Exhibit 10(t)(i)
Supplemental Executive Retirement Plan
LIZ CLAIBORNE, INC.
Trust Agreement
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TRUST AGREEMENT
FOR
LIZ CLAIBORNE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Table of Contents
Article Page
ARTICLE 1 Name, Intentions, Irrevocability, Deposit and Definitions......... 1
1.1 Name.............................................................. 1
1.2 Intentions........................................................ 1
1.3 Irrevocability; Creditor Claims................................... 1
1.4 Initial Deposit................................................... 2
1.5 Additional Definitions............................................ 2
1.6 Grantor Trust..................................................... 2
ARTICLE 2 General Administration............................................ 2
2.1 Committee Directions and Administration Before Change in Control.. 2
2.2 Administration Upon Change in Control............................. 3
2.3 Contributions..................................................... 3
2.4 Trust Fund........................................................ 4
2.5 Distribution of Excess Trust Fund to Employers.................... 4
ARTICLE 3 Powers and Duties of Trustee...................................... 4
3.1 Investment Directions............................................. 4
3.2 Investment Upon Change In Control................................. 5
3.3 Management of Investments......................................... 5
3.4 Securities........................................................ 8
3.5 Substitution...................................................... 8
3.6 Distributions..................................................... 8
3.7 Trustee Responsibility Regarding Payments on Insolvency........... 11
3.8 Costs of Administration........................................... 13
3.9 Trustee Compensation and Expenses................................. 13
3.10 Professional Advice............................................... 13
3.11 Payment on Court Order............................................ 13
3.12 Protective Provisions............................................. 14
3.13 Indemnifications.................................................. 14
ARTICLE 4 Insurance Contracts............................................... 15
4.1 Types of Contracts................................................ 15
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4.2 Ownership......................................................... 15
4.3 Restrictions on Trustee's Rights.................................. 15
ARTICLE 5 Trustee's Accounts................................................ 16
5.1 Records........................................................... 16
5.2 Annual Accounting; Final Accounting............................... 16
5.3 Valuation......................................................... 17
5.4 Delegation of Duties.............................................. 17
ARTICLE 6 Resignation or Removal of Trustee................................. 18
6.1 Resignation; Removal.............................................. 18
6.2 Successor Trustee................................................. 18
6.3 Settlement of Accounts............................................ 18
ARTICLE 7 Controversies, Legal Actions and Counsel.......................... 18
7.1 Controversy....................................................... 18
7.2 Joinder of Parties................................................ 19
7.3 Employment of Counsel............................................. 19
ARTICLE 8 Insurers.......................................................... 19
8.1 Insurer Not a Party............................................... 19
8.2 Authority of Trustee.............................................. 19
8.3 Contract Ownership................................................ 19
8.4 Limitation of Liability........................................... 19
8.5 Change of Trustee................................................. 19
ARTICLE 9 Amendment and Termination......................................... 20
9.1 Amendment......................................................... 20
9.2 Final Termination................................................. 21
ARTICLE 10 Miscellaneous..................................................... 22
10.1 Directions Following Change in Control............................ 22
10.2 Taxes............................................................. 22
10.3 Third Persons..................................................... 22
10.4 Nonassignability; Nonalienation................................... 22
10.5 The Plans......................................................... 22
10.6 Applicable Law.................................................... 23
10.7 Notices and Directions............................................ 23
10.8 Successors and Assigns............................................ 23
10.9 Gender and Number................................................. 23
10.10 Headings.......................................................... 23
10.11 Counterparts...................................................... 23
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10.12 Beneficial Interest............................................... 23
10.13 The Trust and Plans............................................... 23
10.14 Effective Date.................................................... 24
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TRUST AGREEMENT
FOR
LIZ CLAIBORNE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS TRUST AGREEMENT ("Trust Agreement") is made and entered into as of
January 1, 2002, between Liz Claiborne, Inc. a Delaware corporation (the
"Company"), and Wilmington Trust Company, a Delaware corporation, as trustee
(the "Trustee"), to evidence the trust (the "Trust") to be established, pursuant
to the Liz Claiborne, Inc. Supplemental Executive Retirement Plan (the "Plan"),
for the benefit of a select group of management or highly compensated associates
who contribute materially to the continued growth, development and business
success of the Company and those affiliates of the Company, if any, that
participate in the Plan (collectively, "Affiliates," or singularly,
"Affiliate").
ARTICLE 1
Name, Intentions, Irrevocability,
Deposit and Definitions
1.1 Name. The name of the Trust created by this Agreement (the "Trust") shall
be:
TRUST AGREEMENT FOR
LIZ CLAIBORNE, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
1.2 Intentions. The Company wishes to establish the Trust and to contribute to
the Trust assets that shall be held therein, subject to the claims of the
Company's and the Affiliates' creditors in the event of their Insolvency
(as defined below) until paid to Participants and their Beneficiaries in
such manner and at such times as specified in the Plan. It is the intention
of the parties that this Trust shall constitute an unfunded arrangement and
shall not affect the status of the Plan as an unfunded plan maintained for
the purpose of providing supplemental compensation for a select group of
management or highly compensated associates for purposes of Title I of
ERISA (as defined below). In addition, it is the intention of the Company
and the Affiliates to make contributions to the Trust to provide themselves
with a source of funds to assist them in the meeting of their liabilities
under the Plan.
1.3 Irrevocability; Creditor Claims. The Trust hereby established shall be
irrevocable. Except as otherwise provided in Sections 2.4 and 9.2, the
principal of the Trust, and any earnings thereon, shall be held separate
and apart from other funds of the Company and the Affiliates and shall be
used exclusively for the uses and purposes of the Participants and the
general creditors of the Company and the Affiliates as herein
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set forth. The Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust.
Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of the Participants and their Beneficiaries
against the Company and the Affiliates. Any assets held by the Trust will
be subject to the claims of the Company's and the Affiliates' general
creditors under federal and state law in the event of Insolvency.
1.4 Initial Deposit. The Company hereby deposits with the Trustee in trust
$100, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Trust
Agreement.
1.5 Definitions. Unless otherwise indicated herein, capitalized terms shall
have the meanings set forth in the Plan.
1.6 Grantor Trust. The Trust is intended to be a "grantor trust," of which the
Company and the Affiliates are the grantors, within the meaning of subpart
E, part I, subchapter J, chapter 1, subtitle A of the Code and the Trust
shall be construed accordingly.
