
Trustee shall be fully protected in relying upon such valuations
and reports.
2.07 Authorized Persons for the Company.
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(a) After the execution of this Agreement, the Company shall
promptly file with the Trustee a certified list of the names and
specimen signatures of the officers of the Company and any
delegee authorized to act for it.
(b) All certifications, notices and directions by any such
authorized person or persons to the Trustee shall be in writing
signed by such person or persons. The Trustee may rely on any
such certification, notice or direction signed by such authorized
person or persons.
(c) The Company shall promptly notify the Trustee of the
addition or deletion of any person's name to or from such list,
respectively.
(d) The Trustee shall have no responsibility for acting or not
acting in reliance upon any notification believed by the Trustee
to have been so signed by a duly authorized person of the
Company. If at any time there is no person authorized to act
under this Agreement in behalf of the Company, the Board of
Directors of the Company (or if the Board has ceased to exist,
the individuals who last served as Directors) shall have the
authority to act hereunder.
ARTICLE III
DISTRIBUTIONS UNDER THE TRUST
3.01 Payments to Participants.
(a) Unless payments are being made after a Change of Control,
the entitlement of a Participant or his or her beneficiaries to
benefits under the Plans shall be determined by authorized person
at Company and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plans.
(b) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each
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 Plans), and
the time of commencement for payment of such amounts.
(c) Except as otherwise provided herein, Trustee shall make
payments to the Participants and their beneficiaries in
accordance with such Payment Schedule. Such schedules shall
include the amount of such benefits, the manner of payment and
the name, address and social security number of the recipient.
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(d) Upon Change of Control the Trustee shall initiate payments
upon request of the Participant (or by the Beneficiary with
respect to a deceased Participant) that such Participant (or
Beneficiary) has become entitled to receive benefit payments
under the Plan. This request, however, must be consistent with
the information provided to the Trustee prior to Change of
Control. The Trustee shall take such reasonable steps as it, in
its sole discretion, determines are necessary to verify any claim
by a Participant (or Beneficiary) that such Participant (or
Beneficiary) has become entitled to receive benefit payments
under a Plan and to verify any information provided by such
Participant (or Beneficiary) as to the amount of such benefits
and the manner of their payment. If there is a discrepancy, the
Trustee has authority to rely on the information provided by the
Company prior to Change of Control.
(e) All benefits payable from the Fund to a Participant (or a
Beneficiary) under a Plan shall be paid solely from the separate
Account established with respect to such Participant under such
Plan, and only if and to the extent the amounts credited to the
Participant's Account are sufficient therefor, and such
Participant's Account established hereunder with respect to such
Plan shall be charged with the amount of such payments.
(f) The Trustee shall make provisions in accordance with this
Agreement 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 Plans and
shall pay amounts withheld to the appropriate taxing authorities
or determine that such amounts have been reported, withheld and
paid by Company.
(g) Notwithstanding anything to the contrary in this Agreement,
the Company may make payment of benefits as provided in a Plan
identified in Appendix A directly to Participants or their
beneficiaries as they become due under the terms of the Plans.
Company shall notify Trustee thirty (30) days prior to its
decision to make payment of benefits directly, unless such other
time is mutually agreed upon.
(h) 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 Plans, Company shall make the balance of each
such payment as it falls due. Trustee shall notify Company where
principal and earnings are not sufficient.
(i) The Trustee shall have no responsibility for and shall incur
no liability with respect to any payment made pursuant to a
direction received in accordance with this Section or, in the
event of a dispute the Trustee shall submit the matter to the
Arbitrator pursuant to Section 8.08 of this Agreement.
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3.02 Company Insolvency.
(a) At all times during the continuance of this Trust, as
provided in Section 1.01 hereof, the principal and income of the
Trust shall be subject to claims of general creditors of Company
under federal and state law as set forth below. The Company
shall be considered to be Insolvent if it is unable to pay its
debts as they fall due; or, bankruptcy or insolvency proceedings
are initiated by its creditors or the Company or any third party
under the Bankruptcy Act of the United States or the bankruptcy
laws of any State alleging that the Company is insolvent or
bankrupt.
(b) By its approval and execution of this Agreement, the Company
represents and agrees that its Board of Directors and Chief
Executive Officer, as from time to time acting, shall have the
duty to inform the Trustee in writing of the Company's Insolvency
and the Trustee shall be entitled to rely thereon to the
exclusion of all directions or claims to pay benefits thereafter
made.
(c) Notwithstanding any provision in this Agreement to the
contrary, if at any time while the Trust is still in existence
the Company becomes insolvent (as defined in subsection (a)
above), the Trustee shall upon written notice thereof suspend the
payment of all benefits from the Fund.
