Exhibit 4.2
XXXXXX'X ENTERTAINMENT, INC.
EXECUTIVE DEFERRED COMPENSATION
TRUST AGREEMENT
XXXXXX'X ENTERTAINMENT, INC.
EXECUTIVE DEFERRED COMPENSATION
TRUST AGREEMENT
THIS TRUST AGREEMENT is made and entered into by and between Xxxxxx'x
Entertainment, Inc. (the "Company") and Xxxxx Fargo Bank Minnesota, N.A. (the
"Trustee").
WHEREAS, the Company has adopted the Xxxxxx'x Entertainment, Inc. Executive
Supplemental Savings Plan (the "ESSP"), a nonqualified deferred compensation
plan for the benefit of certain executives;
WHEREAS, the Company also sponsors the Xxxxxx'x Entertainment, Inc.
Executive Deferred Compensation Plan (the "EDCP") and the Xxxxxx'x
Entertainment, Inc. Deferred Compensation Plan (the "DCP"), nonqualified
deferred compensation plans for the benefit of certain executives and directors;
WHEREAS, the Company has entered into an Escrow Agreement dated February 6,
1990, as amended, pursuant to which the Company may maintain a source of funds
to assist it in meeting its liabilities under the EDCP and the portion of its
liabilities under the DCP that relates to DCP account balances of individuals
who participate in both the EDCP and the DCP (the "Escrow Agreement");
WHEREAS, the Company expects to incur liabilities with respect to
individuals participating in the ESSP and the Company has incurred certain
liabilities in connection with the DCP for which it has no source of funds other
than the general assets of the Company;
WHEREAS, the Company wishes to establish a trust (the "Trust") and to make
contributions to the Trust to provide a source of funds to assist the Company in
meeting its liabilities under the ESSP and its liabilities under the portion of
the DCP that is not subject to funding through the Escrow Agreement;
WHEREAS, the Company wishes to contribute to the Trust assets that shall be
held therein subject to the claims of the Company's Insolvency, as herein
defined, until paid to the ESSP or DCP participants and their beneficiaries in
such manner and at such times as specified in the ESSP or DCP (collectively, the
"Plan Documents"), as applicable;
WHEREAS, it is the intention of the parties that this Trust Agreement shall
constitute an unfunded arrangement and shall not affect the status of either the
ESSP or the DCP 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 ("Act").
NOW, THEREFORE, the parties establish the Trust Agreement and agree that
the Trust shall be comprised, held and disposed of as follows:
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ARTICLE ONE
ESTABLISHMENT OF TRUST
1.1 The Company hereby deposits with the Trustee in trust ten dollars
($10.00), which, together with subsequent contributions made or to be made by
the Company, constitute the principal of the Trust to be held, administered and
disposed of by the Trustee in accordance with the terms of the Plan and as
provided in this Trust Agreement.
1.2 The Trust hereby established shall be irrevocable.
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 participants in the ESSP and the participants
in the DCP whose DCP benefits are not subject to the Escrow Agreement
(collectively, the "Plan Participants") and the general creditors of the
Company, as set forth herein. 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 Plan Documents and this Trust
Agreement shall be mere unsecured contractual rights of 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 3.1 herein.
1.5 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 the Plan Documents and this Trust Agreement. Neither the
Trustee nor any Plan Participant or beneficiary shall have any right to compel
such additional deposits.
1.6 Upon a "Change of Control" (as defined in the Plan Documents), the
Company shall, as soon as possible, but in no event longer than 90 days
following the Change of Control, make an irrevocable contribution to the Trust
in an amount that is sufficient to pay each Plan Participant or beneficiary the
benefits to which Plan Participants or their beneficiaries would be entitled
pursuant to the terms of the Plan Documents as of the date on which the Change
of Control occurred.
ARTICLE TWO
PAYMENTS TO PLAN PARTICIPANTS
AND THEIR BENEFICIARIES
2.1 The entitlement of a Plan Participant or his or her beneficiaries to
benefits under the ESSP or DCP shall be determined by the Company or such party
as it shall designate under the Plan Documents, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the Plan
Documents. No provision in this Trust Agreement shall be construed as affording
to an ESSP participant rights or privileges available under the DCP or as
affording to a DCP participant rights or privileges available under the ESSP.
The rights and
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entitlements of each Plan Participant or beneficiary shall be determined in
accordance with the ESSP or DCP, as applicable.
