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EXHIBIT 99.2
TRUST AGREEMENT BETWEEN DELL COMPUTER CORPORATION AND THE CHASE
MANHATTAN BANK, N.A
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THIS TRUST AGREEMENT, made as of the 31st of March, 1997 is between
DELL COMPUTER CORPORATION, a corporation organized and existing under the laws
of the state of Delaware, (the "Company") and THE CHASE MANHATTAN BANK, a New
York banking corporation having its principal office in New York (the
"Trustee").
WITNESSETH
WHEREAS, the Company previously established a trust of the 23rd day of
July, 1991 by and between the Company and Xxxxx X. Xxxxxx (the "Trust") to
provide a vehicle through which benefits which accrue under the Dell Computer
Corporation Deferred Compensation Plan may be paid to eligible employees;
WHEREAS, the Company desires to replace Xxxxx X. Xxxxxx with the
Trustee as trustee of the Trust and to restate the Trust;
WHEREAS, the Company restates this Trust as an irrevocable grantor
trust which is not intended to be qualified under Sections 401(a) and 501(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), to provide assurance
to its key management employees (the "Participants") and their surviving
spouses, dependent children, beneficiaries or estates (collectively, the
"Beneficiaries") that the Company will be able to meet its obligations with
respect to their benefits under the Dell Computer Corporation Deferred
Compensation Plan and the Dell Computer Corporation Deferred Plan for
Non-Employee Directors (individually, "Plan" and collectively, the "Plans") in
the future by application of the procedures governing the Trust;
WHEREAS, the Company and Trustee intend that the 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 1 of
the Employee Retirement Income Security Act of 1974;
WHEREAS, amounts transferred to the Trust, as determined by the Company
from time to time in its sole discretion, and the earnings thereon shall be used
by the Trustee solely in satisfaction of the liabilities of the Company with
respect to the Participants in the Plans and their Beneficiaries and such
utilization shall be in accordance with the procedures set forth herein, except
that all such amounts held at any time shall be subject to claims of general
creditors of the Company in the event of bankruptcy or insolvency, as defined in
Section 2.1;
WHEREAS, any amount transferred by the Company to the Trust and the
earnings thereon shall revert to the Company only upon satisfaction of the
liabilities of the Company with respect to the Participants in the Plans and
their Beneficiaries and such utilization shall be in accordance with the
procedures set forth herein, except that all such amounts held at any time shall
be subject to claims of general creditors of the Company in the event of
bankruptcy or insolvency, as defined in Section 2.1;
WHEREAS, any amounts transferred by the Company to the Trust and the
earnings thereon shall revert to the Company only upon satisfaction of all
liabilities of the Company under
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the Plans, except that all such amounts held at any time under this Agreement
shall be subject to the claims of general creditors of the Company in the event
of bankruptcy or insolvency, as defined in section 2.1; and
WHEREAS, the Company and the Trustee wish to amend further and restate
this Agreement of Trust to provide for more efficient administration of the
Trust in order to best enable the Company to meet all of its obligations under
the Plans.
NOW, THEREFORE, in consideration of the premises and mutual and
independent promises herein, the parties hereto covenant and agree as follows:
ARTICLE I
Establishment of Trust
1.1. Trust Fund. The Company hereby establishes with the Trustee a
Trust consisting of such sums of money, and such other property, acceptable to
the Trustee, as shall from time to time be paid or delivered to the Trustee by
the Company and the earnings and profits thereon. All such money and property,
all investments made therewith and proceeds thereof, less the payments or other
distributions which, at the time of reference, shall have been made by the
Trustee, as authorized herein, shall be referred to herein as the "Trust Fund"
and shall be held by the Trustee, in Trust, in accordance with the provisions of
this Agreement.
The Trust Fund shall be revalued by the Trustee every day that the
Trustee and the New York Stock Exchange are both open for business at current
market values, as determined by the Trustee. The Trustee shall hold, manage,
invest and otherwise administer the Trust Fund pursuant to the terms of this
Agreement. Except as otherwise expressly provided herein, this Trust shall be
irrevocable and no part of the Trust Fund shall revert, or be paid to, the
Company.
1.2. Contributions. The Company shall contribute to the Trust from time
to time part or all of the amount which is expected to provide funds equal to
the sum of the expected benefits due to employees or beneficiaries under the
terms of the Plans. The Trustee shall be responsible only for contributions
actually received by it hereunder and the earnings on such contributions.