ARTICLE 2
General Administration
2.1 Committee Directions and Administration Before Change in Control. Until a
Change in Control (defined in Section 2.2) has occurred, this Section 2.1
shall be effective and the Committee shall direct the Trustee as to the
administration of the Trust in accordance with the following provisions:
(a) The Committee shall be identified to the Trustee by a copy of the
resolution of the Board appointing the Committee. In the absence
thereof, the Committee shall consist of the Company's Chairman, Chief
Financial Officer, Senior Vice President - Human Resources, Vice
President - Treasury and Investor Relations and Treasurer, and Vice
President - Cash and Risk Management, to serve as such at the pleasure
of the Board and until their respective successors are duly appointed.
Persons authorized to give directions to the Trustee on behalf of the
Committee shall be identified to the Trustee by written notice from
the Committee, and such notice shall contain specimens of the
authorized signatures. The Trustee shall be entitled to rely on such
written notice as evidence of the identity and authority of the
persons appointed until a written cancellation of the appointment, or
the written appointment of a successor, is received by the Trustee.
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(b) Directions by the Committee, or its delegate, to the Trustee shall be
in writing and signed by the Committee or persons authorized by the
Committee, or may be made by such other method as is acceptable to the
Trustee.
(c) The Trustee may conclusively rely upon directions from the Committee
in taking any action with respect to this Trust Agreement, including
the making of payments from the assets held by the Trustee pursuant to
the terms of this Trust Agreement (the "Trust Fund") and the
investment of the Trust Fund pursuant to this Trust Agreement. The
Trustee shall have no liability for actions taken, or for failure to
act, on the direction of the Committee. The Trustee shall have no
liability for failure to act in the absence of proper written
directions.
(d) The Trustee may request instructions from the Committee and shall have
no duty to act or liability for failure to act if such instructions
are not forthcoming from the Committee. If requested instructions are
not received within a reasonable time, the Trustee may, but is under
no duty to, act on its own discretion to carry out the provisions of
this Trust Agreement in accordance with this Trust Agreement and the
Plan.
2.2 Administration Upon Change in Control. In the event of a Change in Control,
the authority of the Committee to administer the Trust and direct the
Trustee, as set forth in Section 2.1 above, shall cease, and the Trustee
shall have complete authority to administer the Trust. For purposes of this
Trust Agreement, "Change in Control" shall be deemed to have occurred upon
the happening of any of the following events: (i) any "person," including a
"group," as such terms are defined in section 13(d) and 14(d) of the 1934
Act and the rules promulgated thereunder, becomes the beneficial owner,
directly or indirectly, whether by purchase or acquisition or agreement to
act in concert or otherwise, of 20% or more of the outstanding shares of
common stock of the Company; (ii) a cash tender or exchange offer for 50%
or more of the outstanding shares of common stock of the Company is
commenced; (iii) the shareholders of the Company approve an agreement to
merge, consolidate, liquidate, or sell all or substantially all of the
assets of the Company; or (iv) two or more directors are elected to the
Board without having previously been nominated and approved by the members
of the Board incumbent on the day immediately preceding such election.
2.3 Contributions. Except as provided in the Plan, the Company and the
Affiliates, in their sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered and disposed of
by the Trustee as provided in this Trust Agreement. Neither the Trustee nor
any Participant or Beneficiary shall have any right to compel such
additional deposits. The Trustee shall have no duty to collect or enforce
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payment to it of any contributions or to require that any contributions be
made, and shall have no duty to compute any amount to be paid to it nor to
determine whether amounts paid comply with the terms of the Plan.
2.4 Trust Fund. The contributions received by the Trustee from the Company and
the Affiliates shall be held and administered pursuant to the terms of this
Trust Agreement as a single fund without distinction between income and
principal and without liability for the payment of interest thereon except
as expressly provided in this Trust Agreement. During the term of this
Trust, all income received by the Trust, net of expenses and taxes, shall
be accumulated and reinvested.
2.5 Distribution of Excess Trust Fund to Employers. In the event that the
Committee, prior to a Change in Control, or the Trustee in its sole and
absolute discretion following receipt of a written request by the Company,
after a Change in Control, determines that the Trust Fund exceeds one
hundred twenty-five percent (125%) of the anticipated benefit obligations
and administrative expenses that are to be paid under the Plan, the
Trustee, at the direction of the Committee prior to a Change in Control, or
in its sole and absolute discretion following receipt of a written request
by the Company after a Change in Control, shall distribute to the Company
and the Affiliates such excess portion of the Trust Fund. The Trustee shall
be entitled to obtain, at the reasonable expense of the Company or the
Trust, and rely on a verification from a independent professional advisor
with respect to the calculation of the excess, if any, of the Trust Fund to
be distributed to the Company.
ARTICLE 3
Powers and Duties of Trustee
3.1 Investment Directions. Except as provided in this Section and Section 3.2
below, the Committee shall provide the Trustee with all investment
instructions. The Trustee shall neither affect nor change investments of
the Trust Fund, except as directed in writing by the Committee, and shall
have no right, duty or responsibility to recommend investments or
investment changes; provided, that the Trustee may (i) deposit cash on hand
from time to time in any bank savings account, certificate of deposit, or
other instrument creating a deposit liability for a bank, including the
Trustee's own banking department, if the Trustee is a bank, without such
prior direction, (ii) invest in mutual funds, government securities, bonds
with specific ratings, or stock of "S&P 500" companies, all within broad
investment guidelines established by the Committee from time to time, or
(iii) invest in universal variable life insurance. Notwithstanding anything
to the contrary contained herein, unless and until agreed otherwise in
writing, the Trustee shall have no investment responsibility with respect
to the Trust Fund and shall be entitled to rely solely on the investment
directions provided by the Committee or its delegate. Further, the Trustee
shall have no duty or responsibility with respect
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to: (i) the truth or accuracy of any representation or warranty made in any
application or related document provided to the insurer in connection with
the issuance or renewal of any insurance policies or insurance contracts;
(ii) the selection or monitoring (ongoing or periodic) of any insurance or
annuity policies or contracts held in the Trust or the insurers issuing
such policies or contracts; (iii) the payment of any premiums with respect
to such policies or contracts except as directed in writing by the Company
or the Committee; or (iv) the exercise of any rights relating to any such
policies or contracts except as directed in writing by the Company or the
Committee.
