Exhibit 10.41
UCAR CARBON
BENEFITS PROTECTION TRUST
Amended and Restated as of November 20, 2000
UCAR CARBON
BENEFITS PROTECTION TRUST AGREEMENT
THIS AGREEMENT, made as of 20th day of November 2000, by and
between UCAR CARBON COMPANY INC., a corporation organized and existing under the
laws of the State of Delaware (hereinafter referred to as the "Company"), and
MELLON BANK, N A., a national banking association, organized under the laws of
the United States (hereinafter referred to as the "Trustee"),
W I T N E S S E T H
WHEREAS, the Company has adopted the plans, employment
agreements and severance compensation agreements listed on Schedule 1
(hereinafter referred to as defined in Schedule 1 or collectively as the
"Plans") and may adopt or enter into other such Plans and agreements as will be
listed from time to time on Schedule 1 and may, from time to time, amend, modify
or terminate any such Plan in accordance with its terms; and
WHEREAS, the Company has previously established the Benefits
Protection Trust (hereinafter referred to as the "Trust") in order to ensure
that its employees and their beneficiaries will receive the benefits which the
Company is obligated to provide for them or which they reasonably anticipate
receiving pursuant to the Plans; and
WHEREAS, the Trust is intended to be a "grantor trust" with
the corpus and income of the Trust treated as assets and income of the Company
for federal income tax purposes pursuant to Sections 671 through 678 of the
Internal Revenue Code of 1986 (the "Code"), as amended; and
WHEREAS, the Company intends that the assets of the Trust will
be subject to the claims of creditors of the Company as provided in Article
EIGHTEENTH; and
WHEREAS, the Company intends that the existence of the Trust
will not alter the characterization of the Plans as "unfunded" and will not be
construed to provide taxable income to any participation under the Plans or the
Agreements prior to actual payment of benefits thereunder; and
WHEREAS, the Company wishes the amend and restate the Trust;
and
WHEREAS, the Company wishes to name Mellon Bank, N. A.; as
successor Trustee; and
WHEREAS, the Trustee is not a party to the Plans and makes no
representations with respect thereto, and all representations and recitals with
respect to the Plans shall be deemed to be those of the Company;
NOW, THEREFORE, the Company and the Trustee agree as follows:
FIRST: Definitions
(a) Any term that is referenced in the Plans shall have in
this Agreement the same meaning ascribed to it in the Plans, unless the context
clearly indicates a different meaning.
(b) "Accounts" shall mean, collectively, the Non-Qualified
Plans Account, the Severance Account, the Employment Agreement Account, the TCN
Account, the Benefits Protection Account and such other Account(s) as may
subsequently be established under Article SECOND.
(c) "Administrative Committee" shall mean the Administrative
Committee of the Benefits Protection Trust empowered to administer the Trust
after a Change in Control, as described in Article TENTH.
(d) "Agreements" shall mean the Employment Agreement and
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the Severance Compensation Agreements, collectively.
(e) "Authorized Person" shall mean an employee of the
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Company or member of the Non-Qualified Plans Committee or
the Administrative Committee who is authorized to execute and deliver, in the
and on behalf of the Company, the Non-Qualified Plans Committee or the
Administrative Committee, documents or instructions relating to the Trust.
Coincident with the execution of the Trust, the Company shall provide the
Trustee with a list of the members of the Non-Qualified Plans Committee, and all
other Authorized Persons, and concurrently with the appointment of the
Administrative Committee, the Company shall provide the Trustee with a list of
the members thereof. The Trustee shall be entitled to rely on such list.
(f) "Beneficiary" shall mean the beneficiary designated
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by a Participant under one or more of the Plans or Agreements.
(g) A "Change in Control" shall be deemed to occur if any
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of the following circumstances shall occur:
(A)(1) any "person" or "group" within the meaning
of Section 13(d) or 4(d)(2) of the Securities Exchange Act of 1934 (the "Act")
becomes the beneficial owner of 15% or more of the then outstanding Common
Stock or 15% or more of the then outstanding voting securities of the
Corporation;
(2) any "person" or "group" within the meaning
of Section 13(d) or 14(d)(2) of the Act acquires by proxy or otherwise the right
to vote on any matter or question with respect to 15% or more of the then
outstanding Common Stock or 15% or more of the combined voting power of the then
outstanding voting securities of the Corporation;
(3) Present Directors and New Directors cease
for any reason to constitute a majority of the Board (and, for purposes of this
clause (3), "Present Directors" shall mean individuals who at the beginning
of any consecutive twenty-four month period were members of the Board and
"New Directors" shall mean individuals whose election by the Board or whose
nomination for election as directors by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then in office who
were Present Directors or New Directors);
(4) the stockholders of the Corporation approve
a plan of complete liquidation or dissolution of the Corporation; or
(5) consummation of:
(i) a reorganization, restructuring,
recapitalization, reincorporation, merger or consolidation of the
Corporation (a "Business Combination") unless, following such Business
Combination, (X) all or substantially all of the individuals and
entities who were the beneficial owners of the Common Stock and the
voting securities of the Corporation outstanding immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than 50 % of the common equity securities and the combined voting
power of the voting securities of the corporation or other entity
resulting from such Business Combination outstanding after such
Business Combination (including, without limitation, a corporation
or other entity which as a result of such Business Combination owns
the Corporation or all or substantially all of the assets of the
Corporation or the Company either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination, of outstanding Common
Stock and the combined voting power of the outstanding voting
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securities of the Corporation, respectively, (Y) no "person" or "group"
within the meaning of Section 13(d) or 14(d)(2) of the Act (excluding
(a) any corporation or other entity resulting from such Business
Combination and (b) any employee benefit plan (or related trust) of the
Company or any corporation or other entity resulting from such Business
Combination) beneficially owns 15% or more of the common equity
securities or 15% or more of the combined voting power of the voting
securities of the corporation or other entity resulting from
such Business Combination outstanding after such Business Combination,
except to the extent that such beneficial ownership existed prior to
such Business Combination with respect to the Common Stock and the
voting securities of the Corporation, and (Z) at least a majority of
the members of the board of directors (or similar governing body) of
the corporation or other entity resulting from such Business
Combination were members of the Board at the time of the execution of
the initial agreement providing for such Business Combination or at the
time of the action of the Board approving such Business Combination,
whichever is earlier; or
(ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions)
of all or substantially all of the assets of the Corporation
or the Company, whether held directly or indirectly through one or more
subsidiaries (excluding any pledge, mortgage, grant of security
interest, sale-leaseback or similar transaction, but including any
foreclosure sale), provided, that, for purposes of clauses (5)(i) and
(5)(ii), the divestiture of less than substantially all of the
assets of the Corporation or the Company in one transaction or a series
of related transactions, whether effected by sale, lease, exchange,
spin-off, sale of stock of or merger or consolidation of a subsidiary,
transfer or otherwise, shall not constitute a Change in Control of the
Corporation.
Notwithstanding the foregoing, a Change in Control of the
Corporation shall not be deemed to occur:
(B)(1) pursuant to clause (A)(5)(i) or (A)(S)(ii) above,
solely because 15% or more of the then outstanding Common Stock or the then
outstanding voting securities of the Corporation is or becomes beneficially
owned or is directly or indirectly held or acquired by one or more employee
benefit plans (or related trusts) maintained by the Company; or
(2) pursuant to clause (A)(5)(ii) above, (i) if
the Board determines that any sale, lease, exchange or other transfer does not
involve all or substantially all of the assets of the Corporation or the Company
or (ii) unless the Board determines otherwise, solely because of the
consummation of a transaction or a series of transactions pursuant to which
the Company sells, distributes to the Corporation's stockholders, or
otherwise transfers or disposes of any or all of its ownership of its natural,
acid-treated and flexible graphite business, however owned (including
ownership through one or more dedicated subsidiaries and holding companies
therefor and successors thereto); and
(C) to the extent that a "person" or "group"
within the meaning of Section 13(d) or 14(d)(2) of the Act is the beneficial
owner of 15% or more of the Common Stock or the voting securities of the
Corporation on May 9, 2000, then the references therein to 15% shall be deemed
to be references to 22.5% as (but only as) to such "person" or "group." For
purposes of this Agreement, references to "beneficial owner" and correlative
phrases shall have the same definition of as set forth in Rule 13d-3 under the
Act (except that ownership by underwriters for purposes of a distribution
or offering shall not be deemed to be "beneficial ownership"), references to
the Act of rules and regulations thereunder shall mean those in effect on May
9, 2000 and references to "Common Stock" shall mean the common stock of the
Corporation.
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The Company shall notify the Administrative Committee
and the Trustee in writing of the occurrence of any event described in
subparagraphs (A)(1) through (A)(5) above, as soon as practicable after
the Company first learns of such event. The Administrative Committee and the
Trustee may rely upon such notice from the Company in performing any of
their obligations or taking any discretionary action under this Agreement
which is dependent upon a Change in Control having occurred; provided,
however, that in the absence of such notice, the Administrative Committee
and the Trustee may rely on their own determination, including opinion of
counsel (who may be counsel to the Company, the Administrative Committee or the
Trustee), that a Change in Control has occurred, unless such a determination
arises out of the Administrative Committee's or the Trustee's gross negligence
or willful misconduct. The Trustee shall have no independent duty to determine
whether a Change in Control has occurred, and may rely on the notification, or
absence of notification by the Company or Administrative Committee. The Trustee
and the Administrative Committee may also request that the Company furnish
evidence to determine or to enable the Trustee and the Administrative Committee
to determine, whether a Change in Control has occurred. The Trustee's or the
Administrative Committee's determination whether a Change in Control has
occurred shall be binding and conclusive on all Participants.
(h) "Contract" shall mean a participating or
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nonparticipating insurance and/or annuity contract as described in Article
SEVENTH.
(i) "EBP" shall mean the UCAR Carbon
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Equalization Benefit Plan, as it may be amended From time to time.
(j) "Employment Agreement" shall mean that
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certain Employment Agreement between X. X. Xxxxxxxx and the Company as it may be
amended from time to time.
(k) "ERIP" shall mean the UCAR Carbon Enhanced
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Retirement Income Plan, as it may be amended from time to time.