Furthermore, the Trustee shall have no duty or responsibility with respect
thereto, except as otherwise expressly provided in this Trust Agreement or
agreed to by the Trustee.
ARTICLE II
Purpose of Trust
2.1. Effect of Bankruptcy or Insolvency on Trust Distribution. For
purposes of this Section, the Trust assets shall be considered as held in
separate shares for the benefit of the creditors of the Company in the event
that the Company becomes insolvent.
The assets of the Trust shall be subject only to the claims of a
Company's general creditors in the event of that Company's bankruptcy or
insolvency. A Company shall be
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considered "bankrupt" or "insolvent" if the Company is (A) unable to pay its
debts when due or (B) engaged as a debtor in a proceeding under the Bankruptcy
Code, 11 U.S.C. Section 101 et seq. The Plan Administrator of the Plans (the
"Plan Administrator") must give written timely notification to the Trustee of
the Company's bankruptcy or insolvency. Upon receipt of such a notice, or upon
actual knowledge of the Trustee, or upon receipt of a written allegation from a
person or entity claiming to be a creditor of the Company that the Company is
bankrupt or insolvent, the Trustee shall discontinue payments to Participants
and Beneficiaries. The Trustee shall, as soon as practicable thereafter,
determine whether the Company is bankrupt or insolvent. In determining whether
the Company is bankrupt or insolvent, the Trustee may rely conclusively upon,
and be protected in so relying upon, records of a court of competent
jurisdiction or a report issued by a national credit reporting agency showing
that the Company is or is not bankrupt or insolvent. If the Trustee determines,
based on such information, that a Company is bankrupt or insolvent, the Trustee
shall hold the assets of the Trust for the benefit of the Company's general
creditors, and deliver any undistributed assets to satisfy the claims of such
creditors as a court of competent jurisdiction may direct.
The Trustee shall resume payments to Participants or Beneficiaries only
after it has determined that the Company is not bankrupt or insolvent, is no
longer bankrupt or insolvent (if the Trustee determined that the Company was
bankrupt or insolvent), or pursuant to an order of a court of competent
jurisdiction. Except as expressly provided above, unless the Trustee has actual
knowledge of the Company's bankruptcy or insolvency, the Trustee shall have no
duty to inquire whether the Company is bankrupt or insolvent.
If the Trustee discontinues payment of benefits from the Trust pursuant
to this Section 2.1 and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all payments
which would have been made to each Participant or Beneficiary during the period
of such discontinuance, less the aggregate amount of payments made to the
Participant or Beneficiary by the Company, as certified by the Company to the
Trustee, in lieu of the payments provided for hereunder during any such period
of discontinuance.
For purposes of this Section 2.1, actual knowledge of the Trustee shall
mean knowledge obtained by written notice or other written communication to the
trust department of the Trustee as provided in Section 11.6.
2.2. Vehicle to Meet Obligations. The Company represents and agrees
that the Trust established under this Agreement does not fund and is not
intended to fund the Plans or any other employee benefit plan or program of the
Company. The Trust is and is intended to be depository arrangement with the
Trustee for the setting aside of cash and other assets of the Company as and
when it so determines, in its sole discretion, for the meeting of part or all of
its future obligations to some or all of the Participants and their
Beneficiaries under the Plans. The Company further represents that the Plans are
deferred compensation plans for a select group of management and highly
compensated employees and as such is exempt from the application of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), except for the
disclosure requirements applicable to such plans for which the Company bears
full responsibility as to compliance. The Company further represents that
neither Plan is qualified under Section 401 of the Code and therefore is not
subject to any of the Code requirements applicable to tax-qualified plans.
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ARTICLE III
Trust Agent
3.1. Initial Appointment of Trust Agent. By its acceptance of this
Trust, the Trustee hereby agrees to the designation by the Company of Xxxxxxx
Xxxxxx Incorporated as the Trust Agent ("Trust Agent") under this Agreement. The
Trustee shall have no responsibility for the performance of the duties of the
Trust Agent.
3.2. Removal of the Trust Agent. Either the Company or, in the event of
the Company's bankruptcy or insolvency, the Trustee may terminate the Trust
Agent by written notice to the Company or the Trustee (as the case may be) and
appoint a successor as provided in Section 3.3.