3.2 Investment Upon Change in Control. In the event of a Change in Control, the
authority of the Committee to direct investments of the Trust Fund shall
cease and the Trustee shall have complete authority to direct investments
of the Trust Fund. The CEO of the Company shall notify the Trustee in
writing when a Change in Control has occurred. The Trustee has no duty to
inquire whether a Change in Control has occurred and may rely on
notification by the president of the Company of a Change in Control;
provided, however, that if any officer, former officer, director or former
director of the Company or any Affiliate (other than the CEO of the
Company), or any Participant notifies the Trustee that there has been or
there may be a Change in Control, the Trustee shall have the duty to
satisfy itself as to whether a Change in Control has in fact occurred. The
Company and the Affiliates shall indemnify and hold harmless the Trustee
for any damages or costs (including attorneys' fees) that may be incurred
because of reliance on the CEO's notice or lack thereof.
3.3 Management of Investments. Subject to Section 3.1 above, the Trustee shall
have, without exclusion, all powers conferred on the Trustee by applicable
law, unless expressly provided otherwise herein, and all rights associated
with assets of the Trust shall be exercised by the Trustee or the person
designated by the Trustee, and shall in no event be exercisable by or rest
with Participants or their Beneficiaries. Subject to Section 3.1 above, the
Trustee shall have full power and authority to invest and reinvest the
Trust Fund in any investment permitted by law, exercising the judgment and
care that persons of prudence, discretion and intelligence would exercise
under the circumstances then prevailing, considering the probable income
and safety of their capital, including, without limiting the generality of
the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible preferred
stock, mutual funds, bonds, debentures, convertible debentures and
bonds, mortgages, notes, time certificates of deposit, commercial
paper and other evidences of indebtedness (including those issued by
the Trustee
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or any of its affiliates), other securities, policies of life
insurance, annuity contracts, options to buy or sell securities or
other assets, and other property of any kind (personal, real, or
mixed, and tangible or intangible); provided, however, that in no
event may the Trustee invest in securities (including stock or rights
to acquire stock) or obligations issued by the Company or the
Affiliates, other than a de minimis amount held in common investment
vehicles in which the Trustee invests;
(b) To deposit or invest all or any part of the assets of the Trust Fund
in savings accounts or certificates of deposit or other deposits which
bear a reasonable interest rate in a bank, including the commercial
department of the Trustee, if such bank is supervised by the United
States or any State;
(c) To hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust Fund and to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the same
from time to time in such manner, for such consideration, and upon
such terms and conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges
of an owner, including the power to give proxies, pay assessments and
other sums deemed by the Trustee to be necessary for the protection of
the Trust Fund, to vote any corporate stock either in person or by
proxy, with or without power of substitution, for any purpose; to
participate in voting trusts, pooling agreements, foreclosures,
reorganizations, consolidations, mergers and liquidations, and in
connection therewith to deposit securities with and transfer title to
any protective or other committee under such terms as the Trustee may
deem advisable; to exercise or sell stock subscriptions or conversion
rights; and, regardless of any limitation elsewhere in this instrument
relative to investment by the Trustee, to accept and retain as an
investment any securities or other property received through the
exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the
Trust Fund which, in its discretion, shall be reasonable under the
circumstances, pending investments, or payment of expenses, or the
distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the
Trust Fund from loss due to the default on mortgages held in the Trust
including the appointment of agents or trustees in such other
jurisdictions as may seem desirable, to transfer property to such
agents or trustees, to grant such powers as are necessary or desirable
to protect the Trust or its assets, to direct such agents or trustees,
or to delegate such power to direct, and to remove such agents or
trustees;
(g) To employ such agents including custodians and counsel as may be
reasonably necessary and to pay them reasonable compensation; to
settle,
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compromise or abandon all claims and demands in favor of or against
the Trust assets;
(h) To cause title to property of the Trust to be issued, held or
registered in the individual name of the Trustee, or in the name of
its nominee(s) or agents, or in such form that title will pass by
delivery;
(i) To exercise all of the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under the laws
of the State whose laws are applicable to this Trust Agreement, as
provided in Section 10.6 below, so that the powers conferred upon the
Trustee herein shall not be in limitation of any authority conferred
by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute
promissory notes, mortgages or other obligations and to pledge or
mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other securities
to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings; to pay or
contest any claim; to settle a claim by or against the Trustee by
compromise, arbitration, or otherwise; to release, in whole or in
part, any claim belonging to the Trust to the extent that the claim is
uncollectible;
(m) To use securities depositories or custodians and to allow such
securities as may be held by a depository or custodian to be
registered in the name of such depository or its nominee or in the
name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment
funds, which funds shall be registered under the Investment Company
Act of 1940; and
(o) To do all other acts necessary or desirable for the proper
administration of the Trust Fund, as if the Trustee were the absolute
owner thereof.
However, nothing in this section shall be construed to mean the Trustee
assumes any responsibility for the performance of any investment made by
the Trustee in its capacity as trustee under the operations of this Trust
Agreement. 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
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section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Code.
3.4 Securities. Voting or other rights in securities shall be exercised by the
person or entity responsible for directing such investments, and the
Trustee shall have no duty to exercise voting or proxy or other rights
relating to any investment managed or directed by the Committee. If any
foreign securities are purchased pursuant to the direction of the
Committee, it shall be the responsibility of the person or entity
responsible for directing such investments to advise the Trustee in writing
of any laws or regulations, either foreign or domestic, that apply to such
foreign securities or to the receipt of dividends or interest on such
securities.
3.5 Substitution. Notwithstanding any provision of the Plan or the Trust to the
contrary, the Company and/or any Affiliate shall at all times have the
power to reacquire the Trust Fund by substituting readily marketable
securities (other than stock, a debt obligation or other security issued by
the Company or any Affiliate) and/or cash of an equivalent value as
determined by the Trustee in its sole and absolute discretion and such
other property shall, following such substitution, constitute the Trust
Fund.
