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EXHIBIT 10.35
AMERICAN GENERAL CORPORATION
BENEFIT TRUST AGREEMENT
AGREEMENT made as of February 8, 2001, by and between AMERICAN GENERAL
CORPORATION (the "Corporation"), as Grantor, and The Chase Manhattan Bank, a New
York Banking Corporation, as Trustee. As used in the Agreement, "Corporation"
shall include American General Corporation and any successor thereto.
WITNESSETH:
WHEREAS, the Corporation has adopted or entered into those
compensation and benefit plans and agreements set forth on Exhibit 1 hereto (as
each may be amended from time to time, the "Plans"); and
WHEREAS, the Plans provide for the payment of certain deferred
compensation and retirement benefits (together, hereinafter the "Benefits") to
participating executives and directors of the Corporation and certain
subsidiaries thereof (or their beneficiaries in the event of their death before
full payment of the Benefits); and
WHEREAS, the Corporation has incurred and will incur liability under
the terms of the Plans with respect to the individuals participating in the
Plans (sometimes
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called, until their respective Benefits have been completely paid, the
"Participants");
WHEREAS, the amount and timing of payment of the Benefits to
Participants and their beneficiaries are specified in the Plans and documents
executed by the Participants pursuant to the Plans designating beneficiaries
and/or timing of payment of Benefits ("Participant Designations"); and
WHEREAS, the Corporation is hereby establishing a trust (the "Trust")
for the purpose of accumulating assets to assist it in fulfilling its
obligations under the Plans, to which Trust the Corporation is transferring,
and may in the future transfer, cash and/or other property acceptable to the
Trustee, and any such contributions together with earnings (including income and
appreciation) thereon (hereinafter called the "Trust Fund")shall be held in
trust, subject only to the claims of the Corporation's creditors in the event of
the Corporation's becoming Insolvent (as defined in Section 5.1 hereof),until
the entire Trust Fund has been paid to Participants (or their beneficiaries) in
such manner and at such times as specified in the Plans and Participant
Designations; and
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WHEREAS, the Corporation desires that the Trustee hold and administer
all assets transferred to the Trust by the Corporation and the Trustee is
willing to hold, administer and dispose of such assets pursuant to the terms of
this Agreement; and
WHEREAS, it is the intention of the parties that this Trust shall not
affect the status of the Plans as unfunded plans (within the meaning of Revenue
Procedure 92-64) maintained to provide deferred compensation, including
retirement benefits, for executives of the Corporation; and
WHEREAS, it is the intention of the Corporation 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;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Corporation and the Trustee hereby agree as
follows:
I.
Establishment of Trust
1.1 The Trust hereby established is revocable by the Corporation; it
shall become irrevocable upon a Change in Control (as defined in Section 2.5(b)
hereof).
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1.2 The Trust is intended to be a grantor trust, of which the
Corporation is the grantor, within the meaning of subpart E, part I, subchapter
J, Chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended from
time to time (the "Code"), and shall be construed accordingly.
1.3 The principal of the Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Corporation by the Trustee in
trust and shall be used exclusively for the uses and purposes of Participants
(and their beneficiaries) and the Corporation's general creditors as herein set
forth. Participants and their beneficiaries shall have no preferred claim on any
assets of the Trust. Any rights created under the Plans shall be mere unsecured
contractual rights of Participants and their beneficiaries against the
Corporation. Any assets held by the Trust will be subject to the claims of the
Corporation's general creditors under federal and state law, if the Corporation
shall become Insolvent, as defined in Section 5.1 hereof.
II.
Funding of Trust
2.1 The Corporation hereby deposits with Trustee in trust the sum of
One Thousand Dollars
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($1,000),which becomes the initial principal of the Trust to be held,
administered and disposed of by Trustee as provided in this Agreement. The
Corporation, in its sole discretion, may at any time, or from time to time, make
additional deposits of cash or other property acceptable to the Trustee with the
Trustee in trust to augment the principal to be held, administered and disposed
of by Trustee as provided in this Agreement. Neither Trustee nor any Participant
or beneficiary shall have any right to compel such additional deposits.
2.2 Upon a Potential Change in Control, the Corporation shall, as soon
as possible, but in no event later than fifteen (15) business days following the
Potential Change in Control, make a contribution (which contribution shall be,
except as otherwise provided in Section 6.2 hereof, an irrevocable contribution)
to the Trust in an amount which (when aggregated with the assets then held by
the Trust, valued at their then fair market value) is equal to (i) the present
value of the maximum Benefits to which Participants or their beneficiaries would
be entitled pursuant to the terms of the Plans and Participant Designations as
of the date on which the Potential Change in Control occurred (calculated as if
such Potential Change in Control were also a "change in
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control" as defined in the relevant Plan and as if a qualifying termination of
employment occurred immediately after such "change in control"), plus (ii) a
reasonable estimated amount for the Trust's expenses during its term (such
estimate not to exceed one percent (1%) of such present value). The sum of the
amounts described in items (i) and (ii) of the immediately preceding sentence is
hereinafter called the "Required Funding Amount." The Corporation hereby
authorizes and directs its chief executive officer, and its chief financial
officer, or either of them acting alone, to contribute the Required Funding
Amount without the further approval of the board of directors of the Corporation
(the "Board"). Immediately after the Corporation makes such contribution, the
Corporation shall provide the Trustee with copies of all Plans and Participant
Designations, to the extent not previously provided, and other information used
in the Corporation's calculation of the Required Funding Amount, as well as its
worksheets for such calculation.
