EXHIBIT 4.2
AVNET DEFERRED COMPENSATION RABBI TRUST
AVNET DEFERRED COMPENSATION RABBI TRUST
TABLE OF CONTENTS
PAGE
ARTICLE 1 - TITLE AND DEFINITIONS............................. 3
Section 1.1 Title. 3
Section 1.2 Definitions. 3
ARTICLE 2 - ADMINISTRATION 4
Section 2.1 Trustee Responsibility. 4
Section 2.2 Maintenance of Records. 4
ARTICLE 3 - FUNDING.......................................... 5
Section 3.1 Contributions. 5
Section 3.2 Subtrusts. 6
ARTICLE 4 - PAYMENTS FROM TRUST FUND 8
Section 4.1 Payments to Trust Beneficiaries. 8
Section 4.2 Trustee Responsibility Regarding Payments to Trust
Beneficiaries
When the Company is Insolvent. 10
Section 4.3 Payments to the Company. 11
Section 4.4 Trustee Compensation and Expenses: Other Fees and Expenses.
11
Section 4.5 Taxes. 12
Section 4.6 Alienation. 12
Section 4.7 Disputes. 13
ARTICLE 5 - INVESTMENT OF TRUST ASSETS 14
Section 5.1 Investment of Subtrust Assets. 14
Section 5.2 Disposition of Income. 14
ARTICLE 6 - TRUSTEE 15
Section 6.1 General Powers and Duties. 15
Section 6.2 Records. 17
Section 6.3 Third Persons. 18
Section 6.4 Limitation on Obligation of Trustee. 18
ARTICLE 7 - RESIGNATION AND REMOVAL OF TRUSTEE 19
Section 7.1 Method and Procedure. 19
ARTICLE 8 - AMENDMENT AND TERMINATION 21
Section 8.1 Amendments. 21
Section 8.2 Duration and Termination. 22
Section 8.3 Distribution upon Termination. 22
ARTICLE 9 - MISCELLANEOUS 23
Section 9.1 Limitation on Participants' Rights. 23
Section 9.2 Receipt or Release. 23
Section 9.3 Governing Law. 24
Section 9.4 Headings. etc., No Part of Agreement. 24
Section 9.5 Instrument in Counterparts. 24
Section 9.6 Successors and Assigns. 25
Section 9.7 Indemnity. 25
i
AVNET DEFERRED COMPENSATION RABBI TRUST AGREEMENT
This Trust Agreement made and entered into this 29th day of January,
1998, by and between Avnet, Inc., a New York corporation (hereinafter
called the "Company") and First American Trust Company (hereinafter called
"Trustee"), evidences the terms of a trust for the benefit of certain
employees, former employees and their designated beneficiaries (hereinafter
collectively called "Trust Beneficiaries") who will be entitled to receive
benefits under the Avnet Deferred Compensation Plan ("Plan").
This Trust is intended to be a grantor trust, of which the Company is
the grantor, within the meaning of subpart E, part I, subchapter J, Chapter
l, subtitle A of the Internal Revenue Code of 1986, as amended (the "Code")
and exempt from the fiduciary provisions of part 4 of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
W I T N E S E T H:
WHEREAS, the Company wishes to establish an irrevocable trust
(hereinafter called the "Trust") and to transfer to the Trust assets, which
shall be held therein, subject to the claims of the Company's creditors in
the event of the Company's Insolvency (as defined herein), until paid to
the Trust Beneficiaries (as defined herein) as benefits in such manner and
at such times as required hereunder;
WHEREAS, 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 deferred
compensation for a select group of management or highly compensated
employees for purposes of Title I of ERISA;
NOW, THEREFORE, it is mutually understood and agreed as follows:
1
ARTICLE 1
TITLE AND DEFINITIONSSECTION 1.1 TITLE.
This Trust Agreement shall be known as the Avnet Deferred Compensation
Rabbi Trust.
