MASTER TRUST AGREEMENT
FOR
CERTIFIED GROCERS OF CALIFORNIA, LTD.
EXECUTIVE SALARY PROTECTION PLAN II
MASTER TRUST AGREEMENT
Table of Contents
Article Page
I NAME, INTENTIONS, IRREVOCABILITY, DEPOSIT AND DEFINITIONS . . . . . . . . 1
Section 1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Intentions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3 Irrevocability; Creditor Claims. . . . . . . . . . . . . . 1
Section 1.4 Initial Deposit. . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 Additional Definitions . . . . . . . . . . . . . . . . . . 2
Section 1.6 Grantor Trust. . . . . . . . . . . . . . . . . . . . . . . 3
II GENERAL ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.1 Committee Directions . . . . . . . . . . . . . . . . . . . 4
Section 2.2 Administration Upon Change in Control. . . . . . . . . . . 4
Section 2.3 Contributions. . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.4 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Distribution of Excess Trust Fund to
Employer . . . . . . . . . . . . . . . . . . . . . . . . . 5
III POWERS AND DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1 Investment Directions. . . . . . . . . . . . . . . . . . . 5
Section 3.2 Investment Upon Change in Control. . . . . . . . . . . . . 6
Section 3.3 Management of Investments. . . . . . . . . . . . . . . . . 6
Section 3.4 Securities . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.5 Substitution . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.6 Distributions. . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.7 Trustee Responsibility Regarding Payments
on Insolvency. . . . . . . . . . . . . . . . . . . . . . .11
Section 3.8 Costs of Administration. . . . . . . . . . . . . . . . . .13
Section 3.9 Trustee Compensation and Expenses. . . . . . . . . . . . .13
Section 3.10 Professional Advice. . . . . . . . . . . . . . . . . . . .13
Section 3.11 Payment on Court Order . . . . . . . . . . . . . . . . . .13
Section 3.12 Protective Provisions. . . . . . . . . . . . . . . . . . .13
Section 3.13 Indemnifications . . . . . . . . . . . . . . . . . . . . .14
IV INSURANCE CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Section 4.1 Types of Contracts . . . . . . . . . . . . . . . . . . . .14
Section 4.2 Ownership. . . . . . . . . . . . . . . . . . . . . . . . .14
Section 4.3 Restrictions on Trustee's Rights . . . . . . . . . . . . .15
V TRUSTEE'S ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 5.1 Records. . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 5.2 Annual Accounting; Final Accounting. . . . . . . . . . . .15
Section 5.3 Valuation. . . . . . . . . . . . . . . . . . . . . . . . .16
Section 5.4 Delegation of Duties . . . . . . . . . . . . . . . . . . .16
VI RESIGNATION OR REMOVAL OF TRUSTEE . . . . . . . . . . . . . . . . . . . .16
Section 6.1 Resignation; Removal . . . . . . . . . . . . . . . . . . .16
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MASTER TRUST AGREEMENT
Table of Contents
Article Page
Section 6.2 Successor Trustee. . . . . . . . . . . . . . . . . . . . .17
Section 6.3 Settlement of Accounts . . . . . . . . . . . . . . . . . .17
VII CONTROVERSIES, LEGAL ACTIONS AND COUNSEL. . . . . . . . . . . . . . . . .17
Section 7.1 Controversy. . . . . . . . . . . . . . . . . . . . . . . .17
Section 7.2 Joinder of Parties . . . . . . . . . . . . . . . . . . . .17
Section 7.3 Employment of Counsel. . . . . . . . . . . . . . . . . . .18
VIII INSURERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 8.1 Insurer Not a Party. . . . . . . . . . . . . . . . . . . .18
Section 8.2 Authority of Trustee . . . . . . . . . . . . . . . . . . .18
Section 8.3 Contract Ownership . . . . . . . . . . . . . . . . . . . .18
Section 8.4 Limitation of Liability. . . . . . . . . . . . . . . . . .18
Section 8.5 Change of Trustee. . . . . . . . . . . . . . . . . . . . .18
IX AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . .19
Section 9.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . .19
Section 9.2 Final Termination. . . . . . . . . . . . . . . . . . . . .20
X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Section 10.1 Directions Following Change in Control . . . . . . . . . .20
Section 10.2 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . .21
Section 10.3 Third Persons. . . . . . . . . . . . . . . . . . . . . . .21
Section 10.4 Nonassignability; Nonalienation. . . . . . . . . . . . . .21
Section 10.5 The Plan . . . . . . . . . . . . . . . . . . . . . . . . .21
Section 10.6 Applicable Law . . . . . . . . . . . . . . . . . . . . . .21
Section 10.7 Notices and Directions . . . . . . . . . . . . . . . . . .21
Section 10.8 Successors and Assigns . . . . . . . . . . . . . . . . . .22
Section 10.9 Gender and Number. . . . . . . . . . . . . . . . . . . . .22
Section 10.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . .22
Section 10.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . .22
Section 10.12 Beneficial Interest. . . . . . . . . . . . . . . . . . . .22
Section 10.13 The Trust and Plan . . . . . . . . . . . . . . . . . . . .22
Section 10.14 Effective Date . . . . . . . . . . . . . . . . . . . . . .23
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
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MASTER TRUST AGREEMENT
FOR
CERTIFIED GROCERS OF CALIFORNIA, LTD.
EXECUTIVE SALARY PROTECTION PLAN II
THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") is made and
entered into as of April 28, 1995, between Certified Grocers of California,
Ltd., a California corporation (the "Company"), and Imperial Trust Company, a
California corporation (the "Trustee"), to evidence the master trust (the
"Trust") to be established, pursuant to the Certified Grocers of California,
Ltd. Executive Salary Protection Plan II (the "Plan") of the Company now or
hereafter existing that require the establishment of a trust, for the benefit of
a select group of management and highly compensated employees who contribute
materially to the continued growth, development and business success of the
Company that participate in the Plan.
ARTICLE I
NAME, INTENTIONS, IRREVOCABILITY, DEPOSIT AND DEFINITIONS
Section 1.1 NAME. The name of the Trust created by this Agreement
(the "Trust") shall be:
MASTER TRUST AGREEMENT FOR
CERTIFIED GROCERS OF CALIFORNIA, LTD.