2.3 Following the end of each calendar year which ends after a
Potential Change in Control has occurred, unless Trust Fund assets shall have
previously been returned to the Corporation pursuant to Section 6.2 hereof or
the Trust shall have previously terminated
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pursuant to Section 6.1 or Article XIII hereof, the Corporation shall
recalculate the Required Funding Amount as if such Potential Change in Control
had occurred at the end of such calendar year. Not later than sixty (60) days
after each such calendar year-end, the Trustee shall give notice to the
Corporation as to the fair market value of assets held in the Trust as of such
calendar year-end. If such recalculated Required Funding Amount exceeds the fair
market value of the assets then held in the Trust Fund, the Corporation shall
promptly (and in no event later than the later of ninety (90) days after the
respective calendar year-end or five days after receipt of information from the
Trustee pursuant to the immediately preceding sentence) pay to the Trustee an
amount in cash (or marketable securities or any combination there of) equal to
such excess. The Corporation hereby authorizes and directs its chief executive
officer, and its chief financial officer, or either of them acting alone, to
make such additional contributions without the further approval of the Board.
2.4 For the purpose of determining the amount of the Corporation's
contributions under Sections 2.2 and 2.3 hereof, the present value of Benefits
under the Plan(s) listed on Exhibit 2 hereto shall be determined
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using the 1983 Group Annuity Mortality Table and an interest rate equal to the
yield on a 10-Year Treasury Constant Maturity Bond. For purposes of the
preceding sentence, the applicable yield on a 10-Year Treasury Constant Maturity
Bond shall be the yield published by the Federal Reserve for the last business
day immediately preceding (a) the Potential Change in Control or (b) the most
recent January 1 following such Potential Change in Control, whichever produces
the higher present value. The present value of Benefits under the Plan(s) set
forth on Exhibit 3 hereto shall be the total amount of each deferred
compensation account, including accrued interest and earnings, as of the
Potential Change in Control, in the case of a determination under Section 2.2
hereof, or as of the most recent December 31, in the case of a determination
under Section 2.3 hereof.
2.5 Change in Control and Potential Change in
Control.
(a) For purposes of this Agreement, a "Potential Change in Control"
shall be deemed to have occurred if the conditions set forth in any one of the
following paragraphs (I), (II), (III) or (IV) shall have been satisfied:
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(I) the Corporation enters into an agreement, the
consummation of which would result in the occurrence of a "Change in
Control" (as defined in Section 2.5(b) hereof);
(II) the Corporation or any Person (as defined in Section
2.5(c) hereof) publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in
Control;
(III) any Person (x) is or becomes the "Beneficial Owner"
(as defined in Rule 13d- 3 under the Securities Exchange Act of 1934,
as amended from time to time (the "Exchange Act"), directly or
indirectly, (y) discloses directly or indirectly to the Corporation
(or publicly) a plan or intention to become the Beneficial Owner,
directly or indirectly, or (z) makes a filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, with
respect to securities to become the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing 9.9% or more
of the combined voting power of the Corporation's then outstanding
securities; or
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(IV) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has
occurred.
(b) A "Change in Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly
or indirectly, of securities of the Corporation (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Corporation or its Affiliates) representing thirty
percent (30%) or more of the combined voting power of the
Corporation's then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a transaction
described in clause (i) of paragraph (III) below; or
(II) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any new
director (other than a director
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whose initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the
Corporation) whose appointment or election by the Board or nomination
for election by the Corporation's shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors on the date hereof or
whose appointment, election or nomination for election was previously
so approved or recommended; or
(III) there is consummated a merger or consolidation of the
Corporation or any direct or indirect subsidiary of the Corporation
with any other corporation (or a share exchange between shareholders
of the Corporation or any direct or indirect subsidiary of the
Corporation and another corporation or entity pursuant to Article 5.02
(or any successor provision thereto) of the Texas Business Corporation
Act), other than (i) a merger or consolidation which would result in
the voting
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securities of the Corporation outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the
ownership of any trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation or any subsidiary of the
Corporation, at least fifty-one percent (51%) of the combined voting
power of the securities of the Corporation or such surviving entity or
any parent thereof outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement
a recapitalization of the Corporation (or similar transaction) in
which no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing thirty
percent (30%) or more of the combined voting power of the
Corporation's then out standing securities; or
(IV) the shareholders of the Corporation approve a plan of
complete liquidation or
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dissolution of the Corporation or there is consummated an agreement
for the sale or disposition by the Corporation of all or substantially
all of the Corporation's assets, other than a sale or disposition by
the Corporation of all or substantially all of the Corporation's
assets to an entity, at least fifty-one percent (51%) of the combined
voting power of the voting securities of which are owned by
shareholders of the Corporation in substantially the same proportions
as their ownership of the Corporation immediately prior to such sale.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Corporation immediately prior to such transaction or series
of transactions continue to have substantially the same proportionate ownership
in an entity which owns all or substantially all of the assets of the
Corporation immediately following such transaction or series of transactions.
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(c) "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Corporation or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee benefit
plan of the Corporation or any of its Affiliates (which term shall have the
meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange
Act), (iii) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the shareholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation.
(d) The Corporation shall notify the Trustee of the occurrence of a
Potential Change in Control or Change in Control, and the Trustee may rely on
such notice or on any other actual notice, satisfactory to the Trustee, of such
a Potential Change in Control or Change in Control which the Trustee may
receive.
2.6 Notwithstanding anything else to the contrary contained herein,
the Trustee shall be responsible only for contributions actually received by it
here under, and shall have no responsibility for determining
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the sufficiency, amount or calculation of any contribution required hereunder.
III.
Disposition of Income
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested, to the extent that
it is not used by Trustee to make payments or distributions required by this
Agreement.
IV.