3.3. Resignation of the Trust Agent. The Trust Agent may resign at any
time by delivery of written notice of resignation to the Trustee and the
Company. Upon receipt of the notice of resignation, the Plan Administrator shall
appoint a successor Trust Agent. If such notice of resignation is received
following the Company's bankruptcy or insolvency, the Trustee shall appoint a
successor Trust Agent in its discretion, which successor shall be a national
compensation or actuarial consulting firm of similar reputation to any such
resignation or any termination of the Trust Agent pursuant to Section 3.2. Such
appointments shall take effect as of a future date specified in the notice of
same, which date shall not be earlier than the date 60 days after the day on
which the notice is delivered, or such earlier date as may be agreed to by the
Trust Agent and the Trustee. The successor Trust Agent shall, as a condition to
such appointment, agree in writing to be bound by the terms of this Agreement
and to perform the duties and assume the responsibilities assigned to the Trust
Agent under this Agreement. As soon as practicable after a Trust Agent has
resigned or has been terminated it shall deliver to the successor Trust Agent
all reports, records, documents, and other written information in its possession
regarding the Plans, the Trust Fund, and the Participants in the Plans, and
thereupon shall be entitled to all unpaid fees, compensation and reimbursement
to which it is entitled under this Agreement and shall be relieved of all
responsibilities and duties under this Agreement.
3.4. Records. The Trust Agent shall maintain or cause to be maintained
all the Participant records contemplated by this Agreement. The Trust Agent also
shall prepare and distribute Participant's statements which shall include income
tax information, if that information is supplied to the Trust Agent by the
Company, with respect to payments to Participants and their Beneficiaries and
shall perform such other duties and responsibilities as the Trustee determines
is necessary or advisable to achieve the objectives of this Agreement. Any tax
information applicable to a Participant or Beneficiary, including any required
tax withholding, shall be supplied to the Trust Agent by the Company, Plan
Administrator or Trustee.
3.5. Participant Information. The Trust Agent shall furnish to the
Company and Trustee all the information necessary to determine the benefits
payable to or with respect to each Participant in the Plan, including any
benefits payable after a Participant's death and recipient of
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same. The Trust shall from time to time, and at least annually, and promptly
upon the request of the Company or Trustee, furnish updated information to the
Company or Trustee. The Trust Agent shall prepare an annual benefits statement
in respect to each Participant and shall furnish a copy of same to the
Participant or his Beneficiary, but in no even shall the Trustee be required to
prepare any such statement.
3.6. Benefit Payments. Upon proper notification from the Plan
Administrator, the Trust Agent shall prepare a certification to the Trustee that
a Participant's benefits under a Plan have become payable and shall furnish a
copy of such certification to the Participant or to the Beneficiary of a
deceased Participant. Such certification shall include the amount of such
benefits, the terms or payment, the amount of any taxes required to be withheld
from such amount, if such information is supplied to the Trust Agent by the Plan
Administrator, and the name, address and social security number of the
recipient. Upon the receipt of such certified statement, the Trustee shall
commence cash distributions from the Trust Fund in accordance therewith to the
person or persons so indicated and to the Company with respect to taxes required
to be withheld and the Trust Agent shall charge the payments against the
Participant's benefits. The Company shall have full responsibility for the
payment of all withholding taxes to the appropriate taxing authority and shall
also furnish each Participant or Beneficiary with the appropriate tax
information form evidencing such payment and the amount thereof.
Upon the Trustee's receipt of actual notice from the Company or Plan
Administrator of a change of control, as defined in a Plan, the Trustee will pay
benefits to the participants pursuant to the terms of such Plan.
3.7. Company's Liability Not Limited to Assets. Nothing provided in
this Agreement shall relieve the Company of its liabilities to pay the
retirement and death benefits provided under the Plans except to the extent such
liabilities are met by application of the Trust Fund.