EXECUTIVE SALARY PROTECTION PLAN II
Section 1.2 INTENTIONS. The Company wishes to establish the Trust and
to contribute to the Trust assets that shall be held therein, subject to the
claims of the Company's creditors in the event of their Insolvency, as herein
defined, until paid to Participants and their Beneficiaries in such manner and
at such times as specified in the Plan. It is the intention of the parties that
this Trust shall constitute an unfunded arrangement and shall not affect the
status of the Plan as an unfunded plan maintained for the purpose of providing
supplemental compensation for a select group of management and highly
compensated employees for purposes of Title I of ERISA (as defined below). In
addition, it is the intention of the Company to make contributions to the Trust
to provide a source to assist in the meeting of its liabilities under the Plan.
Section 1.3 IRREVOCABILITY; CREDITOR CLAIMS. The Trust hereby
established shall be irrevocable. Except as otherwise provided in Section 2.5
and 9.2, the principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes of the Participants and general creditors of the
Company as herein set forth. The Participants and their Beneficiaries shall
have no preferred claim on, or any beneficial ownership interest in, any assets
of the Trust. Any rights created under the Plan and this Master Trust Agreement
shall be mere unsecured contractual rights of the Participants and their
Beneficiaries against the Company. Any assets held by the Trust will be subject
to the claims of the Company's general creditors under federal and state law in
the event the Company becomes Insolvent (as defined below).
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Section 1.4 INITIAL DEPOSIT. The Company hereby deposits with the
Trustee in trust $100, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Master Trust
Agreement.
Section 1.5 ADDITIONAL DEFINITIONS. In addition to the definitions
set forth above, for purposes hereof, unless otherwise clearly apparent from the
context, the following terms have the following indicated meanings:
(a) "Beneficiary" shall mean one or more persons, trusts,
estates or other entities, designated in accordance with a Plan, that are
entitled to receive benefits under a Plan upon the death of a Participant.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change in Control" shall mean the first to occur of any
of the following events:
(1) Any "person" (as that term is used in Section 13
and 14(d)(2) of the Securities Exchange Act of 1934 ("Exchange Act"))
becomes the beneficial owner (as that term is used in Section 13(d) of
the Exchange Act), directly or indirectly, of 50% or more of the
Company's capital stock entitled to vote in the election of directors;
(2) During any period of not more than two consecutive
years, not including any period prior to the adoption of this Trust,
individuals who at the beginning of such period constitute the board of
directors of the Company, and any new director (other than a director
designated by a person who has entered into an agreement with the Company
to effect a transaction described in clause (1), (3), (4) or (5) of this
Section 1.5(c)) whose election by the board of directors or nomination
for election by the Company's stockholders was approved by a vote of at
least three-fourths (3/4ths) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason
to constitute at least a majority thereof;
(3) The shareholders of the Company approve any
consolidation or merger of the Company other than a consolidation or
merger of the Company in which the holders of the common stock of the
Company immediately prior to the consolidation or merger hold more than
50% of the common stock of the surviving corporation immediately after
the consolidation or merger;
(4) The shareholders of the Company approve any plan
or proposal for the liquidation or dissolution of the Company; or
(5) Substantially all of the assets of the Company are
sold or otherwise transferred to parties that are not within a
"controlled group of corporations" (as defined in Section 1563 of the
Internal Revenue Code of 1986, as amended) in which the Company is a
member.
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(d) "Committee" shall mean the Benefits Committee appointed by
the Company to administer this Trust.
(e) "Director" shall mean any member of the board of directors
of the Company.
(f) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as may be amended from time to time.
(g) "Insolvent" shall have the meaning set forth in
Section 3.7(a) below.
(h) "IRS" shall mean the Internal Revenue Service.
(i) "Participant" shall mean a person who is a participant in
the Plan in accordance with its terms and conditions.
(j) "Payment Schedule" shall have the meaning set forth in
Section 3.6(b) below.
(k) "Plan" shall mean the Certified Grocers of California,
Ltd. Executive Salary Protection Plan II.
(l) "Plan Year" shall mean the Plan Year chosen for this
Master Trust Agreement by the Board, or if none is chosen, then Plan Year shall
mean the year ending each December 31st.
(m) "Trust Fund" shall mean the assets held by the Trustee
pursuant to the terms of this Master Trust Agreement and for the purposes of the
Plan.
Section 1.6 GRANTOR TRUST. The Trust is intended to be a "grantor
trust," of which the Company are the grantors, within the meaning of subpart E,
part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and the Trust shall be construed accordingly.
ARTICLE II
GENERAL ADMINISTRATION
Section 2.1 COMMITTEE DIRECTIONS. Until a Change in Control has
occurred, this Section 2.1 shall be effective and the Committee shall direct the
Trustee as to the administration of the Trust in accordance with the following
provisions:
(a) The Committee shall be identified to the Trustee by a copy
of the resolution of the Board appointing the Committee. In the absence
thereof, the Board shall be the Committee. Persons authorized to give
directions to the Trustee on behalf of the Committee shall be identified to the
Trustee by written notice from the Committee, and such notice shall contain
specimens of the authorized signatures. The Trustee shall be entitled to rely
on such written notice as evidence of the identity and authority of the persons
appointed until
3
a written cancellation of the appointment, or the written appointment of a
successor, is received by the Trustee.
(b) Directions by the Committee, or its delegate, to the
Trustee shall be in writing and signed by the Committee or persons authorized by
the Committee, or may be made by such other method as is acceptable to the
Trustee.
(c) The Trustee may conclusively rely upon directions from the
Committee in taking any action with respect to this Master Trust Agreement,
including the making of payments from the Trust Fund and the investment of the
Trust Fund pursuant to this Master Trust Agreement. The Trustee shall have no
liability for actions taken, or for failure to act, on the direction of the
Committee. The Trustee shall have no liability for failure to act in the
absence of proper written directions.
