EXHIBIT 10.9
ENSERCH CORPORATION
DEFERRED COMPENSATION TRUST
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This Trust Agreement made this 30th day of September, 1994, by and between
ENSERCH Corporation, a Texas corporation (the "Company") and Texas Commerce Bank
National Association, a national banking association ( the "Trustee");
WHEREAS, the Company and certain Affiliated Companies have adopted
nonqualified deferred compensation plans known as the ENSERCH Corporation
Deferred Compensation Plan (the "Executive Plan") and the ENSERCH
Corporation Deferred Compensation Plan for Directors (the "Directors'
Plan") (collectively hereinafter referred to as the "Plan" or "Plans"); and
WHEREAS, the Company has incurred or expects to incur liability under
the terms of such Plans with respect to the individuals participating in
such Plans; and
WHEREAS, the Company wishes to establish a trust (hereinafter called
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
the Company's Insolvency, as herein defined, until paid to Plan
Participants and their beneficiaries in such manner and at such times as
specified in the Plans; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plans as unfunded plans 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; and
WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment Of Trust.
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(a) The Company hereby deposits with the Trustee in trust $1,000.00, which
shall become the principal of the Trust to be held, administered and disposed of
by the Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) 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.
(d) 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 Plan Participants and general creditors as herein
set forth. Plan Participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan Participants and their beneficiaries against 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 4(a) herein.
(e) The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in trust with
the Trustee to augment the principal to be held, administered and disposed of by
the Trustee as provided in this Trust Agreement; provided, however, that the
Company shall contribute to the Trust each calendar year an amount of cash or
property at least equal in value to the total amount of deferrals credited to
the Deferral Accounts of Participants pursuant to the Executive Plan and the
Accounts of Participants pursuant to the Directors' Plan during such calendar
year.
(f) Any provision of this Trust Agreement to the contrary notwithstanding,
upon a Change of Control, as defined in the Plans, the Company shall (i) as soon
as possible, but in no event more than 30 days following the date of such Change
of Control, make an irrevocable contribution to the Trust in an amount, as
determined by an Independent Committee, as defined below, which when added to
the total value of the assets of the Trust at such time equals the total amount
credited to all Deferral Accounts
under the Executive Plan and all Accounts under the Directors' Plan as of the
date on which the Change of Control occurred, and (ii) during the two-year
period following the date of the Change of Control, make monthly contributions
to the Trust in amounts sufficient, as determined by the Independent Committee,
to maintain the total value of the Trust assets at an amount equal to the total
amount credited to all Deferral Accounts under the Executive Plan and all
Accounts under the Directors' Plan.
Section 2. Payments to Plan Participants and their Beneficiaries.
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(a) The Administrative Committee shall deliver to the Trustee a
schedule (the "Payment Schedule") that indicates the amounts payable with
respect to each Plan Participant (and his or her beneficiaries), that provides a
formula or other instructions acceptable to the Trustee for determining the
amounts so payable, 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, if known. An updated Payment Schedule shall be provided by the
Administrative Committee to the Trustee periodically, but no less frequently
than once each calendar year. Except as otherwise provided herein, the Trustee
shall make payments to the Plan Participants and their beneficiaries 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 Plans and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported, withheld and paid
by an Employer under the Executive Plan or by the Company under the Directors'
Plan.
(b) The entitlement of a Plan Participant or his or her beneficiaries
to benefits under the Plan shall be determined by the Administrative Committee
or such other party as may be designated under the Plan, and any claim for such
benefits shall be considered and reviewed under the procedures set out in the
Plan.
(c) Employers participating in the Executive Plan or the Company with
respect to the Directors' Plan may make payments of benefits directly to Plan
Participants or their beneficiaries as they become due under the terms of the
Plan in lieu of payment from the Trust. The Administrative Committee shall
notify the Trustee of an Employer's or the Company's decision to make payments
of benefits directly prior to the time amounts are
payable to Participants or their beneficiaries. In addition, if the Trust
assets are not sufficient to make payments of benefits in accordance with the
terms of the Plans, the Company shall make the balance of each such payment as
it falls due. The Trustee shall notify the Company immediately when Trust
assets are not sufficient to satisfy all payments due.