(d) The Trustee shall thereafter hold the Fund in suspense until
it receives a court order directing the disposition of the Fund;
provided, however, the Trustee may deduct or continue to deduct
its fees and expenses and other expenses of the Trust, including
taxes, pending the receipt of such court order.
(e) If a person, considered by the Trustee to be reliable and
responsible, claiming to be a creditor of Company, alleges in
writing to Trustee that Company has become Insolvent, Trustee
shall determine whether Company is Insolvent and, pending such
determination, Trustee shall discontinue payment of benefits to
Plan participants or their beneficiaries.
(f) Unless Trustee has actual knowledge of Company's Insolvency,
or has received notice from Company or a person claiming to be a
creditor alleging that Company is Insolvent, Trustee shall have
no duty to inquire whether Company is Insolvent. Trustee may in
all events rely on such evidence concerning Company's solvency as
may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Company's
solvency.
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(g) Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall in any way diminish any rights of
Participants or their beneficiaries to pursue their rights as
general creditors of Company with respect to benefits due under
the Plans otherwise.
3.03 Trustee Actions After Insolvency. If after an event of
Insolvency, the Company later becomes solvent without the
entry of a court order concerning the disposition of the
Fund, the Company shall by written notice so inform the
Trustee and the Trustee shall thereupon resume all its
duties and responsibilities under this Agreement without
regard for this Section until and unless the Company again
becomes Insolvent as such term is defined herein. Provided
that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to this
Section 3.02 above 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
Plans for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or
their beneficiaries by Company in lieu of the payments
provided for thereunder during any such period of
discontinuance.
3.04 Satisfaction of Liabilities. Upon the satisfaction of all
Company liabilities under a Plan to a Participant (and such
Participant's Beneficiary) for whom an Account has been
established thereunder, the balance, if any, remaining in
such Participant's Account shall thereupon be reallocated
ratably to the Accounts of all Participants being continued
under such Plan (including Accounts which may have
previously been reduced to a zero balance) in the ratio
that liabilities in respect of each such Participant (and
Beneficiary) under such Plan bear to the total liabilities
to all such Participants (and Beneficiaries) for whom
Accounts have been established thereunder with respect to
such Plan. Upon the satisfaction of all Company
liabilities under a Plan the balance, if any, remaining in
the Accounts under such Plan shall thereupon be reallocated
ratably to the Accounts of Participants (and Beneficiaries)
under the other Plans covered by this Agreement (including
Accounts which may have previously been reduced to a zero
balance) in the ratio that liabilities to each such
Participant (and Beneficiary) under such Plans bear to the
total liabilities to all such Participants (and
Beneficiaries) for whom Accounts have been established
thereunder. Upon the satisfaction of all Company
liabilities under all Plans, the Trustee shall thereupon
hold or distribute the Fund in accordance with the written
instructions of the Company.
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3.05 Irrevocable Status of Trust
(a) At no time prior to the Company's Insolvency, as defined in
Section 3.02, or the satisfaction of all liabilities of the
Company under the Plans in respect of all Participants and
Beneficiaries having Accounts thereunder shall any part of the
Fund revert to the Company.
(b) Except as provided in Section 3.02 hereof, after the Trust
has become irrevocable, Company shall have no right or power to
direct Trustee to return to Company or to divert to others any of
the Trustee assets before all payment[s] of benefits have been
made to Plan participants and their beneficiaries pursuant to the
terms of the Plans.
3.06 Tax Withholding. The Trustee shall withhold from any
payment to a Participant (or a Beneficiary) the amount
required by law to be so withheld under federal, state and
local wage withholding requirements or otherwise, and shall
pay over to the appropriate government authority the amount
withheld. The Trustee may rely on instructions from the
Company as to any required withholding and shall be fully
protected in relying on such instructions. For purposes of
the preceding sentence, a failure by the Company to provide
any instructions as to required withholding may be deemed
by the Trustee to be an instruction by the Company that no
withholding is required.
ARTICLE IV
TUSTEE RESPONSIBILITIES
4.01 Standard of Care.
(a) The Trustee and each Investment Manager appointed to invest
assets in this Trust shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man 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. Notwithstanding the forgoing; the Trustee shall
incur no liability to anyone for any action taken pursuant to a
direction, request, or approval given in writing by the Company
and contemplated by and complying with the terms of this
Agreement or any of the Plans, or for any failure to take any
action in the absence of such a direction, request or approval.