SECTION 1.2 DEFINITIONS.
The following words, when used in this Trust Agreement with initial
letter capitalized, shall have the meanings set forth below:
"Employer" shall mean the Company and any successor corporations. It
shall also include each other entity under common control (within the
meaning of Sections 414(b) or (c) the Code) with Company if the Board of
Directors or the Committee designates that such entity shall participate in
the Plan.
"General Fund" shall mean that portion of the Trust fund which is not
allocated to a Subtrust.
"Plan" shall mean the Avnet Deferred Compensation Plan, as amended
from time to time.
"Subtrust" shall mean a separate subtrust established for a
Participant pursuant to Section 3.2.
Capitalized terms not defined above shall be defined in accordance
with the Plan.
2
ARTICLE 2
ADMINISTRATION
SECTION 2.1 TRUSTEE RESPONSIBILITY.
By its acceptance of this Trust, Trustee agrees to make payments under
this Trust to Trust Beneficiaries in accordance with the provisions of this
Trust Agreement.
SECTION 2.2 MAINTENANCE OF RECORDS.
The Committee shall have the duty and responsibility to maintain all
individual Trust Beneficiary records and to prepare and file all reports
and other information required by any federal or state law or regulation
relating to the Trust and the Trust assets, except for those laws
regulating the business of the Trustee (E.G., banking and trust powers).
3
ARTICLE 3
FUNDING
SECTION 3.1 CONTRIBUTIONS.
(a) The Company hereby deposits with the Trustee in trust the sum of
$100.00 to be held in the General Fund of the Trust.
(b) The Company shall contribute to the Trust an amount equal to the
amount deferred by each Participant under the Plan. The Company shall also
contribute cash to the Trust in an amount approximately equal to the "cost
of insurance" (as defined in the Policies) needed to fund the death
benefits described in Section 6.2(a)(1) or 6.2(b) of the Plan; provided
that such obligation shall not apply with respect to a Policy if the
Committee has directed the Trustee to discontinue the Policy. The Committee
may direct the Trustee to discontinue the Policy for any reason, without
regard to whether Section 6.2(a)(1) or 6.2(b) of the Plan is in effect,
whether the Participant is employed or otherwise.
(c) Except as provided otherwise herein, all contributions received
pursuant to (a) and (b) above, together with the income therefrom and any
increment thereon, shall be held, managed and administered by Trustee as a
single Trust pursuant to the terms of this Trust Agreement without
distinction between principal and income.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Trust Beneficiaries and general
creditors as herein set forth. Trust Beneficiaries shall not have any
preferred claim on, or any beneficial ownership interest in, any assets of
the Trust prior to the time such assets are paid to them as provided under
the terms of the Plan, and all rights created under this Trust Agreement
shall be mere unsecured contractual rights of Participants and
Beneficiaries against the Company or Trust. Any assets held by the Trust
will be subject to the claims of Company's general creditors under federal
and state law in the event of Insolvency, as defined in Section 4.2(a)
herein.
SECTION 3.2 SUBTRUSTS.
(a) If directed by the Committee, the Trustee shall establish a
separate Subtrust for a Participant and credit the amount of such
contribution to that Participant's Subtrust. Each Subtrust shall reflect an
individual interest in the assets of the Trust fund and shall not require
any segregation of particular assets.
(b) Following the allocation of assets to Subtrusts pursuant to
Section 3.2(a), the Trustee shall allocate investment earnings and losses
of the Trust fund among the Subtrusts in accordance with Section 5.2.
Payments to general creditors pursuant to Section 4.2 hereof shall be
charged against the Subtrusts in proportion to the corresponding
Participants' Account balances, except that the payment of benefits on
behalf of a Participant shall be charged only against the Subtrust
established or maintained for such Participant.
