EXHIBIT 10(d)(1)(ii)
TRUST FOR XXXXXXX INDUSTRIES, INC.
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN
FOR THE BENEFIT OF
B. I. FORESTER
This Agreement made this 20 day of November, 1995, by and between
XXXXXXX INDUSTRIES, INC. ("the Company") and XXXXX FARGO BANK N.A. ("Trustee").
WHEREAS, pursuant to that certain agreement between the Company and B.
I. Forester ("Forester") dated November 20, 1995 (the "November 20 Agreement"),
the Company has adopted a "Supplemental Employee Retirement Plan" for the
benefit of B. I. Forester ("SERP");
WHEREAS, the Company will incur liability under the terms of such SERP
with respect to benefits payable to Forester and his spouse (hereinafter the
"Foresters");
WHEREAS, the Company wishes to establish a trust (hereinafter called
"Trust") and to contribute assets to the Trust that shall be held therein,
subject only to the claims of the Company's creditors in the event of the
Company's Insolvency, as herein defined, until paid to the Foresters in such
manner and at such times as specified in the SERP;
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WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the SERP
as an unfunded plan maintained for the purpose of providing deferred
compensation for a "select group of management or highly compensated employees"
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide it with a source of funds to assist it in the meeting of
its liabilities under the SERP;
NOW, THEREFORE, Xxxxxxx Industries, Inc. and Xxxxx Fargo Bank N.A. do
hereby establish the Trust and agree that the Trust shall be comprised, held and
disposed of as follows:
ARTICLE 1
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with Trustee in trust not less than
One Dollar ($1.00), which shall be the initial principal of the Trust to be
held, administered and disposed of by the Trustee as provided in this Trust
Agreement and the SERP. This Trust Agreement and the SERP are intended to be
administered together by the Company.
1.2 The Trust hereby established shall be irrevocable by the
Company.
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1.3 The Trust is intended to be a grantor trust, of which the Company
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, and shall be
construed accordingly.
1.4 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 Foresters and general creditors as
herein set forth. The Foresters shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any rights created
under the SERP and this Trust Agreement shall be mere unsecured contractual
rights of the Foresters 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 of Insolvency, as defined in Section 3.1 herein.
1.5 The Company may, from time to time, make additional deposits of
cash in Trust with the Trustee as required by the terms of the SERP, to augment
the principal to be held, administered and disposed of by the Trustee as
provided in the SERP and the Trust.
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ARTICLE 2
PAYMENTS TO THE FORESTERS
2.1 At such time as the Foresters become entitled to receive
distributions, the Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the monthly amounts payable in respect of Forester,
and the monthly due date for payment of such monthly amounts. Upon the death of
Forester, and if Forester's spouse shall have survived him, the Company shall
deliver a new Payment Schedule to the Trustee indicating the monthly amount
payable to Forester's surviving spouse. Except as otherwise provided herein,
Trustee shall make payments to the Foresters in accordance with such Payment
Schedule. 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 SERP and shall
pay amounts withheld to the appropriate taxing authorities unless the Trustee
determines that such amounts have already been reported, withheld and paid by
the Company.
2.2 The entitlement of the Foresters to benefits under the SERP shall
be determined solely by the Company under the terms of the SERP.
2.3 The Company may make payment of benefits directly to the
Foresters as they become due under the terms of the SERP. The Company shall
notify the Trustee of its decision to make payment of benefits directly prior to
the time each payment is payable to the
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Foresters. In addition, 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 SERP, 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.
ARTICLE 3
TRUSTEE RESPONSIBILITY REGARDING
PAYMENTS TO THE FORESTERS
WHEN THE COMPANY IS INSOLVENT
3.1 The Trustee shall cease payment of benefits to the Foresters if
the Company is Insolvent. The Company shall be considered "Insolvent" for
purposes of this Trust if (a) the Company is unable to pay its debts as they
become due, or (b) the Company is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided in
Section 1.4 hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Company under federal and state law as set
forth below.