(d) The Trustee may request instructions from the Committee
and shall have no duty to act or liability for failure to act if such
instructions are not forthcoming from the Committee. If requested instructions
are not received within a reasonable time, the Trustee may, but is under no duty
to, act on its own discretion to carry out the provisions of this Master Trust
Agreement in accordance with this Master Trust Agreement and the Plan.
Section 2.2 ADMINISTRATION UPON CHANGE IN CONTROL. In the event of a
Change in Control, the authority of the Committee to administer the Trust and
direct the Trustee, as set forth in Section 2.1 above, shall cease, and the
Trustee shall have complete authority to administer the Trust.
Section 2.3 CONTRIBUTIONS. Except as provided in the Plan, the
Company may at any time, or from time to time, make additional deposits of cash
or other property in trust with the Trustee to augment the principal to be held,
administered and disposed of by the Trustee as provided in this Master Trust
Agreement. Neither the Trustee nor any Participant or Beneficiary shall have
any right to compel such additional deposits. The Trustee shall have no duty to
collect or enforce payment to it of any contributions or to require that any
contributions be made, and shall have no duty to compute any amount to be paid
to it nor to determine whether amounts paid comply with the terms of the Plan.
Section 2.4 TRUST FUND. The contributions received by the Trustee
from the Company shall be held and administered pursuant to the terms of this
Master Trust Agreement as a single fund without distinction between income and
principal and without liability for the payment of interest thereon except as
expressly provided in this Master Trust Agreement. During the term of this
Trust, all income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
Section 2.5 DISTRIBUTION OF EXCESS TRUST FUND TO EMPLOYER. In the
event that the Committee, prior to a Change in Control, or the Trustee in its
sole and absolute discretion, after a Change in Control, determines that the
Trust Fund exceeds 125 percent of the anticipated benefit obligations and
administrative expenses that are to be paid under the Plan, the Trustee, at the
direction of the Committee prior to a Change in Control, or in its sole and
4
absolute discretion after a Change in Control, shall distribute to the Company
such excess portion of the Trust Fund.
ARTICLE III
POWERS AND DUTIES OF TRUSTEE
Section 3.1 INVESTMENT DIRECTIONS. Except as provided in Section 3.2,
the Committee shall provide the Trustee with all investment instructions. The
Trustee shall neither affect nor change investments of the Trust Fund, except as
directed in writing by the Committee, and shall have no right, duty or
responsibility to recommend investments or investment changes; provided, that
the Trustee may (i) deposit cash on hand from time to time in any bank savings
account, certificate of deposit, or other instrument creating a deposit
liability for a bank, including the Trustee's own banking department if the
Trustee is a bank, without such prior direction, or (ii) invest in government
securities, bonds with specific ratings, or stock of "Fortune 500" companies,
all within broad investment guidelines established by the Committee from time to
time.
Section 3.2 INVESTMENT UPON CHANGE IN CONTROL. In the event of a
Change in Control, the authority of the Committee to direct investments of the
Trust Fund shall cease and the Trustee shall have complete authority to direct
investments of the Trust Fund. The Chief Executive Officer of the Company shall
notify the Trustee in writing when a Change in Control has occurred. The
Trustee has no duty to inquire whether a Change in Control has occurred and may
rely on notification by the Chief Executive Officer of the Company of a Change
in Control; provided, however, that if any officer, former officer, director or
former director of the Company (other than the Chief Executive Officer of the
Company), or any Participant notifies the Trustee that there has been or there
may be a Change in Control, the Trustee shall have the duty to satisfy itself as
to whether a Change in Control has in fact occurred. The Company shall
indemnify and hold harmless the Trustee for any damages or costs (including
attorneys' fees) that may be incurred because of reliance on the Chief Executive
Officer's notice or lack thereof.
Section 3.3 MANAGEMENT OF INVESTMENTS. Subject to Section 3.1 above,
the Trustee shall have, without exclusion, all powers conferred on the Trustee
by applicable law, unless expressly provided otherwise herein, and all rights
associated with assets of the Trust shall be exercised by the Trustee or the
person designated by the Trustee, and shall in no event be exercisable by or
rest with Participants. The Trustee shall have full power and authority to
invest and reinvest the Trust Fund in any investment permitted by law,
exercising the judgment and care that persons of prudence, discretion and
intelligence would exercise under the circumstances then prevailing, considering
the probable income and safety of their capital, including, without limiting the
generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the
income therefrom, in common stock, preferred stock, convertible preferred stock,
mutual funds, bonds, debentures, convertible debentures and bonds, mortgages,
notes, time certificates of deposit, commercial paper and other evidences of
5
indebtedness (including those issued by the Trustee or any of its affiliates),
other securities, policies of life insurance, annuity contracts, options to buy
or sell securities or other assets, and other property of any kind (personal,
real, or mixed, and tangible or intangible); provided, however, that in no event
may the Trustee invest in securities (including stock or rights to acquire
stock) or obligations issued by the Company, other than a de minimis amount held
in common investment vehicles in which the Trustee invests;
(b) To deposit or invest all or any part of the assets of the
Trust Fund in savings accounts or certificates of deposit or other deposits
which bear a reasonable interest rate in a bank, including the commercial
department of the Trustee, if such bank is supervised by the United States or
any State;
(c) To hold, manage, improve, repair and control all property,
real or personal, forming part of the Trust Fund and to sell, convey, transfer,
exchange, partition, lease for any term, even extending beyond the duration of
this Trust, and otherwise dispose of the same from time to time in such manner,
for such consideration, and upon such terms and conditions as the Trustee shall
determine;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay assessments and
other sums deemed by the Trustee to be necessary for the protection of the Trust
Fund, to vote any corporate stock either in person or by proxy, with or without
power of substitution, for any purpose; to participate in voting trusts, pooling
agreements, foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with and
transfer title to any protective or other committee under such terms as the
Trustee may deem advisable; to exercise or sell stock subscriptions or
conversion rights; and, regardless of any limitation elsewhere in this
instrument relative to investment by the Trustee, to accept and retain as an