2.2 The Company may direct the Trustee to make payment of benefits to Plan
Participants or beneficiaries as they become due under the terms of the Plan
Documents. Alternatively, the Company may make payment of benefits directly to
Plan Participants or beneficiaries. If the Company elects to make benefit
payments directly to the Plan Participants or beneficiaries, the Company shall
notify the Trustee of such election prior to the time amounts become payable to
Plan Participants or their beneficiaries under the terms of the Plan Documents.
2.3 The Company or a consultant designated by the Company shall provide to
the Trustee, at least annually, a schedule showing the account balances of each
Plan Participant or beneficiary, the vesting percentage applicable to each
account balance and the entitlement of each Plan Participant or beneficiary to a
current or future payment under the Plan Documents (the "Payment Schedule"). If
a Plan Participant or his beneficiary shall make a request for payment from the
Trustee, the Trustee shall obtain from the Company or its designated consultant
an updated Payment Schedule that specifically reflects the amount currently
payable to any Plan Participant or beneficiary who has requested payment from
the Trustee, the form in which such amount is to be paid (as provided for or
available under the ESSP or DCP), and the time of commencement for payment of
such amount. Except as otherwise provided herein, the Trustee shall make
payments to the Plan Participants and their beneficiaries in accordance with the
appropriate Payment Schedule. There shall be no liability on the part of the
Trustee with respect to any payment made in accordance with the terms of this
Trust Agreement and the most recent Payment Schedule in the possession of the
Trustee. At the direction of the Company, the Trustee shall withhold any
federal, state or local taxes required to be withheld on benefits paid under the
ESSP or the DCP and shall pay amounts withheld to the Company for remittance to
the appropriate taxing authorities.
2.4 Notwithstanding any provision of this Trust Agreement to the contrary,
if the Trustee has actual knowledge that the Company has no present intention to
pay benefits to Plan Participants and beneficiaries in accordance with the terms
of the Plan Documents or to make any future contributions to the Trust, the
Trustee shall, immediately and at least annually thereafter, obtain from the
Company or its designated consultant an updated Payment Schedule and determine
the funding status of the Trust. The funding status of the Trust shall be
determined by dividing the value of the total assets in the Trust by the total
account balances of all Plan Participants or beneficiaries, reflected on the
updated Payment Schedule and determined without regard to whether the account
balances are vested or payable (the "funding ratio"). If the Trust's funding
ratio is less than one, no payment to a Plan Participant or beneficiary from the
Trust shall exceed the maximum payment amount determined in accordance with
Section 2.5.
2.5 The maximum amount that the Trustee may pay to any Plan Participant or
his beneficiary if the contingencies set forth in Section 2.4 above have
occurred, or as required by Section 3.3 below, shall equal the scheduled lump
sum or installment payment owed to the Plan Participant or beneficiary
determined in accordance with the Plan Documents and reflected on the Payment
Schedule, multiplied by the funding ratio. If the payment to a Plan Participant
or beneficiary is limited to the maximum amount permitted by this Section 2.5,
the difference
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between the amount paid to the participant or beneficiary and the scheduled ESSP
or DCP benefit payment shall be recorded by the Trustee and shall be referred to
as an "overdue payment". The Trustee shall disregard any overdue payments in
determining the Trust's funding ratio pursuant to Section 2.4 above.
2.6 If overdue payments are calculated and recorded by the Trustee in
accordance with Section 2.5, the Trustee shall make such overdue payments to the
affected Plan Participants and beneficiaries at such time as the value of the
total assets in the Trust is sufficient to support a funding ratio of at least
one and to fund the overdue payments. The Company may make payment of any
overdue payment directly to a Plan Participant or beneficiary.
ARTICLE THREE
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
3.1 The Trustee shall cease paying for 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.
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 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.
(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 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 ESSP, the DCP or otherwise.
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(d) The Trustee shall resume the payment of benefits to Plan
Participants or their beneficiaries in accordance with Article Two of this
Trust Agreement only after the Trustee has determined that the Company is
not Insolvent (or is no longer Insolvent).
3.3 Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3.2 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 Plan Documents for the period of such
discontinuance, less the aggregate amount of any payments made to Plan
Participants or their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance. If the assets
of the Trust are not sufficient following a discontinuance of payments pursuant
to Section 3.2 above, the Trustee shall make payments in accordance with
Sections 2.4 and 2.5 above.
ARTICLE FOUR
PAYMENTS TO THE COMPANY
4.1 Except as provided in Article Three above and as set forth below in
this Article Four, 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 payment of benefits have been made to Plan Participants and their
beneficiaries pursuant to the terms of the Plan Documents.