ARTICLE IV
Administration
4.1 Plan Documents and Authorizations. The Company shall provide the
Trust Agent with a certified copy of the Plans and all amendments thereto
promptly upon their adoption. The Company shall file with the Trustee and the
Trust Agent a certified list of the names and specimen signatures of the
officers of the Company, the members of the Compensation Committee of the Board
of Directors of the Company ("Compensation Committee"), or any person authorized
to act for them. The Company shall promptly notify the Trustee and the Trust
Agent of the addition or deletion of any person's name to or from such list,
respectively. Until receipt by the Trustee and/or the Trust Agent of proper
notice that any person is no longer authorized so to act, the Trustee or the
Trust Agent may rely on the actions of such person or persons until notified in
writing that such certification has been revoked. All certifications, notices
and directions by any such authorized person or persons to the Trustee or Trust
Agent shall be in writing signed by such person or persons or shall be by
electronic means mutually agreeable to the Trustee or Trust Agent and the person
giving the certification notice or direction. The Trustee and the Trust Agent
may rely on any such certification, notice or direction
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purporting to have been signed by or on behalf of such person or persons that
the Trustee or the Trust Agent reasonably believes to have been signed (or
electronically given) thereby. The Trustee and the Trust Agent shall have no
responsibility for acting or not acting in reliance upon any notification
believed by the Trustee or the Trust Agent to have been so signed (or
electronically given) by a duly authorized officer or agent of the Company. The
Company shall be responsible for keeping accurate books and records with respect
to the employees of the Company and their compensation.
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 for any action taken pursuant to a written (or
electronic) direction from the Company. Except as otherwise required by
applicable law or Section 4.2(b)(ii) of this Agreement, the Trustee shall not be
liable under this Agreement for any claim for special, indirect, or
consequential losses or damage of any kind whatsoever (including but not limited
to lost profits) even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
4.2. Directions and Indemnification.
(a) Directions. The Trustee shall not be liable for the proper
application of any part of the Trust Fund if payments are made in accordance
with the directions of the Company, Plan Administrator or Transfer Agent as
herein provided, nor shall the Trustee be responsible for the adequacy of the
Trust Fund to meet and discharge any and all payments and liabilities under the
Plans. All persons dealing with the Trustee are released-from inquiry into the
decision or authority of the Trustee and from seeing to the application of any
moneys, securities or other property paid or delivered to the Trustee.
(b) Indemnification.
(i) The Company shall indemnify the Trustee against, and hold the
Trustee harmless from, any and all loss, damage, penalty, liability, cost, and
expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted against the
Trustee by reason of any third party claim, regulatory proceeding, or litigation
arising from any act done or omitted to be done by any individual or person with
respect to the Plans or Trust, including without limitation the selection of
GICs and similar investments by the Company, excepting only any and all loss,
etc., to the extent that it arises from the Trustee's failure to perform in
accordance with the Trust Agreement.
(ii) The Trustee shall indemnify the Company against, and hold
the Company harmless from, any and all loss, damage, penalty, liability, cost
and expense, including without limitation, reasonable attorneys' fees and
disbursements that may be incurred by, imposed upon or asserted against the
Company or Plan Administrator as a direct result of any third party claim,
regulatory proceeding or litigation to the extent that it arises from the
Trustee's failure to perform in accordance with The Trust Agreement.
(c) Survival. The provisions of this Section 4.3 shall survive the
termination of this Agreement.
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ARTICLE V
Trust Investments
5.1. Reserved.
5.2. General Investment Powers. The Trustee shall invest the Trust fund
pursuant to the directions it receives from the Trust Agent, but shall not
invest in securities of the Company. Subject to the foregoing, the Trustee shall
have the power in investing and reinvesting the Trust Fund:
(a) To invest and reinvest in any property, real, personal or
mixed, wherever situated and whether or not productive of income
or consisting of wasting assets, including without limitation,
common and preferred stock, bonds, notes, debentures (including
convertible stocks and securities but not including any stock or
security of the Trustee, either Company, or any affiliate
thereof), leaseholds, mortgages, certificates or deposit or
demand or time deposits (including any such deposits with the
Trustee), shares of investment companies and mutual funds,
interests in partnerships and trusts, insurance policies and
annuity contracts, and oil, mineral or gas properties, royalties,
interests or rights, without being limited to the classes or
property in which trustees are authorized to invest by any law or
any rule of court of any state and without regard to the
proportion any such property may bear to the entire amount of the
Trust Fund;
(b) To invest and reinvest all or any portion of the Trust Fund,
collectively through the medium of any common, collective or
commingled trust fund that may be established and maintained by
the Trustee for plans or programs which are not tax qualified,
subject to the instrument or instruments establishing such trust
fund or funds and with the terms of such instrument or
instruments, as from time to time amended, being incorporated