investment any securities or other property received through the exercise of any
of the foregoing powers;
(e) To hold in cash, without liability for interest, such
portion of the Trust Fund which, in its discretion, shall be reasonable under
the circumstances, pending investments, or payment of expenses, or the
distribution of benefits;
(f) To take such actions as may be necessary or desirable to
protect the Trust Fund from loss due to the default on mortgages or deeds of
trust held in the Trust including the appointment of agents or trustees in such
other jurisdictions as may seem desirable, to transfer property to such agents
or trustees, to grant such powers as are necessary or desirable to protect the
Trust or its assets, to direct such agents or trustees, or to delegate such
power to direct, and to remove such agents or trustees;
(g) To employ such agents including custodians and counsel as
may be reasonably necessary and to pay them reasonable compensation; to settle,
compromise or abandon all claims and demands in favor of or against the Trust
assets;
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(h) To cause title to property of the Trust to be issued, held
or registered in the individual name of the Trustee, or in the name of its
nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally under the laws
of the State of California, so that the powers conferred upon the Trustee herein
shall not be in limitation of any authority conferred by law, but shall be in
addition thereto;
(j) To borrow money from any source (including the Trustee)
and to execute promissory notes, mortgages or other obligations and to pledge or
mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other
securities to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and
proceedings; to pay or contest any claim; to settle a claim by or against the
Trustee by compromise, arbitration, or otherwise; to release, in whole or in
part, any claim belonging to the Trust to the extent that the claim is
uncollectible;
(m) To use securities depositories or custodians and to allow
such securities as may be held by a depository or custodian to be registered in
the name of such depository or its nominee or in the name of such custodian or
its nominee;
(n) To invest the Trust Fund from time to time in one or more
investment funds, which funds shall be registered under the Investment Company
Act of 1940; and
(o) To do all other acts necessary or desirable for the proper
administration of the Trust Fund, as if the Trustee were the absolute owner
thereof. However, nothing in this section shall be construed to mean the
Trustee assumes any responsibility for the performance of any investment made by
the Trustee in its capacity as trustee under the operations of this Master Trust
Agreement.
Notwithstanding any powers granted to the Trustee pursuant to this Master Trust
Agreement or to applicable law, the 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 of
1986, as amended.
Section 3.4 SECURITIES. Voting or other rights in securities shall be
exercised by the person or entity responsible for directing such investments,
and the Trustee shall have no duty to exercise voting or proxy or other rights
relating to any investment managed or directed by the Committee. If any foreign
securities are purchased pursuant to the direction of the Committee, it shall be
the responsibility of the person or entity responsible for directing such
7
investments to advise the Trustee in writing of any laws or regulations, either
foreign or domestic, that apply to such foreign securities or to the receipt of
dividends or interest on such securities.
Section 3.5 SUBSTITUTION. Notwithstanding any provision of any Plan
or the Trust to the contrary, the Company shall at all times have the power to
reacquire the Trust Fund by substituting readily marketable securities (other
than stock, an obligation or other security issued by the Company) and/or cash
of an equivalent value and such other property shall, following such
substitution, constitute the Trust Fund.
Section 3.6 DISTRIBUTIONS.
(a) The establishment of the Trust and the payment or delivery
to the Trustee of money or other property shall not vest in any Participant or
Beneficiary any right, title, or interest in and to any assets of the Trust. To
the extent that any Participant or Beneficiary acquires the right to receive
payments under any of the Plan, such right shall be no greater than the right of
an unsecured general creditor of the Company and such Participant or Beneficiary
shall have only the unsecured promise of the Company that such payments shall be
made.
(b) Concurrent with the establishment of this Trust, the
Company 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) by the Plan, provides a formula or formulas or other instructions
acceptable to the Trustee for determining the amounts so payable, specifies the
form in which such amount is to be paid (as provided for or available under the
Plan), and the time of commencement for payment of such amounts. The Payment
Schedule shall be updated from time to time as is necessary. Except as
otherwise provided herein, prior to a Change in Control the Trustee shall make
payments to the Participants and their Beneficiaries in accordance with such
Payment Schedule. Despite the foregoing, after a Change in Control, the Trustee
shall make payments in accordance with the terms and provisions of the Plan and
related plan agreements. The Trustee, at the direction of the Committee or,
after a Change in Control, on its own volition, may make any distribution
required to be made by it hereunder by delivering:
(i) Its check payable to the person to whom such
distribution is to be made, to the person, or, if prior to a Change in
Control, to the Company for redelivery to such person; provided that
before a Change in Control, the Committee may direct the Trustee to
deliver one or more lump sum checks payable to the Company, and the
Company shall prepare and deliver individual checks for each Participant
or Beneficiary; or
(ii) Its check payable to an insurer for the benefit of
such person, to the insurer, or, if prior to a Change in Control, to the
Company for redelivery to the insurer; or
(iii) Contracts held on the life of the Participant to
whom or with respect to whom the distribution is being made, to the
Participant
8
or Beneficiary, or, if prior to a Change in Control, to the Company for
redelivery to the person to whom such distribution is to be made; or
(iv) If a distribution is being made, in whole or in
part, of other assets, assignments or other appropriate documents or
certificates necessary to effect a transfer of title, to the Participant
or Beneficiary, or, if prior to a Change in Control, to the Company for
redelivery to such person.
(c) If the principal of the Trust, and any earnings thereon,
are not sufficient to make payments of benefits in accordance with the terms of
the Plan, the Company shall make the balance of each such payment as it falls
due. The Trustee shall notify the Company when principal and earnings are not
sufficient.
(d) The Company may make payment of benefits directly to
Participants or their Beneficiaries as they become due under the terms of the
Plan. The Company shall notify the Trustee of their decisions to make payment
of benefits directly prior to the time amounts are payable to Participants or
their Beneficiaries.