4.2 In the event that the Trust shall hold "Excess Assets" (as that term is
defined in Section 4.3 below), the committee designated by the Company to carry
out the administrative duties of the Company under the Plan Documents (the
"Committee"), in its discretion, may direct the Trustee to return part or all of
such Excess Assets to the Company.
4.3 "Excess Assets" are assets of the Trust which exceed one hundred twenty
percent (120%) of the amounts necessary to pay each Plan Participant or
beneficiary the benefits to which such Plan Participants or their beneficiaries
are entitled pursuant to the terms of the Plan Documents as of the date the
Committee requests that any Excess Assets be returned to the Company, regardless
of whether such benefits are vested or payable as of the date the Committee
makes its request for Excess Assets.
4.4 The calculation required by Section 4.3 shall be made by a qualified
actuary or consultant selected by the Trustee. Whenever practicable, the
consultant hired by the Company to administer the ESSP and the DCP shall be
selected by the Trustee to perform the calculation required by Section 4.3. If
the Trustee so requests, the Company or its designated consultant shall provide
to the Trustee an updated Payment Schedule in connection with the calculations
performed in accordance with Section 4.3.
4.5 Any Excess Assets returned to the Company pursuant to this Article Four
shall be returned to the Company in any order of priority directed by the
Committee.
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ARTICLE FIVE
INVESTMENT AUTHORITY
5.1 All rights associated with the assets of the Trust shall be exercised
by the Trustee or the person designated by the Trustee, and shall in no event be
exercisable or rest with Plan Participants, except that voting rights with
respect to the Trust assets will be exercised by the Company.
5.2 The Company shall have the right at anytime, and from time to time, in
its sole discretion, to substitute assets of equal fair market value for any
asset held by the Trust. This right is exercisable by the Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
5.3 Except as otherwise provided herein, in the investment, administration
and distribution of the Trust, the Trustee, subject to the duty to apply the
proceeds and avails of the Trust to the purposes specified in the Plan Documents
and this Trust Agreement and subject to the restrictions of applicable law, may
perform every act in the management of the Trust that individuals may perform in
the management of like property owned by them free of any trust and may exercise
every power with respect to each item of property in the Trust, real and
personal, which individual owners of like property can exercise, including by
way of illustration, but not by way of limitation, the powers noted below. No
enumeration of specific powers herein shall be construed as a limitation on the
foregoing general powers of the Trustee, nor shall any of the powers herein
conferred upon the Trustee be exhausted by use thereof, but each shall be
continuing. The powers of the Trustee include, but are not limited to, the
following:
(a) To hold, as an investment of the Trust, life insurance policies
owned by the Company and issued on the lives of current or former employees
of the Company, in accordance with the provisions of Article Eight of this
Trust Agreement;
(b) To invest in securities (including stock and rights to acquire
stock) or obligations issued by the Company;
(c) To invest and reinvest in bonds, notes, debentures, stocks (common
or preferred), interests in investment companies (whether "open-end mutual
funds" or "closed-end mutual funds"), options to acquire or sell securities
(including "covered call options"), commercial paper, bank repurchase
agreements, individual and group annuity contracts, deposit administration
contracts, life insurance company separate accounts and pooled investment
funds, mortgages, leaseholds, fee interests, personal, corporate and
governmental obligations, interests in any amount in common trust funds
established by the Trustee or another bank or trust company (and for such
time as assets are invested in such common trust funds, such assets shall
be subject to the declarations of trust establishing such common trust
funds), pooled investment funds for retirement plans established by the
Trustee or another bank or trust company and such other property, real,
personal or mixed, irrespective of whether such securities or such property
shall be of the character authorized by any state law for trust
investments, but in accordance with the provisions of Section 4975 of the
Internal Revenue Code of 1986, as amended ("Code") and Sections 404, 406,
407 and 408 of the Act;
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(d) To pledge or mortgage, assign, lease, contract to lease, grant
and trade options to purchase, sell for cash or on credit at a private
or public sale, convert, redeem, exchange for other securities or other
property in which the Trust may be invested under this Trust Agreement
or otherwise dispose of any securities or other property at any time
held by the Trustee except as otherwise provided by the Plan Documents;
no person dealing with the Trustee shall be bound to see to the
application or to inquire into the validity, expediency or propriety of
such sale or other disposition;
(e) To retain in cash so much of the Trust as the Trustee deems
advisable and to deposit any such cash held in the trust in banking
accounts without liability for interest;
(f) To settle, compromise, contest or submit to arbitration any