Payments to Plan Participants
4.1 After the Trust Fund receives funding pursuant to Section 2.2
and/or the second sentence of Section 2.1 hereof, the Trustee shall from time to
time, in accordance with the Payment Schedules then in effect (and, in the event
of funding pursuant to the second sentence of Section 2.1 hereof, written
instructions of the Corporation given prior to any Potential Change in Control),
make distributions or payments out of the Trust Fund, in cash or in property, to
such persons, in such manner and in such amounts as are set forth in the most
recent Payment Schedule provided to the Trustee under Section 4.2 hereof (or
such written instructions), but
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only to the extent that there are sufficient assets in the Trust Fund to make
such distributions or payments.
4.2 Concurrently with each delivery of the Corporation's contributions
pursuant to Section 2.3 hereof (and as soon as possible, but not later than
thirty (30) days, after delivery of any contribution by the Corporation pursuant
to Section 2.2 or the second sentence of Section 2.1 hereof), the Corporation
shall deliver to the Trustee a schedule (the "Payment Schedule") that indicates
the amounts payable in respect of each Participant (and his or her
beneficiaries), the form in which such amounts are to be paid and the time for
payment of such amounts. Concurrently, the Corporation shall also deliver a copy
of the portion thereof relating to each respective Participant to such
Participant. Additionally, whenever a Participant's death, a Participant's
revision of his or her Participant Designations, a Participant's termination of
employment or other circumstances require a change in the portion of the Payment
Schedule respecting such Participant, the Corporation shall within ten (10) days
deliver to the Trustee and such Participant, an appropriately revised Payment
Schedule. Upon the receipt of such revised Payment Schedule, except as otherwise
provided in Article V hereof, the Trustee shall make payments to the
Participants and their beneficiaries in accordance with the Payment Schedule (or
relevant portion thereof) most recently received, provided, however, that any
revised Payment Schedule delivered to the
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Trustee shall not be effective until ten (10) business days after such Payment
Schedule has been received by the Trustee. The Trustee may rely on any Payment
Schedule delivered to Trustee by the Corporation.
4.3 It shall be the obligation of the Corporation to submit and report
federal, state or local income taxes, Federal Unemployment Tax Act (FUTA),
Federal Insurance Contribution Act (FICA), and other taxes that may be required
by law to be withheld from any distribution. The Corporation shall provide the
Trustee with any information which the Trustee does not already have in its own
records and which is necessary for the Trustee to determine the amount of such
taxes required to be with held, and the Trustee shall be fully protected in
relying upon such information. The Trustee shall pay such aggregate withholding
amount to the Corporation, which shall pay the respective withholding amounts to
the appropriate taxing authorities.
4.4 In the event that a Participant (or a beneficiary in the event of
a Participant's death)
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reasonably believes that the most recent Payment Schedule does not properly
reflect the amount payable to such Participant or beneficiary (or the time or
form of payment), such Participant (or beneficiary) shall be entitled to deliver
to the Trustee a written notice of any objections to the Payment Schedule (the
"Notice of Objections") within ten (10) business days of receipt thereof;
provided, however, that the objector shall also deliver (within the same time
period) a copy of such Notice of Objections to the Corporation. Any Notice of
Objections shall set forth payment instructions including the amounts believed
to be due under the terms of the Plans and Participant Designations. If such
Participant or beneficiary (but not the Corporation) delivers a Notice of
Objections to the Trustee pursuant to the first sentence of this Section 4.3
(together with satisfactory proof of delivery of said Notice of Objections to
the Corporation) and the Corporation does not deliver to the Trustee a
responsive Notice of Objections to the Participant's Notice of Objections within
ten business days after receipt by the Trustee of the Participant's Notice of
Objections and the Participant does not rescind his or her Notice of Objections
within said ten-business-day period, the Trustee shall make payment in
accordance therewith, to the extent that there are sufficient assets in the
Trust Fund to make such payments. Except as otherwise provided herein, if the
Corporation delivers a responsive Notice of Objections during the ten business
days referred to in the immediately preceding sentence, the Trustee shall
initially make payments to such Participant in accordance with the Corporation's
Notice of Objections (to
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the extent that there are sufficient assets in the Trust Fund to make such
payments), which payments shall be on account of Benefits finally determined
under the respective Plans and Participant Designations in accordance with
Article XIV hereof.
4.5 Nothing in this Agreement shall relieve the Corporation of its
obligation to pay the Benefits as and when due under the Plans. The Corporation
may make payment of Benefits directly to Participants or their beneficiaries as
they become due under the terms of the Plans. The Corporation shall notify the
Trustee of its decision to make payment of Benefits directly by delivering a
revised Payment Schedule to the Trustee at least ten business days prior to the
time amounts are payable to Participants or their beneficiaries. In addition, if
the principal of the Trust, and any earnings thereon, are not sufficient to make
payments of Benefits in accordance
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with the terms of the Plans, the Corporation shall make the balance of each such
payment as it falls due. The Trustee shall notify the Corporation when principal
and earnings are not sufficient, and shall only make payments or distributions
to the extent that there are sufficient assets in the Trust Fund. Distributions
made from the Trust Fund to Participants (or their beneficiaries) shall, to the
extent of such distributions, satisfy the Corporation's obligation to pay
Benefits to such Participants (or their beneficiaries) under the Plans.