(l) "Investment Director" shall mean the person
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or entity chosen by the Company or the Chief Financial Officer of the Company
prior to a Change in Control, or chosen by the Administrative Committee
after a Change in Control, to direct the investment of certain assets in the
Trust.
(m) "Investment Manager" shall mean an
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institution chosen by the Company or the Chief Financial Officer of the Company
prior to a Change in Control, or chosen by the Administrative Committee
after a Change in Control, to serve as Investment Director.
(n) "Non-Qualified Plans" shall mean,
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collectively, the EBP, ERIP and SRIP.
(o) "Non-Qualified Plans Committee" shall mean
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the Non-Qualified Plans Administrative Committee previously established by the
Company which is empowered to administer certain provisions of the Trust prior
to a Change in Control.
(p) "Participant" shall mean a participant in
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one or more of the Plans.
(q) "Plans" shall mean those plans and
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agreements listed on Schedule 1 attached hereto or as hereafter added to
Schedule 1.
(r) "Severance Agreements" shall mean the
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Severance Compensation Agreements between certain individuals and the Company,
as in effect from time to time.
(s) "SRIP" shall mean the UCAR Carbon
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Supplemental Retirement Income Plan, as it may be amended from time to time.
(t) "TCN Plan" shall mean the UCAR TCN Pension
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Plan, as it may be amended from time to time.
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(u) "Vanguard Trust" shall mean the trust
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established by the Company with the Vanguard Fiduciary Trust Company to hold
assets relating to the Compensation Deferral Account. The Vanguard Trust is
not a part of this Trust, but may receive payments under the Benefit Protection
Account as provided in Article THIRD.
SECOND: Creation of Trust.
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(a) The Company hereby establishes with the
Trustee and the Trustee hereby accepts a trust consisting of the following
property (subject to the rights of the Company to withdraw such property
pursuant to Paragraph (f) of this Article SECOND):
(1) such cash or other property
acceptable to the Trustee as shall be paid or delivered to the Trustee from time
to time as contributions with respect to the Company's obligations under the
Non-Qualified Plans, together with the earnings, income, additions and
appreciation thereon and thereto (all of which is hereinafter called the "Non-
Qualified Plan Account");
(2) such cash or other property
acceptable to the Trustee as shall be paid or delivered to the Trustee from time
to time to be used to satisfy future liabilities of the Company with regard
to Severance Compensation Agreements between certain individuals and the
Company, together with the earnings, income, additions and appreciation thereon
and thereto (all of which is hereinafter called the "Severance Account");
and
(3) such cash or other property
acceptable to the Trustee as shall be paid or delivered to the Trustee from time
to time to be used to satisfy future liabilities of the Company with regard to
the Employment Agreement, together with the earnings, income, additions and
appreciation thereon and thereto (all of which is hereinafter called the
"Employment Agreement Account"); and
(4) such cash or other property
acceptable to the Trustee as shall be paid or delivered to the Trustee from time
to time to be used to satisfy future liabilities of the Company with regard
to the TCN Plan, together with the earnings, income, additions and
appreciation thereon and thereto (all of which is hereinafter called the "TCN
Plan Account"); and
(5) such cash or an irrevocable letter
of credit that meets the requirements of Paragraph (b) of this Article SECOND
in the amount of two hundred fifty thousand dollars ($250,000), together with
the earnings thereon, and realized and unrealized gains (net of any losses)
attributable thereto (all of which is hereinafter called the "Benefits
Protection Account"). Neither the cash nor any other property held in the
Benefits Protection Account shall be available for payment of benefits to
Participants and Beneficiaries under the Plans.
(b) The Company may contribute to the Trust on
behalf of any Account an irrevocable letter of credit (hereinafter referred to
as a "L/C"). The following provisions shall be applicable to any such L/C:
(1) the L/C shall expire no sooner than
one (1) year from the date of issuance;
(2) the Company shall continue to
maintain such L/C in effect until it is replaced by of cash or another
irrevocable L/C or the Company withdraws such L/C pursuant to Paragraph (f)
of this Article SECOND or this Agreement terminates, whichever occurs first;
(3) the Company shall renew or replace
such L/C at least thirty (30) days before its expiration for an additional
period of one (1) year;
(4) if, prior to a Change in Control,
such L/C, or any renewal thereof, is not renewed or replaced by a L/C delivered
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to the Trustee at least thirty (30)days before the expiration of the predecessor
L/C, the Trustee may draw down the full amount of such L/C and hold the proceeds
pursuant to the terms of this Agreement as directed by the Company or
Non-Qualified Plans Committee, (unless such L/C is renewed prior to such
draw down or the Company arranges to have an amount of cash contributed to the
Trust in lieu of such L/C);
(5) prior to a Change in Control, the
Trustee may also draw down on such L/C as directed by the Company or
Non-Qualified Plans Committee ;
(6) if, after a Change in Control, such
L/C, or any renewal thereof, is not renewed or replaced by a L/C delivered to
the Trustee at least thirty (30) days before the expiration of the predecessor
L/C, the Trustee may, at the direction of the Administrative Committee, draw
down the full amount of such L/C and hold the proceeds pursuant to the terms of
this Agreement (unless such L/C is renewed prior to such draw down or the
Company arranges to have an amount of cash contributed to the Trust in lieu
of such L/C);
(7) after a Change in Control, the
Administrative Committee may also direct the Trustee to draw down on such L/C at
any time the Administrative Committee determines the proceeds of such L/C are
necessary to allow the Administrative Committee to fulfill its obligations
under this Agreement;
(7) the proceeds of such L/C shall be
available to the Trustee or the Administrative Committee, if applicable, upon
the Trustee's presentation of its sight draft;
(8) the Company may, at any time,
replace such L/C with another irrevocable L/C having substantially similar
terms, or with an equal amount of cash, or any combination thereof;
(9) any L/C shall be issued by a bank
(including the Trustee) with assets in excess of $20 billion and net worth in
excess of $1 billion, shall be reasonably acceptable to the Non-Qualified Plans
Committee before a Change in Control, or Administrative Committee after a
Change in Control, and shall be in a form as shall be reasonably acceptable
to the respective Committee.
(c) The Trustee for investment purposes only,
may commingle all Trust assets and treat them as a single fund, but the records
of the Trustee at all times shall show the amounts of the Trust allocable to
the Non-Qualified Plans Account, the Severance Account, the Employment
Agreement Account, the TCN Plan Account, the Benefits Protection Account and
such other account(s) as may subsequently be established under this Trust.
(d) The assets of the Accounts shall be used to
discharge the obligations of the Company as follows:
(1) the assets of the Non-Qualified
Plans Account shall be used to discharge the obligations of the Non-Qualified
Plans;
(2) the assets of the Severance Account
shall be used to discharge the severance obligations
of the Company under the Severance Agreements;
(3) the assets of Employment Agreement
Account shall be used to discharge the obligations of the Company under the
Employment Agreement;
(4) the assets of the TCN Plan Account
shall be used to discharge the obligations of the Company under the TCN Plan;
(5) the assets of the Benefits
Protection Account may be used as set forth in Paragraph (c) of Article EIGHTH,
and Article NINTH;
(6) after a Change of Control occurs,
the assets of each Account, upon the termination or expiration of the Plan or
Agreements for which such Account was established, and the satisfaction of all
liabilities with regard to such terminated or expired Plan or Agreements
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pursuant to Paragraph (d) of Article SEVENTEENTH, shall be distributed among
such remaining Account(s) that the Administrative Committee determines in its
sole discretion.
(e) The Trust created herein shall not be
revocable by the Company, or by any successor thereto prior to the expiration
of the term of the Trust: (1) prior to a Change in Control, without the approval
of a majority of the Board of Directors of the Company; or (2) after a Change in
Control until the satisfaction of all liabilities under the Plans and the
Agreements.
(f) The Company may, from time to time, add to
or withdraw from the assets of the Trust, but subject to the termination
provisions of Article SEVENTEENTH hereof, such withdrawal may not reduce the
property in the Benefits Protection Account, including any L/C, below two
hundred fifty thousand dollars ($250,000). The Company may add funds to the
Trust at any time and shall designate the Account to which such funds shall
be credited. Any such additional funds shall also be available to pay the
fees and expenses of the Trustee and/or the Non-Qualified Plans Committee or the
Administrative Committee if the amounts transferred pursuant to the Benefits
Protection Account are exhausted. Notwithstanding the foregoing, the Company
shall not make any withdrawal from the Trust: (1) prior to a Change in Control
without the approval of the Non-Qualified Plans Committee; or (2) after a Change
in Control, until all liabilities of the Company under the Plans are satisfied
and all of the purposes of this Agreement are fulfilled.
THIRD: Vanguard Trust.
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Participants in the Vanguard Trust shall be afforded
the same rights with respect to payments under the Benefits Protection Account
as are provided under this Agreement. In all other respects, the Vanguard
Trust shall be separate from this Trust and the Trustee shall have no
responsibilities or duties with respect to the Vanguard Trust.
FOURTH: Payments from the Trust.
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(a) Subject to Paragraph (f) of Article SECOND hereof,
Paragraph (b) of this Article FOURTH and Paragraph (b) of Article SEVENTEENTH
hereof, the Trustee, from time to time upon receipt of direction from the
Non-Qualified Plans Committee prior to a Change in Control, and from the
Administrative Committee after a Change in Control, shall make payments from the
Trust, as specified in such direction to such persons, in such manner and in
such amounts as the Non-Qualified Plans Committee or the Administrative
Committee, as the case may be, shall direct, and amounts paid pursuant to such
direction (or in accordance with Article SEVENTH hereof) thereafter no longer
shall constitute a part of the Trust.