(d) Any provision of this Section 2 to the contrary notwithstanding,
upon and after a Change of Control, the Trustee shall make payments to Plan
Participants or their beneficiaries in accordance with the direction of the
Independent Committee rather than the Administrative Committee, regardless of
whether the Trustee has received a Payment Schedule or any other form of
direction from the Administrative Committee to make such payments.
Section 3. Appointment of Independent Committee. Any provision of
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this Trust Agreement to the contrary notwithstanding, upon a Change of Control,
an Independent Committee consisting of at least three members shall be appointed
by the Compensation Committee of the Board of Directors of the Company subject
to the approval of a majority of the Participants of the Plans on the date of
such Change of Control. The Independent Committee shall:
(a) determine the amount of the irrevocable contributions to be made by
the Company pursuant to Section 1(f) hereof;
(b) determine in accordance with the Plans the amounts payable with
respect to each Plan Participant (and his or her beneficiaries), the form
in which such amounts are to be paid, and the time of commencement for
payment of such amounts pursuant to Section 2(a) hereof;
(c) determine the entitlement of Plan Participants and beneficiaries to
benefits under the terms of the Plans pursuant to Section 2(b) hereof;
(d) direct the Trustee to make payments to Plan Participants and their
beneficiaries pursuant to Section 2 hereof; and
(e) select a successor Trustee for the Trust if a Trustee resigns or is
removed on or within two years following the date of a Change of Control
pursuant to Section 12.
Section 4. Trustee Responsibility Regarding Payments to Trust
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Beneficiary when the Company Is Insolvent.
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(a) The Trustee shall cease payment of benefits to Plan Participants
and their beneficiaries if the Company is Insolvent. The Company shall be
considered "Insolvent" for purposes of this 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.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) 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.
(1) The Board of Directors 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 Plan Participants or their beneficiaries.
(2) 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.
(3) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments to Plan Participants
or their beneficiaries 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 Plan Participants or
their beneficiaries to pursue their rights as general creditors of the
Company with respect to benefits due under the Plan or otherwise.
(4) The Trustee shall resume the payment of benefits to Plan
Participants or their beneficiaries in accordance
with Section 2 of this Trust Agreement only after the Trustee has
determined that the 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 4(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
Participants or their beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
Participants or their beneficiaries by the Employers participating in the
Executive Plan or by the Company with respect to the Directors' Plan in lieu of
the payments provided for hereunder during any such period of discontinuance.
Section 5. Payments to the Company.
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(a) Except as provided in Sections 4 and 5(b) hereof, 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 payment of all benefits have
been made to Plan Participants and their beneficiaries pursuant to the terms of
the Plans.
(b) To the extent that the Administrative Committee determines that
the value of the assets in the Trust based upon information provided to the
Administrative Committee by the Trustee, at any time, exceeds 110% of the
amounts credited to Participants' Deferral Accounts under the Executive Plan and
Accounts under the Directors' Plan as of the most recent Adjustment Date plus
any deferrals made since such date, the Trustee shall pay such excess to the
Company upon receipt of written request therefor from the Company; provided,
however, that no such payment of excess assets to the Company shall be made on
or within two years following the date of a Change of Control.
Section 6. Investment Authority.