into this Agreement to the extent of the equitable share of the
Trust Fund in any such common collective or commingled trust
fund;
(c) To retain any property at any time received by the Trustee;
(d) To sell or exchange any property held by it at public or
private sale, for cash or on credit, to grant and exercise
options for the purchase or exchange thereof, to exercise all
conversion or subscription rights pertaining to any such property
and to enter into any covenant or agreement to purchase any
property in the future;
(e) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating
to property held by it and to consent to or oppose any such plan
or any action thereunder or any contract, lease, mortgage,
purchase, sale or other action by any person;
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(f) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary
power thereto, and to pay part of the expenses and compensation
thereof and any assessments levied with respect to any such
property so deposited;
(g) To extend the time of payment of any obligation held by it;
(h) To hold uninvested any moneys received by it, without
liability for interest thereon, until such moneys shall be
invested, reinvested or disbursed;
(i) To exercise all voting or other rights with respect to any
property held by it and to grant proxies, discretionary or
otherwise;
(j) For the purposes of the Trust, to borrow money from others,
to issue its promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by it;
(k) To manage, administer, operate, insure, repair, improve,
develop, preserve, mortgage, lease or otherwise deal with, for
any period, any real property or any oil, mineral or gas
properties, royalties, interests or rights held by it directly or
through any corporation or partnership, either alone or by
joining with others, using other Trust assets for any such
purposes, to modify, extend, renew, waive or otherwise adjust any
provision of any such mortgage or lease and to make provision for
amortization of the investment in or depreciation of the value of
such property;
(l) Xxx employee suitable agents and counsel, who may be counsel
to the Company or the Trustee, and to pay their reasonable
expenses and compensation from the Trust Fund to the extent not
paid by the Company;
(m) To cause any property held by it to be registered and held in
the name of one or more nominees, with or without the addition of
words indicating that such securities are held in a fiduciary
capacity, and to hold securities in bearer form;
(n) To settle, compromise or submit to arbitration any claims,
debt or damages due or owing to or from the Trust, respectively,
to commence or defend suits or legal proceedings to protect any
interest of the Trust, and to represent the Trust in all suits or
legal proceedings in any court or before any other body or
tribunal; provided, however, that the Trustee shall not be
required to take any such action unless it shall have been
indemnified by the Company to its reasonable satisfaction against
liability or expenses it might incur therefrom;
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(o) To organize under the laws of any state a corporation or
trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire hereunder and to
exercise with respect thereto any or all of the powers set forth
herein; and
(p) Generally, to do all acts whether or not expressly
authorized, that the Trustee may reasonably deem necessary or
desirable for the protection of the Trust Fund.
5.3 No Duty of Inquiry. No person dealing with the Trustee shall be
under any obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's authority as
to any transaction.
5.4 Method of Distribution. The Trustee shall distribute cash from the
Trust Fund in accordance with Article III hereof. The Trustee may make any
distribution required hereunder by mailing its check for the specified amount to
the person to whom such distribution or payment is to be made, at such address
as may have been last furnished to the Trustee, or if no such address shall have
been so furnished, to such person in care of the Company or (if so directed by
the Company) by crediting the account of such person or by transferring funds so
such person's account by bank or wire transfer.
5.5 Actions by Company. If at any time there is no person authorized to
act under this Agreement on behalf of a Company, the Chief Executive Officer,
Chief Financial Officer, Vice President of Human Resources or General Counsel of
the Company shall have the authority to act on behalf of the Company hereunder.
5.6 Trustee's Liability for Acting Under the Directions of the Trust
Agent. The Trustee shall have no liability or responsibility to either Company
or any persons claiming any interest in the Trust Fund for acting without
question on the direction of, or for failing to act in the absence of any
direction from, the Trust Agent unless the Trustee participated knowingly in, or
knowingly undertook to conceal, an act or omission of the Trust Agent
constituting a breach of its duties hereunder, knowing such act or omission was
a breach of such duties; provided, however, that the Trustee shall not be deemed
to have 'participated' in a breach by the Trust Agent for the purposes of this
undertaking solely as a result of the performance by the Trustee or its
officers, employees or agent of any custodial, reporting, recording, and
bookkeeping functions with respect to any assets of the Trust Fund managed by
the Trust Agent or solely as a result of settling purchase and sale transactions
entered into or directed by the Trust Agent, or to have 'knowledge' of any such
breach solely as a result of the information received by the Trustee or its
officers, employees or agents in the normal course in performing such functions
or settling such transactions. If the Trustee has actual knowledge of a breach
committed by the Trust Agent, it shall promptly notify the Company in writing
thereof, and the Trustee, except as required by applicable law, shall thereafter
have no responsibility to remedy such breach.