(c) Amounts allocated to a Participant's Subtrust may not be utilized
to pay benefits to another Participant or Beneficiary of another
Participant. Following payment of a Participant's entire benefit under the
Plan (whether by the Trustee pursuant to the terms of this Trust Agreement
or by the Company or by a combination thereof), any amounts remaining
allocated to that Participant's Subtrust (and any Policy held with respect
to such Participant) shall be transferred by the Trustee to the Company. In
lieu of transferring the Policy, the Committee may direct the Trustee to
designate a new beneficiary (which may be the Company) under the Policy or
cash in the applicable Policy and transfer the proceeds to the Company.
4
ARTICLE 4
PAYMENTS FROM TRUST FUND
SECTION 4.1 PAYMENTS TO TRUST BENEFICIARIES.
(a) The Committee shall direct the Trustee to pay (or to commence to
pay) to a Participant (or, in the case of the Participant's death, to the
Participant's Beneficiary) the benefit, excluding amounts described in
Section 6.2(a)(1) or 6.2(b) of the Plan, payable to such Participant under
the Plan (the "Benefit Amount") as soon as practicable following the
Participant's Payment Eligibility Date (as defined in the Plan). If
Subtrusts are established, the Trustee shall make such payment only from
funds allocated to the Participant's Subtrust plus, to the extent that less
than 100% of a Participant's Deferral Account is held in a Subtrust, the
General Fund, if any.
(b) The Committee shall have full authority and responsibility to
determine the correct time and amount of payment of the Benefit Amount. In
making such determination, the Committee shall be governed by the terms of
the Plan and this Trust Agreement.
(c) Any obligation to a Participant's Beneficiary under this Trust
Agreement is also an obligation of the Company to the extent not paid from
the Trust. Accordingly, to the extent payments to a Participant or
Beneficiary are discontinued pursuant to Section 4.2, the Company shall be
obligated to pay the Participant or Beneficiary the same amount (plus
applicable interest from its general fund). If the amount credited to the
Trust (or a Subtrust if applicable) is not sufficient to make the payment
of the Benefit Amount to a Participant or Participant or Trust Beneficiary
in accordance with the determination by the Committee, the Company agrees
that it shall make the balance of such payment. Notwithstanding the
foregoing, neither the Trustee nor the Company shall have any obligation to
pay any amounts described in Section 6.2(a)(1) of the Plan; all such
amounts shall be payable solely from the proceeds of the Policy, if any.
(d) Unless a Participant or Beneficiary furnishes documentation in
form and substance satisfactory to Trustee that no withholding is required
with respect to a payment of benefits from the Trust, Trustee shall deduct
from any such Benefit Payment any federal, state or local taxes required by
law to be withheld by Trustee and shall be responsible for payment and
reporting of such withheld taxes to the appropriate taxing authorities. The
Trustee shall inform the Company of the amounts so remitted.
(e) Trustee shall provide the Company and the Committee with written
confirmation of the fact and time of any payment hereunder within ten
business days after making any payment to a Trust Beneficiary.
(f) Following payment of a Participant's entire benefit under the
Plan (whether by the Trustee pursuant to the terms of this Trust Agreement
or by the Company or by a combination thereof), the Trustee shall, at the
direction of the Committee, either (1) transfer ownership of the applicable
Policy to the Company, (2) designate a new beneficiary named by the
Committee (which may include the Company), or (3) cash in the applicable
Policy and transfer the proceeds to the Company. In addition, any cash
previously received with respect to such Policy not used to pay benefits to
the Participant shall be transferred to the Company.
SECTION 4.2 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARIES WHEN THE COMPANY IS INSOLVENT.