claims, debts or damages due or owing to or from the Trust, to commence or
defend suits or legal proceedings, and to represent the Trust in all suits
or legal proceedings;
(g) To exercise any conversion privilege or subscription right
available in connection with any securities or property at any time held by
the Trustee, to consent to the reorganization, consolidation, merger or
readjustment of the finances of any corporation, company or association, or
to the sale, mortgage, pledge or lease of the property of any corporation,
company or association, any of the securities of which may at any time be
held by the Trustee; and to do any acts with reference thereto, including
the exercise of options, making of agreements or subscriptions, and the
payment of expenses, assessments or subscriptions, which may be deemed to
be necessary or advisable in connection therewith, and to hold and retain
any securities or other property which the Trustee may so acquire;
(h) To vote any corporate stock belonging to the Trust and to give
proxies or general or limited powers of attorney for the purpose of such
voting to other persons, with or without power of substitution; provided
that the Trustee shall vote stock of the Company only as directed by the
Company;
(i) To borrow money, assume indebtedness, extend mortgages and
encumber by mortgage or pledge upon such terms and conditions as may be
deemed advisable;
(j) To collect the income, rents, issues, profits and increases of the
Trust through such means as are deemed advisable;
(k) To invest all or part of the Trust in interest-bearing deposits
with the Trustee or another bank or other federally-insured institution at
a reasonable rate of interest, including but not limited to investment in
time deposits, savings deposits, certificates of deposit or time accounts;
(l) To employ agents, attorneys and advisors and to pay their
reasonable compensation and expenses; the Trustee shall incur no liability
for the acts or defaults of such agents, attorneys and advisors selected
with due care, and the Trustee shall be fully protected in acting upon the
advice of counsel on questions of law arising in connection with the
administration of the Trust;
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(m) To cause any of the investments of the Trust to be registered in
the name of the Trustee or in the name of its nominee, and any corporation
or its transfer agent may presume conclusively that such nominee is the
actual owner of any investments submitted for transfer; to make, execute
and deliver as Trustee any and all instruments, advances, contracts,
waivers, releases or other instruments in writing necessary or proper in
the employment of any of the foregoing powers;
(n) To retain any funds or property subject to dispute without
liability for the payment of interest, and to decline to make payment or
delivery thereof until final adjudication is made by a court of competent
jurisdiction; and
(o) To file all tax and other returns and reports required of the
Trustee.
5.4 The discretion of the Trustee in investing and reinvesting the assets
of the Trust shall be subject to the investment directions issued by the Company
(or its designee) in accordance with the terms and provisions of the Plan
Documents. Notwithstanding any provision of Section 5.3 to the contrary, as of
the effective date set forth in Section 14.1, and unless and until the general
investment discretion of the Company is delegated to the Trustee as hereinafter
provided, no discretionary investment power vested in the Trustee under this
Trust Agreement shall be exercised except upon, and in accordance with, the
direction of the Company; and the Company is authorized and empowered, in its
sole discretion, to give any such directions to the Trustee. Neither the Trustee
nor any other person shall be under any duty to question any such direction of
the Company or to review any securities or other property acquired or held
pursuant to the Company's directions or to make any suggestions to the Company
in connection therewith; and the Trustee shall as promptly as possible comply
with any directions given by the Company hereunder. The Trustee shall not be
liable, to the extent permitted by law, for compliance with any such directions.
The Company may delegate its investment discretion under this Section to the
Trustee, in which event the Trustee shall exercise the investment discretion
granted under the other sections of this Section 5. Any such delegation shall be
set forth in the Plan Documents or be made by a written instrument delivered to
the Trustee and signed by the Company. Should it be necessary to perform some
act hereunder, and there is neither direction in the Plan Documents nor in this
Trust Agreement nor direction of the Company on file with the Trustee, and no
direction of the Company can be obtained after reasonable inquiry, the Trustee
shall have full power and discretion to act in its own best judgment. All
directions of the Company to the Trustee shall be in writing signed by the
Company or by such other person as it shall authorize in writing so to act.
Notwithstanding any provision of the Plan Documents or this Trust Agreement to
the contrary, the Company hereby agrees to indemnify the Trustee and to hold the
Trustee harmless from and against any claim or liability which may be asserted
against the Trustee by reason of the Trustee acting on any direction from the
Company pursuant to this Section or failing to act in the absence of any such
direction, provided that such indemnification shall not extend to liability for
which the Trustee is compensated under any policy of insurance.