4.6 Except as otherwise provided herein, in the event of any final
determination by the Internal Revenue Service or a court of competent
jurisdiction, which determination is not appealable or the time for appeal or
protest of which has expired, or the Trustee's receipt of a substantially
unqualified opinion of tax counsel selected by the Trustee (the reasonable fees
and disbursements of such tax counsel to be paid by the Corporation or, if not
promptly paid by the Corporation, to be paid by the Trustee with assets of the
Trust Fund), which determination determines, or which opinion opines, that any
Participant (or beneficiary) is subject to federal income taxation on amounts
held in Trust hereunder prior to the distribution to the Participant (or
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beneficiary) of such amounts, the Trustee shall, on receipt by the Trustee of
such opinion or notice of such determination, pay to such Participant (or
beneficiary) the portion of the Trust Fund allocable to the Benefits of such
Participant (or beneficiary) and includible in the federal gross income of such
Participant (or beneficiary), and, to the extent of such payment, the
Corporation's obligation to the Participant (or beneficiary) for his or her
Benefits under the Plans shall be cancelled. The aggregate amount paid to each
such Participant (or beneficiary) shall be the lesser of (i) the present value
of the Benefits of such Participant (or beneficiary) which then remain unpaid or
(ii) such Participant's (or beneficiary's) pro- rata portion of the assets of
the Trust Fund then remaining, based on the ratio of the present value of the
Participant's (or beneficiary's) Benefits which then remain unpaid to the
present value of all such unpaid Benefits. Such present values shall be
determined in accordance with Section 2.4 hereof. Notwithstanding any thing else
contained herein to the contrary (except the last sentence of this Section 4.5),
Trustee shall have no duty or obligation to make any determinations as to
whether amounts held in the Trust are taxable to any Participant (or
beneficiary). In the
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sole discretion of the Trustee, the Trustee may, at any time or times, request
an opinion of tax counsel pursuant to the terms of this Section 4.5. Upon the
delivery to the Trustee of the written request of ten or more Participants, the
Trustee shall request an opinion of tax counsel pursuant to the terms of this
Section 4.5.
V.
Trustee Responsibility
If the Corporation Becomes Insolvent
5.1 The Trustee shall cease payment of Benefits to Participants and
their beneficiaries if the Corporation (or any subsidiary of the Corporation
which has employees who are Participants hereunder (hereinafter, a
"Subsidiary")) becomes Insolvent. The Corporation (or Subsidiary) shall be
considered to be "Insolvent" for purposes of this Agreement if (i) the
Corporation (or Subsidiary) is unable to pay its debts as they become due, or
(ii) the Corporation (or Subsidiary) is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
5.2 At all times during the continuance of this Trust, the principal
and income of the Trust shall be subject to claims of general creditors of the
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Corporation (or Subsidiary) under federal and state law as set forth below.
(a) The Chief Executive Officer of the Corporation shall have the
duty to inform Trustee in writing of the Corporation's Insolvency or the
Subsidiary's Insolvency, as the case may be. If a person claiming to be a
creditor of the Corporation (or Subsidiary) alleges in writing to Trustee that
the Corporation (or Subsidiary) has become Insolvent, Trustee shall determine
whether the Corporation (or Subsidiary) is Insolvent and, pending such
determination, Trustee shall discontinue payment of Benefits to Participants or
their beneficiaries.
(b) Unless Trustee has actual knowledge of the Corporation's
Insolvency (or the Subsidiary's Insolvency), or has received notice from the
Corporation (or Subsidiary) or a person claiming to be a creditor alleging that
the Corporation (or Subsidiary) is Insolvent, Trustee shall have no duty to
inquire whether the Corporation (or Subsidiary) is Insolvent. Trustee may in all
events rely on such evidence concerning the Corporation's solvency as may be
furnished to Trustee which provides Trustee with a reasonable basis for making a
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determination concerning the Corporation's solvency (or the Subsidiary's
solvency).
(c) If at any time Trustee has determined that the Corporation
(or Subsidiary) is Insolvent, Trustee shall discontinue payments to Participants
(and their beneficiaries) and shall hold the assets of the Trust for the benefit
of the Corporation's general creditors (or the Subsidiary's general creditors),
to be distributed only as a court of competent jurisdiction, or duly appointed
receiver or other person authorized to act by such a court, may direct. Nothing
in this Agreement shall in any way diminish any rights of Participants or their
beneficiaries to pursue their rights as general creditors of the Corporation (or
Subsidiary) with respect to Benefits due under the Plans or otherwise.
(d) Trustee shall resume the payment of Benefits to Participants
(and their beneficiaries) in accordance with Article IV of this Agreement only
after Trustee has determined that the Corporation (or Subsidiary) is not
Insolvent (or is no longer Insolvent).
5.3 Provided that there are sufficient assets, if Trustee discontinues
the payment of Benefits from the Trust pursuant to Section 5.2 hereof and
subsequently resumes payments, the first payment following such
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discontinuance shall include the aggregate amount of all payments due to
Participants (and their beneficiaries) under the terms of the Plans for the
period of such discontinuance, less the aggregate amount of any payments made to
Participants and their beneficiaries by the Corporation (or Subsidiary) in lieu
of the payments provided for hereunder during any such period of discontinuance.
VI.
Payments to the Corporation
6.1 Except as provided in this Article, and Articles V and XIII,
after the Trust has become irrevocable, the Corporation shall have no right to
receive, and no power to direct Trustee to return to the Corporation or to
divert to others, any of the assets of the Trust before payment of all Benefits
under the Plans has been made to Participants and their beneficiaries pursuant
to the terms of the Plans. On the date on which the Corporation certifies to the
Trustee that the Participants (and their beneficiaries) are no longer entitled
to receive Benefits pursuant to the Plans (all payments of such Benefits which
have become, or could become, payable having been completed), this Agreement and
Trust shall terminate and any remaining Trust Fund assets
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(including, without limitation, any shares of Corporation stock which have been
contributed by the Corporation) shall be returned to the Corporation.
6.2 In the event the Corporation delivers an amount to the Trustee
upon a Potential Change in Control pursuant to Section 2.2 hereof, the Trust
Fund may (in the Trustee's sole discretion) be returned to the Corporation one
year after such delivery to the Trustee unless a Change in Control shall have
occurred during such one-year period. Such one-year period shall be begun anew
(thus postponing any such discretionary return of Trust Fund assets) in the
event of any subsequent Potential Change in Control occurring during such
initial period or any subsequent period.
VII.