(a) The Board of Directors and 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
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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 Foresters.
(b) 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.
(c) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments to the Foresters and shall
hold the assets of the Trust for the benefit of the Company's general creditors.
Nothing in this Trust Agreement shall in any way diminish any rights of the
Foresters to pursue their rights as general creditors of the Company with
respect to benefits due under the SERP or otherwise.
(d) The Trustee shall resume the payment of benefits to the
Foresters in accordance with Article 2 of this Trust Agreement only after the
Trustee has determined that the Company is not Insolvent (or is no longer
Insolvent).
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3.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3.2
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to the
Foresters under the terms of the SERP for the period of such discontinuance,
less the aggregate amount of any payments made to the Foresters by the Company
in lieu of the payments provided for hereunder during any such period of
discontinuance.
ARTICLE 4
PAYMENTS TO THE COMPANY
Except as permitted under the terms of the SERP or in the case of
Insolvency, the Company shall have no right or power to direct the Trustee to
return to the Company or to divert to others any of the Trust assets before all
payments of benefits have been made to the Foresters pursuant to the terms of
the SERP. In accordance with Section 4(e) of the SERP, the Company shall have
the right and power to direct the Trustee to return Trust assets (including
income that is accumulated and reinvested) to the Company to the extent that the
fair market value of the net assets of the Trust on the last day of the year
exceeds 110% of the Full Funding Amount for such year.
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ARTICLE 5
INVESTMENT OF SERP ASSETS
5.1 Except as provided in Article 4, during the term of this Trust,
all income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested. The Company or an investment manager retained by
the Company, shall direct the Trustee as to the investment of Trust assets. All
investments shall be made at the sole discretion of the Company or such
investment manager, except 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.
Subject to the Company's obligation to fund the Trust in accordance with the
SERP, the Company shall have no responsibility to make the Trust whole for any
losses resulting from such investments. All rights associated with assets of
the Trust, other than the investment decisions retained by the Company, shall be
exercised by the Trustee or the person designated by the Trustee, and shall in
no event be exercised by or rest with the Foresters.
5.2 Except as provided below, the Company shall have all power and
responsibility for the management, disposition, and investment of the Trust
assets, and the Trustee shall comply with proper written directions of the
Company concerning the Trust assets. The Company shall not issue directions in
violation of the terms of this Agreement. The Trustee shall have no duty or
responsibility to review, initiate action, or make recommendations
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regarding the Trust assets and shall retain such assets until directed in
writing by the Company to dispose of them.
5.3 The Company may appoint an Investment Manager or Managers to
direct, control or manage the investment of all or a portion of the Trust
assets. The Company shall notify the Trustee in writing of the appointment of
each Investment Manager and the portion of the Trust assets subject to the
Investment Manager's direction. If the foregoing conditions are met, the
Investment Manager shall have the power to manage, acquire, retain or dispose of
such portion of the Trust assets and the Trustee shall not be liable for the
acts or omissions of the Investment Manager or be under an obligation to invest
or otherwise manage the portion of the Trust assets which is subject to the
direction of such Investment Manager.
5.4 Except as provided in Section 5.1 above, the Trust may hold
assets of any kind, including shares of any registered investment company,
whether or not the Trustee or any of its affiliates is an advisor to, or other
service provided to, such company and received compensation from such company
for the services provided.
ARTICLE 6
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as
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shall be agreed upon in writing between the Company and the Trustee. Within
sixty (60) days following the close of each calendar year and within sixty (60)
days after the removal or resignation of the Trustee, the Trustee shall deliver
to the Company a written account of its administration of the Trust during such
year or during the period from the close of the last preceding year to the date
of such removal or resignation, setting forth all investments, receipts,
disbursements and 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 date of such removal or resignation,
as the case may be, valued separately at cost and at market value.