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(b) The duties of the Trustee shall only be those specifically
undertaken pursuant to this Agreement or by means of a separate
written agreement.
(c) The Trustee may consult with legal counsel (who may be
counsel for the Trustee or for the Company) with respect to any
of its duties or obligations thereunder, and shall be fully
protected in acting or refraining from acting in accordance with
the advice of such counsel.
4.02 Trustee Powers.
(a) The Trustee shall have, without exclusion, all powers
conferred on Trustees by applicable law, unless expressly
provided otherwise herein, provided, however, than if an
insurance policy is held as an 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.
(b) 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.
4.03 Investment of Trust Assets Prior to Change of Control.
Unless an Investment Manger has been appointed pursuant to
Section, or the Company and the Trustee have mutually
agreed in a separate writing that the Trustee shall have
and exercise investment discretion, in either case with
respect to all or an portion of the assets of the Trust the
Company shall have complete discretion with respect to the
investment of such assets at all times prior to a Change in
Control, and shall direct the Trustee accordingly.
4.04 Investment of Trust Assets After a Change of Control.
After a Change in Control, the Trustee shall have and
exercise investment discretion with respect to all assets
of the Trust, including the power to appoint an Investment
Manager (who may be an affiliate of the Trustee). Subject
to the foregoing, the Trustee shall have the power:
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(a) to purchase, receive or subscribe for any securities or
other property,
(b) to retain in trust such securities or other property,
without being limited to the classes of property in which
trustees are authorized to invest by any law or any rule of court
of any state and without regard to the proportion any such
property may bear to the entire amount of the Fund;
(c) to retain any securities issued by the Company and received
by the Trustee;
(d) to sell for cash or on credit, to grant options, convert,
redeem, exchange for other securities or other property, to enter
into standby agreements for future investment, either with or
without a standby fee, or otherwise to dispose of any securities
or other property held by it;
(e) to vote in person or by proxy, or to refrain from voting, in
respect of any securities held by the Fund, and to give general
or special proxies or powers of attorney with or without power of
substitution, and to exercise any conversion privileges,
subscription rights or other options; to oppose or consent to
reorganizations, recapitalizations, consolidations, mergers and
similar transactions with respect to such securities; and
generally to exercise any of he powers of an owner with respect
to any securities or other property held by the Fund;
(f) with respect to any investment, to consent or object to or
otherwise request any action or nonaction on the part of any
corporation, association or trust or of the directors, officers,
stockholders or trustees of any such corporation, association or
trust:
(g) to settle, compromise or submit to arbitration any claims
debts or damages due or owing to or from the Fund;
(h) to deposit any property in any voting trust, or with any
protective, reorganization or similar committee, or with
depositories designated thereby; to delegate power thereto; and
to pay or agree to pay part of its expenses and compensation and
any assessments levied with respect to any property so deposited;
(i) to deposit securities with custodians, subcustodians, or
securities clearing corporations or depositories or similar
organizations, whether located within the Commonwealth of
Massachusetts or elsewhere in the United States or abroad;
(j) to commence or defend suits or legal proceedings and to
represent the Fund in all suits or legal proceedings in any court
or before any other body or tribunal (provided, however, that the
Trustee shall have no obligation to take any legal action for the
benefit of the Fund unless it shall be first indemnified for all
expenses in connection therewith, including without limitation
counsel fees);
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(k) to hold uninvested any monies received by it, without
liability for interest thereon, until such monies shall be
invested, reinvested or disbursed;
(l) to register or cause to be registered any securities or
other property-held by it thereunder in its name or in the name
of any nominee with or without indication of the capacity in
which the securities shall be held, and to hold any securities
in;
(m) to employ suitable agents and legal counsel, who may be
counsel for the Company or the Trustee, and, as a part of its
reimbursable expenses under this Agreement, to pay such agent's
and counsel's reasonable compensation and expenses;
(n) to appoint one or more individuals or corporations as a
custodian of any property and, as a part of its reimbursable
expenses under this Agreement, to pay the reasonable compensation
and expenses of any such custodian;
(o) for the purpose of the Fund, to borrow money in such amounts
and upon such terms and conditions as shall be deemed advisable
or proper to carry out the purposes of the Fund, from others, to
issue its promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by it;
(p) to form any corporation, association, partnership, or joint
venture under the laws of any jurisdiction, or to participate in
the forming of any such corporation, association, partnership, or
joint venture, or to acquire an interest in or otherwise make use
of any corporation, association, partnership, or joint venture
for he purpose of facilitating the Fund's investing in and
holding title to any property;
(q) for the purpose of facilitating the Fund's investing in and