Powers, Duties and Responsibility of Trustee
7.1 All rights associated with assets of the Trust shall be exercised
by Trustee or the person designated by Trustee, and shall in no event be
exercisable by or rest with Participants or their beneficiaries.
7.2 Notwithstanding any other provision here of, the Trust Fund shall
be held, invested and reinvested by the Trustee only in cash or marketable
securities in accordance with this Section 7.2. The Trustee shall use
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its good faith efforts to invest or reinvest from time to time all or such part
of the Trust Fund as it believes prudent under the circumstances (taking into
account, among other things, anticipated cash requirements for the payment of
Plan Benefits) in either one or a combination of the following investments:
i) investments in direct obligations of the United States of America
or agencies of the United States of America or obligations unconditionally
and fully guaranteed as to principal and interest by the United States of
America; and
ii) investments in negotiable certificates of deposit issued by a
commercial bank organized and existing under the laws of the United States
of America or any state thereof having a combined capital and surplus of at
least $1,000,000,000;
provided, however, that the Trustee shall not be liable for any failure to
maximize the income earned on that portion of the Trust Fund as is from time to
time invested or reinvested as set forth above, nor for any loss of income or
principal due to liquidation of any investment which the Trustee, in its sole
discretion, believes necessary to make payments or to reimburse expenses under
the terms of this Agreement.
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7.3 Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant to
a notice, direction, request or approval given by the Corporation which is in
conformity with the terms of this Agreement and is given in writing by the
Corporation. In the event of a dispute, Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
7.4 If Trustee undertakes or defends any litigation arising in
connection with this Trust, the Corporation agrees to indemnify Trustee on an
after-tax basis against Trustee's costs, expenses and liabilities (including,
without limitation, reasonable attorneys' fees and expenses) relating thereto
and to be primarily liable for such payments unless the Trustee is determined,
in a final adjudication, to have been guilty of willful misconduct or gross
negligence in the performance (or non-performance) of its duties under the
Trust. If the Corporation does not pay such costs, expenses and
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liabilities in a reasonably timely manner, Trustee may pay such costs, expenses
and liabilities with assets of the Trust.
7.5 Trustee may consult with legal counsel (who may also be counsel
for the Corporation generally) with respect to any of its duties or obligations
hereunder, and the reasonable fees and expenses of such legal counsel will be
paid by the Corporation, provided that if the Corporation does not promptly pay
such fees and expenses, the Trustee may pay such fees and expenses with assets
of the Trust.
7.6 Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder, and the reasonable fees
and expenses of such professionals shall be paid by the Corporation, provided
that if such fees and expenses are not promptly paid by the Corporation, the
Trustee may pay such fees and expenses with assets of the Trust.
7.7 Subject to Section 7.2 hereof, the Trustee shall have, without
exclusion, all powers conferred on Trustees by applicable law, unless expressly
provided otherwise herein.
7.8 Subject to Section 7.2 hereof, but in amplification of (and not in
limitation of) the powers
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given in Section 7.7 hereof, the Trustee shall have the following powers and
authority in the administration of the Trust Fund:
(a) To invest all contributions, investments, and reinvestments
thereof and all additions there to by way of contributions, earnings and
increments.
(b) To sell for cash or on credit, to grant options, convert,
redeem, exchange for other securities or other property, or otherwise to dispose
of any securities or other property at any time held.
(c) To settle, compromise or submit to arbitration, any claims,
debts or damages, due or owing to or from the Trust, to commence or defend suits
or legal proceedings and to represent the Trust in all suits or legal
proceedings.
(d) To exercise any conversion privilege and/or subscription
right available in connection with any securities or other property at any time
held; to oppose or to consent to the reorganization, consolidation, merger, or
readjustment of the finances of any corporation, company or association or to
the sale, mortgage, pledge or lease of the property of any corporation, company
or association any of the securities of which may at any time be held and to do
any act with
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reference thereto, including the exercise of options, the making of agreements
or subscriptions, which may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other property so acquired.
(e) To exercise, personally or by general or by limited power of
attorney, any right, including the right to vote, appurtenant to any securities
or other property held at any time.
(f) To borrow money from any lender in such amounts and upon such
terms and conditions as shall be deemed advisable or proper to carry out the
purposes of the Trust and to pledge any securities or other property for the
repayment of any such loan.
(g) To hold cash uninvested for a reasonable period of time under
the circumstances without liability for interest, pending investment thereof or
the payment of expenses or making distributions therewith.
(h) To register any securities held hereunder in the name of the
Trustee 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 to hold any
securities in bearer form.
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(i) To make, execute and deliver, as Trustee, any and all
conveyances, contracts, waivers, releases or other instruments in writing
necessary or proper for the accomplishment of any of the foregoing powers.
(j) Subject to the express provisions of this Agreement, to
invest and reinvest all or any portion of the Trust Fund collectively through
the medium of any common, collective or commingled trust fund that may be
established and maintained by the Trustee, subject to the instrument or
instruments establishing such trust fund or funds and with the terms of such
instrument or instruments, as from time to time amended, being incorporated into
this Agreement to the extent of the equitable share of the Trust Fund in any
such common, collective or commingled trust fund.
VIII.
Taxes and Trustee Compensation
8.1 The Corporation agrees that all income, deductions and credits of
the Trust Fund belong to it as owner of the Trust Fund for income tax purposes
and will be included on the Corporation's income tax returns. The Corporation
shall from time to time pay "taxes" (which term in this Section 8.1 includes any
applicable interest
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and penalties) of any and all kinds whatsoever which at any time are lawfully
levied or assessed upon or become payable in respect of the Trust Fund, the
income or any property forming a part thereof, or any security transaction
pertaining thereto. To the extent that any taxes levied or assessed upon the
Trust Fund are not paid by the Corporation or are contested by the Corporation,
the Trustee shall pay such taxes out of the Trust Fund and the Corporation shall
upon demand by the Trustee deposit into the Trust Fund an amount equal to the
amount paid from the Trust Fund to satisfy such tax liability. If requested by
the Corporation, the Trustee shall, at Corporation expense, contest the validity
of such taxes in any manner deemed appropriate by the Corporation or its
counsel, but only if it has received an indemnity bond or other security
satisfactory to it to pay any expenses of such contest. Alternatively, the
Corporation may itself contest the validity of any such taxes, but any such
contest shall not affect the Corporation's obligation to reimburse the Trust
Fund for taxes paid from the Trust Fund.