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(a) The Trustee shall have full power and authority to invest and
reinvest the Trust assets, or any part thereof, in such stocks (common or
preferred), bonds, mortgages, notes, interest-bearing deposits (including such
deposits with any corporate trustee acting hereunder), options and contracts for
the future or immediate receipt or delivery of property of any
kind, or other securities, producing or nonproducing oil and gas royalties and
payments and other producing and nonproducing interests in minerals, or in
commodities, life insurance policies, annuity contracts or other property of any
kind or nature whatsoever, whether real, personal or mixed, as the Trustee, in
the Trustee's absolute discretion and judgment, deems appropriate for the Trust,
and to hold cash uninvested at any time and from time to time in such amounts
and to such extent as the Trustee, in the Trustee's absolute discretion and
judgment, deems appropriate for the Trust. The Trustee shall have full power
and authority to manage, handle, invest, reinvest, sell for cash or credit, or
for part cash or part credit, exchange, hold, dispose of, lease for any period
of time (whether or not longer than the life of the Trust), improve, repair,
maintain, work, develop, use, operate, mortgage, or pledge, all or any part of
the assets and property from time to time constituting any part of the trust
funds held in trust under the Trust; borrow or loan money or securities; write
options and sell securities or other property short or for future delivery;
engage in hedging procedures; buy and sell futures contracts; execute
obligations, negotiable and nonnegotiable; vote shares of stock in person and by
proxy, with or without power of substitution; register investments in the name
of a nominee; sell, convey, lease and/or otherwise deal with any producing or
nonproducing oil, gas and mineral leases or mineral rights, payments and
royalties; pay all reasonable expenses; execute and deliver any deeds,
conveyances, leases, contracts, or written instruments of any character
appropriate to any of the powers or duties of the Trustee, and shall, in
general, have as broad power respecting the management, operation and handling
of the Trust assets and property as if the Trustee were the owner of such assets
and property in the Trustee's own right. The preceding provisions of this
paragraph to the contrary notwithstanding, the Company shall have the right and
power at any time and from time to time to give the Trustee broad guidelines
within which it shall invest the assets of the Trust; provided, however, that
upon a Change of Control and continuing for two years thereafter, the
Independent Committee, rather than the Company, shall have the sole authority to
exercise such right.
(b) 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 Plan Participants.
(c) The Company shall have the right, at any time, and from time to
time in its sole discretion, to substitute assets of
equal fair market value for any asset held by the Trust; provided, however, that
effective upon a Change in Control and for a period of two years thereafter, any
assets transferred to the Trust in substitution for assets held by the Trust
must consist of cash or marketable securities and the fair market value of the
respective assets shall be determined by the Trustee. This right is exercisable
by the Company in a nonfiduciary capacity without the approval or consent of any
person in a fiduciary capacity.
Section 7. Disposition of Income. During the term of this Trust, all
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income received by the Trust, net of expenses and taxes, shall be accumulated
and reinvested.
Section 8. Accounting by Trustee. The Trustee shall keep accurate
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and detailed records of all investments, receipts, disbursements, and all other
transactions required to be made, including such specific records as shall be
agreed upon in writing between the Company and the Trustee. Within 30 days
following the close of each calendar year and within 30 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.
Section 9. Responsibility of the Trustee.
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(a) 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 Plan 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.
(b) 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 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.
(c) 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.
(d) The 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.
(e) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein;
provided, however, that except as provided in Sections 5(b) and 6(c) hereof, 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.
(f) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or 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.
Section 10. Compensation and Expenses of the Trustee. The Trustee
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shall be paid such reasonable compensation commensurate with the services and
responsibilities involved hereunder as shall from time to time be agreed upon by
the Trustee and the Company. The Company shall pay all administrative and the
Trustee's fees and expenses, but, if not so paid, the fees and expenses shall be
paid from the Trust.
Section 11. Resignation and Removal of the Trustee.
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(a) The Trustee may resign at any time by written notice to the
Company, which shall be effective 30 days after receipt of such notice unless
the Company and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company on 30 days notice or
upon shorter notice accepted by the Trustee; provided, however, that the Trustee
may not be removed by the Company on or within two years following a Change of
Control except with the written consent of a majority of the Participants
entitled to payment of benefits pursuant to the terms of the Plans on the date
of such Change of Control.
(c) 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 30 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
(d) If the Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 12 hereof, by the effective date of
resignation or removal under paragraph(s) (a) or (b) of this section. 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 12. Appointment of Successor.
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(a) If the Trustee resigns or is removed in accordance with Section
11(a) or (b) hereof, the Company may appoint any third party, such as a 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; provided, however, that if the Trustee resigns or is removed on or
within two years following the date of a Change of Control, the Independent
Committee shall select a successor Trustee in accordance with this Section 12.
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 necessary or reasonably requested by the Company or the successor
Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing
Trust assets, subject to Sections 8 and 9 hereof. 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 successor Trustee.