holding title to real or personal property or part interests
therein, whatever situate, to appoint one or more individuals or
corporations as a subtrustee or subtrustees, and to pay the
reasonable compensation and expenses of each such subtrustee. Any
such subtrustee, upon being appointed, shall act with such one or
more of all of the powers, authorities, discretion, duties and
functions of the Trustee under this Section as shall be
designated in the instrument establishing such subtrust
including, without limitation, the power to receive and hold
property, real or personal, or part interest therein, oil,
mineral or gas properties, royalty interests or rights, including
equipment pertaining thereto, leaseholds, mortgages and other
interests in realty, situated in any state of the United States
of America in which the subtrustee is authorized to act as a
trustee;
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(r) to lease any property, to sell or acquire any property (at
public or private sale and for cash or on credit), to grant or
acquire options for the purchase of any property and generally to
make, execute, acknowledge and deliver any and all deeds, leases,
assignments and instruments whenever such action may be required
to perform its obligations thereunder; to write or purchase call
or put options; to trade in financial options and futures,
including index options and options on futures and to take
appropriate actions in connection therewith; to purchase and sell
foreign exchange and contracts for foreign exchange, including
transactions with the Trustee, its affiliates, agents or
subcustodians; to invest at State Street Bank and Trust Company
(i) in any type of interest bearing investment (including but
not limited to savings accounts, money market accounts,
certificates of deposit and repurchase agreements) and
(ii) in non-interest bearing accounts (including but not
limited to checking accounts) and
(iii) in common or collective investment funds managed by the
Trustee.
Generally to do all actions, exclusive of acts involving
investment management discretion, which the Trustee may
deem necessary or desirable for the protection of the Fund.
4.05 Definition of Securities. Wherever used in this Agreement,
the term "securities" shall include bonds, mortgages,
notes, obligations, warrants and stocks of any class,
certificates of participating or shares of any mutual
investment company, trust or fund, and such other evidences
of indebtedness and certificates of interest as are usually
referred to by the term "securities," and the term
"property" shall include real, personal and mixed property,
tangible or intangible, of any kind and wherever located.
4.06 Substitution of Assets. Prior to a Change in Control,
Company shall have the right at anytime, and from time to
time in its sole discretion, to substitute assets of equal
fair market value for any asset held by the Trust. This
right is exercisable by Company in a nonfiduciary capacity
without the approval or consent of any person in a
fiduciary capacity. After a Change in Control the Trustee
shall have sole and exclusive authority to determine the
assets held in the Trust.
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4.07 Proxies. In order to permit the Company or an Investment
Manger, as the case may be, to make timely and informed
decisions regarding the management of those assets in the
Fund subject to its respective control, the Trustee shall
forward to the Company or each such Investment Manager, as
the case may be, for appropriate action any and all
proxies, proxy statements, notices, requests, advice or
other communications received by the Trustee (or its
nominee) as the record owner of such assets.
4.08 Investment Managers.
(a) The Company, prior to a Change in Control, or the Trustee
after a change in Control, may from time to time appoint one or
more Investment Managers to manage any portion of the Fund and,
with respect to such portion, to direct the Trustee with respect
to effecting investment transactions on behalf of the Fund and
exercising such other powers as may be granted to Investment
Managers thereunder.
(b) Prior to a Change in Control, the Company shall give prompt
written notice to the Trustee of the appointment of an Investment
Manager, upon which the Trustee shall rely until it receives from
the Company written notice of the termination of such
appointment.
(c) When an Investment Manager is appointed, the Company or the
Trustee, as the case may be, shall determine the assets of the
Fund to be allocated to the Investment Manager from time to time.
(d) Prior to Change of Control, the Trustee shall not be liable
for the acts or omissions of such Investment Manager, shall be
under no duty to question any direction of an Investment Manager
with respect to the portion of the Fund managed by such
Investment Manager, to review any securities or property held in
such portion, to make any suggestions with respect to the
investment and reinvestment of such portion.
(e) After a Change in Control the Trustee's sole responsibility
being to comply with the standard of care set forth in Section
4.01 in appointment and retaining any Investment Manager.
Trustee shall evaluate the performance of any Investment Manager,
and shall be fully protected in acting in accordance with the
directions of an Investment Manager or for failing to act in the
absence of such directions, after a Change in Control.
4.09 Life Insurance.
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(a) The Trust may hold life insurance, retirement income on
annuity policies or contracts on or for the life a any
Participant.
(b) Prior to Change in Control, the Company reserves the right
to transfer assets to one of these vehicles.or, to direct the
Trustee to purchase any such policies or contracts on or for the
life of any such Participant out of the amounts credited to his
Account.