(b) The Company may, from time to time prior to a Change in
Control, furnish the Trustee with certain information regarding the Participants
and Beneficiaries under the Plans and the determination of the benefits under
the Plans (hereinafter referred to as "Participants Data"). The Trustee shall be
entitled to rely on the accuracy of the Participant Data provided by the Company
prior to a Change in Control, and shall have no duty to verify the accuracy
thereof. The Company shall, after a Change in Control, furnish the
Administrative Committee and the Trustee with Participant Data at least once
each Plan Year. Such Participant Data shall include (1) names, addresses, dates
of birth, and social security numbers of each Participant and Beneficiary in the
Plans; (2) the amount and form of benefits under each of the Plans of each
Participant and Beneficiary if such Participant would retire or die as of either
the last day of such Plan Year or the last day of the Plan Year in which such
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Participant attained age 62; (3) earnings history, compensation (cash and
deferred) and bonus history of each Participant; (4) amounts payable from the
UCAR Carbon Retirement Plan on behalf of each Participant; (5) a schedule of the
estimated yearly cash payments under the Plans; and (6) any other information
regarding the Plan which the Administrative Committee may reasonably request or
which the Administrative Committee may deem necessary to administer this Trust.
Following a Change in Control and notwithstanding any other
provisions of this Agreement, the Trustee shall, without direction from the
Company, to the extent funds are available in the Trust for such purpose, make
payments to Participants and Beneficiaries in such manner and in such amounts as
the Administrative Committee shall determine they are entitled to be paid under
the Plans based on the most recent Participant Data furnished to the
Administrative Committee by the Company and any supplemental information
furnished to the Administrative Committee by a Participant or Beneficiary upon
which the Administrative Committee may reasonably rely in making such
determination. The Administrative Committee may make such reasonable inquiry of
the Company as is necessary to determine whether any amounts that would
otherwise be payable under this Agreement have previously been paid by the
Company, and may reasonably rely on any information provided by the Company with
regard to such payment. A determination by the Administrative Committee with
regard to a Participant's entitlement to payments under the terms of this
Agreement shall be binding as to all Participants and the Company.
(c) In the event it shall be determined prior to a Change in
Control that the Participants and/or Beneficiaries of the Plans are subject to
any tax under the terms of the Trust created hereunder, then the Trustee, upon
receipt of direction from the Company, shall make payments from the Trust to
such persons, in such manner and in such amounts as the Company shall direct,
for purposes of (1) paying the amount of Federal, State and Local tax and
interest and any penalties thereon which such Participants and/or Beneficiaries
may incur arising out of such determination or (2) distributing the interests of
Participants and Beneficiaries in the Trust. In the event such a determination
is made after a Change in Control occurs, then each Participant or Beneficiary
who is subject to such tax, may notify the Administrative Committee, in writing,
to direct the Trustee to make payments from the Trust for either of the purposes
set forth in section (1) or (2) of the preceding sentence. The Trustee shall not
make the payments for the purposes set forth in the first sentence of this
Paragraph (c) without such written direction and the Trustee may request such
documentation as it reasonably deems necessary to evidence the amount of such
payments.
(d) Payments to Participants and Beneficiaries pursuant to
Paragraphs (b) and (c) of this Article FOURTH shall be made by the Trustee to
the extent that Trust funds for such purposes are sufficient to allow such
payments. Subject to Paragraph (d) of Article SECOND, in any month in which the
Administrative Committee directs the Trustee to make payments from the Trust and
the Administrative Committee determines that a particular Account in the Trust
does not have sufficient funds to provide for the payment of all amounts
otherwise payable to Participants and Beneficiaries in such month under a
particular Plan, the Administrative Committee shall multiply the amount
otherwise payable to each such Participant or Beneficiary under such Plan during
such month by a fraction, the numerator of which is the amount of funds then
available for the payment of benefits under such Plan and the denominator of
which is the total of the benefits payable prior to such reduction during such
month to all Participants and Beneficiaries under such Plan, and direct the
Trustee to make payment of the amounts so calculated.
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(e) After a Change in Control occurs, the Company shall make
such contributions to the Trust created hereunder as shall be necessary to
ensure the assets of the Trust shall at all times be sufficient to discharge the
Company's obligations under the Plans.
FIFTH: Investment and Management of Trust Assets. (a) Subject
to Paragraphs (b) and (c) of this Article FIFTH, the Trustee shall invest and
reinvest the assets of the Trust, without distinction between principal and
income, in shares of stock (whether common or preferred) or other evidences of
ownership, bonds, debentures, notes or other evidences of indebtedness, secured
or unsecured, and other property, or part interest in property, foreign or
domestic, whether or not productive of income or consisting of wasting assets,
and in order to reduce the rate of interest rate fluctuations, contracts, as
either buyer or seller, for the future delivery of United States Treasury
securities and comparable Federal-Government-backed securities. The Trustee may
invest and reinvest any property in the Trust in any other form or type of
investment not specifically permitted, or excluded, in this Paragraph (a) of
Article FIFTH, so long as such form or type of investment is a form or type of
investment approved in writing by the Chief Financial Officer of the Company, or
such other person designated by the Company, for the investment of assets of the
Trust, and is approved by the Trustee in its capacity as custodian, which
approval shall not be unreasonably withheld. Notwithstanding the foregoing, in
no event shall the Trust be invested in real estate including, but not limited
to, real property, leaseholds, mineral interests, and any form of asset which is
secured by any of the foregoing, and provided further, that the Trustee shall
not invest or reinvest any of the assets of the Trust in qualifying securities
issued by the Company or by an affiliate of the Company, except upon specific
written direction from the Company. In the event that the Trustee is directed to
invest in qualifying securities issued by the Company, the Trustee may retain
any such securities acquired for the Trust at the direction of the Company until
the Company directs the Trustee to dispose of them; but no direction of the
Company to sell any securities issued by the Company or by an affiliate of the
Company shall be binding if it would require the Trustee to violate any law
respecting the public distribution of securities. The Trustee shall, subject to
the direction of the Company or Administrative Committee as set provided in
Paragraphs (b) and (c) of this Article FIFTH, have the following powers:
(1) To sell, convey, redeem, exchange,
grant options for the purchase or exchange of, or otherwise dispose of, any
property, at public or private sale, for cash or upon credit, with or without
security, without obligation on the part of any person dealing with the Trustee
to see to the application of the proceeds of or to inquire into the validity,
expediency or propriety of any such disposition;
(2) To exercise, personally or by
general or limited proxy, the right to vote any shares of stock, bonds or other
securities held in the Trust; to delegate discretionary voting power to trustees
of a voting trust for any period of time; and to exercise, personally or by
power of attorney, any other right appurtenant to any securities or other
property of the Trust;
(3) To join in or oppose any
reorganization, recapitalitation, consolidation, of merger or liquidation, or
any plan therefor, or any lease, mortgage or sale of the property any
organization the securities of which are held in the Trust; to pay from the
Trust any assessments, charges or compensation specified in any plan of
reorganization, recapitalization, consolidation, merger or liquidation; to
deposit any property with any committee or depositary; and to retain any
property allotted to the Trust in any reorganization, recapitalization,
consolidation, merger or liquidation;
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(4) To exercise or sell any conversion
or subscription or other rights appurtenant to any stock, security or other
property held in the Trust;
(5) To borrow from any lender (including
the Trustee in its individual capacity) money, in any amount and upon any
reasonable terms and conditions, for purposes of this Agreement, and to pledge
or mortgage any property held in the Trust to secure the repayment of any such
loan;
(6) To compromise, settle or arbitrate
any claim, debt, or obligation of or against the Trust; to enforce or abstain
from enforcing any right, claim, debt or obligation; and to abandon any
property determined by it to be worthless;
(7) To collect and receive any and all
money and other property due the Trust and give full discharge therefor;
(8) To deposit cash into interest
bearing accounts in the banking department of the Trustee or an affiliated
banking organization;
(9) To purchase, enter, sell hold, and
generally deal in any manner in and with contracts for the immediate or future
delivery of financial instruments of any issuer or of any other property; the
Trustee may also grant, purchase, sell, exercise, permit to expire, permit to be
held in escrow, or otherwise acquire, dispose of, hold and generally deal in
any manner with and in all forms of options or any combination thereof;
(10) To commence or defend suits or legal
proceedings to protect any interest of the Trust, and may represent the Trust
in all suits or legal proceedings in any court or before any other body or
tribunal;
(11) To take all action necessary to pay
for authorized transactions, including borrowing or raising monies from any
lender, including the Trustee, in its corporate capacity in conjunction with its
duties under this Agreement and upon such terms and conditions as the Trustee
may deem advisable to settle security purchases and/or foreign exchange or
contracts for foreign exchange, and securing the repayments thereof by pledging
all or any part of the Account;
(12) To appoint custodians, subcustodians
or subtrustees, domestic or foreign (including affiliates of the Trustee), as to
part or all of the Trust. The Trustee shall not be responsible or liable for any
losses or damages suffered by the Company arising as a result of the
insolvency of any custodian, subcustodian or subtrustee, except to the extent
to the Trustee was negligent in its selection or continued retention of such
agent;
(13) To hold property in nominee name, in
bearer form, or in book entry form, in a clearinghouse corporation or in a
depository (including an affiliate of the Trustee), so long as the Trustee's
records clearly indicate that the assets held are a part of the Trust. The
Trustee shall not be responsible for any losses resulting from the deposit or
maintenance of securities or other property (in accordance with market practice,
custom, or regulation) with any recognized foreign or domestic clearing
facility, book-entry system, centralized custodial depository, or similar
organization;
(14) To credit the Trust with income and
maturity proceeds on securities on contractual payment date net of any taxes
or upon actual receipt n accordance with the Trustee's standard operating
procedure, and to the extent the Trustee credits income on contractual payment
date, the Trustee may reverse such accounting entries to the contractual
payment date if the Trustee reasonably believes that such amount will not be
received.
(15) To attend to the settlement of
securities transactions on the basis of either contractual settlement date
-10-
accounting or actual settlement date accounting in accordance with the Trustee's
standard operating procedure, and to the extent the Trustee settles certain
securities transactions on the basis of contractual settlement date accounting,
the Trustee may reverse to the contractual settlement date any entry relating to
such contractual settlement if the Trustee reasonably believes that such amount
will not be received.
(16) To effect settlement of transactions
in trading and processing practices customary in the jurisdiction or market
where the transaction occurs. The Company acknowledges that this may, in
certain circumstances, require the delivery of cash or securities (or other
property) without the concurrent receipt of securities (or other property) or
cash. In such circumstances, the Trustee shall have no responsibility for
nonreceipt of payment (or late payment) or nondelivery of securities or other
property (or late delivery) by the counterparty and
(17) To generally do all acts, whether or
not expressly authorized, which the Trustee may deem necessary or desirable for
the protection of the Trust.