3.6 Distributions.
(a) The establishment of the Trust and the payment or delivery to the
Trustee of money or other property shall not vest in any Participant
or Beneficiary any right, title, or interest in and to any assets of
the Trust. To the extent that any Participant or Beneficiary acquires
the right to receive payments under the Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company
and the Affiliates and such Participant or Beneficiary shall have only
the unsecured promise of the Company and the Affiliates that such
payments shall be made.
(b) Concurrent with the establishment of this Trust, the Company shall
deliver to the Trustee a schedule (the "Payment Schedule") that
indicates the amounts payable in respect of each Participant (and his
or her Beneficiaries), provides a formula or formulas or other
instructions acceptable to the Trustee for determining the amounts so
payable, specifies the form in which such amount is to be paid (as
provided for or available under the Plan), and the time of
commencement for payment of such amounts. The Payment Schedule shall
be updated from time to time as is necessary. Except as otherwise
provided herein, prior to a Change in Control, the Trustee shall make
payments to the Participants and their Beneficiaries in accordance
with such Payment Schedule. Despite the foregoing, after a Change in
Control, the Trustee shall make payments in accordance with the terms
and provisions of the Plan
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and related plan agreements as determined by the Trustee. The Trustee,
at the direction of the Committee or, after a Change in Control, on
its own volition, may make any distribution required to be made by it
hereunder by delivering:
(i) Its check payable to the person to whom such distribution is to
be made, to such person; or
(ii) Its check payable to an insurer for the benefit of such person,
to the insurer; or
(iii)Contracts held on the life of the Participant to whom or with
respect to whom the distribution is being made, to the
Participant or Beneficiary; or
(iv) If a distribution is being made, in whole or in part, of other
assets, assignments or other appropriate documents or
certificates necessary to effect a transfer of title, to the
Participant or Beneficiary.
(c) If the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the terms
of the Plan, the Company and the Affiliates shall make the balance of
each such payment as it falls due. The Trustee shall notify the
Company and the Affiliates when principal and earnings are not
sufficient.
(d) The Company and the Affiliates may make payment of benefits directly
to Participants or their Beneficiaries as they become due under the
terms of the Plan. The Company and the Affiliates shall notify the
Trustee of their decisions to make payment of benefits directly prior
to the time amounts are payable to Participants or their
Beneficiaries.
(e) Notwithstanding anything contained in this Trust Agreement to the
contrary, if at any time the Trust is finally determined by the
Internal Revenue Service not to be a "grantor trust" with the result
that the income of the Trust Fund is not treated as income of the
Company or the Affiliates pursuant to Sections 671 through 679 of the
Code or if a tax is finally determined by the Internal Revenue Service
to be payable by one or more Participants or Beneficiaries with
respect to any interest in the Plan or the Trust Fund prior to payment
of such interest to any such Participant or Beneficiary, the Trustee
shall immediately determine each Participant's share of the Trust Fund
in accordance with the Plan, and the Trustee shall immediately
distribute such share in a lump sum to each Participant or Beneficiary
entitled thereto, regardless of whether such Participant's employment
has terminated (provided such Participant has a vested interest in his
or her accrued benefits under the Plan) and regardless of form and
time of payments specified in or pursuant
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to the Plan. Any remaining assets (less any expenses or costs due
under Sections 3.8 and 3.9 of this Trust Agreement) shall then be paid
by the Trustee to the Company and the Affiliates in such amounts, and
in the manner instructed by the Committee. If the value of the Trust
Fund is less than the benefit obligations under the Plan, the
foregoing described distributions will be limited to a Participant's
share of the Trust Fund, determined by allocating assets to the
Participant based on the ratio of the Participant's benefit
obligations under the Plan to the total benefit obligations under the
Plan. Prior to a Change in Control, the Trustee shall rely solely on
the directions of the Committee with respect to the occurrence of the
foregoing events and the resulting distributions to be made, and the
Trustee shall not be responsible for any failure to act in the absence
of such direction.
(f) The Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be withheld
with respect to the payment of benefits pursuant to the terms of the
Plan and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported,
withheld and paid by the Company and the Affiliates.
(g) Prior to a Change in Control, payments by the Trustee shall be
delivered or mailed to addresses supplied by the Committee and the
Trustee's obligation to make such payments shall be satisfied upon
such delivery or mailing. Prior to a Change in Control, he Trustee
shall have no obligation to determine the identity of persons entitled
to benefits or their mailing addresses. After a Change in Control, the
Trustee shall have such obligations.
(h) Prior to a Change in Control, the entitlement of a Participant or his
or her Beneficiaries to benefits under the Plan shall be determined by
the Company and the Affiliates or such party as they shall designate
under the Plan, and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plan.
(i) Notwithstanding Section 3.6(h), upon and after the occurrence of a
Change in Control, the Plan shall be administered by an independent
third party (the "Administrator"). In the event the person so named
shall fail or cease to serve, a new Administrator shall be designated
by the CEO serving, or the person executing the powers of the CEO,
immediately prior to the Change in Control. The Administrator shall
have the discretionary power, authority and duty to determine all
questions arising in connection with the administration of the Plan
and the interpretation of the Plan and Trust including, but not
limited to benefit entitlement determinations; provided, however, upon
and after the occurrence
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of a Change in Control, the Administrator shall have no power to
direct the investment of Plan or Trust assets or select any investment
manager or custodial firm for the Plan or Trust. Upon and after the
occurrence of a Change in Control, the Company must: (1) pay all
reasonable administrative expenses and fees of the Administrator; (2)
indemnify the Administrator against any costs, expenses and
liabilities including, without limitation, attorney's fees and
expenses arising in connection with the performance of the
Administrator hereunder, except with respect to matters resulting from
the gross negligence or willful misconduct of the Administrator or its
employees or agents; and (3) supply full and timely information to the
Administrator on all matters relating to the Plan, the Trust, the
Participants and their Beneficiaries, the Account Balances of the
Participants, the date and circumstances of the Retirement,
Disability, death or Termination of Employment of the Participants,
and such other pertinent information as the Administrator may
reasonably require. Upon and after a Change in Control, the
Administrator may be terminated (and a replacement appointed) by the
Trustee only with the approval of the CEO serving, or the person
exercising the powers of the CEO, immediately prior to the Change in
Control. Upon and after a Change in Control, the Administrator may not
be terminated by the Company.