(c) Any such policy or contract shall be an asset of the Fund
subject to the claims of the Company creditors in the event of
insolvency, as specified in this Agreement.
(d) The proceeds of any life insurance policy shall upon the
death of the insured Participant be credited to his Account under
the applicable Plan and shall be an additional source of
benefits, if any, payable to his Beneficiary.
(e) Prior to a Change in Control, the Trustee shall be under no
duty to question any direction of the Company or to review the
form of any such policies or contracts or of the selection of the
issuer thereof, or to make suggestions to the Company with
respect to the form of such policies or contracts or to the
issuer thereof.
(f) Prior to a Change in Control, the Company may direct the
Trustee to exercise or may exercise directly the powers of the
contract holder under any such policies or contracts, and the
Trustee shall exercise such powers only upon the direction of the
Company.
(g) Notwithstanding the fact that it may have knowledge of the
terms of this Fund, the obligations of such insurance carrier
shall be measured and determined solely by the terms and
conditions of the policies or contracts issued by it, and there
shall be no obligations to any person, partnership, corporation,
trust or association other than as stated in such policies or
contracts.
(h) No insurance carrier shall for any purpose be deemed a party
to this Agreement or be responsible for the validity or
sufficiency hereof.
ARTICLE V
TRUSTEE ACCOUNTS
5.01 Disposition of Income. During the term of this Trust,
all income received by the Trust, net expenses and taxes,
shall be accumulated and reinvested.
5.02 Trust Taxes. The Company shall pay any and all federal,
state or local taxes on the Fund, or any part thereof, and
on the income therefrom.
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5.03 Trust Expenses. The Company shall pay to the Trustee
its reasonable expenses for the management and
administration of the Fund, including without limitation
advances for or prompt reimbursement of reasonable expenses
of counsel, custodians and other agents employed by the
Trustee, and reasonable compensation for its services as
Trustee thereunder, the amount of which shall be agreed
upon from time to time by the Company and the Trustee in
writing. Such expenses compensation shall be a charge on
the Fund and shall constitute a lien on the Fund in favor
of the Trustee unless and until paid by the Company.
5.05 Payment from Fund. All payments to, or reimbursements of,
the Trustee pursuant to this Article V may be made without
approval or direction of the Company
5.06 Trustee Records and Accounts. The Trustee shall keep
accurate and detailed accounts of all investments,
receipts, disbursements and other transactions thereunder,
and all accounts, books and records relating thereto shall
be open to inspections and audit at all reasonable time by
any persons designated by the Company. The Trustee shall be
entitled to reasonable compensation and reimbursement of
its reasonable expenses incurred in connection with such
audits or inspections. Within ninety (90) days following
the close of each fiscal year of the Fund (which shall be
the calendar year), and within ninety (90) days after the
removal or resignation of the Trustee as provided in
ARTICLE VII hereof, the Trustee shall render to the Company
a written account setting forth in reasonable summary the
investments, receipts, disbursements and other transactions
effected by the Trustee or reported to it by such
Investment Managers as may be appointed thereunder during
the preceding fiscal year or during the period from the
close of the last such fiscal year to the date of such
removal or resignation. Upon the expiration of 90 days from
the date of filing such annual or other account, the
Trustee shall be forever released and discharged from all
liability and accountability to anyone with respect to the
propriety of all acts and transactions shown in such
account, except with respect to any such acts or
transactions as to which the Company shall within such 90
day period file with the Trustee written objections.
The Trustee shall from time to time make such other reports
and furnish such other information concerning the Fund as
the Company may reasonably request or as may be required by
the Plans.
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5.07 Settlement of Accounts. Notwithstanding the foregoing
Section 6.1, the Trustee shall have the right to apply at
any time to a court of competent jurisdiction for the
judicial settlement of the Trustee's account, and in any
case it shall be necessary to join as parties thereto only
the Trustee and the Company; and any judgment or decree
which may be entered therein shall be conclusive upon all
persons having or claiming to have any interest in the Fund
or under a Plan.
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ARTICLE VII
AMENDMENT AND TERMINATION OF THE TRUST
7.01 Resignation and Removal of Trustee. The Trustee may
resign at any time by delivering written notice thereof to
the Company; provided, however, that no such resignation
shall take effect until the earlier of
(a) sixty (60) days from the date of delivery of such
notice to the Company, unless such notice period is
waived in whole or in part by the Company or
(b) the appointment of a successor trustee pursuant to
this Agreement. The Trustee may be removed at any
time by the Company, pursuant to a resolution of the
Board of Directors of the Company (or a duly
authorized committee thereof), by delivering to the
Trustee a certified copy of such resolution. Such
removal shall take effect upon the earlier of (i)
thirty (30) days from the date of delivery of such
resolution, unless such notice period is waived in
whole or in part by the Trustee or (ii) the
appointment of a successor trustee pursuant to Section
7.02.