(e) Notwithstanding anything contained in this Master Trust
Agreement to the contrary, if at any time the Trust is finally determined by the
IRS not to be a "grantor trust" with the result that the income of the Trust
Fund is not treated as income of the Company pursuant to Sections 671 through
679 of the Internal Revenue Code of 1986, as amended, or if a tax is finally
determined by the IRS to be payable by one or more Participants or Beneficiaries
with respect to any interest in the Plan or the Trust Fund prior to payment of
such interest to such Participant or Beneficiary, then the Trust shall
immediately terminate, the Trustee shall immediately determine each
Participant's share of the Trust Fund in accordance with the Plan, and the
Trustee shall immediately distribute such share in a lump sum to each
Participant or Beneficiary entitled thereto, regardless of whether such
Participant's employment has terminated and regardless of form and time of
payments specified in or pursuant to the Plan. Any remaining assets (less any
expenses or costs due under Sections 3.8 and 3.9 of this Master Trust Agreement)
shall then be paid by the Trustee to the Company in such amounts, and in the
manner instructed by the Committee. Prior to a Change in Control, the Trustee
shall rely solely on the directions of the Committee with respect to the
occurrence of the foregoing events and the resulting distributions to be made,
and the Trustee shall not be responsible for any failure to act in the absence
of such direction.
(f) The Trustee shall make provision for the reporting and
withholding of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to the terms of the
Plan and shall pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid by the
Company.
(g) Prior to a Change in Control, payments by the Trustee
shall be delivered or mailed to addresses supplied by the Committee and the
Trustee's obligation to make such payments shall be satisfied upon such delivery
or mailing. Prior to a Change in Control, the Trustee shall have no obligation
9
to determine the identity of persons entitled to benefits or their mailing
addresses. After a Change in Control, the Trustee shall have such obligations.
(h) Prior to a Change in Control, the entitlement of a
Participant or his or her Beneficiaries to benefits under the Plan shall be
determined by the Company or such party as they shall designate under the Plan,
and any claim for such benefits shall be considered and reviewed under the
procedures set out in the Plan.
Section 3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.
(a) The Trustee shall cease payment of benefits to
Participants and their Beneficiaries if the Company is Insolvent. The Company
shall be considered "Insolvent" for purposes of this Master Trust Agreement if:
(i) the Company is unable to pay its debts as they
become due, or
(ii) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
For purposes of this Section 3.7, the insolvency of a subsidiary will not cause
the Company to be deemed Insolvent.
(b) At all times during the continuance of this Trust, as
provided in Section 1.3 above, the principal and income of the Trust shall be
subject to claims of the general creditors of the Company under federal and
state law as set forth below:
(i) The Board and the Chief Executive Officer of the
Company shall have the duty to inform the Trustee in writing of the
Company's Insolvency. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee that the Company has become
Insolvent, the Trustee shall determine whether the Company is Insolvent
and, pending such determination, the Trustee shall discontinue payment of
benefits to the Company's Participants or their Beneficiaries. Prior to
a Change in Control, the Trustee may conclusively rely on any
determination it receives from the Board or the Chief Executive Officer
of the Company with respect to the Insolvency of the Company.
(ii) Unless the Trustee has actual knowledge of the
Company's Insolvency, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent, the
Trustee shall have no duty to inquire whether the Company is Insolvent.
The Trustee may in all events rely on such evidence concerning the
Company's solvency as may be furnished to the Trustee and that provides
the Trustee with a reasonable basis for making a determination concerning
the Company's solvency. In this regard, the Trustee may rely upon a
letter from the Company's auditors as to the Company's financial status.
(iii) If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to the
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Company's Participants or their Beneficiaries, and shall hold the portion
of the assets of the Trust allocable to the Company for the benefit of
the Company's general creditors. Nothing in this Master Trust Agreement
shall in any way diminish any rights of Participants or their
Beneficiaries to pursue their rights as general creditors of the Company
with respect to benefits due under the Plan or otherwise.
(iv) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance with this Article 3 of
this Master Trust Agreement only after the Trustee has determined that
the alleged Company is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3.7(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to
Participants or their Beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance. Prior to a
Change in Control, the Committee shall instruct the Trustee as to such amounts,
and after a Change in Control, the Trustee shall determine such amounts in
accordance with the terms and provisions of the Plan.
Section 3.8 COSTS OF ADMINISTRATION. The Trustee is authorized to
incur reasonable obligations in connection with the administration of the Trust,
including attorneys' fees, administrative fees and appraisal fees. Such
obligations shall be paid by the Company. The Trustee is authorized to pay such
amounts from the Trust Fund if the Company fails to pay them within 60 days of
presentation of a statement of the amounts due.
Section 3.9 TRUSTEE COMPENSATION AND EXPENSES. The Trustee shall be
entitled to reasonable compensation for its services as from time to time agreed
upon between the Trustee and the Company. If the Trustee and the Company fail
to agree upon a compensation, or following a Change in Control, the Trustee
shall be entitled to compensation at a rate equal to the rate charged by the
Trustee for similar services rendered by it during the current fiscal year for
other trusts similar to this Trust. The Trustee shall be entitled to
reimbursement for expenses incurred by it in the performance of its duties as
the Trustee, including reasonable fees for legal counsel. The Trustee's
compensation and expenses shall be paid by the Company. The Trustee is
authorized to withdraw such amounts from the Trust Fund if the Company fails to
pay them within 60 days of presentation of a statement of the amounts due.
Section 3.10 PROFESSIONAL ADVICE. The Company specifically acknowledge
that the Trustee may find it desirable or expedient to retain legal counsel (who
may also be legal counsel for the Company generally) or other professional
advisors to advise it in connection with the exercise of any duty under this
Master Trust Agreement, including, but not limited to, any matter relating to or
following a Change in Control or the Insolvency of the Company. The Trustee
shall be fully protected in acting upon the advice of such legal counsel or
advisors.
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Section 3.11 PAYMENT ON COURT ORDER. To the extent permitted by law,
the Trustee is authorized to make any payments directed by court order in any
action in which the Trustee has been named as a party. The Trustee is not
obligated to defend actions in which the Trustee is named, but shall notify the
Company or Committee of any such action and may tender defense of the action to
the Company, Committee or Participant or Beneficiary whose interest is affected.
The Trustee may in its discretion defend any action in which the Trustee is
named, and any expenses incurred by the Trustee shall be paid by the Company.
The Trustee is authorized to pay such amounts from the Trust Fund if the Company
fail to pay them within sixty (60) days of presentation of a statement of the
amounts due.