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ARTICLE VI
Expenses
6.1 Taxes. The Company agrees that all income, deductions and credits
under the Trust belong to it as owner for income taxes purposes and will be
included on the Company's income tax returns. The Company shall pay any Federal,
state and local taxes of the Trust Fund, or any part thereof, and on the income
therefrom.
6.2 Compensation. The Trustee shall be entitled to such compensation
and fees for its services under this Agreement as shall be set forth in its
Published Schedule of Compensation attached as Exhibit I as amended from time to
time by the parties. Such expenses and compensation shall be a charge on the
Trust Fund and shall constitute a lien in favor of the Trustee until paid by the
Company. Such compensation, fees and reimbursement for expenses and liability
described in Section 4.2 and Section 5.2(1), shall be paid to the Trustee or the
Trust Agent by the Company directly; but if the Company shall fail to do so, the
Trustee shall be entitled to withdraw all amounts to which it is entitled from
the Trust Fund.
To the extent the Trust Fund is not sufficient, the additional amounts
due shall constitute a lien against the Trust Fund.
ARTICLE VII
Trust Records and Accounts
7.1. Trust Records. The Trustee shall maintain records with respect to
the Trust Fund that show all receipts, investments, disbursements and other
transactions hereunder. The record of the Trustee with respect to the Trust Fund
shall be open to inspection by the Company, the Trust Agent and Participants, or
their representatives, at all reasonable times during normal business hours of
the Trustee and may be audited not more frequently than once each fiscal year by
an independent certified public accountant engaged by the Company; provided,
however, the Trustee shall be entitled to additional compensation from the
Company, as mutually agreed upon by the Company and the Trustee, in respect of
audits or auditors, requests which the Trustee reasonably determines to exceed
the ordinary course of the usual scope of such examination of its records.
7.2. Settlement of Accounts. Within a reasonable time after the close
of each fiscal year of the Company (or, in the Trustee's discretion, at more
frequent intervals), or of any termination of the duties of the Trustee
hereunder, the Trustee shall prepare and deliver to the Company and the Trust
Agent a statement of transactions reflecting its acts and transactions as
Trustee during such fiscal year, portion thereof or during such period from the
close of the last fiscal year or last statement period to the termination of the
Trustees duties, respectively, including a statement of the then current value
of the Trust Fund. Any such statement shall be deemed an account stated and
accepted and approved by each Company, and the Trustee shall be relieved and
discharged, as if such account had been settled and allowed by a judgment or
decree of a court of competent jurisdiction, unless protested by the Company by
written notice to the
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Trustee within ninety (90) days of receipt thereof by the Company. The Trustee
shall have the right to apply at any time to a court of competent jurisdiction
for judicial settlement of any account of the Trustee not previously settled as
herein provided or for the determination of any question of construction or for
instructions. In any such action or proceeding it shall be necessary to join as
parties only the Trustee and the Company (although the Trustee and the Company
may also join such other parties as it may deem appropriate), and any judgment
or decree entered therein shall be conclusive.
ARTICLE VIII
Trustee Resignation and Removal
8.1 Resignation of Trustee. The Trustee may resign at any time by
delivering written notice thereof to the Company; provided, however, that no
such resignation will take effect until the earlier of (i) sixty (60) days from
the date of delivery of such notice to the Company or (ii) the appointment of
successor trustee.
8.2 Removal of Trustee. The Trustee may be removed by the Company at
any time, pursuant to a written instrument executed by the Plan Administrator
removing the Trustee and appointing a successor trustee. Such removal shall
become effective sixty (60) days after receipt by the Trustee of such
resolution, unless the Trustee shall agree to an earlier effective date.
8.3 Appointment of a Successor Trustee. Upon the resignation or removal
of the Trustee, a successor trustee shall be appointed by the Plan
Administrator. Such Successor trustee shall be a bank or trust company
established under the laws of the United States or a State within the Untied
States and having assets in excess of $500,000,000. Such appointment shall take
effect upon the delivery to the Trustee of (a) a written appointment of such
successor trustee, duly executed by the Plan Administrator, as the case may be,
and (b) an acceptance by such successor trustee. Any successor trustee shall
have all the rights, powers and duties granted the Trustee hereunder.
8.4 Petition for Successor. If, within sixty (60) days of the delivery
of the Trustee's written notice of resignation, a successor trustee shall not
have been appointed, the Trustee may apply to any court of competent
jurisdiction for the appointment of a successor trustee.