Notwithstanding the foregoing, after a Change in Control,
any such removal of the Trustee shall be effective only
with the written consent of Participants (or Beneficiaries
of deceased Participants) having at least a majority of all
amounts then held in the Fund credited to their Accounts.
If, within thirty (30) days of the delivery of written
notice of resignation or removal, a successor trustee shall
not have been appointed, the provisions of Section 7.02
apply.
7.02 Successor Trustee. Upon the resignation or removal of the
Trustee, a successor trustee shall be appointed by the
Company; provided, however, that after a Change in Control
such appointment shall be effective only with the written
consent of Participants (or Beneficiaries of deceased
Participants) having at least a majority of all amounts
then held in the Fund credited to their Accounts. If the
Company (and, after a Change in Control, such Participants
and Beneficiaries) are unable to so agree upon a successor
trustee within thirty days after such notice, the Trustee
shall be entitled, at the expense of the Company, to
petition a United States District Court or any of the
courts of the Commonwealth of Massachusetts having
jurisdiction to appoint its successor. The Trustee shall
continue to serve, and to receive its compensation and
reimbursement of its expenses, (which shall continue to be
a charge upon the Fund and a lien on the Fund in favor of
the Trustee unless and until paid by the Company) until its
successor accepts the trust and receives delivery of the
Fund. Such successor trustee shall be a commercial bank or
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trust company which is established under the laws of the
United States or a State within the United States and which
is not an affiliate of the Company. Such appointment shall
take effect upon the delivery to the Trustee of a written
appointment of such successor trustee, duly executed by the
Company, and a written acceptance by such successor
trustee, duly executed by an authorized officer. Any
successor trustee shall have all the rights, powers and
duties granted the Trustee thereunder. Upon the resignation
or removal of the Trustee and the appointment of a
successor trustee, and after the acceptance and approval of
its account, the Trustee shall transfer and deliver the
Fund to such successor. Under no circumstances shall the
Trustee transfer or deliver the Fund to any successor which
is not a bank or trust company as hereinabove defined.
7.03 Amendment of Trust. This Agreement may be amended, in
whole or in part, at any time and from time to time, by the
Company, pursuant to a resolution of the Board of Directors
(or a duly authorized committee thereof), by delivery to
the Trustee of a certified copy of such resolution and a
written instrument duly executed and acknowledged in the
same form as this Agreement; provided no such amendment
shall conflict with the terms of the Plans or shall make
the Trust revocable after it has become irrevocable in
accordance with Section 1.1 hereof, provided further,
however, that the duties and responsibilities of the
Trustee shall not be increased without the Trustee's
written consent; and provide further that, after a Change
in Control any such amendment affecting any Account or the
procedures for distribution thereof shall not become
effective until sixty (60) days after a copy of such
amendment has been delivered by registered mail by the
Company or the Trustee to each person entitled to receive a
statement of a Participant's Account. In the event the
Company or the Trustee receives written objections to such
amendment from such person within such sixty (60) day
period, such amendment shall be ineffective and void in
respect of the Participant (or Beneficiary) so objecting.
7.04 Termination of Trust. The Trust established pursuant to
this Agreement shall terminate upon the earlier of:
(a) the exhaustion of the Fund,
(b) the satisfaction of all Company liabilities under the Plans
with respect to all Participants (and Beneficiaries) with respect
to whom Accounts have been established thereunder or
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(c) provided however, that the Trust shall terminate in any
event upon the expiration of twenty-one (21) years after the
death of the last survivor of the group of persons consisting of
all employees of the Company who are living on the date of the
execution of this Agreement.
7.05 Liquidation of Trust. Upon the termination of the Trust in accordance with
Section 9.1, the Trustee shall, after the acceptance and approval of its
account, distribute the remaining Fund assets, if any, to the Company.
Upon completing such distribution, the Trustee shall be relieved
and discharged of all liabilities and obligations thereunder.
The powers of he Trustee shall continue as long as any part
of the Fund remains in its possession.