3.7 Trustee Responsibility Regarding Payments on Insolvency.
(a) The Trustee shall cease payment of benefits to Participants and their
Beneficiaries if the Company, or any Affiliate, is Insolvent (the
"Insolvent Entity"). The Insolvent Entity shall be considered
"Insolvent" for purposes of this Trust Agreement if:
(i) the Insolvent Entity is unable to pay its debts as they become
due, or
(ii) the Insolvent Entity is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
For purposes of this Section 3.7, if an entity is determined to be
Insolvent, each Affiliate in which such entity has an equity interest
shall also be deemed to be an Insolvent Entity. However, the
insolvency of a Affiliate will not cause a parent corporation to be
deemed Insolvent.
(b) At all times during the continuance of this Trust, as provided in
Section 1.3 above, the principal and income of the Trust shall be
subject to claims of the general creditors of the Company and its
Affiliates under federal and state law as set forth below:
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(i) The Board and the CEO of the Company shall have the duty to
inform the Trustee in writing of the Company's or any Affiliate's
Insolvency. If a person claiming to be a creditor of the Company
or any Affiliate alleges in writing to the Trustee that the
Company or any Affiliate has become Insolvent, the Trustee shall
determine whether the Company or any Affiliate is Insolvent and,
pending such determination, the Trustee shall discontinue payment
of benefits to the Insolvent Entity's Participants or their
Beneficiaries. Prior to a Change in Control, the Trustee may
conclusively rely on any determination it receives from the Board
or the CEO of the Company with respect to the Insolvency of the
Company or any Affiliate.
(ii) Unless the Trustee has actual knowledge of the Company's or a
Affiliate's Insolvency, or has received notice from the Company,
a Affiliate, or a person claiming to be a creditor alleging that
the Company or a Affiliate is Insolvent, the Trustee shall have
no duty to inquire whether the Company or any Affiliate is
Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's or any Affiliate's solvency as may be
furnished to the Trustee and that provides the Trustee with a
reasonable basis for making a determination concerning the
Company's or any Affiliate's solvency. In this regard, the
Trustee may rely upon a letter from the Company's or a
Affiliate's auditors as to the Company's or any Affiliate's
financial status.
(iii) If at any time the Trustee has determined that the Company or
any Affiliate is Insolvent, the Trustee shall discontinue
payments to the Insolvent Entity's Participants or their
Beneficiaries, and shall hold the portion of the assets of the
Trust allocable to the Insolvent Entity for the benefit of the
Insolvent Entity's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of Participants or
their Beneficiaries to pursue their rights as general creditors
of the Insolvent Entity with respect to benefits due under the
Plan or otherwise.
(iv) The Trustee shall resume the payment of benefits to Participants
or their Beneficiaries in accordance with this Article 3 of this
Trust Agreement only after the Trustee has determined that the
alleged Insolvent Entity is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3.7(b)
hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of
all payments due to
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Participants or their Beneficiaries under the terms of the Plan for
the period of such discontinuance, less the aggregate amount of any
payments made to Participants or their Beneficiaries by the Company or
any Affiliate in lieu of the payments provided for hereunder during
any such period of discontinuance. Prior to a Change in Control, the
Committee shall instruct the Trustee as to such amounts, and after a
Change in Control, the Trustee shall determine such amounts in
accordance with the terms and provisions of the Plan.
3.8 Costs of Administration. The Trustee is authorized to incur reasonable
obligations in connection with the administration of the Trust, including
attorneys' fees, Administrator fees, other administrative fees and
appraisal fees, provided however, that prior to a Change in Control,
attorneys' fees shall be as authorized and approved by the Company, which
authorization and approval shall not be unreasonably withheld. Such
obligations shall be paid by the Company and the Affiliates. The Trustee is
authorized to pay such amounts from the Trust Fund if the Company or the
Affiliates fail to pay them within 60 days of presentation of a statement
of the amounts due.
3.9 Trustee Compensation and Expenses. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed upon
between the Trustee and the Company as set forth in Exhibit A, hereunder.
If the Trustee and the Company fail to agree upon a compensation, or
following a Change in Control, the Trustee shall be entitled to
compensation at a rate equal to the rate charged by the Trustee for similar
services rendered by it during the current fiscal year for other trusts
similar to this Trust. Subject to Section 3.8, the Trustee shall be
entitled to reimbursement for expenses incurred by it in the performance of
its duties as the Trustee, including reasonable fees for legal counsel. The
Trustee's compensation and expenses shall be paid by the Company and the
Affiliates. The Trustee is authorized to withdraw such amounts from the
Trust Fund if the Company or the Affiliates fail to pay them within 60 days
of presentation of a statement of the amounts due.
3.10 Professional Advice. The Company and the Affiliates specifically
acknowledge that the Trustee and/or the Administrator may find it desirable
or expedient to retain legal counsel (who may also be legal counsel for the
Company generally) or other professional advisors to advise it in
connection with the exercise of any duty under this Trust Agreement,
including, but not limited to, any matter relating to or following a Change
in Control, the Insolvency of the Company or any Affiliate. The Trustee
and/or Administrator shall be fully protected in acting upon the advice of
such legal counsel or advisors.
3.11 Payment on Court Order. To the extent permitted by law, the Trustee is
authorized to make any payments directed by court order in any action in
which the Trustee has
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been named as a party. The Trustee is not obligated to defend actions in
which the Trustee is named, but shall notify the Company or Committee of
any such action and may tender defense of the action to the Company,
Committee, Participant or Beneficiary whose interest is affected. Subject
to Section 3.8, the Trustee may in its discretion defend any action in
which the Trustee is named, and any expenses incurred by the Trustee shall
be paid by the Company and the Affiliates. The Trustee is authorized to pay
such amounts from the Trust Fund if the Company or the Affiliates fail to
pay them within sixty (60) days of presentation of a statement of the
amounts due.
3.12 Protective Provisions. Notwithstanding any other provision contained in
this Trust Agreement to the contrary, the Trustee shall have no obligation
to (i) determine the existence of any conversion, redemption, exchange,
subscription or other right relating to any securities purchased of which
notice was given prior to the purchase of such securities and shall have no
obligation to exercise any such right unless the Trustee is advised in
writing by the Committee both of the existence of the right and the desired
exercise thereof within a reasonable time prior to the expiration of the
right to exercise, or (ii) advance any funds to the Trust. Furthermore, the
Trustee is not a party to the Plan.