Section 13. Amendment or Termination.
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(a) This Trust Agreement may be amended by a written instrument
executed by the Trustee and a representative of the Company so authorized by the
Compensation Committee of the Board of Directors of the Company.
Notwithstanding the foregoing, no such amendment shall conflict with the terms
of the Plans or shall make the Trust revocable.
(b) The Trust shall not terminate until the date on which Plan
Participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plans. Upon termination of the Trust any assets remaining
in the Trust shall be returned to the Company.
(c) Upon written approval of at least two-thirds of the Participants
and beneficiaries entitled to payment of benefits pursuant to the terms of the
Plans, the Company may terminate this Trust prior to the time all benefit
payments under the Plans have been made. All assets in the Trust at termination
shall be returned to the Company.
(d) This Trust Agreement may not be amended by the Company on or
within two years following the date of a Change of Control, without the written
consent of a majority of the Participants entitled to payment of benefits
pursuant to the terms of the Plans on the date of such Change of Control.
Section 14. Miscellaneous.
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(a) 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.
(b) Benefits payable to Plan Participants and their beneficiaries
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.
(c) This Trust Agreement shall be governed and construed in accordance
with the internal laws (and not the principles relating to conflicts of laws) of
the State of Texas, except where superseded by federal law.
(d) Unless the context clearly indicates otherwise, when used in this
Trust Agreement:
(i) "Administrative Committee" shall mean the "Administrative
Committee" appointed pursuant to each of the Plans.
(ii) "Participant" shall mean each "Participant" as that term is
defined in the Executive Plan and each Director who has an amount
credited to his or her Account under the Directors' Plan or who has
elected to have all or any portion of his or her Annual Fee deferred
under the terms of that Plan.
(e) Except where otherwise defined, capitalized terms used herein shall
have the meaning given to them in the Plans.
(f) In the event that a dispute arises between a Plan Participant or
beneficiary and the Participant's Employer, the Company or the Trustee with
respect to the payment of amounts from the Trust and the Participant or
beneficiary is successful in pursuing a benefit to which he or she is entitled
under the terms of the Plans and this Trust against the Participant's Employer,
the Company, the Trustee or any other party in the course of litigation or
otherwise and incurs attorneys' fees, expenses and costs in connection
therewith, the Company shall reimburse the Plan Participant or beneficiary for
the full amount of any such attorneys' fees, expenses and costs.
IN WITNESS WHEREOF, this Agreement has been executed this 30th day of
September, 1994, to be effective as of October 1, 1994.
ENSERCH CORPORATION
By /s/ X. X. Xxxxxxx
Title: Chairman, President
and Chief Executive
Officer
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By /s/ Xxxxx Xxxx
Title:
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a notary public in and for said
County and State, on this day personally appeared X. X. Xxxxxxx, known to me to
be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said ENSERCH CORPORATION, a
Texas corporation, and that he/she executed the same as the act of such
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 23rd day of September,
1994.
/s/ Cherry X. Xxxxxxxx
Notary Public, State of Texas
My Commission expires:
October 31, 0000
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a notary public in and for said
County and State, on this day personally appeared Xxxxx
Xxxx, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association, and that
he/she executed the same as the act of such banking association for the purposes
and consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 7th day of October, 1994.