8.2 The Trustee shall be paid such reasonable compensation as shall
from time to time be agreed upon by the Trustee and the Corporation; provided,
however, that,
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after the occurrence of a Change in Control, the Corporation shall not withhold
its consent and agreement to any reasonable fee arrangement requested by the
Trustee. Such compensation and all expenses of administration of the Trust,
including (without limitation) recordkeeping and reasonable counsel fees, shall
be withdrawn by the Trustee out of the Trust Fund unless paid by the Corporation
in a reasonably timely manner.
IX.
Accounting by Trustee After Funding
9.1 The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and all other transactions hereunder, and
all accounts, books and records relating thereto shall be open to inspection and
audit at all reasonable times by any person designated by the Corporation. The
fiscal year of the Trust shall be a calendar year. Within ninety (90) days after
the close of each fiscal year (or such other date as may be agreed upon in
writing between the Corporation and the Trustee), and within one hundred and
twenty (120) days after the effective date of the resignation (or other
termination of service) of the Trustee, the Trustee shall file with the
Corporation a written account of its administration of the Trust during
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such year (or during the period from the close of the last preceding year to the
effective date of such termination of service) setting forth all investments,
receipts, disbursements and all other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the effective date of such
resignation. Such account may incorporate by reference any and all schedules and
other statements setting forth investments, receipts, disbursements and other
transactions effected during the period for which such account is rendered which
the Trustee has furnished to the Corporation prior to the filing of such
account. Each account so filed (and copies of any schedules and statements
incorporated therein by reference as aforesaid) shall be open to inspection at
the offices of the Corporation during business hours by any Participant (or in
the event of any Participant's death, his or her beneficiary) for a period of
sixty (60) days immediately following the date on which the accounts are filed
with the Corporation. In the absence of the filing in writing
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with the Trustee by the Corporation or a Participant (or beneficiary) of
exceptions or objections to any such account within ninety (90) days of the date
the accounts are filed with the Corporation, the Corporation and all
Participants (or their beneficiaries) shall be deemed to have approved such
account; and in such case, or upon the signed written approval of the
Corporation and all Participants (or beneficiaries) of any such account, the
Trustee shall be released, relieved and discharged with respect to all matters
and things set forth in such account as though such account had been settled by
the decree of a court of competent jurisdiction.
9.2 Notwithstanding Article XIV hereof or any approval (or lack of
approval) of an account pursuant to Section 9.1 hereof, the Trustee may at any
time initiate an action or proceeding for the settlement of its accounts or for
the determination of any question of construction which may arise or for
instructions.
9.3 The Trustee will maintain such books, records and accounts as may
be necessary for the proper administration of the Trust Fund. The Trustee will
at all times maintain (and will provide promptly to the Corporation on an annual
basis, no later than April 1 of each year and also upon any written request) a
record of
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each amount delivered by the Corporation to the Trustee and each amount paid by
the Trustee to a Participant in accordance with a Payment Schedule. On or prior
to each May 1 which occurs after the initial transfer of the Required Funding
Amount to the Trustee and during the term of this Trust, the Trustee shall
deliver to each Participant and the Corporation a current written report (as of
the immediately preceding December 31st) setting forth (a) the present value of
such Participant's unpaid Plan Benefits; (b) the aggregate present value of all
unpaid Plan Benefits; (c) the aggregate fair market value of the Trust Fund
(plus the value of any contributions made by the Corporation within the ninety
(90) days immediately following such December 31st, as of the date of any such
contribution); and (d) a record of any amounts paid by the Trustee to such
Participant (or beneficiary) in accordance with a Payment Schedule.
X.
Trustee Protection
10.1 The Corporation shall indemnify and hold harmless the Trustee for
any action, or failure to take action, in reliance in good faith upon any
notice,
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certification, instruction, direction or approval of the Corporation.
10.2 The Corporation shall indemnify and hold harmless the Trustee for
acting upon any instrument, certificate, or paper believed by it to be genuine
and to be signed or presented by the proper person or persons, and the Trustee
shall be under no duty to make any investigation or inquiry as to any statement
contained in any such writing but may accept the same as conclusive evidence of
the truth and accuracy of the statements therein contained.
10.3 The Trustee shall not be liable for the proper application of any
part of the Trust Fund if distributions are made in accordance with the terms of
Payment Schedules or other written instructions furnished to the Trustee by the
Corporation in accordance with this Agreement. All persons dealing with the
Trustee are released from inquiry into the decision or authority of the Trustee
and from seeing to the application of any moneys, securities or other property
paid or delivered to the Trustee.
10.4 The Trustee shall not be liable hereunder for any loss or
diminution of the Trust Fund resulting
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from any action taken or omitted unless caused by Trustee's gross negligence or
willful misconduct.
10.5 The Corporation shall indemnify and hold harmless on an after-tax
basis the Trustee for any liability or expenses, including without limitation
reasonable attorney's fees, incurred by the Trustee with respect to keeping
records with respect to the administration of the Trust Fund and otherwise
carrying out its obligations under this Agreement, other than those resulting
from the Trustee's gross negligence or willful misconduct.
10.6 The duties and obligations of the Trustee acting as Trustee
hereunder shall be strictly limited to those expressly imposed upon the Trustee
by this Agreement and by the applicable laws of the State of Texas.