(b) Prior to a Change in Control the Company
shall direct the Trustee in the exercise of its investment powers, and the
Trustee shall have no discretion or duties with respect to investment of any
portion of the Trust Fund. The Company shall retain all investment discretion
and may appoint and remove one or more Investment Managers from time to time
to manage specified portions of the Trust Fund, and the Company shall manage
any portion of the Trust Fund for which an Investment Manager is not designated.
(1) The Chief Financial Officer of the
Company shall designate in writing an Investment Director or Investment
Directors for the portion managed by the Company, who are authorized to
represent the Company in dealing with the Trustee. Any Investment Director may
be an employee of the Company or a subsidiary or affiliate of the Company, or
an Investment Manager who is not an employee, subsidiary or affiliate of
the Company. Any Investment Manager must be either (i) an investment
adviser registered as such under the Investment Advisers Act; or (ii) a bank,
as defined in that Act; or (iii) an insurance company qualified to perform
services in the management, acquisition or disposition of the assets of the
Trust under the laws of more than one State. The Trustee until notified in
writing to the contrary shall be fully protected in relying upon any written
notice of the appointment of an Investment Director furnished to it by the
Company.
(2) Any Investment Director appointed
pursuant to Paragraph (b)(1) of this Article FIFTH shall have exclusive
authority and discretion to manage and control the assets of that Investment
Director's Segregated Investment Account. Each Investment Director, from time
to time and at any time, may issue orders for the purchase or sale of securities
directly to a broker or dealer, and for such purpose the Trustee will upon
request execute and deliver to that Investment Director one or more trading
authorizations. Written notification of the issuance of each such order shall
be given promptly to the Trustee by that Investment Director, and the execution
of each such order shall be confirmed by the broker to that Investment
Director and to the Trustee. Such notification shall be authority to the Trustee
to receive securities purchased against payment therefor and to deliver
securities sold against receipt of the proceeds therefrom, as the case may be.
In the event of any vacancy in the office of Investment Director, the Company
shall be deemed to be the Investment Director of that Investment Director's
Segregated Investment Account until an Investment Director shall have been duly
appointed to direct the Trustee in the management of the assets of that
Investment Director's Segregated Investment Account; and in such event until
an Investment Director shall have been so appointed and qualified,
references herein to the Company's acting in respect of that Investment
Director's Segregated Investment Account pursuant to direction from the
Investment Director shall be deemed to authorize the Company to direct the
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Trustee on the investment of the assets of that Investment Director's Segregated
Investment Account. Each Investment Manager shall designate in writing the
persons who are authorized to represent such party in dealing with the Trustee.
(3) Except as provided by law, the
Trustee shall have no investment duties with respect to any portion of the Trust
Fund. The Trustee shall have no duty to inquire whether investment directions
received from the Company, an Investment Director, or an Investment Manager are
in accordance with the Plan, or to review the assets purchased, retained or
sold. The Trustee shall have no liability by reason of the Trustee's taking
or refraining from taking any action in accordance with instructions from or
absence of instructions from the Company, an Investment Director, or an
Investment Manager pursuant to this Paragraph (b), including, without limiting
the generality of the foregoing, any claim or liability that may be asserted
against the Trustee on account of failure to receive securities purchased, or
failure to deliver securities sold, pursuant to orders issued by an Investment
Director or Investment Manager directly to a broker or dealer. The Trustee shall
be fully indemnified by the Company for any action taken in accordance with,
or any failure to act in the absence of, the Company's, and Investment
Director's or an Investment Manager's directions.
(c) After a Change in Control occurs the
Administrative Committee shall have the exclusive authority and discretion to
manage and control the Trust assets, and may appoint one or more Investment
Directors or Investment Managers, including an affiliate of the Company or the
Trustee, to manage the investment of the Trust assets. Pursuant to such
authority and discretion, the Administrative Committee, or any Investment
Manager or Investment Director appointed pursuant to this Paragraph (c), may
exercise, from time to time and at any time, the powers and discretion of the
Company pursuant to Paragraph (b) of this Article FIFTH, and to the extent
that the Trustee is not designated as Investment Manager, the Trustee's duties
and liability with respect to the Trust Fund after a Change in Control shall
be the same as set forth in Paragraph (b) (3) of this Article FIFTH,
SIXTH: Administrative Powers. The Trustee shall have and in its sole
----- ---------------------
and absolute discretion may exercise from time to time and at any time the
following administrative powers and authority with respect to the Trust:
(a) To hold property of the Trust in its own
name or in the name of a nominee or nominees, without disclosure of the Trust,
or in bearer form so that it will pass by delivery, or in book entry form, in a
clearinghouse corporation or in a depository (including an affiliate of the
Trustee); provided that the Trustee's books and records shall at all times
show that such property is part of the Trust;
(b) To continue to hold any property of the
Trust whether or not productive of income; to reserve from investment and keep
unproductive of income, without liability for interest, cash
temporarily awaiting investment and such cash as it deems advisable or as the
Company from time to time may specify prior to a Change in Control in order to
meet the administrative expenses of the Trust or anticipated distributions
therefrom;
(c) To organize and incorporate under the laws
of any state it may deem advisable one or more
corporations (and to acquire an interest in any such corporation that it may
have organized and incorporated) for the purpose of acquiring and holding title
to any property, interests or rights that the Trustee is authorized to acquire
under Article FIFTH hereof;
-12-
(d) To employ in the management of the Trust
suitable agents, without liability for any loss occasioned by any such agents
selected by the Trustee with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims;
(e) To make, execute and deliver, as Trustee,
any deeds, conveyances, leases, mortgages, contracts, waivers or other
instruments in writing that the Trustee may deem necessary or desirable in the
exercise of its powers under this Agreement; and
(f) To do all other acts that the Trustee may
deem necessary or proper to carry out any of the powers set forth in Articles
FIFTH, SIXTH, and SEVENTH hereof or otherwise in the best interests of the
Trust.
SEVENTH: Insurance and Annuity Contracts.
------- -------------------------------
(a) The Trustee, upon written direction of the
Company prior to a Change in Control, or from the Administrative Committee
after a Change in Control, shall pay from the Trust such sums to such insurance
company or companies for the purpose of procuring participating or
nonparticipating insurance and/or annuity contracts for the Trust (hereinafter
in Article SEVENTH referred to as "Contracts"). The Company, both prior to and
after a Change in Control, shall prepare, or cause to be prepared in such form
as it shall prescribe, the application for any Contract to be applied for. The
Trustee shall receive and hold in the Trust, subject to the provisions
hereinafter set forth in this Article SEVENTH, all Contracts so obtained.
(b) The Trustee shall be the complete and
absolute owner of Contracts held in the Trust and, upon written direction of the
Company prior to a Change in Control, shall have the power, without the consent
of any other person, to exercise any and all of the rights, options or
privileges that belong to the absolute owner of any Contract held in the Trust
or that are granted by the terms of any such Contract or by the terms of this
Agreement. Prior to a Change in Control, the Trustee shall have no discretion
with respect to the exercise of any of the foregoing powers or to take any other
action permitted by any Contract held in the Trust, but shall exercise such
powers or take such action only upon the written direction of the Company and
the Trustee shall have no duty to exercise any of such powers or to take any
such action unless and until it shall have received such direction. The
Trustee, upon the written direction of the Company prior to a Change in Control,
shall deliver any Contract held in the Trust to such person or persons as may be
specified in the direction. After a Change in Control, the Trustee shall
exercise such powers, or take any other action described above, only upon the
written direction of the Administrative Committee.
(c) The Trustee shall hold in the Trust the
proceeds of any sale, assignment or surrender of any Contract held in the Trust
and any and all dividends and other payments of any kind received in respect of
any Contract held in the Trust.
(d) Upon the written direction of the Company
prior to a Change in Control, the Trustee shall pay from the Trust premiums,
assessments, dues, charges and interest, if any, upon any Contract held in the
Trust. The Trustee shall have no duty to make any such payment unless and until
it shall have received such direction. After a Change in Control, the Trustee
shall pay from the Trust premiums, assessments, dues, charges and interest,
if any, upon any Contact held in the Trust, only upon direction from the
Administrative Committee.
-13-
(e) No insurance company that may issue any
Contact or Contracts held in the Trust shall be deemed to be a party to this
Agreement for any purpose, or to be responsible in any way for the validity of
this Agreement or to have any liability under this Agreement other than as
stated in each Contract that it may issue. Any insurance company may deal with
the Trustee as sole owner of any Contract issued by it and held in the Trust,
without inquiry as to the authority of the Trustee to act, and may accept and
rely upon any written notice, instruction, direction, certificate or other
communication from the Trustee believed by it to be genuine and to be signed
by an officer of the Trustee and shall incur no liability or
responsibility for so doing. Any sums paid out by any insurance company under
any of the terms of a Contract issued by it and held in the Trust either to the
Trustee, or, in accordance with its direction, to any other person or persons
designated as payees in such Contract shall be a full and complete discharge of
the liability to pay such sums, and the insurance company shall have no
obligation to look to the disposition of any sums so paid. No insurance company
shall be required to look into the terms of this Agreement, to question any
action of the Trustee or to see that any action of the Trustee is authorized by
the terms of this Agreement.
(f) Anything contained herein to the contrary
notwithstanding, neither the Company, the Administrative Committee nor the
Trustee shall be liable for the refusal of any insurance company to issue or
change any Contract or Contracts or to take any other action requested by the
Trustee; nor for the form, genuineness, validity, sufficiency or effect of any
Contract or Contracts held in the Trust; nor for the act of any person or
persons that may render any such Contract or Contracts null and void; nor for
the failure of any insurance company to pay the proceeds and avails of any such
Contract or Contracts as and when the same shall become due and payable;
nor for any delay in payment resulting from any provision contained in any such
Contract or Contracts; nor for the fact that for any reason whatsoever (other
than their own negligence or willful misconduct) any Contract or Contracts
shall lapse or otherwise become uncollectable.