(a) The Company shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) the Company is unable to pay its debts as they
become due, or (ii) is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
(b) At all times during the continuance of the Trust, the principal
and income of the Trust shall be subject to claims of general creditors of
the Company as hereinafter set forth, and at any time Trustee has actual
knowledge, or has determined, that the Company is Insolvent, Trustee shall
deliver any undistributed principal and income in the Trust to satisfy such
claims as a court of competent jurisdiction may direct. The Company,
through its Board of Directors or any of its executive officers, shall
advise Trustee promptly in writing of the Company's Insolvency. If Trustee
receives such notice, or otherwise receives written notice from a third
party which Trustee, in its sole discretion, deems reliable and
responsible, Trustee shall discontinue payments to Trust Beneficiaries,
shall hold the Trust assets for the benefit of the Company's general
creditors, and shall resume payments to Trust Beneficiaries in accordance
with Section 4.1 of this Trust Agreement only after Trustee has determined
that the Company is not Insolvent or is no longer Insolvent. Unless Trustee
has actual knowledge of the Company's Insolvency or has received notice
from the Company or a third party alleging the Company is Insolvent,
Trustee shall have no duty to inquire whether the Company is Insolvent.
Trustee may in all events rely on such evidence concerning the solvency of
the Company as may be furnished to Trustee which will give Trustee a
reasonable basis for making a determination concerning its solvency.
Nothing in this Trust Agreement shall in any way diminish any rights of
Participants or Beneficiaries to pursue their rights as general creditors
of the Company with respect to benefits payable hereunder or otherwise.
(c) If Trustee discontinues payments of benefits from the Trust
pursuant to Section 4.2(b) and subsequently resumes such payments, the
first payment following such discontinuance shall include the aggregate
amount of all payments which would have been made to Trust Beneficiaries
together with interest at the Applicable (Short-Term) Federal Rate
compounded monthly on the amount delayed during the period of such
discontinuance, less the aggregate amount of payments made to Trust
Beneficiaries by the Company in lieu of the payments provided for hereunder
during any such period of discontinuance.
SECTION 4.3 PAYMENTS TO THE COMPANY.
Except as provided in Sections 3.2(c), 4.1(f) or 4.2, the Company
shall have no right or power to direct Trustee to return to the Company or
to divert to others any of the Trust assets before the Trust is terminated
pursuant to Section 8.2.
SECTION 4.4 TRUSTEE COMPENSATION AND EXPENSES: OTHER FEES AND EXPENSES.
The Company shall pay the Trustee such reasonable compensation for its
services as shall be agreed upon from time to time by the Company and
Trustee, and Trustee shall be reimbursed by the Company for its expenses
that are reasonably necessary and incident to its administration of the
Trust. Following reasonable consultation with the Company, such expenses
shall include reasonable fees of counsel and other advisors, if any,
incurred by Trustee (with the prior written consent of the Company, which
consent shall not be unreasonably withheld) for the purpose of determining
its responsibilities under the Trust. Such compensation, expenses or fees,
as well as all other administrative fees and expenses, shall be paid from
Trust assets unless paid directly by the Company.
SECTION 4.5 TAXES.
Trustee shall not be personally liable for any real and personal
property taxes, income taxes and other taxes of any kind levied or assessed
under the existing or future laws against the Trust assets. Such taxes
shall be paid directly from the Trust assets unless paid by the Company, in
the discretion of the Company.
SECTION 4.6 ALIENATION.
Except as required by a qualified domestic relations order, the
benefits, proceeds, payments or claims of Participants or Beneficiaries
payable from the Trust assets shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution or levy of any kind, either voluntary or
involuntary. Any attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, garnish, levy or otherwise dispose of or execute upon any
right or benefits payable hereunder shall be void. The Trust assets shall
not in any manner be liable for or subject to the debts, contracts,
liabilities, engagements or torts of any Trust Beneficiary entitled to
benefits hereunder and such benefits shall not be considered an asset of
Trust Beneficiary in the event of his insolvency or bankruptcy.
SECTION 4.7 DISPUTES.
All disputes, other than disputes between the Trustee and the
Committee or Company, shall be resolved in accordance with Section 7.8 of
the Plan.
5
ARTICLE 5
INVESTMENT OF TRUST ASSETS
SECTION 5.1 INVESTMENT OF SUBTRUST ASSETS.