8.5 Transfer of Trust Fund. Upon the resignation or removal of the
Trustee and the appointment of a successor trustee, and after the acceptance and
approval of its account, the Trustee shall transfer and deliver the Trust Fund
to such successor. Under no circumstances shall the Trustee transfer or deliver
the Trust Fund to any successor which is not a bank or trust company as
hereinabove defined.
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ARTICLE IX
Termination
9.1. Termination of the Trust. The Trust may be terminated at any time
by the Company, pursuant to a written instrument executed by the Plan
Administrator upon delivery to the Trustee of a copy of such written instrument
of termination. However, the Trust may not be terminated in the event of the
Company's bankruptcy or insolvency, as defined in Section 2.1, and, in such
case, distributions will be made in accordance with that Article.
9.2. Distribution Upon Termination. Upon the termination of the Trust,
the Trustee shall, after the acceptance and approval of its account, distribute
to each Participant or his Beneficiary, on a pro-rata basis to the extent of the
Trust fund, in accordance with the written directions of the Trust Agent, owing
to that Participant or Beneficiary under each Plan. After the satisfaction of
all liabilities with respect to all Participants in the Plans and their
Beneficiaries as certified to by the Trust Agent, the Trustee shall distribute
any assets remaining in the Trust Fund to the Company in accordance with the
Company's written direction. Upon completing such distributions, the Trustee
shall be relieved and discharged. The powers of the Trustee shall continue as
long as any part of the Trust Fund remains in its possession.
ARTICLE X
Amendment
This Agreement may be amended, in whole or in part, at any time and
from time to time, by the Company pursuant to a written instrument executed by
the Chief Executive Officer, Chief Financial Officer, Vice President of Human
Resources or General Counsel by delivery to the Trustee of a copy of such
written instrument duly executed, except that the duties and responsibilities of
the Trustee shall not be increased without the Trustee's written consent.
ARTICLE XI
Miscellaneous
11.1. Governing Law. This Agreement shall be construed and interpreted
under, and the Trust hereby created shall be governed by, the laws of the State
of New York insofar as such laws do not contravene any applicable Federal laws,
rules or regulations.
11.2. Gender. Neither the gender nor the number (singular or plural) of
any word shall be construed to exclude another gender or number when a different
gender or number would be appropriate.
11.3. No Rights to Particular Assets. No Participant or Beneficiary
shall have any preferred claim on, or any beneficial ownership interest in, any
assets of the Trust before such assets are paid to the Participant or
Beneficiary, and all rights created under the Trust and the Plans shall be
unsecured rights of the Participant or Beneficiary against the Company. No
rights
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or interest of any Participant or Beneficiary under the Plans shall be
transferable or assignable or shall be subject to alienation, anticipation or
encumbrance, and no right or interest of any Participant or Beneficiary in the
Plans shall be subject to any garnishment, attachment, or execution, levy or
other legal or equitable process. Notwithstanding anything to the contrary, the
Trust Fund shall at all times remain subject to claims of general creditors of
the Company in the event of the Company's bankruptcy or insolvency as provided
herein.
11.4. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor to the Company or its business as the result of merger,
consolidation, reorganization, transfer of assets or otherwise and any
subsequent successor thereto. In the event of any such merger, consolidation,
reorganization, transfer of assets or other similar transaction, the successor
to the Company or its business or any subsequent successor thereto shall
promptly notify the Trustee in writing of its successorship. In no event shall
any such transaction described herein suspend or delay the rights of
Participants or the Beneficiaries of deceased participants to receive benefits
hereunder.
11.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall together constitute only one Agreement.
11.6. Notices. Communication to the Trustee shall be sent to The Chase
Manhattan Bank, New York, New York or to such other address as the Trustee may
specify in writing. Communications to the Company shall be sent to the attention
of the Compensation Committee under the Plan at the Company's principal offices
or to such other address as the Compensation Committee may specify in writing.
No communication shall be binding upon the Trustee or the Company until
received.
IN WITNESS WHEREOF, the parties hereto have caused this amended and
restated Trust Agreement to be duly executed and their respective corporate
seals to be hereto affixed.
DELL COMPUTER CORPORATION
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Its: Vice President
THE CHASE MANHATTAN BANK
By: /s/ XXXX X. XXXXXXX, XX.
---------------------------------
Its: Vice President
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