Section 3.12 PROTECTIVE PROVISIONS. Notwithstanding any other
provision contained in this Master Trust Agreement to the contrary, the Trustee
shall have no obligation to (i) determine the existence of any conversion,
redemption, exchange, subscription or other right relating to any securities
purchased of which notice was given prior to the purchase of such securities and
shall have no obligation to exercise any such right unless the Trustee is
advised in writing by the Committee both of the existence of the right and the
desired exercise thereof within a reasonable time prior to the expiration of the
right to exercise, or (ii) advance any funds to the Trust. Furthermore, the
Trustee is not a party to the Plan.
Section 3.13 INDEMNIFICATIONS.
(a) The Company shall indemnify and hold the Trustee harmless
from and against all loss or liability (including expenses and reasonable
attorneys' fees) to which it may be subject by reason of its execution of its
duties under this Trust, or by reason of any acts taken in good faith in
accordance with any directions, or acts omitted in good faith due to absence of
directions, from the Company, the Committee or a Participant, unless such loss
or liability is due to the Trustee's gross negligence or willful misconduct.
The indemnity described herein shall be provided by the Company.
(b) In the event that the Trustee is named as a defendant in a
lawsuit or proceeding involving one or more of the Plan or the Trust Fund, the
Trustee shall be entitled to receive on a current basis the indemnity payments
provided for in this Section, provided however that if the final judgment
entered in the lawsuit or proceeding holds that the Trustee is guilty of gross
negligence or willful misconduct with respect to the Trust Fund, the Trustee
shall be required to refund the indemnity payments that it has received.
(c) All releases and indemnities provided in this Master Trust
Agreement shall survive the termination of this Master Trust Agreement.
ARTICLE IV
INSURANCE CONTRACTS
Section 4.1 TYPES OF CONTRACTS. To the extent that the Trustee is
directed by the Committee prior to a Change in Control to invest part or all of
the Trust Fund in insurance contracts, the type and amount thereof shall be
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specified by the Committee. The Trustee shall be under no duty to make inquiry
as to the propriety of the type or amount so specified.
Section 4.2 OWNERSHIP. Each insurance contract issued shall provide
that the Trustee shall be the owner thereof with the power to exercise all
rights, privileges, options and elections granted by or permitted under such
contract or under the rules of the insurer. The exercise by the Trustee of any
incidents of ownership under any contract shall, prior to a Change in Control,
be subject to the direction of the Committee.
Section 4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS. The 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. Despite the foregoing, the Trustee may (i) loan
to the Company the proceeds of any borrowing against an insurance policy held in
the Trust Fund or (ii) assign all, or any portion, of a policy to the Company if
under other provisions of this Master Trust Agreement the Company is entitled to
receive assets from the Trust.
ARTICLE V
TRUSTEE'S ACCOUNTS
Section 5.1 RECORDS. The Trustee shall maintain accurate records and
detailed accounts of all investments, receipts, disbursements and other
transactions hereunder. Such records shall be available at all reasonable times
for inspection by the Company or its authorized representative. The Trustee, at
the direction of the Committee, shall submit to the Committee and to any insurer
such valuations, reports or other information as the Committee may reasonably
require and, in the absence of fraud or bad faith, the valuation of the Trust
Fund by the Trustee shall be conclusive.
Section 5.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING.
(a) Within 60 days following the end of each Plan Year and
within 60 days after the removal or resignation of the Trustee or the
termination of the Trust, the Trustee shall file with the Committee a written
account setting forth a description of all properties purchased and sold, all
receipts, disbursements and other transactions effected by it during the Plan
Year or, in the case of removal, resignation or termination, since the close of
the previous Plan Year, and listing the properties held in the Trust Fund as of
the last day of the Plan Year or other period and indicating their values. Such
values shall be either cost or market as directed by the Committee in accordance
with the terms of the Plan.
(b) The Committee may approve such account either by written
notice of approval delivered to the Trustee or by its failure to express written
objection to such account delivered to the Trustee within 60 days after the date
of which such account was delivered to the Committee.
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(c) The approval by the Committee of an accounting shall be
binding as to all matters embraced in such accounting on all parties to this
Master Trust Agreement and on all Participants and Beneficiaries, to the same
extent as if such accounting had been settled by a judgment or decree of a court
of competent jurisdiction in which the Trustee, the Committee, the Company and
all persons having or claiming any interest in any Plan or the Trust Fund were
made parties.
(d) Despite the foregoing, nothing contained in this Master
Trust Agreement shall deprive the Trustee of the right to have an accounting
judicially settled, if the Trustee, in the Trustee's sole discretion, desires
such a settlement.
Section 5.3 VALUATION. The assets of the Trust Fund shall be valued
at their respective fair market values on the date of valuation, as determined
by the Trustee based upon such sources of information as it may deem reliable,
including, but not limited to, stock market quotations, statistical valuation
services, newspapers of general circulation, financial publications, advice from
investment counselors, brokerage firms or insurance companies, or any
combination of sources. Prior to a Change in Control, the Committee shall
instruct the Trustee as to the value of assets for which market values are not
readily obtainable by the Trustee. If the Committee fails to provide such
values, the Trustee may take whatever action it deems reasonable, including
employment of attorneys, appraisers, life insurance companies or other
professionals, the expense of which shall be an expense of administration of the
Trust Fund and payable by the Company. The Trustee may rely upon information
from the Company, the Committee, appraisers or other sources and shall not incur
any liability for an inaccurate valuation based in good faith upon such
information.
Section 5.4 DELEGATION OF DUTIES. The Company or the Committee, or
both, may at any time employ the Trustee as their agent to perform any act, keep
any records or accounts and make any computations that are required of the
Company or the Committee by this Master Trust Agreement or the Plan. The
Trustee may be compensated for such employment and such employment shall not be
deemed to be contrary to the Trust. Nothing done by the Trustee as such agent
shall change or increase its responsibility or liability as Trustee hereunder.