Notwithstanding anything else to the contrary contained herein, the Trustee
shall have no duty to review the Plans or Participant Designations, have no
responsibility for providing for the proper administration of the Plans, for
calculating any Benefits payable to Participants (or beneficiaries), for
calculating any contributions required to be made by the Corporation under the
Plans or Participant Designations, or for insuring that the
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provisions of this Agreement are consistent with the provisions of the Plans and
Participant Designations.
XI.
Resignation or Removal of Trustee
11.1 At any time prior to the occurrence of any Change in Control, the
Trustee may be removed by the Corporation on thirty (30) days notice or upon
shorter notice accepted by the Trustee. After a Change in Control, the Trustee
may be removed by the combined action of the Corporation and Participants (or in
the event of the death of a Participant, his or her beneficiaries) then having
unpaid Benefits equal to at least sixty-five percent (65%) of all amounts then
held in the Trust hereunder on thirty-days notice or upon shorter notice
accepted by the Trustee. A Trustee may resign at any time (whether before or
after a Change in Control) by written notice to the Corporation. If notice is
given prior to a Potential Change in Control, the resignation shall be effective
thirty (30) days after receipt of such notice by the Corporation. If notice is
given after a Potential Change in Control, the resignation shall be effective
ninety (90) days unless the Corporation agrees otherwise. Notwithstanding the
foregoing provisions of this Section 11.1, any Trustee which is removed or
resigns shall
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continue to serve until its successor Trustee accepts the appointment and
receives delivery of the Trust Fund.
XII.
Appointment of Successor Trustee
12.1 If notice is given that the Trustee is being removed or is
resigning, the Corporation (or, if a Change in Control shall have occurred prior
to the effective appointment of a successor Trustee, the Corporation and the
Participants (or in the event of the death of a Participant, his or her
beneficiaries) then having unpaid Benefits equal to at least sixty-five (65%) of
all amounts then held in the Trust) shall appoint a successor Trustee hereof
prior to the effective date of the Trustee's resignation or removal. The
appointment of a successor Trustee shall be by a written instrument delivered to
the Trustee then acting hereunder and the successor Trustee being appointed.
12.2 If notice of resignation or removal has been given, and the
applicable notice period has expired without any successor Trustee having been
appointed, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor bank Trustee having trust powers or for instructions.
All expenses of Trustee in connection with the proceeding shall be allowed as
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administrative expenses of the Trust. Any successor Trustee appointed
hereunder shall be a commercial bank which is not an affiliate of the
Corporation, but which is a national banking association or is established under
the laws of one of the states of the United States.
12.3 The appointment of a successor Trustee shall be effective when
accepted in writing by the new Trustee. The new Trustee shall have all the
rights, powers and duties of the prior Trustee, including owner ship rights in
Trust Fund assets.
12.4 A successor Trustee need not examine the records and acts of any
prior Trustee. The successor Trustee shall not be responsible for, and
Corporation shall indemnify and defend the successor Trustee from any claim or
liability resulting from, any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it becomes successor
Trustee.
12.5 If the Trustee ceases to act as Trustee and appointment of a
successor Trustee is made, all Trust Fund assets shall subsequently be
transferred to the
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successor Trustee. The transfer shall be completed within thirty (30) days after
the appointment of the successor Trustee becomes effective, unless the
Corporation extends the time limit.
XIII.
Amendment or Termination
13.1 The Trust under this Agreement shall terminate on the date on
which the Corporation certifies to the Trustee that Participants and their
beneficiaries are no longer entitled to Benefits pursuant to the terms of the
Plans (all payments of such Benefits which have become, or could become, payable
having been completed). Any amendment which purports to terminate the Trust at
any earlier date shall be effective only if made in accordance with Section 13.2
or 13.3 hereof. Promptly upon any termination of the Trust, any remaining Trust
Fund assets (including, without limitation, any shares of Corporation stock
which have been contributed by the Corporation) shall be paid to the
Corporation.
13.2 Prior to a Change in Control, the Corporation may amend this
Agreement (including making an amendment which terminates the Trust), without
the consent of the Participants by written instrument executed by the
Corporation and approved in writing by the Trustee; provided, however, that the
written approval of the
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Trustee shall not be required for any termination of the Trust.
13.3 On and after the occurrence of a Change in Control, this
Agreement may be amended only by an instrument in writing signed on behalf of
the parties hereto, together with the written consent of Participants (or in the
event of their deaths, their beneficiaries) then having unpaid Benefits equal to
at least sixty-five percent (65%) of all amounts then held in the Trust;
provided, however, that the signature and approval of the Trustee shall not be
required for any termination of the Trust or for any amendment required by law.
Notwithstanding the foregoing, any such amendment may be made by written
agreement of the parties hereto without obtaining the consent of the
Participants or their beneficiaries, if such amendment does not adversely affect
the rights of the Participants or their beneficiaries hereunder. No amendment
made on or after a Change in Control may make the Trust revocable solely by the
Corporation.
XIV.
Arbitration
14.1 Except as otherwise provided herein, any dispute between the
Participants (or their beneficiaries) and the Corporation as to the
interpretation or
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application of the provisions of this Agreement, and, after any Change in
Control, any question concerning distributions or payments hereunder, shall be
determined in Houston, Texas, exclusively by arbitration in accordance with the
rules of the American Arbitration Association then in effect. Such determination
shall be final, conclusive and binding upon the parties. Judgment may be entered
on the arbitrator's award in any court of competent jurisdiction. All fees and
expenses of such arbitration (including, without limitation, those incurred by
the Participants or their beneficiaries) shall be paid by the Corporation,
provided that if the Corporation does not promptly pay such fees and expenses,
the Trustee may pay such fees and expenses out of the assets of the Trust.
XV.