5.5 The Company may designate an investment manager to direct the Trustee
regarding the management, acquisition and distribution of all or a part of the
assets of the Trust. Any such investment manager shall be registered as an
investment adviser under the Investment Advisers Act of 1940, or shall be a
bank, or shall be an insurance company qualified to perform
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investment management services under the laws of the State of Delaware and shall
have acknowledged in writing that he or it is a fiduciary with respect to the
Trust. In the event an investment manager is appointed, the Company shall
deliver to the Trustee a copy of the instruments appointing the investment
manager and evidencing the investment manager's acceptance of such appointment.
The Trustee shall follow the written directions of the investment manager
regarding the investment and reinvestment of the Trust or such portion thereof
as shall be under management by the investment manager and shall exercise to
such extent all powers set forth in Section 5.3 as directed by the investment
manager until notified in writing by the Company that the appointment of the
investment manager has been terminated. The Trustee shall be under no duty or
obligation to review any investments to be acquired, held or disposed of
pursuant to such directions, nor to make any recommendations with respect to the
disposition or continued retention of any such investment or the exercise or
non-exercise of any of the powers enumerated in Section 5.3. The Trustee shall
have no liability or responsibility for acting pursuant to the directions of, or
for failing to act in the absence of any directions from, the investment
manager. The Company hereby agrees to indemnify the Trustee and hold the Trustee
harmless from and against any claim or liability which may be asserted against
the Trustee by reason of the Trustee's acting on any direction from an
investment manager pursuant to this Section or failing to act in the absence of
any such direction.
ARTICLE SIX
DISPOSITION OF INCOME
6.1 During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
ARTICLE SEVEN
ACCOUNTING BY THE TRUSTEE
7.1 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 shall be agreed upon in writing between
the Company and the Trustee. Within 60 days following the close of each plan
year and within 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 plan 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 plan year or as of the date
of such removal or resignation, as the case may be.
ARTICLE EIGHT
RESPONSIBILITY OF THE TRUSTEE
8.1 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,
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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 that is contemplated by, and in conformity with, the terms of the Plan
Documents 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.
8.2 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.
8.3 However, notwithstanding the provisions of Section 8.2 above, the
Trustee may loan to the Company the proceeds of any borrowing against an
insurance policy held as an asset of the Trust.
8.4 Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, the Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
ARTICLE NINE
COMPENSATION AND EXPENSES OF THE TRUSTEE
9.1 The Company shall pay all expenses associated with the administration
of the Trust including the Trustee's fees and expenses. If not so paid, the fees
and expenses shall be paid from the Trust.
ARTICLE TEN
RESIGNATION AND REMOVAL OF THE TRUSTEE
10.1 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.
10.2 The Trustee may be removed by the Company on 30 days notice or upon
shorter notice accepted by the Trustee.
10.3 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 30 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be appointed,
in accordance with Article Eleven hereof, by the effective date of resignation
or removal under Section 10.1. If no such appointment has been made, the Trustee
may apply to a court of competent jurisdiction
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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 ELEVEN
APPOINTMENT OF SUCCESSOR
11.1 If the Trustee resigns or is removed in accordance with Section 10.1
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. 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.
11.2 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
Articles Seven and Eight 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 the
successor Trustee.
ARTICLE TWELVE
AMENDMENT OR TERMINATION
12.1 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 Plan Documents or shall make the Trust
revocable. In the event of a conflict between an amendment to this Trust
Agreement and the Plan Documents, the Plan Documents shall control and there
shall be no liability on the part of the Trustee resulting from its execution of
an amendment the terms of which conflict with the Plan Documents.
12.2 The Trust shall not terminate until the date on which participants and
their beneficiaries are no longer entitled to benefits pursuant to the terms of
the Plan Documents. Upon termination of the Trust any assets remaining in the
Trust shall be returned to the Company.
12.3 Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan Documents, the Company may
terminate this Trust prior to the time all benefit payments owed to Plan
Participants and beneficiaries under the ESSP and the DCP have been made. All
assets in the Trust at termination shall be returned to the Company.
ARTICLE THIRTEEN
MISCELLANEOUS
13.1 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.
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13.2 Benefits payable to the 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.
13.3 This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
ARTICLE FOURTEEN
EFFECTIVE DATE
14.1 The effective date of this Trust Agreement shall be as of April 1,
2001.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust
Agreement to be executed by their duly authorized representatives on the 13th
day of March, 2001.
XXXXXX'X ENTERTAINMENT, INC.
By: Xxxxxxx X. Xxxx
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Its: Sr. VP-XX
XXXXX FARGO BANK MINNESOTA, N.A.
By: Xxxx X. Lake
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Its: Assistant Vice President
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