ARTICLE VII
MISCELLEANOUS PROVISIONS
8.01 Indemnification. The Company hereby agrees to
indemnify and hold harmless the Trustee from and against
any loss, costs, damages or expenses, including without
limitation reasonable attorneys' fees ("Losses"), which the
Trustee may incur or pay out by reason of its performance
of duties under the Agreement any alleged or actual act, or
failure to act, on the part of the Company, any Employer,
Plan Administrator, Fund Manager, or any other person, to
the extent allowed by ERISA or the Code, except to the
extent that such loss, costs, damages or expenses result
from the negligence, bad faith or willful misconduct of the
Trustee, its employees, or any agent it has appointed or
the Trustee's breach of any of its duties thereunder.
The Trustee hereby agrees to indemnify and hold harmless
the Sponsor, the Plan Administrator, and the Fund Manager
from and against any Losses that may be incurred by,
imposed upon, or asserted against any of them by reason of
the Trustee's in the performance of its duties required by
this Agreement or by reason of the negligence or bad faith
or willful misconduct of the Trustee.
8.02 Governing Law. This Agreement shall be construed and
interpreted under, and the Trust hereby created shall be
governed by, the laws of the Commonwealth of Massachusetts.
8.03 Gender. Neither the gender nor the number (singular or
plural) of any word shall be construed to exclude another
gender or number when a different gender or number would be
appropriate.
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8.04 Non-Alienation. No right or interest of any Participant or
Beneficiary under the Plans or in the Fund shall be
transferable or assignable or subject to alienation,
anticipation or encumbrance, and no right or interest of
any Participant or Beneficiary in the Plans or in the Fund
shall be subject to any garnishment, attachment or
execution. Notwithstanding the foregoing, the Fund shall at
all times remain subject to the claims of creditors of the
Company in the event the Company becomes insolvent as
provided in Section 3.02.
8.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of any successor to
the Company as the result of merger, consolidation,
reorganization, or otherwise. In the event of any such
merger, consolidation, reorganization, or other similar
transaction, the successor to the Company shall promptly
notify the Trustee in writing of its successorship and
furnish the Trustee with the information specified in
Section 3.02 of this Agreement.
8.06 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an
original, but all of which shall together constitute only
one Agreement.
8.07 Addresses of Parties. Communications to the Trustee
shall be sent to:
State Street Bank and Trust Company
Marketing Xxxxxxxxxx/XXX
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Vice President
or to such other address as the Trustee may specify in
writing.
Communications to the Company shall be sent to:
Xxxxxxx Xxxxxxxx
Director Risk Management
Polaroid Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
or to such other address as the Company may specify in
writing.
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8.08 Arbitration. Any dispute between any Participant (or
Beneficiary of a deceased Participant) and the Company or
the Trustee as to the interpretation or application of the
provisions of this Trust and amounts payable thereunder
shall be determined exclusively by binding arbitration in
the Commonwealth of Massachusetts in accordance with the
rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award
in any court of competent jurisdiction. All fees and
expenses of such arbitration shall be paid by the Trustee
and considered an expense of the Trust.
8.09 Severability. In the event that any provision of this
Trust or the application thereof to any person or
circumstances shall be determined by a court of proper
jurisdiction to be invalid or unenforceable to any extent,
the remainder of this Trust, or the application of such
provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be
affected thereby, and each provision of this Trust shall be
valid and enforced to the fullest extent permitted by law.
8.10 Trust Beneficiaries. Each Participant (and Beneficiary of a
deceased Participant) is an intended beneficiary under this
Trust, and shall be entitled to enforce all terms and
provisions hereof with the same force and effect as if such
person had been a party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed and their respective corporate
seals to be hereto affixed this day___ of January, 0000
XXXXX XXXXXX BANK AND
TRUST COMPANY POLAROID CORPORATION
By /s/ Xxxxx X. Xxxxxx BY: /s/ Xxxxx X. Xxxxxxx
---------------------- -------------------------
NAME: Xxxxx X. Xxxxxx NAME: Xxxxx X. Xxxxxxx
TITLE: Vice President TITLE Vice President & Treasurer
DATE March 28, 1997 DATE 27 Mar. 97
--------------------- ---------------------
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APPENDIX A
PLANS TO WHICH THE
POLAROID NON-QUALIFED DEFERRED COMPENSATION TRUST
APPLIES AND TERMS BY WHICH ASSETS ARE HELD
A. POLAROID ELECTIVE DEFERRAL COMPENSATION PLAN.
(1) The Company shall maintain in an equitable manner a separate
Account for each Participant.
(2) It shall keep a separate record of the share of such
Participant under such Plan in the Fund.
(3) The Company may select and retain a third party
administrator to maintain such Accounts.
(4) An Account maintained with respect to a Participant shall
represent the portion of the Fund allocated to provide benefits
to such Participant.