(g) After a Change in Control, the
Administrative Committee shall exercise any of the powers set forth in this
Article SEVENTH, including the power to negotiate for and purchase Contracts
the rates of return and maturity dates of which may reasonably be expected to
yield assets of the Trust sufficient to discharge any or all of the obligations
of the Company under the Plans.
EIGHTH: Taxes, Expenses and Compensation of Trustee, the Non-Qualified
------ --------------------------------------------------------------
Plans Committee and the Administrative Committee.
-------------------------------------------------
(a) It is the intent of the Company and the
Trustee that the Company shall be responsible for determining and effecting all
federal, state and local tax aspects of the Plans and the Trust, including
without limitation the payment of income taxes on the Trust's income, if any,
any required withholding of income or other payroll taxes in connection with
the payment of benefits from the Trust pursuant to the Plan, and all reporting
required in connection with any such taxes. To the extent that the Company is
required by applicable law to pay or withhold such taxes or to file such
reports, such obligation shall be a responsibility allocated to the
Company, as the case may be, hereunder. To the extent the Trustee is required
by applicable law to pay or withhold such taxes or to file such reports, the
Company shall inform the Trustee of such obligation, shall direct the Trustee
with respect to the performance of such obligations and shall provide the
Trustee with all information required by the Trustee to meet such obligations.
-14-
The Company shall pay any Federal, State, Local or
other taxes imposed or levied with respect to the corpus and/or income of the
Trust or any part thereof under existing or future laws, and the Company, or
the Administrative Committee, if applicable, in their discretion, or the
Trustee, in its discretion, may contest the validity or amount of any tax,
assessment, claim or demand respecting the Trust or any part thereof. Upon
direction from the Administrative Committee, the Trustee shall deduct any
payroll taxes required to be withheld with respect to any payments made
pursuant to the Trust.
(b) The Trustee, without direction from the
Company, or the Administrative Committee, if applicable, shall pay from the
Trust the reasonable and necessary expenses and compensation of counsel and all
other reasonable and necessary expenses of managing and administering the
Trust and the Administrative Committee that are not paid by the Company
including, but not limited to, Participant record keeping expenses, investment
management fees, computer time charges, data retrieval and input costs,
charges for time expended by personnel of the Trustee in fulfilling the
Trustee's duties, expenses incurred by the members of the Non-Qualified Plans
Committee or the Administrative Committee in performance of their duties, and
the compensation of the Administrative Committee.
(c) The Company shall pay all administrative and
Trustee's fees and expenses. If not so paid, the fees and expenses shall be paid
from the Trust. The Trustee shall be entitled to fees for services, as mutually
agreed, between the Company and the Trustee prior to a Change in Control and
between the Administrative Committee and the Trustee following a Change in
Control. The Company acknowledges that as part of the Trustee's compensation,
the Trustee may earn interest on balances including disbursement balances and
balances arising from purchase and sale transactions. If the Trustee advances
cash or securities to the Trust for any purpose, including the purchase or
sale of foreign exchange or of contracts for foreign exchange, or in the event
that the Trustee shall incur or be assessed taxes, interest, charges, expenses,
assessments, or other liabilities in connection with the performance of this
Agreement, except such as may arise from its own negligent action, negligent
failure to act or willful misconduct, any property at any time held in the Trust
Fund shall be security therefor and the Trustee shall be entitled to collect
from the Trust sufficient cash for reimbursement, and if such cash is
insufficient, dispose of the assets of the Trust Fund to the extent necessary to
obtain reimbursement. To the extent the Trustee advances funds to the Trust for
disbursements or to effect the settlement of purchase transactions, the Trustee
shall be entitled to collect from the Trust either (i) with respect to domestic
assets, an amount equal to what would have been earned on the sums advanced (an
amount approximating the "federal funds" interest rate) or (ii) with respect to
non-domestic assets, the rate applicable to the appropriate foreign market.
(d) After a Change in Control, the Trustee shall
xxxx the Company directly, on a monthly basis, for all expenses described in
Paragraph (b) of this Article EIGHTH and all fees described in Paragraph (c)
thereof which amounts shall be immediately due and payable except as otherwise
provided in Paragraph (c). If such amounts are not paid by the Company within
thirty (30) days of the billing date, the Trustee may pay such amounts from the
Benefits Protection Account. The Trustee may take such action as it deems
necessary to recover such amounts from the Company; provided that the Trustee
shall be obligated to take action, on a best efforts basis, if the Company's
failure to pay causes a reduction below $250,000 in the assets of the Trust
attributable to the Benefits Protection Account.
-15-
NINTH: General Duties of Trustee and Investment Director.
----- -------------------------------------------------
(a) Subject to Article SEVENTEENTH hereof, the Trustee, any
Investment Director appointed pursuant to Paragraph (b) of Article FIFTH, and
any Investment Manager appointed pursuant to Paragraph (c) of Article FIFTH,
shall discharge their duties under this Agreement solely in the interest of the
Participants in the Plans and their Beneficiaries and (1) for exclusive purpose
the of providing benefits to such Participants and their Beneficiaries and (1)
for defraying reasonable expenses of administering the Plans; and (2) with the
care, skill, prudence and diligence under the circumstances then prevailing that
a prudent man acting in a like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with like aims; and (3),
where applicable, by diversifying the investments of the Trust so as to minimize
the risk of large losses, unless under the circumstances it is clearly prudent
not to do so; but the duties and obligations of the Trustee and any Investment
Director shall be limited to those expressly imposed upon them by this Agreement
notwithstanding any reference herein to the Plans.
(b)(1) The Trustee shall act with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims, provided, however, that
the Trustee shall incur no liability to any person for any action taken pursuant
to a direction, request or approval given by the Company which is contemplated
by, and in conformity with, the terms of the Plan (as certified to the Trustee
by the Company) or this Trust and is given in writing by the Company. In the
event of a dispute between the Company and a third party, the Trustee may apply
to a court of competent jurisdiction to resolve the dispute.
(2) The Trustee is not a party to, and has no duties or
responsibilities under, the Plans other than those that may be expressly
contained in this Agreement. In any case in which a provision of this Agreement
conflicts with any provision in the Plans, this Agreement shall control.
(3) The Trustee shall not be responsible for the title,
validity or genuineness of any property or evidence of title thereto received by
it or delivered by it pursuant to this Agreement and shall be held harmless in
acting upon any notice, request, direction, instruction, consent, certification
or other instrument believed by it to be genuine and delivered by the proper
party or parties.
(4) The Company agrees to indemnify and hold harmless the
Trustee, its parent, subsidiaries and affiliates, and each of their respective
officers, directors, employees and agents from and against all liability, loss
and expense, including reasonable attorneys' fees and expenses incurred by the
Trustee or any of the foregoing indemnitees arising out of or in connection with
this Agreement, except as a result of the Trustee's own negligence or
misconduct. This indemnification shall survive the termination of this
Agreement.
(5) 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
liable for such payments, except as a result of any litigation which arises out
of the Trustee's own negligence or misconduct. If the Company does not pay such
costs, expenses and liabilities in a reasonably timely manner, the Trustee may
obtain payment from the Trust.
(6) 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.
-16-
(7) 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.
(8) 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.
(9) Notwithstanding any powers granted to the Trustee
pursuant to this Trust Agreement or to applicable law, the Trustee shall not
have any power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom, within the meaning of Section
301.770l-2 of the Procedure and Administrative Regulations promulgated pursuant
to the Internal Revenue Code.
(10) Notwithstanding anything in this Agreement to the
contrary contained herein, the Trustee shall not be responsible or liable for
its failure to perform under this Agreement or for any losses to the Trust
resulting from any event beyond the reasonable control of the Trustee, its
agents or custodians, including but not limited to nationalization, strikes,
expropriation, devaluation, seizure, or similar action by any governmental
authority, de facto or de jure; or enactment, promulgation, imposition or
enforcement by any such governmental authority of currency restrictions,
exchange controls, levies or other charges affecting the Trust's property; or
the breakdown, failure or malfunction of any utilities or telecommunications
systems; or any order or regulation of any banking or securities industry
including changes in market rules and market conditions affecting the execution
or settlement of transactions; or acts of war, terrorism, insurrection or
revolution; or acts of God; or any other similar event. This Section shall
survive the termination of this Agreement.
(11) The Trustee shall not be liable for any act or omission
of any other person in carrying out any responsibility imposed upon such person
and under no circumstances shall the Trustee be liable for any indirect,
consequential, or special damages with respect to its role as Trustee.
(12) If the Company or the Administrative Committee directs
the Trustee to invest the Trust Fund in securities or other obligations of the
Company, or the Company contributes to the Trust Fund such securities, then the
Trustee shall have no fiduciary or other liability for decisions to purchase or
hold such investments. Also, the Non-Qualified Plans Committee prior to a Change
in Control and the Administrative Committee after a Change in Control shall
direct the Trustee as to the voting of any Company stock held in the Trust. The
Company shall indemnify the Trustee for any liabilities that arise on account of
such contributions or investments. This Section shall survive the termination of
this Agreement.
(c)(1) Within thirty (30) days after a Change in Control,
the Company shall notify Participants and Beneficiaries of the Plans, in a
manner approved by the Administrative Committee, in writing of the
Administrative Committee's availability to aid them in pursuing any claims they
may have against the Company under the terms of those of the Plans under which
they are covered. If the Company fails to do so, the Administrative Committee
shall notify Participants and Beneficiaries of the Plans in writing of the
Administrative Committee's availability to aid them in pursuing any claims they
may have against the Company under the terms of those of the Plans under which
they are covered.