Notices
Any notice or communication which the Corporation, the Trustee or a
Participant (or Participant's beneficiary) may be required or may desire to give
to another entity or individual under any provision of this Agreement shall be:
(a) given in writing and personally delivered to, or mailed or delivered by
overnight courier service to the address (or addresses) given below for,
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the entity or individual to whom such notice or communication is directed, or
(b) with respect to notices or communications to the Corporation or the Trustee,
made by telecopy, delivered or transmitted to the address given below.
To the Corporation:
American General Corporation
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx
Attention: General Counsel
To Trustee:
The Chase Manhattan Bank
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, National Retirement Assets
To Any Participant
or beneficiary:
At the respective address set forth on a notice to be provided by the
Corporation to the Trustee and each such Participant or beneficiary
upon the occurrence of a Potential Change in Control.
Any notice which is personally delivered shall be deemed to have been given on
the date it is personally delivered. Any notice which is mailed shall be deemed
to have been given on the third business day after deposit in the mail,
registered or certified mail, postage prepaid and return receipt requested. Any
notice which is delivered by overnight courier service shall be deemed to have
been
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given on the business day after deposit with such courier service. Any notice
which is transmitted by telex or telecopy shall be deemed to have been given on
the day that such notice is transmitted.
The Corporation, the Trustee, or a Participant (or beneficiary) may
change the address to which notices, requests and other communications are to be
sent to it, him or her by giving written notice of such address change to the
other entities and individuals in conformity with this Article, but such change
shall not be effective until notice of such change has been received by the
other entities and individuals.
XVI.
Miscellaneous
16.1 Any provision of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
16.2 Amounts payable to Participants and their beneficiaries under
this Agreement may not be anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
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16.3 This Agreement and the Trust created herein shall be governed by
and construed in accordance with the laws of the State of Texas, unless such
laws are pre-empted by the laws of the United States.
16.4 Each Participant and his or her beneficiaries are intended
beneficiaries under this Trust, and shall be entitled to enforce all terms and
provisions hereof with the same force and effect as if each such person had been
a party hereto.
16.5 This Agreement and the obligations of the Corporation hereunder
shall be binding upon the Corporation and its successors and assigns.
16.6 Nothing contained in this Agreement shall limit the Corporation's
ability to take any action allowed pursuant to the terms of the Plans.
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IN WITNESS WHEREOF, this instrument has been executed as of the day
and year first above written.
AMERICAN GENERAL CORPORATION
By: /S/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
Executive Vice President -
Administration and
Insurance Operations
THE CHASE MANHATTAN BANK
as Trustee
By: /S/ XXXX XXXXX XXXXXXXXX
Title: Xxxx Xxxxx Xxxxxxxxx
Vice President
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EXHIBIT 1
"PLANS"(1)
1. American General Corporation Deferred Compensation Plan
2. American General Corporation Supplemental Thrift Plan
3. Restoration of Retirement Income Plan for Certain Employees
Participating in the Restated American General Retirement Plan.
4. American General Corporation Supplemental Executive Retirement
Plan
5. Supplemental Executive Retirement Agreements ("SERAs") as
follows:
a. Xxxxxx X. Xxxxxx 2-1-1998
b. Xxx X. Xxxxxx 2-1-1998
c. Xxxxxxxxx X. Xxxxxxxxxx 5-1-2000
d. Xxxx X. Xxxx 5-1-2000
e. Xxxxxx X. Xxxxxx, Xx. 5-1-2000
f. Xxxxxxx X. Xxxxx 5-1-2000
6. American General Corporation Retirement Plan for Directors
7. Deferred Compensation under Directors' Incentive Awards under
American General Stock and Incentive Plans
8. Split Dollar Agreements as follows:
a. Xxxxxx X. Xxxxxx 5-15-1998
b. Xxxxx X. X'Xxxxxxxx 5-15-1998
c. Xxx X. Xxxxxx 5-15-1998
For the above three agreements, the Required Funding Amount shall include an
amount sufficient to pay all remaining premiums on any life insurance policies
funding the Split Dollar Agreements.
a. Xxxxx X. Xxxxxxxx 5-15-2000
b. Xxxx X. Xxxx 5-15-1998
c. Xxxxxx X. Xxxxxxx 5-15-1998
d. Xxxxxxxxx X. Xxxxxxxxxx 5-15-1998
e. Xxxx X. Xxxx 5-15-1998
f. Xxxxxx X. Xxxxxx, Xx. 5-15-1998
g. Xxxxxxxx X. Xxxxxxxxx 5-15-2000
h. Xxxxxxx X. Xxxxx 5-15-1998
For the above eight agreements, the Required Funding Amount shall include three
years' premiums under any policies funding the Split Dollar Agreements.
----------
(1) This Exhibit to the American General Corporation Benefit Trust Agreement
lists the Corporation's compensation and benefit plans and agreements
(collectively, in the Benefit Trust Agreement and this Exhibit, the "Plans")
with respect to which the Corporation has established the Trust under the
Benefit Trust Agreement. A reference to a Plan in this Exhibit refers to that
Plan as it may have been, or may be, amended from time to time.
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EXHIBIT 2
None.
Note: Plans 1 through 5 of Exhibit 1 are not included on Exhibit 2 or 3 because
each of these plans has a lump sum payout and each of these plans has its own
internal provisions on how these lump sum payouts are calculated. Plan 8 is not
included on Exhibit 2 or 3 because each Split Dollar Agreement requires funding
in the full amount of the specified premiums. Funding pursuant to each
executive's Split Dollar Agreement will also satisfy the Split Dollar funding
requirements in the executive's Employment Agreement (if any).
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EXHIBIT 3
1. American General Corporation Retirement Plan for Directors
2. Deferred Compensation under Directors' Incentive Awards under
American General Stock and Incentive Plans
Note: See the note to Exhibit 2.