3.13 Indemnifications.
(a) The Company and the Affiliates shall indemnify and hold the Trustee
harmless from and against all loss or liability (including expenses
and reasonable attorneys' fees) to which it may be subject by reason
of its execution of its duties under this Trust, or by reason of any
acts taken in good faith in accordance with any directions, or acts
omitted in good faith due to absence of directions, from the Company,
the Committee or a Participant, unless such loss or liability is due
to the Trustee's gross negligence or willful misconduct. The indemnity
described herein shall be provided by the Company and the Affiliates.
(b) In the event that the Trustee is named as a defendant in a lawsuit or
proceeding involving one or more of the Plan or the Trust Fund, the
Trustee shall be entitled to receive on a current basis the indemnity
payments provided for in this Section, provided however that if the
final judgment entered in the lawsuit or proceeding holds that the
Trustee is guilty of gross negligence or willful misconduct with
respect to the Trust Fund, the Trustee shall be required to refund the
indemnity payments that it has received.
(c) The Company and the Affiliates shall indemnify and hold the
Administrator harmless from and against all loss or liability
(including expenses and
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reasonable attorneys' fees) to which it may be subject by reason of
its execution of its duties under this Trust, or by reason of any acts
taken in good faith in accordance with any directions, or acts omitted
in good faith due to absence of directions, from the Company, the
Committee or a Participant, unless such loss or liability is due to
the Administrator's gross negligence or willful misconduct. The
indemnity described herein shall be provided by the Company and the
Affiliates.
(d) In the event that the Administrator is named as a defendant in a
lawsuit or proceeding involving the Plan or the Trust Fund, the
Administrator shall be entitled to receive on a current basis the
indemnity payments provided for in this Section, provided however that
if the final judgment entered in the lawsuit or proceeding holds that
the Administrator is guilty of gross negligence or willful misconduct
with respect to its duties under the Plan or the Trust, the
Administrator shall be required to refund the indemnity payments that
it has received.
(e) All releases and indemnities provided in this Trust Agreement shall
survive the termination of this Trust Agreement.
ARTICLE 4
Insurance Contracts
4.1 Types of Contracts. To the extent that the Trustee is directed by the
Committee, prior to a Change in Control, to invest part or all of the Trust
Fund in insurance contracts, the type and amount thereof shall be specified
by the Committee. The Trustee shall be under no duty to make inquiry as to
the propriety of the type or amount so specified.
4.2 Ownership. Each insurance contract issued shall provide that the Trustee
shall be the owner thereof with the power to exercise all rights,
privileges, options and elections granted by or permitted under such
contract or under the rules of the insurer. The exercise by the Trustee of
any incidents of ownership under any contract shall, prior to a Change in
Control, be subject to the direction of the Committee.
4.3 Restrictions on Trustee's Rights. 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. Despite the foregoing, the Trustee may if directed
prior to a Change in Control, (i) loan to the Company or any Affiliate the
proceeds of any borrowing against an insurance policy held in the Trust
Fund or (ii) assign all, or any portion, of a policy to the Company or
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any Affiliate if under other provisions of this Trust Agreement the Company
or any Affiliate is entitled to receive assets from the Trust.
ARTICLE 5
Trustee's Accounts
5.1 Records. The Trustee shall maintain accurate records and detailed accounts
of all investments, receipts, disbursements and other transactions
hereunder. Such records shall be available at all reasonable times for
inspection by the Company and Affiliates or their authorized
representative. The Trustee, at the direction of the Committee, shall
submit to the Committee and to any insurer such valuations, reports or
other information as the Committee may reasonably require and, in the
absence of fraud or bad faith, the valuation of the Trust Fund by the
Trustee shall be conclusive.
5.2 Annual Accounting; Final Accounting.
(a) Within sixty (60) days following the end of each Plan Year and within
sixty (60) days after the removal or resignation of the Trustee or the
termination of the Trust, the Trustee shall file with the Committee a
written account setting forth a description of all properties
purchased and sold, all receipts, disbursements and other transactions
effected by it during the Plan Year or, in the case of removal,
resignation or termination, since the close of the previous Plan Year,
and listing the properties held in the Trust Fund as of the last day
of the Plan Year or other period and indicating their values. Such
values shall be either cost or market as directed by the Committee in
accordance with the terms of the Plan.
(b) The Committee may approve such account either by written notice of
approval delivered to the Trustee or by its failure to express written
objection to such account delivered to the Trustee within sixty (60)
days after the date of which such account was delivered to the
Committee.
(c) The approval by the Committee of an accounting shall be binding as to
all matters embraced in such accounting on all parties to this Trust
Agreement and on all Participants and Beneficiaries, to the same
extent as if such accounting had been settled by a judgment or decree
of a court of competent jurisdiction in which the Trustee, the
Committee, the Company, the Affiliates and all persons having or
claiming any interest in the Plan or the Trust Fund were made parties.
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(d) Despite the foregoing, nothing contained in this Trust Agreement shall
deprive the Trustee of the right to have an accounting judicially
settled, if the Trustee, in the Trustee's sole discretion, desires
such a settlement.
5.3 Valuation. The assets of the Trust Fund shall be valued at their respective
fair market values on the date of valuation, as determined by the Trustee
based upon such sources of information as it may deem reliable, including,
but not limited to, stock market quotations, statistical valuation
services, newspapers of general circulation, financial publications, advice
from investment counselors, brokerage firms or insurance companies, or any
combination of sources. Prior to a Change in Control, the Committee shall
instruct the Trustee as to the value of assets for which market values are
not readily obtainable by the Trustee. If the Committee fails to provide
such values, the Trustee may take whatever action it deems reasonable,
including employment of attorneys, appraisers, life insurance companies or
other professionals, the expense of which shall be an expense of
administration of the Trust Fund and payable by the Company and the
Affiliates. The Trustee may rely upon information from the Company and the
Affiliates, the Committee, appraisers or other sources and shall not incur
any liability for an inaccurate valuation based in good faith upon such
information.
5.4 Delegation of Duties. The Company or the Committee, or both, may at any
time employ the Trustee as their agent to perform any act, keep any records
or accounts and make any computations that are required of the Company, any
Affiliate or the Committee by this Trust Agreement or the Plan. The Trustee
may be compensated for such employment and such employment shall not be
deemed to be contrary to the Trust. Nothing done by the Trustee as such
agent shall change or increase its responsibility or liability as Trustee
hereunder.