-17-
(2) If, after a Change of Control, a Participant or
Beneficiary of a Plan notifies the Administrative Committee that the Company (or
insurance company, contract administrator or any other party, if applicable) has
refused to pay a claim asserted by the Participant or Beneficiary under any of
the Plans, and the Administrative Committee determines that the assets held in
the Accounts are not available to pay such claim, then, unless the
Administrative Committee shall determine that the claim has no basis in law and
fact (in which case the Administrative Committee shall notify the Participant or
Beneficiary of such determination and shall take no further action with respect
to the claim), the Administrative Committee:
(A) will promptly attempt to negotiate with the
Company (or insurance company, contract administrator or other party,
if applicable)to obtain payment, settlement, or other disposition of
the claim, subject to the consent of the Participant or Beneficiary;
(B) will if (i) negotiations fail after sixty (60)
days of their commencement to result in a payment, settlement or other
disposition agreeable to the Participant or Beneficiary (hereafter
referred to in this Paragraph (c) of Article NINTH as the "Plaintiff"),
(ii) the Administrative Committee at any time reasonably believes
further negotiations not to be in the Plaintiffs best interest, or
(iii) any applicable statute of limitations would otherwise expire
within sixty (60) days, upon the receipt of written authorization from
the Plaintiff in substantially the form attached as Exhibit A hereto,
institute and maintain legal proceedings (the "Litigation") against the
Company or other appropriate person or entity to recover on the claim
on behalf of the Plaintiff; and
(C) may, subject to the written consent of the
Plaintiff, settle or discontinue the Litigation. The Administrative
Committee shall direct the course of the Litigation and shall keep the
Plaintiff informed of the progress of the Litigation as the
Administrative Committee deems appropriate, but no less frequently than
quarterly. If, during the Litigation, i) the Plaintiff directs in
writing that the Litigation on behalf of the Plaintiff be settled or
discontinued, the Administrative Committee shall take all appropriate
action to follow such direction, provided that the written direction
specifies the terms and conditions of the settlement or discontinuance,
and further provided that the Plaintiff, if requested by the
Administrative Committee, shall execute and deliver to the
Administrative Committee a document in a form acceptable to the
Administrative Committee releasing and holding harmless the
Administrative Committee from any liability resulting from the
Administrative Committee following such direction; or (iii) the
Plaintiff refuses to consent to the settlement or other disposition of
the Litigation on terms recommended in writing by the Administrative
Committee, the Administrative Committee may proceed, in its sole and
absolute discretion, to take such action as it deems appropriate in the
Litigation, including settlement or discontinuance of the Litigation,
provided that the Administrative Committee shall afford the Plaintiff
at least fourteen (14) days' advance notice of any decision to settle
or otherwise discontinue the Litigation, subject to the provisions of
the following sentence.
If, at any time, the Plaintiff (x) revokes in writing (in
substantially the form attached as Exhibit B hereto) the authorization of the
Administrative Committee to proceed on his behalf and delivers such writing to
the Administrative Committee and (y) appoints his own counsel and so notifies
the Administrative Committee in writing, whose fees and expenses are not to be
paid by the Trust and who shall appear in the Litigation on behalf of the
Plaintiff in lieu of counsel retained by the Administrative Committee, then the
Administrative Committee shall not be authorized to proceed in the Litigation on
behalf of the Plaintiff. Thereafter, the Administrative Committee shall have no
-18-
obligation to proceed further on behalf of such Plaintiff or to pay any costs or
expenses incurred in the Litigation after the date of the delivery of such
writing.
The Administrative Committee is empowered to retain, at the
expense of the Trust, counsel and other appropriate experts, including actuaries
and accountants, to aid it in making any determination under this Paragraph (c)
of Article NINTH and in determining whether to pursue or settle any Litigation.
The Administrative Committee shall have the discretion to determine the form and
nature that any Litigation against the Company or other appropriate person or
entity shall take, and the procedural rules and laws applicable to such
Litigation shall supersede any inconsistent provision of this Agreement.
(d) Subparagraph (ii)(2) shall be inapplicable in respect of
any Litigation involving the payment of benefits under any Plan in which the
Administrative Committee is named a defendant. Any Plaintiff in an action in
which the Administrative Committee or the Trustee is named a defendant shall
engage his own counsel, whose fees and expenses shall be paid by the Plaintiff,
provided, however, that the Administrative Committee shall pay out of the assets
of the Benefits Protection Account of the Trust any legal fees and costs awarded
to the Plaintiff by a court in such Litigation.
(e) In the event the Administrative Committee determines that
the claim of a Participant or Beneficiary has no basis in law or fact and such
Participant or Beneficiary pursues such claim against the Company, then the
Administrative Committee shall reimburse the Participant or Beneficiary out of
the assets of the Benefits Protection Account for any reasonable legal fees and
other reasonable costs incurred in pursuing such claim if such Participant or
Beneficiary obtains a settlement or final judgment of a court of competent
jurisdiction under which the Participant or Beneficiary is to receive not less
than 50% of the amount originally claimed to the Administrative Committee as the
amount owed by the Company.
(f) With respect to claims by holders of Severance
Compensation Agreements, such holders may elect to pursue their own claim (with
counsel of their choice) or to have the Administrative Committee pursue such
claim. In the event such holders elect to pursue their own claims, the
Administrative Committee shall promptly reimburse such holders for all attorneys
fees and other expenses incurred to the extent the Company does not pay such
amounts as provided in the Severance Compensation Agreements.
(g) The Company will, prior to a Change in Control, designate
legal counsel to the Administrative Committee at the expense of the Trust after
a Change in Control, to enforce the rights of Participants and Beneficiaries to
benefits under the Plans, as described above. If the designated counsel declines
to provide representation because of an ethical or legal conflict of interest,
or the Administrative Committee is not satisfied with the quality of
representation provided, the Administrative Committee, may, from time to time,
dismiss the designated firm or any successor and engage another qualified law
firm for this purpose including the same law firm which represents the
Administrative Committee with respect to its responsibilities as Administrative
Committee under this Agreement. The Company may not dismiss or engage such
counsel or cause the Administrative Committee to engage or dismiss such counsel
after a Change in Control.
TENTH: General Duties of the Administrative Committee
(a) Subject to Article SEVENTEENTH hereof, after a Change in
Control, the Administrative Committee shall discharge their duties under this
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Agreement solely in the interest of the Participants in the Plans and their
beneficiaries and (1) for the exclusive purpose of providing benefits to such
Participants and their beneficiaries and defraying reasonable expenses of
administering the Plans; and (2) with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; and (3), by diversifying the
investments of the Trust so as to minimize the risk of large losses, unless
under the circumstances it is clearly prudent not to do so; but the duties and
obligations of the Administrative Committee shall be limited to those expressly
imposed upon them by this Agreement notwithstanding any reference herein to the
Plans.
(b) The Administrative Committee shall consist of either three
(3) or five (5) members who, prior to a Change in Control, shall be appointed
by, and serve at the pleasure of, the Board of Directors of the Company. The
Board may, at any time prior to a Change in Control, designate the members of
the Administrative Committee, fill vacancies or require the resignation of one
or more of the members of the Administrative Committee with or without cause. In
the event that a vacancy or vacancies shall occur on the Administrative
Committee prior to a Change in Control, the remaining member or members shall
act as the Administrative Committee until the Board fills such vacancy or
vacancies. However, upon a Change in Control, no member may be removed, for any
reason, by the Board. In the event that a vacancy occurs after a Change in
Control, the Board shall have no authority to fill such vacancy and the
remaining members of the Administrative Committee shall select a replacement to
serve on the Administrative Committee. No person shall be ineligible to be a
member of a Administrative Committee because he is, was or may become entitled
to benefits under any of the Plans; or because he is a director and/or employee
of the Company, Affiliate or a Trustee; provided, that no Participant who is a
member of the Administrative Committee shall participate in any determination by
the Administrative Committee specifically relating to the calculation or
disposition of his benefits under any of the Plans. Prior to a Change in
Control, the Board may appoint a member of the Administrative Committee to be
the Chairman of the Administrative Committee. Upon a Change in Control, the
Administrative Committee shall be responsible for appointing a member of the
Administrative Committee as the Chairman of the Administrative Committee.
(c) Except as otherwise expressly provided in this
Agreement or by the Board of Directors prior to a Change in
Control:
(1) After a Change in Control, the
Administrative Committee shall have the authority to invest and
manage the assets of the Trust, including the assets of the Vanguard Trust,
pursuant to Article FIFTH.
(2) The Administrative Committee shall have all
powers necessary or helpful for the carrying out of its responsibilities, and
the decisions or actions of the Administrative Committee in good faith in
respect of any matter hereunder shall be conclusive and binding upon all
parties concerned.
(3) The Administrative Committee may delegate to
one or more of its members or any other person the right to act on its behalf
with respect to the implementation of a decision of the Administrative
Committee.
(4) After a Change in Control, subject to
Paragraph (b) of Article SEVENTEENTH, the Administrative Committee, by action
of a majority of its members, shall have the authority to amend this Agreement.
No amendment shall be made without the Trustee's consent thereto in writing if,
and to the extent that, the effect of such amendment is to increase the
Trustee's responsibilities hereunder. Such proposed amendment shall be
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delivered to the Trustee as a written instrument of amendment, duly executed
and acknowledged by the Administrative Committee. The Trustee's consent shall
not be required for the termination of the Trust or its removal as Trustee.
(5) Without limiting the generality of the
foregoing, the Administrative Committee shall have full discretionary authority
to:
(i) Determine all questions arising out
of or in connection with the terms and provisions of this
Agreement except as otherwise expressly provided herein;
(ii) Make rules and regulations for the
administration of the Trust which are not inconsistent with
the terms and provisions of this Agreement, and fix the annual
accounting period of the Trust, which shall initially be the
calendar year;
(iii) Construe all terms, provisions,
conditions and limitations to the Trust;
(iv) Determine all questions relating to the
administration the Trust (i) when disputes arise between the
Company and a Participant or his/her Beneficiary, spouse or
legal representatives and (ii) whenever the Administrative
Committee deems it advisable to determine such questions in
order to promote the uniform administration of the Trust; and
(v) Monitor the performance of the Trustee
or any Investment Director for the Trust. In order to
accomplish this, the Administrative Committee shall meet with
the Trustee or any Investment Director, at such time as the
Administrative Committee shall determine, and the
Administrative Committee shall request the Trustee or any
Investment Director to present a full report on the financial
position of the Trust under the control of any Investment
Director; and
(vi) Make rules and regulations for the
administration of the Administrative Committee which are not
inconsistent with the terms and provisions of this Agreement.
The foregoing list of powers is not intended to be
either complete or exclusive, and the Administrative Committee shall, in
addition, have such powers as may be necessary for the performance of its
duties under the Trust.