ARTICLE VI
RESIGNATION OR REMOVAL OF TRUSTEE
Section 6.1 RESIGNATION; REMOVAL. The Trustee may resign at any time
by written notice to the Company, which shall be effective 60 days after receipt
of such notice unless the Company and the Trustee agree otherwise. Prior to a
Change in Control, the Trustee may be removed by the Company on 60 days notice
or upon shorter notice accepted by the Trustee. After a Change in Control, the
Trustee may be removed by a majority vote of the Participants, and if a
Participant is dead, his or her Beneficiaries (who collectively shall have one
vote among them and shall vote in place of such deceased Participant), on 60
days notice or upon shorter notice accepted by the Trustee.
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Section 6.2 SUCCESSOR TRUSTEE. If the Trustee resigns or is removed,
a successor shall be appointed by the Company, in accordance with this
Section, by the effective date of the resignation or removal under Section 6.1
above. The successor shall be a bank, trust company, or similar independent
third party that is granted corporate trustee powers under state law. After the
occurrence of a Change in Control, a successor Trustee may not be appointed
without the consent of a majority of the Participants. If no such appointment
has been made, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
Section 6.3 SETTLEMENT OF ACCOUNTS. Upon resignation or removal of
the Trustee and appointment of a successor Trustee, all assets shall
subsequently be transferred to the successor Trustee. The transfer shall be
completed within 90 days after receipt of notice of resignation, removal or
transfer, unless the Company extends the time limit. Upon the transfer of the
assets, the successor Trustee shall succeed to all of the powers and duties
given to the Trustee in this Master Trust Agreement. The resigning or removed
Trustee shall render to the Committee an account in the form and manner and at
the time prescribed in Section 5.2. The approval of such accounting and
discharge of the Trustee shall be as provided in such Section.
ARTICLE VII
CONTROVERSIES, LEGAL ACTIONS AND COUNSEL
Section 7.1 CONTROVERSY. If any controversy arises with respect to
the Trust, the Trustee shall take action as directed by the Committee or, in the
absence of such direction or after a Change in Control, as it deems advisable,
whether by legal proceedings, compromise or otherwise. The Trustee may retain
the funds or property involved without liability pending settlement of the
controversy. The Trustee shall be under no obligation to take any legal action
of whatever nature unless there shall be sufficient property in the Trust to
indemnify the Trustee with respect to any expenses or losses to which it may be
subjected.
Section 7.2 JOINDER OF PARTIES. In any action or other judicial
proceedings affecting the Trust, it shall be necessary to join as parties the
Trustee, the Committee, and the Company. No Participant or other person shall
be entitled to any notice or service of process. Any judgment entered in such a
proceeding or action shall be binding on all persons claiming under the Trust.
Nothing in this Master Trust Agreement shall be construed as to deprive a
Participant or Beneficiary of his or her right to seek adjudication of his or
her rights by administrative process or by a court of competent jurisdiction.
Section 7.3 EMPLOYMENT OF COUNSEL. The Trustee may consult with legal
counsel (who may be counsel for the Company) and shall be fully protected with
respect to any action taken or omitted by it in good faith pursuant to the
advice of counsel.
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ARTICLE VIII
INSURERS
Section 8.1 INSURER NOT A PARTY. No insurer shall be deemed to be a
party to the Trust and an insurer's obligations shall be measured and determined
solely by the terms of contracts and other agreements executed by it.
Section 8.2 AUTHORITY OF TRUSTEE. An insurer shall accept the
signature of the Trustee to any documents or papers executed in connection with
such contracts. The signature of the Trustee shall be conclusive proof to the
insurer that the person on whose life an application is being made is eligible
to have a contract issued on his or her life and is eligible for a contract of
the type and amount requested.
Section 8.3 CONTRACT OWNERSHIP. An insurer shall deal with the
Trustee as the sole and absolute owner of any insurance contracts and shall have
no obligation to inquire whether any action or failure to act on the part of the
Trustee is in accordance with or authorized by the terms of the Plan or this
Master Trust Agreement.
Section 8.4 LIMITATION OF LIABILITY. An insurer shall be fully
discharged from any and all liability for any action taken or any amount paid in
accordance with the direction of the Trustee and shall have no obligation to see
to the proper application of the amounts so paid. An insurer shall have no
liability for the operation of the Trust or the Plan, whether or not in
accordance with their terms and provisions.
Section 8.5 CHANGE OF TRUSTEE. An insurer shall be fully discharged
from any and all liability for dealing with a party or parties indicated on its
records to be the Trustee until such time as it shall receive at its home office
written notice of the appointment and qualification of a successor Trustee.
ARTICLE IX
AMENDMENT AND TERMINATION
Section 9.1 AMENDMENT. Subject to the limitations set forth in this
Section 9.1, this Master Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1.3 above.
Any amendment, change or modification shall be subject to the following rules:
(a) GENERAL RULE. Subject to Sections 9.1(b), (c) and (d)
below, this Master Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however,
that if an amendment would in any way adversely affect the rights accrued
under the Plan in the Trust Fund by any Participant or Beneficiary, each
and every Participant and Beneficiary whose rights in
16
the Trust Fund would be adversely affected must consent to the amendment
before this Master Trust Agreement may be so amended; and
(ii) By the Company and the Trustee as may be necessary
to comply with laws which would otherwise render the Trust void, voidable
or invalid in whole or in part.
(b) LIMITATION. Notwithstanding that an amendment may be
permissible under Section 9.1(a) above, this Master Trust Agreement shall not be
amended by an amendment that would:
(i) Cause any of the assets of the Trust to be used for
or diverted to purposes other than for the exclusive benefit of
Participants and Beneficiaries as set forth in the Plan, except as is
required to satisfy the claims of the Company's general creditors; or
(ii) Be inconsistent with the terms of the Plan,
including the terms of the Plan regarding termination, amendment or
modification of the Plan.
(c) WRITING AND CONSENT. Any amendment to this Master Trust
Agreement shall be set forth in writing and signed by the Company and the
Trustee and, if consent of any Participant or Beneficiary is required under
Section 9.1(a), the Participant or Beneficiary whose consent is required. Any
amendment may be current, retroactive or prospective, in each case as provided
therein.