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ARTICLE 6
Resignation or Removal of Trustee
6.1 Resignation; Removal. The Trustee may resign at any time by written notice
to the Company, which shall be effective sixty (60) days after receipt of
such notice unless the Company and the Trustee agree otherwise. Prior to a
Change in Control, the Trustee may be removed by the Company on sixty (60)
days notice or upon shorter notice accepted by the Trustee. After a Change
in Control, the Trustee may be removed by a majority vote of the
Participants, and if a Participant is dead, his or her Beneficiaries (who
collectively shall have one vote among them and shall vote in place of such
deceased Participant), on 60 days notice or upon shorter notice accepted by
the Trustee.
6.2 Successor Trustee. If the Trustee resigns or is removed, a successor shall
be appointed by the Company, in accordance with this Section, by the
effective date of the resignation or removal under Section 6.1 above. The
successor shall be a bank, trust company, or similar independent third
party that is granted corporate trustee powers under state law. After a
Change in Control, a successor Trustee may not be appointed without the
consent of a majority of the Participants. If no such appointment has been
made, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the Trustee
in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
6.3 Settlement of Accounts. Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be completed
within ninety (90) days after receipt of notice of resignation, removal or
transfer, unless the Company extends the time limit. Upon the transfer of
the assets, the successor Trustee shall succeed to all of the powers and
duties given to the Trustee in this Trust Agreement. The resigning or
removed Trustee shall render to the Committee an account in the form and
manner and at the time prescribed in Section 5.2. The approval of such
accounting and discharge of the Trustee shall be as provided in such
Section.
ARTICLE 7
Controversies, Legal Actions and Counsel
7.1 Controversy. If any controversy arises with respect to the Trust, the
Trustee shall take action as directed by the Committee or, in the absence
of such direction or after a Change in Control, as it deems advisable,
whether by legal proceedings, compromise or otherwise. The Trustee may
retain the funds or property involved without liability pending settlement
of the controversy. The Trustee shall be under no obligation to
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take any legal action of whatever nature unless there shall be sufficient
property in the Trust to indemnify the Trustee with respect to any expenses
or losses to which it may be subjected.
7.2 Joinder of Parties. In any action or other judicial proceedings affecting
the Trust, it shall be necessary to join as parties the Trustee, the
Committee, the Company and the Affiliates. No Participant or other person
shall be entitled to any notice or service of process. Any judgment entered
in such a proceeding or action shall be binding on all persons claiming
under the Trust. Nothing in this Trust Agreement shall be construed as to
deprive a Participant or Beneficiary of his or her right to seek
adjudication of his or her rights by administrative process or by a court
of competent jurisdiction.
7.3 Employment of Counsel. The Trustee may consult with legal counsel (who may
be counsel for the Company or any Affiliate) and shall be fully protected
with respect to any action taken or omitted by it in good faith pursuant to
the advice of counsel.
ARTICLE 8
Insurers
8.1 Insurer Not a Party. No insurer shall be deemed to be a party to the Trust
and an insurer's obligations shall be measured and determined solely by the
terms of contracts and other agreements executed by it.
8.2 Authority of Trustee. An insurer shall accept the signature of the Trustee
to any documents or papers executed in connection with such contracts. The
signature of the Trustee shall be conclusive proof to the insurer that the
person on whose life an application is being made is eligible to have a
contract issued on his or her life and is eligible for a contract of the
type and amount requested.
8.3 Contract Ownership. An insurer shall deal with the Trustee as the sole and
absolute owner of any insurance contracts and shall have no obligation to
inquire whether any action or failure to act on the part of the Trustee is
in accordance with or authorized by the terms of the Plan or this Trust
Agreement.
8.4 Limitation of Liability. An insurer shall be fully discharged from any and
all liability for any action taken or any amount paid in accordance with
the direction of the Trustee and shall have no obligation to see to the
proper application of the amounts so paid. An insurer shall have no
liability for the operation of the Trust or the Plan, whether or not in
accordance with their terms and provisions.
8.5 Change of Trustee. An insurer shall be fully discharged from any and all
liability for dealing with a party or parties indicated on its records to
be the Trustee until such time
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as it shall receive at its home office written notice of the appointment
and qualification of a successor Trustee.
ARTICLE 9
Amendment and Termination
9.1 Amendment. Subject to the limitations set forth in this Section 9.1, this
Trust Agreement may be amended by a written instrument executed by the
Trustee and the Company. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plan or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1.3 above. Any
amendment, change or modification shall be subject to the following rules:
(a) General Rule. Subject to Sections 9.1(b), (c) and (d) below, this
Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however, that if an
amendment would in any way adversely affect the rights accrued
under the Plan in the Trust Fund by any Participant or
Beneficiary, each and every Participant and Beneficiary whose
rights in the Trust Fund would be adversely affected must consent
to the amendment before this Trust Agreement may be so amended;
and
(ii) By the Company and the Trustee as may be necessary to comply with
laws which would otherwise render the Trust void, voidable or
invalid in whole or in part.
(b) Limitation. Notwithstanding that an amendment may be permissible under
Section 9.1(a) above, this Trust Agreement shall not be amended by an
amendment that would:
(i) Cause any of the assets of the Trust to be used for or diverted
to purposes other than for the exclusive benefit of Participants
and Beneficiaries as set forth in the Plan, except as is required
to satisfy the claims of the Company's or an Affiliate's general
creditors; or
(ii) Be inconsistent with the terms of the Plan, including the terms
of the Plan regarding termination, amendment or modification of
the Plan.
(c) Writing and Consent. Any amendment to this Trust Agreement shall be
set forth in writing and signed by the Company and the Trustee and, if
consent of any Participant or Beneficiary is required under Section
9.1(a), the Participant
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or Beneficiary whose consent is required. Any amendment may be
current, retroactive or prospective, in each case as provided therein.