ARTICLE 7
RESPONSIBILITY OF TRUSTEE
7.1 The 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 the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company which is contemplated by,
and in conformity with, the terms of the SERP or this Trust and is given in
writing by the Company. In the event of a dispute between the Company and a
party, the Trustee may apply to a court of competent jurisdiction to resolve the
dispute.
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7.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's reasonable costs, expenses and liabilities (including, without
limitation, attorneys' fees and expenses) relating thereto and to be primarily
liable for such payments. If the Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain payment from
the Trust, provided, however, that the Company shall have the right to assume
the defense of any such litigation with counsel reasonably acceptable to the
Trustee and to settle any such litigation with the consent of the Trustee, which
consent will not be unreasonably withheld.
7.3 The Trustee may consult with legal counsel (who may also be
counsel for the Company generally) with respect to any of its duties or
obligations hereunder.
7.4 The Trustee shall have, without exclusion, all powers conferred
on trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
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.
7.5 Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have any power
that could give this Trust
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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.
ARTICLE 8
COMPENSATION AND EXPENSES OF TRUSTEE
The Company shall pay all reasonable administrative expenses of the
Trustee and such fees of the Trustee on which the Company and the Trustee may
agree. If not so paid, the fees and expenses shall be paid from the Trust.
ARTICLE 9
REMOVAL OF TRUSTEE
9.1 The Trustee may resign at any time by written notice to the
Company, which shall be effective sixty (60) days after receipt of such notice
unless the Trustee agrees otherwise.
9.2 The Trustee may be removed by the Company on sixty (60) days
notice or upon shorter notice accepted by the Trustee.
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9.3 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 sixty (60) days after receipt
of notice of resignation, removal or transfer, unless the Company extends the
time limit.
9.4 If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Article 10 hereof, by the effective date of
resignation or removal under Sections 9.1 or 9.2. 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.
ARTICLE 10
APPOINTMENT OF SUCCESSOR
10.1 If the Trustee resigns, or is removed, in accordance with
Section 9.1 or 9.2 hereof, the Company may appoint any bank trust department or
other party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal, except that such
bank trust department or other party may not be a lender or an affiliate of a
lender to the Company. The appointment shall be effective when accepted in
writing by the new Trustee, who shall have all of the rights and powers of the
former Trustee, including ownership rights in the Trust assets. The former
Trustee shall execute any instrument
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necessary or reasonably requested by the Company or the successor Trustee to
evidence the transfer.
10.2 The successor Trustee need not examine the records and acts of
any prior Trustee. The successor Trustee shall not be responsible for and the
Company 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 the successor
Trustee.
ARTICLE 11
AMENDMENT OR TERMINATION
11.1 This 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 SERP or shall make the Trust
revocable.
11.2 The Trust shall not terminate until the date on which the
Foresters are no longer entitled to benefits pursuant to the terms of the SERP.
Upon termination of the Trust any assets remaining in the Trust shall be
returned to the Company.
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11.3 Upon written approval of the Foresters, the Company may
terminate this Trust prior to the time all benefit payments under the SERP have
been made. All assets in the Trust at termination shall be returned to the
Company.
ARTICLE 12
MISCELLANEOUS
12.1 Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
12.2 Benefits payable to the Foresters under this Trust 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.
12.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of California.
ARTICLE 13
EFFECTIVE DATE
The effective date of this Trust Agreement shall be November 20,
1995.
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ARTICLE 14
ACCEPTANCE BY THE TRUSTEE
This Trust has been accepted by the Trustee which agrees to hold in
trust and administer the Fund hereunder, subject to all of the terms and
conditions hereof.
IN WITNESS WHEREOF, XXXXXXX INDUSTRIES, INC. and XXXXX FARGO BANK N.A.
have executed this Agreement this 20 day of November, 1995.
--
THE COMPANY:
XXXXXXX INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
THE TRUSTEE:
XXXXX FARGO BANK N.A.
By: /s/ X. X. Xxxxx
---------------------------
By: /s/ Xxxxxx Xxxxxx
---------------------------
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November 17, 1995
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