/s/ Xxxxxxx Xxxxx
Notary Public, State of Texas
My Commission expires:
January 30, 1997
AMENDMENT NO. 1
TO THE
ENSERCH CORPORATION
DEFERRED COMPENSATION TRUST
Pursuant to the provisions of Section 13(a) thereof, the ENSERCH
Corporation Deferred Compensation Trust (the "Trust") is hereby amended in the
following respects only:
FIRST: Section l(f) of the Trust is hereby amended by restatement in its
entirety to read as follows:
(f) Any provision of this Trust Agreement to the contrary
notwithstanding, upon a Change of Control, as defined in the Plans, the
Company shall (i) as soon as possible, but in no event more than 30 days
following the date of such Change of Control, make an irrevocable
contribution to the Trust in an amount, as determined by an Independent
Committee, as defined below, which when added to the total value of the
assets of the Trust at such time equals the total amount credited to all
Deferral Accounts under the Executive Plan and all Accounts under the
Directors' Plan as of the date on which the Change of Control occurred,
and (ii) on and after the date of the Change of Control, make monthly
contributions to the Trust in amounts sufficient, as determined by the
Independent Committee, to maintain the total value of the Trust assets
at an amount equal to the total amount credited to all Deferral Accounts
under the Executive Plan and all Accounts under the Directors' Plan. Any
provision of this Trust Agreement to the contrary notwithstanding, on
and after the date of a Change of Control, the assets of this Trust,
including any additional contributions made by the Company in accordance
with this Section l(f) for the period following such Change of Control
and any earnings on the assets of the Trust, shall be held exclusively
for the benefit of those Participants in the Plans (or their
beneficiaries) as of the date immediately prior to the date of such
Change of Control, subject to the claims of general creditors of the
Company under federal and state law as set forth below.
SECOND: Section 3 of the Trust is hereby amended by restatement in its
entirety to read as follows:
Section 3. Appointment of Independent Committee.
(a) Any provision of this Trust Agreement to the contrary
notwithstanding, upon a Change of Control, an Independent Committee
consisting of at least three members shall be appointed by the Board
subject to the written approval of a majority of the Participants in the
Plans on the date of such Change of Control. The Independent Committee
shall:
(i) determine the amount of the irrevocable contributions to be
made by the Company pursuant to Section l(f) hereof;
(ii) determine in accordance with the Plans the amounts payable
with respect to each Plan Participant (and his or her beneficiaries),
the form in which such amounts are to be paid, and the time of
commencement for payment of such amounts pursuant to Section 2(a)
hereof;
(iii) determine the entitlement of Plan Participants and
beneficiaries to benefits under the terms of the Plans pursuant to
Section 2(b) hereof;
(iv) direct the Trustee to make payments to Plan Participants and
their beneficiaries pursuant to Section 2 hereof; and
(v) select a successor Trustee for the Trust if a Trustee
resigns or is removed on or after the date of a Change of Control
pursuant to Section 12.
(b) Each member of the Independent Committee so appointed shall serve
in such office until his or her death, resignation or removal. The Board
may remove any member of the Independent Committee by giving written
notice thereof to all Plan Participants and all members of the
Independent Committee; provided, however, that no member of the
Independent Committee may be removed by the Board on or after a Change of
Control except with the written consent of a majority of the Plan
Participants. Vacancies on the Independent Committee shall be filled from
time to time by
the Board subject to the written approval of a majority of the
Participants in the Plans on the date such vacancy is filled.
(c) The Independent Committee shall act by a majority of its members
at the time in office and such action may be taken either by a vote at a
meeting or in writing without a meeting. The Independent Committee may by
such majority action authorize any one or more of its members to execute
any document or documents on behalf of the Independent Committee, in
which event the Independent Committee shall notify the Trustee in writing
of such action and the name or names of its member or members so
authorized to act. Every interpretation, choice, determination or other
exercise by the Independent Committee of any power or discretion given
either expressly or by implication to it shall be conclusive and binding
upon all parties having or claiming to have an interest under the Trust
or otherwise directly or indirectly affected by such action, without
restriction, however, on the right of the Independent Committee to
reconsider and redetermine such action.
(d) Any provision of this Trust Agreement to the contrary
notwithstanding, in the event that (i) the Board shall not appoint an
Independent Committee within 30 days following a Change of Control or a
majority of the Participants in the Plans do not approve in writing at
least three members selected by the Board to serve on an Independent
Committee within such 30-day period or (ii) the Board does not fill a
vacancy on the Independent Committee within 30 days of the date such
office becomes vacant or a majority of the Participants in the Plans do
not approve in writing the Board's selection to fill a vacancy on the
Independent Committee within such 30-day period, then the Participants in
the Plans shall elect, by majority vote, up to three individuals to the
extent necessary to ensure that the Independent Committee consists of
three members.