(d) The Company and Trustee. In connection with the exercise of the rights
under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall have no
responsibility to determine whether any proposed amendment
complies with the terms and conditions set forth in Sections
9.1(a) and (b) above and may conclusively rely on the directions
of the Committee with respect thereto, unless the Trustee has
actual knowledge of a proposed transaction or transactions that
would result in a Change in Control; and
(ii) after a Change in Control, the power of the Company to amend this
Trust Agreement shall cease, and the power to amend that was
previously held by the Company shall, instead, be exercised by a
majority of the Participants and, if a Participant is dead, his
or her Beneficiaries (who collectively shall have one vote among
them and shall vote in place of such deceased Participant), with
the consent of the Trustee, provided that such amendment
otherwise complies with the requirements of Sections 9.1(a), (b)
and (c) above.
(e) Taxation. This Trust Agreement shall not be amended, altered, changed
or modified in a manner that would cause the Participants and/or
Beneficiaries under the Plan to be taxed on the benefits under the
Plan in a year other than the year of actual receipt of benefits.
9.2 Final Termination. The Trust shall not terminate until the date on which
Participants and their Beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan, and on such date the Trust shall
terminate. Upon termination of the Trust, any assets remaining in the Trust
shall be returned to the Company and the Affiliates. Such remaining assets
shall be paid by the Trustee to the Company and the Affiliates in such
amounts and in the manner instructed by the Company, whereupon the Trustee
shall be released and discharged from all obligations hereunder. From and
after the date of termination and until final distribution of the Trust
Fund, the Trustee shall continue to have all of the powers provided herein
as are necessary or expedient for the orderly liquidation and distribution
of the Trust Fund.
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ARTICLE 10
Miscellaneous
10.1 Directions Following Change in Control. Despite any other provision of this
Trust Agreement that may be construed to the contrary, following a Change
in Control, all powers of the Committee, the Company and the Board to
direct the Trustee under this Trust Agreement shall terminate, and the
Trustee shall act on its own discretion to carry out the terms of this
Trust Agreement in accordance with the Plan and this Trust Agreement.
10.2 Taxes. The Company and the Affiliates shall from time to time pay taxes of
any and all kinds whatsoever that at any time are lawfully levied or
assessed upon or become payable in respect of the Trust Fund, the income or
any property forming a part thereof, or any security transaction pertaining
thereto. To the extent that any taxes lawfully levied or assessed upon the
Trust Fund are not paid by the Company and the Affiliates, the Trustee
shall have the power to pay such taxes out of the Trust Fund and shall seek
reimbursement from the Company and the Affiliates. Prior to making any
payment, the Trustee may require such releases or other documents from any
lawful taxing authority as it shall deem necessary. The Trustee shall
contest the validity of taxes in any manner deemed appropriate by the
Company or its counsel, but at the Company's and the Affiliates' expense,
and only if it has received an indemnity bond or other security
satisfactory to it to pay any such expenses. Prior to a Change in Control,
the Trustee (i) shall not be liable for any nonpayment of tax when it
distributes an interest hereunder on directions from the Committee, and
(ii) shall have no obligation to prepare or file any tax return on behalf
of the Trust Fund, any such return being the sole responsibility of the
Committee. The Trustee shall cooperate with the Committee in connection
with the preparation and filing of any such return. After a Change in
Control, the Trustee shall have such duties and obligations.
10.3 Third Persons. All persons dealing with the Trustee are released from
inquiring into the decisions or authority of the Trustee and from seeing to
the application of any moneys, securities or other property paid or
delivered to the Trustee.
10.4 Nonassignability; Nonalienation. Benefits payable to Participants and their
Beneficiaries under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected
to attachment, garnishment, levy, execution or other legal or equitable
process.
10.5 The Plan. The Trust and the Plan are parts of a single, integrated
associate benefit plan system and shall be construed together. In the event
of any conflict between the terms of this Trust Agreement and the agreement
that constitutes the Plan, such conflict shall be resolved in favor of this
Trust Agreement.
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10.6 Applicable Law. Except to the extent, if any, preempted by ERISA, this
Trust Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware. Any provision of this Trust
Agreement prohibited by law shall be ineffective to the extent of any such
prohibition, without invalidating the remaining provisions hereof.
10.7 Notices and Directions. Whenever a notice or direction is given by the
Committee to the Trustee, it shall be in the form required by Section 2.1.
Actions by the Company shall be by the Board or a duly authorized officer,
with such actions certified to the Trustee by an appropriately certified
copy of the action taken. The Trustee shall be protected in acting upon any
such notice, resolution, order, certificate or other communication believed
by it to be genuine and to have been signed by the proper party or parties.
10.8 Successors and Assigns. This Trust Agreement shall be binding upon and
inure to the benefit of the Company, the Affiliates and the Trustee and
their respective successors and assigns.
10.9 Gender and Number. Words used in the masculine shall apply to the feminine
where applicable, and when the context requires, the plural shall be read
as the singular and the singular as the plural.
10.10 Headings. Headings in this Trust Agreement are inserted for convenience of
reference only and any conflict between such headings and the text shall be
resolved in favor of the text.
10.11 Counterparts. This Trust Agreement may be executed in an original and any
number of counterparts, each of which shall be deemed to be an original of
one and the same instrument.
10.12 Beneficial Interest. The Company and the Affiliates are the true
beneficiaries hereunder in that the payment of benefits, directly or
indirectly to or for a Participant or Beneficiary by the Trustee, is in
satisfaction of the Company's and the Affiliates' liability therefore under
the Plan. Nothing in this Trust Agreement shall establish any beneficial
interest in any person other than the Company and the Affiliates.
10.13 The Trust and Plan. This Trust, the Plan and each Participant's Plan
Agreement are part of and constitute a single, integrated associate benefit
plan and trust, shall be construed together as the entire agreement between
the Company, the Trustee, the Participants and the Beneficiaries with
regard to the subject matter thereof, and shall supersede all previous
negotiations, agreements and commitments with respect thereto.
Notwithstanding the foregoing, the Trustee's rights, immunities, duties and
responsibilities shall be determined solely by reference to this Trust
Agreement.
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10.14 Effective Date. The effective date of this Trust Agreement shall be
January 1, 2002.
IN WITNESS WHEREOF the Company and the Trustee have signed this Trust
Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
- ------- -----------
Wilmington Trust Company, as Trustee, Liz Claiborne, Inc.
a Delaware corporation,
By: /s/ Virginia E. Machamer By: /s/ Michael S. Scarpa
------------------------ ---------------------
Title: Assistant Vice President Title: Vice President - Chief
Financial Officer
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