(d) THE COMPANY AND TRUSTEE. In connection with the exercise
of the rights under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall
have no responsibility to determine whether any proposed amendment
complies with the terms and conditions set forth in Sections 9.1(a)
and (b) above and may conclusively rely on the directions of the
Committee with respect thereto, unless the Trustee has knowledge of a
proposed transaction or transactions that would result in a Change in
Control; and
(ii) after a Change in Control, the power of the
Company to amend this Master Trust Agreement shall cease, and the power
to amend that was previously held by the Company shall, instead, be
exercised by a majority of the Participants and, if a Participant is
dead, his or her Beneficiaries (who collectively shall have one vote
among them and shall vote in place of such deceased Participant), with
the consent of the Trustee, provided that such amendment otherwise
complies with the requirements of Sections 9.1(a), (b) and (c) above.
(e) TAXATION. This Master Trust Agreement shall not be
amended, altered, changed or modified in a manner that would cause the
Participants and/or Beneficiaries under any Plan to be taxed on the benefits
under any Plan in a year other than the year of actual receipt of benefits.
17
Section 9.2 FINAL TERMINATION. The Trust shall not terminate until
the date on which Participants and their Beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan, and on such date the Trust shall
terminate. Upon termination of the Trust, any assets remaining in the Trust
shall be returned to the Company. Such remaining assets shall be paid by the
Trustee to the Company in such amounts and in the manner instructed by the
Company, whereupon the Trustee shall be released and discharged from all
obligations hereunder. From and after the date of termination and until final
distribution of the Trust Fund, the Trustee shall continue to have all of the
powers provided herein as are necessary or expedient for the orderly liquidation
and distribution of the Trust Fund.
ARTICLE X
MISCELLANEOUS
Section 10.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL. Despite any other
provision of this Master Trust Agreement that may be construed to the contrary,
following a Change in Control, all powers of the Committee, the Company and the
Board to direct the Trustee under this Master Trust Agreement shall terminate,
and the Trustee shall act on its own discretion to carry out the terms of this
Master Trust Agreement in accordance with the Plan and this Master Trust
Agreement.
Section 10.2 TAXES. The Company shall from time to time pay taxes of
any and all kinds whatsoever that 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 lawfully levied or assessed upon the Trust Fund are not
paid by the Company, the Trustee shall have the power to pay such taxes out of
the Trust Fund and shall seek reimbursement from the Company. Prior to making
any payment, the Trustee may require such releases or other documents from any
lawful taxing authority as it shall deem necessary. The Trustee shall contest
the validity of taxes in any manner deemed appropriate by the Company or its
counsel, but at the Company's expense, and only if it has received an indemnity
bond or other security satisfactory to it to pay any such expenses. Prior to a
Change in Control, the Trustee (i) shall not be liable for any nonpayment of tax
when it distributes an interest hereunder on directions from the Committee, and
(ii) shall have no obligation to prepare or file any tax return on behalf of the
Trust Fund, any such return being the sole responsibility of the Committee. The
Trustee shall cooperate with the Committee in connection with the preparation
and filing of any such return.
Section 10.3 THIRD PERSONS. All persons dealing with the Trustee are
released from inquiring into the decisions or authority of the Trustee and from
seeing to the application of any moneys, securities or other property paid or
delivered to the Trustee.
Section 10.4 NONASSIGNABILITY; NONALIENATION. Benefits payable to
Participants and their Beneficiaries under this Master Trust Agreement may not
be anticipated, assigned (either at law or in equity), alienated, pledged,
18
encumbered or subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
Section 10.5 THE PLAN. The Trust and the Plan are parts of a single,
integrated employee benefit plan system and shall be construed together. In the
event of any conflict between the terms of this Master Trust Agreement and the
agreements that constitute the Plan, such conflict shall be resolved in favor of
this Master Trust Agreement.
Section 10.6 APPLICABLE LAW. Except to the extent, if any, preempted
by ERISA, this Master Trust Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any provision of this
Master Trust Agreement prohibited by law shall be ineffective to the extent of
any such prohibition, without invalidating the remaining provisions hereof.
Section 10.7 NOTICES AND DIRECTIONS. Whenever a notice or direction is
given by the Committee to the Trustee, it shall be in the form required by
Section 2.1. Actions by the Company shall be by the Board or a duly authorized
officer, with such actions certified to the Trustee by an appropriately
certified copy of the action taken. The Trustee shall be protected in acting
upon any such notice, resolution, order, certificate or other communication
believed by it to be genuine and to have been signed by the proper party or
parties.
Section 10.8 SUCCESSORS AND ASSIGNS. This Master Trust Agreement shall
be binding upon and inure to the benefit of the Company and the Trustee and
their respective successors and assigns.
Section 10.9 GENDER AND NUMBER. Words used in the masculine shall
apply to the feminine where applicable, and when the context requires, the
plural shall be read as the singular and the singular as the plural.
Section 10.10 HEADINGS. Headings in this Master Trust Agreement are
inserted for convenience of reference only and any conflict between such
headings and the text shall be resolved in favor of the text.
Section 10.11 COUNTERPARTS. This Master Trust Agreement may be executed
in an original and any number of counterparts, each of which shall be deemed to
be an original of one and the same instrument.
Section 10.12 BENEFICIAL INTEREST. The Company are the true
beneficiaries hereunder in that the payment of benefits, directly or indirectly
to or for a Participant or Beneficiary by the Trustee, is in satisfaction of the
Company's liability therefor under the Plan. Nothing in this Master Trust
Agreement shall establish any beneficial interest in any person other than the
Company.
Section 10.13 THE TRUST AND PLAN. This Trust and the Plan are part of
and constitute a single, integrated employee benefit plan and trust, shall be
construed together as the entire agreement between the Company, the Trustee, the
Participants and the Beneficiaries with regard to the subject matter thereof,
and shall supersede all previous negotiations, agreements and commitments with
respect thereto.
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Section 10.14 EFFECTIVE DATE. The effective date of this Master Trust
Agreement shall be December 1, 1994.
IN WITNESS WHEREOF the Company and the Trustee have signed this Master
Trust Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
IMPERIAL TRUST COMPANY CERTIFIED GROCERS OF CALIFORNIA
LTD., a California corporation,
By: /s/ XXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
------------------------ --------------------------------------
Title: Vice President Title: Corporate Secretary-Treasurer
---------------- -----------------------------
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