THIRD: Section 5(b) of the Trust is hereby amended by restatement in its
entirety to read as follows:
(b) To the extent that the Administrative Committee determines that
the value of the assets in the Trust based upon information provided to
the Administrative Committee by the Trustee, at any time, exceeds 110% of
the amounts credited to Participants' Deferral Accounts under the
Executive Plan and Accounts under the Directors' Plan as of the most
recent Adjustment Date plus any deferrals made since such date, the
Trustee shall pay such excess to the Company upon receipt of written
request therefor from the Company; provided, however, that no such
payment of excess assets to the Company shall be made on or after the
date of a Change of Control without the written approval of the Plan
Participants.
FOURTH: Section 6(a) of the Trust is hereby amended by restating the last
sentence thereof in its entirety to read as follows:
The preceding provisions of this paragraph to the contrary
notwithstanding, the Company shall have the right and power at any time
and from time to time to give the Trustee broad guidelines within which
it shall invest the assets of the Trust; provided, however, that on and
after the date of a Change of Control, the Independent Committee, rather
than the Company, shall have the sole authority to exercise such right.
FIFTH: Section 6(c) of the Trust is hereby amended by restating the
first sentence thereof in its entirety to read as follows:
The Company shall have the right, at any time, and from time to time in
its sole discretion, to substitute assets of equal fair market value for
any asset held by the Trust; provided, however, that on and after the
date of a Change of Control, any assets transferred to the Trust in
substitution for assets held by the Trust must consist of cash or
marketable securities acceptable to the Independent Committee and the
fair market value of the respective assets shall be determined by the
Trustee.
SIXTH: Section 10 of the Trust is hereby amended by restating the last
sentence thereof in its entirety to read as follows:
The Company shall pay all administrative and the Trustee's fees and
expenses, but, if not so paid, such fees and expenses shall be paid from
the Trust; provided, however, that in the event any such fees and
expenses are paid from the Trust, the Trustee shall notify the Company in
writing that such payment has been made and the Company shall reimburse
the Trust for such payment within 15 days from the date of such notice.
SEVENTH: Section ll(b) of the Trust is hereby amended by restatement in
its entirety to read as follows:
(b) The Trustee may be removed by the Company on 30 days notice or
upon shorter notice accepted by the Trustee; provided, however, that the
Trustee may not be removed by the Company on or after a Change of Control
except with the written consent of a majority of the Plan Participants.
EIGHTH: Section 12(a) of the Trust is hereby amended by restating the
first sentence thereof in its entirety to read as follows:
If the Trustee resigns or is removed in accordance with Section ll(a) or
(b) hereof, the Company may appoint any third party, such as a 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; provided, however, that if the Trustee resigns or is removed
on or after the date of a Change of Control, the Independent Committee
shall select a successor Trustee in accordance with this Section 12.
NINTH: Section 13(d) of the Trust is hereby amended by restatement in its
entirety to read as follows:
(d) Any provision of this Trust Agreement to the contrary
notwithstanding, this Trust Agreement may not be amended on or after the
date of a Change of Control, without the written consent of a majority of
the Plan Participants.
IN WITNESS WHEREOF, this Amendment has been executed this 22nd day of
November, 1996, to be effective as of January 1, 1996.
ENSERCH CORPORATION
By: /s/ X. X. Xxxxxxx
---------------------------
Title: Chairman and President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
---------------------------
Title: Senior Vice President
and Trust Officer
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a notary public in and for said
County and State, on this day personally appeared
X. X. Xxxxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said ENSERCH CORPORATION, a Texas corporation, and that he/she executed the same
as the act of such corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 6th day of November, 1996.
/s/ Xxxxx X. Xxxxx
---------------------------
Notary Public,
State of Texas
By Commission expires:
January 23, 0000
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a notary public in and for said
County and State, on this day personally appeared Xxxxx X. Xxxxx, known to me to
be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association, and that he/she executed
the same as the act of such banking association for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 22nd day of
November, 1996.
/s/ Xxxxx Xxx Xxxxxx
---------------------------
Notary Public,
State of Texas
By Commission expires:
November 17, 1998