(d) The Administrative Committee shall advise the
Trustee in writing with respect to all benefits which become payable under the
terms of the Trust and shall direct the Trustee to pay such benefits to or on
order of the Administrative Committee.
(e) The Administrative Committee may employ such
counsel, including legal counsel, actuaries, accountants, investment advisors,
physicians, agents and such clerical and other services as it may require in
carrying out the provisions of the Trust. Unless paid by the Company, the
Administrative Committee shall charge the fees, charges and costs resulting from
such employment as an expense of the Trust. Unless otherwise provided by law,
any person so employed by the Administrative Committee may be legal or other
counsel to the Company, an affiliate, a member of the Administrative Committee
or an officer or member of the Board of Directors or an affiliate.
(f) Each member of the Administrative Committee
shall receive compensation, as mutually agreed between
the Company and the Administrative Committee prior to a Change in Control, or as
determined by the Administrative Committee after a Change in Control, for their
services in connection with the Trust.
(g) The Administrative Committee may purchase
such fiduciary liability insurance or such other insurance as it deems necessary
-21-
relating to the performance of its obligations hereunder. Unless paid by the
Company, the Administrative Committee shall charge the premiums and charges
resulting from such insurance as an expense of the Trust.
ELEVENTH: General Duties of the Non-Qualified Plans Committee. Subject
to Article SEVENTEENTH hereof, the Non-Qualified Plans Committee shall discharge
their duties under this Agreement solely in the interest of the Participants in
the Plans and their beneficiaries and (1) for the exclusive purpose of providing
benefits to such Participants and their beneficiaries and defraying reasonable
expenses of administering the Plans; and (2) with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.
TWELFTH: Indemnification. The Company agrees, to the extent permitted
by law, to indemnify and hold the Trustee, the Non-Qualified Plans Committee and
the Administrative Committee harmless from and against any liability that they
may incur in the administration of the Trust, unless arising from the Trustee's,
the Non-Qualified Plans Committee's or the Administrative Committee's own gross
negligence or willful breach of the provisions of its obligations under this
Agreement. If the Company fails to indemnify and hold the Trustee, the
Non-Qualified Plans Committee or the Administrative Committee harmless from and
against any liability that they may incur in the administration of this Trust
pursuant to this Article TWELFTH, the Test shall indemnify the Trustee, the
Non-Qualified Plans Committee or the Administrative Committee to the extent
permitted by law. The Trustee, the Non-Qualified Plans Committee or the
Administrative Committee shall not be required to give any bond or any other
security for the faithful performance of its duties under this Agreement except
as required by law.
THIRTEENTH: No Duty To Advance Funds. The Trustee shall have no
---------- ------------------------
obligation to advance its own funds for the purposes of fulfilling its
responsibilities under this Agreement.
FOURTEENTH: Accounts.
---------- --------
(a)(1) The Trustee shall keep accurate and detailed accounts of all its
receipts, investment and disbursements under this Agreement on a calendar year
basis, accounting for each Account on a separate basis. Prior to a Change in
Control, the Non-Qualified Plans Committee and, after a Change in Control, the
Administrative Committee, shall be allowed to inspect the books of account
relating to the Trust upon request at any reasonable time during the regular
business hours of the Trustee.
(2) Within 60 days after the close of each calendar year, the
Trustee shall transmit to the Company, and to the Administrative Committee after
a Change in Control, and certify the accuracy of, a written statement of the
assets and liabilities of the Trust, showing the current value of each asset at
that date, and a written account of all the Trustee's transactions relating to
the Trust during the period from the last previous accounting to the close of
that year. The report of any such valuation shall not constitute a
representation by the Trustee that the amounts reported as fair market values
would actually be realized upon the liquidation of the Trust. For the purposes
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of this Subparagraph, the date of the Trustee's resignation or removal as
provided in Article SIXTEENTH hereof or the date of termination of the Trust as
provided in Article SEVENTEENTH hereof shall be deemed to be the close of a
year.
(3) Unless the Company (or the Administrative Committee, after
a Change in Control) shall have filed with the Trustee written exceptions or
objections to any such statement and account within 120 days after receipt
thereof, the Company (or the Administrative Committee, after a Change in
Control) shall be deemed to have approved such statement and account; and in
such case or upon the written approval by the Company (or the Administrative
Committee, after a Change in Control) of any such statement and account, the
Trustee shall be forever released and discharged with respect to all matters and
things contained in such statement and account as though it had been settled by
decree of a court of competent jurisdiction in an action or proceeding to which
the Company (or the Administrative Committee, after a Change in Control) and all
persons having any beneficial interest in the Trust were parties.
(b) Nothing contained in this Agreement or in the Plans shall deprive
the Trustee of the right to have a judicial settlement of its accounts. In any
proceeding for a judicial settlement of the Trustee's accounts or for
instructions in connection with the Trust, the only other necessary party
thereto in addition to the Trustee shall be the Company. If the Trustee so
elects, it may bring in as a party or parties defendant any other person or
persons. No person interested in the Trust, other than the Company, shall have a
right to compel an accounting, judicial or otherwise, by the Trustee, and each
such person shall be bound by all accountings by the Trustee to the Company, as
herein provided, as if the account had been settled by decree of a court of
competent jurisdiction in an action or proceeding to which such person was a
party.
FIFTEENTH: Administration of the Plans: Communications.
--------- -------------------------------------------
(a) The Company and/or the Non-Qualified Plans Committee or
the Administrative Committee shall administer the Plans as provided therein and
subject to Paragraph (b) of Article FOURTH and Paragraph (c) of Article NINTH
hereof, or subject to any other delegation by the Company and/or the
Non-Qualified Plans Committee or the Administrative Committee and assumption by
the Trustee of the duties of administering the Plans, the Trustee shall not be
responsible in any respect for administering the Plans nor shall the Trustee be
responsible for the adequacy of the Trust to meet and discharge all payments and
liabilities under the Plans. The Trustee shall be fully protected in relying
upon any written notice, instruction, direction or other communication signed by
an employee of the Company or a member of the Non-Qualified Plans Committee or
the Administrative Committee who is authorized to execute and deliver, in the
name and on behalf of the Company or the Non-Qualified Plans Committee or the
Administrative Committee, documents or instruments relating to the Trust. The
Company and/or the Non-Qualified Plans Committee or the Administrative
Committee, from time to time, shall furnish the Trustee with the names and
specimen signatures of the Authorized Persons and shall promptly notify the
Trustee of the termination of office of any Authorized Person and the
appointment of a successor thereto. Until notified to the contrary, the Trustee
shall be fully protected in relying upon the most recent list of Authorized
Persons furnished to it by the Company and/or the Non-Qualified Plans Committee
or the Administrative Committee.
(b) Any action required by any provision of this Agreement to
be taken by the Board of Directors of the Company shall be evidenced by a
resolution of such Board of Directors certified to the Trustee by the Secretary
or an Assistant Secretary of the Company under its corporate seal, and the
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Trustee shall be fully protected in relying upon any resolution so certified to
it. Unless other evidence with respect thereto has been specifically prescribed
in this Agreement, any other action of the Company and/or the Non-Qualified
Plans Committee or the Administrative Committee under any provision of this
Agreement, including any approval of or exceptions to the Trustee's accounts,
shall be evidenced by a certificate signed by an Authorized Person, and the
Trustee shall be fully protected in relying upon such certificate. The Trustee
may accept a certificate signed by an Authorized Person as proof of any fact or
matter that it deems necessary or desirable to have established in the
administration of the Trust (unless other evidence of such fact or matter is
expressly prescribed herein), and the Trustee shall be fully protected in
relying upon the statements in the certificate.
(c) The Trustee shall be entitled conclusively to rely upon
any written notice, instruction, direction, certificate or other communication
believed by it to be genuine and to be signed by an Authorized Person, and the
Trustee shall be under no duty to make investigation or inquiry as to the truth
or accuracy of any statement contained therein.
(d) Until written notice is given to the contrary,
communications to the Trustee shall be sent to it at its office at Xxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxx;
communications to the Company shall be sent to it at its office at 0000 Xxxx Xxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: General Counsel and Director of
Human Resources, communications to the Non-Qualified Plans Committee shall be
sent to it at 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, and
communications to the Administrative Committee of the UCAR Carbon Benefits
Protection Trust shall be sent to it at 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000.
SIXTEENTH: Resignation or Removal of Trustee.
--------- ---------------------------------
(a) The Trustee may resign at any time upon 120 days' written
notice to the Company, and to the Administrative Committee after a Change in
Control, or such shorter period as is acceptable to the Company and the
Administrative Committee. However, such resignation shall not become effective
unless and until a successor trustee is appointed. If such resignation occurs
before a Change in Control, the Company shall appoint a successor trustee. If
such resignation occurs after a Change in Control, the Administrative Committee
shall have the right to appoint a successor trustee. In either case, the Company
or the Administrative Committee, as the case may be, shall diligently seek to
obtain a successor trustee. Until the appointment of a successor trustee, the
Trustee shall continue to perform its duties hereunder until the successor
trustee is in place, and the Trustee shall be entitled to expenses and fees
through the effective date of its resignation as Trustee.
(b) The Company, by action of its Board of Directors before a
Change in Control, and the Administrative Committee after a Change in Control,
may remove the Trustee upon 30 days written notice to the Trustee, or upon
shorter notice if acceptable to the Trustee. The Company may not remove the
Trustee after a Change in Control. In the event it resigns or is removed, the
Trustee shall have a right to have its accounts settled as provided in Article
FOURTEENTH hereof.
(c) Each successor trustee shall have the powers and duties
conferred upon the Trustee in this Agreement, and the term "Trustee" as used in
this Agreement shall be deemed to include any successor trustee. Upon
designation or appointment of a successor trustee, the Trustee shall transfer
and deliver the Trust to the successor trustee, reserving such sums as the
Trustee shall deem necessary to defray its expenses in settling its accounts, to
pay any of its compensation due and unpaid and to discharge any obligation of
-24-
the Trust for which the Trustee may be liable. If the sums so reserved are not
sufficient for these purposes, the Trustee shall be entitled to recover the
amount of any deficiency from either the Company or the successor trustee, or
both. When the Trust shall have been transferred and delivered to the successor
trustee and the accounts of the Trustee have been settled as provided in Article
FOURTEENTH hereof, the Trustee shall be released and discharged from all further
accountability or liability for the Trust and shall not be responsible in any
way for the further disposition of the Trust or any part thereof.