(5) The Company shall certify to the Trustee at the time of each
contribution to the Fund the amount of such contribution being
made in respect of each Participant under each Plan.
(6) The Fund shall be revalued by the Trustee at current market
values, as determined by the Trustee, as of the last business day
of each calendar year and as of such additional dates as the
Trustee shall determine to be appropriate.
(7) The Trustee shall certify to the Company the results of each
such valuation, whereupon each Participant's Account shall be
equitably adjusted by the Company to reflect its share of income,
expense, appreciation and depreciation since the preceding
valuation date.
(8) The Company shall provide the Trustee with a compilation of
all such adjusted Account balances as of each such valuation
date.
(9) Each Participant (or Beneficiary of a deceased Participant)
shall receive a statement of the value of his separate Account at
least annually. Such statement shall be provided by the Company
prior to a Change in Control and by the Trustee after a Change in
Control.
B. POLAROID BOARD OF DIRECTORS' ELECTIVE DEFERRAL COMPENSATION
PLAN.
(1) The Company shall maintain in an equitable manner a separate
Account for each Participant.
(2) It shall keep a separate record of the share of such
Participant under such Plan in the Fund.
(3) The Company may select and retain a third party
administrator to maintain such Accounts.
(4) An Account maintained with respect to a Participant shall
represent the portion of the Fund allocated to provide benefits
to such Participant.
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(5) The Company shall certify to the Trustee at the time of each
contribution to the Fund the amount of such contribution being
made in respect of each Participant under each Plan.
(6) The Fund shall be revalued by the Trustee at current market
values, as determined by the Trustee, as of the last business day
of each calendar year and as of such additional dates as the
Trustee shall determine to be appropriate.
(7) The Trustee shall certify to the Company the results of each
such valuation, whereupon each Participant's Account shall be
equitably adjusted by the Company to reflect its share of income,
expense, appreciation and depreciation since the preceding
valuation date.
(8) The Company shall provide the Trustee with a compilation of
all such adjusted Account balances as of each such valuation
date.
(9) Each Participant (or Beneficiary of a deceased Participant)
shall receive a statement of the value of his separate Account at
least annually. Such statement shall be provided by the Company
prior to a Change in Control and by the Trustee after a Change in
Control.
C. POLAROID OFFICER'S COMPENSATION EXCHANGE PLAN
(1) The Company shall maintain in an equitable manner a separate
Account for each Participant.
(2) It shall keep a separate record of the share of such
Participant under such Plan in the Fund.
(3) The Company may select and retain a third party
administrator to maintain such Accounts.
(4) An Account maintained with respect to a Participant shall
represent the portion of the Fund allocated to provide benefits
to such Participant.
(5) The Company shall certify to the Trustee at the time of each
contribution to the Fund the amount of such contribution being
made in respect of each Participant under each Plan.
(6) The Fund shall be revalued by the Trustee at current market
values, as determined by the Trustee, as of the last business day
of each calendar year and as of such additional dates as the
Trustee shall determine to be appropriate.
(7) The Trustee shall certify to the Company the results of each
such valuation, whereupon each Participant's Account shall be
equitably adjusted by the Company to reflect its share of income,
expense, appreciation and depreciation since the preceding
valuation date.
(8) The Company shall provide the Trustee with a compilation of
all such adjusted Account balances as of each such valuation
date.
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(9) Each Participant (or Beneficiary of a deceased Participant)
shall receive a statement of the value of his separate Account at
least annually. Such statement shall be provided by the Company
prior to a Change in Control and by the Trustee after a Change in
Control.
D. POLAROID SUPPLEMENTAL DEFERRED COMPENSATION PLAN
(1) The Company shall maintain a list of all Participants
entitled to benefits under this Plan.
(2) The Company shall fund this benefit in a manner it deems
necessary and appropriate until Change of Control.
(3) Immediately prior to Change of Control all benefit and
entitlements shall be fully funded.
E. POLAROID EXCESS BENEFIT PLAN
(1) The Company shall maintain a list of all Participants
entitled to benefits under this Plan.
(2) The Company shall fund this benefit in a manner it deems
necessary and appropriate until Change of Control.
(3) Immediately prior to Change of Control all benefit and
entitlements shall be fully funded.
F. POLAROID EXCESS BENEFIT PLAN
(1) The Company shall maintain a list of all Participants
entitled to benefits under this Plan.
(2) The Company shall fund this benefit in a manner it deems
necessary and appropriate until Change of Control.
(3) Immediately prior to Change of Control all benefit and
entitlements shall be fully funded.
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