SEVENTEENTH: Amendment of Agreement: Termination of Trust.
----------- --------------------------------------------
(a) Subject to Paragraph (b) of this Article SEVENTEENTH and
Article TENTH, the Company expressly reserves the right at any time prior to a
Change in Control to amend or terminate this Agreement and the Trust created
thereby to any extent that it may deem advisable. No amendment shall be made
without the Trustee's consent thereto in writing if, and to the extent that, the
effect of such amendment is to increase, or otherwise change, the Trustee's
responsibilities hereunder. Such proposed amendment shall be delivered to the
Trustee as a written instrument of amendment, duly executed and acknowledged by
the Company and accompanied by a certified copy of a resolution of the Board of
Directors of the Company authorizing such amendment. Notwithstanding the
foregoing, the Non-Qualified Plans Committee shall also have the right to amend
this Agreement in such manner as is set forth in this Article SEVENTEENTH,
without any authorization from the Board of Directors of the Company, provided
that the annual cost to the Company of such amendments, determined without
regard to the effective date of such amendments, does not exceed five hundred
thousand dollars ($500,000). The Company also shall deliver to the Trustee a
copy of any modifications or amendments to the Plans. The Trustee's consent
shall not be required for the termination of the Trust or its removal as
Trustee.
(b) Notwithstanding any other provisions of this Agreement,
the provisions of this Agreement and the Trust created hereby may be amended or
terminated after the date a Change in Control occurs with the written consent of
a majority of the members of the Administrative Committee. No amendment shall be
made without the Trustee's consent thereto in writing if, and to the extent
that, the effect of such amendment is to increase, or otherwise change, the
Trustee's responsibilities hereunder. The Trustee, after a Change in Control,
upon written advice of counsel and the approval of the Administrative Committee,
may amend the provisions of this Agreement to the extent required by applicable
law. The Company reserves the right to amend or eliminate this Paragraph (b) of
Article SEVENTEENTH prior to the date of a Change in Control.
(c) In the event the Company terminates the Trust prior to the
occurrence of a Change in Control, the Trustee (subject to the provisions of
Paragraph (d) of Article FOURTH and Article EIGHTEENTH hereof and reserving such
sums as the Trustee shall deem necessary in settling its accounts and to
discharge any obligation of the Trust for which the Trustee may be liable) shall
distribute all remaining assets of the Trust in accordance with the written
directions of the Company.
(d) In case any one or all of the Plans are terminated in
whole or in part, or expires, after a Change in Control occurs, then the
Trustee, subject to the provisions of Paragraph (d) of Article FOURTH, and
Article EIGHTEENTH hereof, and reserving such sums as the Trustee shall deem
necessary in settling its accounts and to discharge any obligation of the Trust
for which the Trustee may be liable, shall apply or distribute the Account
-25-
established with regard to such Plan pursuant to Paragraph (a) of Article
SECOND, in such manner and in such amounts as the Administrative Committee shall
determine based upon the most recent Participant Data (as defined in Paragraph
(b) of Article FOURTH hereof) forwarded by the Company to the Trustee and any
supplemental information furnished to the Trustee or the Administrative
Committee after a Change in Control by a Participant or Beneficiary upon which
the Administrative Committee may reasonably rely in making such a determination.
After satisfying all liabilities with regard to such terminated Plan, from the
Account established with regard to such Plan, the Administrative Committee shall
direct the Trustee to distribute the remaining assets in such Account in
accordance with Paragraph (d)(6) of Article SECOND. Subject to Paragraph (b) of
Article EIGHTEENTH, in the event of a Change in Control, the Trust shall
continue in effect until the later of the tenth one year anniversary of the date
on which a Change in Control occurs or the date upon which all of the
Participants' and Beneficiaries' benefits under all of the Plans have been paid
or otherwise provided for. Upon termination of the Trust, the Trustee shall have
a right to have its account settled as provided in Article FOURTEENTH hereof.
Any assets remaining in the Trust after payment or provision for all benefits
payable under the Plans, and after the Trustee has reserved such sums as it
deems necessary for the payment of its expenses and fees hereunder shall be paid
in accordance with the written directions of the Administrative Committee. When
the Trust assets shall have been so applied or distributed and the accounts of
the Trustee shall have been so settled, the Trustee shall be released and
discharged from all further accountability or liability respecting the Trust.
EIGHTEENTH: Prohibition of Diversion.
---------- ------------------------
(a) Except as provided in Paragraph (h) below, at no time
prior to the satisfaction of all liabilities with respect to the beneficiaries
under this Trust shall any part of the corpus and/or income of the Trust be used
for, or diverted to, purposes other than for the exclusive benefit of such
beneficiaries and the assets of the Trust shall never inure to the benefit of
the Company and shall be held for the exclusive purposes of providing benefits
to Participants in the Plans and their Beneficiaries and defraying reasonable
expenses of administering the Plans or performing any of the Trustee's duties
under this Agreement.
(b) Notwithstanding any provision of this Agreement to the
contrary, the assets of the Trust shall at all times be subject to claims of the
creditors of the Company. In the event that (1) a final judicial determination
is entered that the Company is unable to pay its debts as such debts mature or
(2) there shall have been filed by or against the Company in any court or other
tribunal either of the United States or of any State or of any other authority
now or hereafter exercising jurisdiction, a petition in bankruptcy or insolvency
proceedings or for reorganization or for the appointment of a receiver or
trustee of all or substantially all of the Company's property under the present
or any future Federal bankruptcy code or any other present or future applicable
Federal, State or other bankruptcy or insolvency statute or law, then the
Trustee shall not make payments from the Trust to any Participant or
Beneficiary, but under either of such circumstances, the Trustee shall deliver
any property held in the Trust only as a court or other tribunal of competent
jurisdiction may direct to satisfy the claims of the Company's creditors. The
Trustee shall resume payments under the terms of the Trust only after
determining that the Company is not insolvent or after receiving a judicial
decision to that effect. The Chief Financial Officer of the Company, or an
employee of the Company with duties similar to those of a Chief Financial
Officer, and the Board of Directors of the Company shall have the duty to inform
the Trustee of the insolvency of the Company. The Trustee is empowered to
-26-
retain, at the expense of the Trust, counsel and other appropriate experts,
including accountants, to aid it in making any determination with regard to the
Company's insolvency under this Paragraph (b)of Article EIGHTEENTH.
NINETEENTH: Prohibition of Assignment of Interest. No interest, right or
claim in or to any part of the Trust or any payment therefrom shall be
assignable, transferable or subject to sale, mortgage, pledge, hypothecation,
commutation, anticipation, garnishment, attachment, execution or levy of any
kind, and the Trustee and/or the Administrative Committee shall not recognize
any attempt to assign, transfer, sell, mortgage, pledge, hypothecate, commute or
anticipate the same, except to the extent required by law.
TWENTIETH: Affiliates. Any corporation that, directly or through one or
more intermediaries, controls, is controlled by or is under common control with
the Company may adopt and become a parry to this Agreement by delivering to the
Trustee an instrument in writing, duly executed and acknowledged, adopting and
assuming jointly and severally the obligations of the Company under this
Agreement and constituting and appointing the Company to be the agent and
attorney in fact of such corporation for the purposes of giving or receiving
notices, instructions, directions and other communications to or from the
Trustee and approving the accounts of the Trustee, accompanied by duly certified
copies of resolutions of the Board of Directors of such corporation adopting the
Plans and approving and authorizing execution, acknowledgment and delivery of
such instrument and a duly certified copy of a resolution of the Board of
Directors of the Company approving and consenting to the same. Notwithstanding
the foregoing, no Affiliate may become a party to this Agreement after a Change
in Control.
TWENTY-FIRST: Representations.
------------ ---------------
(a) The Company and the Trustee each acknowledge that the
other will be relying, and shall be entitled to rely, on the representations,
undertakings and acknowledgments of the other as set forth in this Agreement.
The Company and the Trustee each agree to notify the other promptly if any of
its representations, undertakings, or acknowledgments set forth in this
Agreement ceases to be true.
(b) The Company and the Trustee hereby each represent and
warrant to the other that it has full authority to enter into this Agreement
upon the terms and conditions hereof and that the individual executing this
Agreement on their behalf has the requisite authority to bind the Company and
the Trustee to this Agreement.
TWENTY-SECOND: Miscellaneous.
------------- -------------
(a) This Agreement shall be interpreted, construed and
enforced, and the trust hereby created shall be administered, in accordance with
the laws of the United States and of the State of Delaware. Nothing in this
Agreement shall be construed to subject either the Trust created hereunder or
the Plans to the Employee Retirement Income Security Act of 1974, as amended.
(b) The titles to Articles of this Agreement are placed herein
for convenience of reference only, and the Agreement is not to be construed by
reference thereto.
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(c) This Agreement shall bind and inure to the benefit of
the successors and assigns of the Company and the Trustee, respectively and the
Plans.
(d) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one instrument, which may be sufficiently
evidenced by any counterpart.
(e) If any provision of this Agreement is determined to be
invalid or unenforceable the remaining provisions shall not for that reason
alone also be determined to be invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective names by their duly authorized
officers as of the day and year first above written.
UCAR CARBON COMPANY INC.
By /s/ X. X. Xxxxxx
--------------------
MELLON BANK, N.A.
By /s/ Xxxxxxxxx X. Xxxxx
----------------------
Xxxxxxxxx X. Xxxxx
Vice President
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SCHEDULE 1
1. the UCAR Carbon Equalization Benefit Plan.
2. the UCAR Carbon Supplemental Retirement Income Plan.
3. the UCAR Carbon Compensation Deferral Program.
4. the UCAR Carbon Enhanced Retirement Income Plan.
5. Severance Agreements between the Company and
various individuals, respectively.
6. Employment Agreement between the Company and Xxx
Xxxxxxxx.
7. UCAR TCN Pension Plan.
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