The Trustee shall invest and manage the assets of the Trust (and each
Subtrust, if any) in accordance with written directions from the Committee.
SECTION 5.2 DISPOSITION OF INCOME.
All income received by the Trust shall be reinvested. Any income that
is attributable to the amount credited to a Subtrust in accordance with
Section 3.2, and income thereon, shall be credited to such Subtrust and
reinvested.
6
ARTICLE 6
TRUSTEE
SECTION 6.1 GENERAL POWERS AND DUTIES.
Subject to written directions from the Committee regarding the
investment of Trust assets, Trustee, on behalf of Trust Beneficiaries,
shall have all powers necessary to administer the Trust, including, but not
by way of limitation, the following powers in addition to other powers as
are set forth herein or conferred by law:
(a) To hold, invest and reinvest the principal or income of the
Trust in bonds, common or preferred stock, other securities, or other
personal, real or mixed tangible or intangible property (including
investment in deposits with Trustee which bear a reasonable interest
rate, including without limitation investments in trust savings
accounts, certificates of deposit, time certificates or similar
investments or deposits maintained by the Trustee);
(b) To hold, invest and reinvest the principal or income of the
Trust in the Policies, direct investments under the Policies and take
any other action regarding the Policies, as specifically directed by
the Committee (including those specified by Sections 3.1(b), 3.2(c) or
4.1(f)) and to enter into split dollar life insurance agreements with
Participants pursuant to which each Participant designates the
beneficiary to receive the portion of the death benefits described in
Section 6.2(a)(1) or 6.2(b) of the Plan;
(c) If (i) directed by the Company or Committee to discontinue a
Policy or (ii) notified by the Committee or Company that a Participant
has terminated employment for a reason other than death, to
immediately notify the insurance company that no death benefits are
payable to the beneficiaries of the applicable Participant under the
Policy (and that neither the Participant nor his beneficiary has any
rights under the Policy or the benefits under the Policy) and to file
a new beneficiary designation with the Insurance Company naming the
Trust as beneficiary, unless directed by the Committee to cash in the
Policy;
(d) To pay and provide for the payment of all reasonable and
necessary expenses of administering the affairs of the Trust, subject
to reimbursement of such expenses within 30 days by the Company in
accordance with Section 4.4;
(e) To pay and provide for the payment of all benefits to Trust
Beneficiaries in accordance with the provisions of this Trust
Agreement;
(f) To retain noninterest bearing deposits or a cash balance with
Trustee of so much of the funds as may be determined to be temporarily
held awaiting investment or payment of benefits or expenses;
(g) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust and to institute, compromise and defend
actions and proceedings;
(h) To vote any stock, bonds or other securities of any
corporation or other issuer at any time held in the Trust; to
otherwise consent to or request any action on the part of any such
corporation or other issuer; to give general or special proxies or
powers of attorney, with or without power of substitution; to
participate in any reorganization, recapitalization, consolidation,
merger or similar transaction with respect to such stocks, bonds or
other securities and to deposit such stocks, bonds or other securities
in any voting trust, or with any protective or like committee, or with
a trustee, or with the depositaries designated thereby; to exercise
any subscription rights and conversion privileges; and to generally
exercise any of the powers of an owner with respect to the stocks,
bonds or other securities or properties in the Trust; and
(i) Generally, to do all such acts, execute all such instruments,
take all such proceedings, and exercise all such rights and privileges
with relation to the property constituting the Trust as if Trustee
were the absolute owner thereof.
SECTION 6.2 RECORDS.
Trustee shall keep a full, accurate and detailed record of all
transactions of the Trust which the Committee shall have the right to
examine at any time during Trustee's regular business hours. Within 90 days
after the close of each calendar year and within 15 days after the removal
or resignation of Trustee, Trustee shall furnish the Company with a
statement of account with respect to the Trust. This account shall set
forth all receipts, disbursements and other transactions (including sales
and purchases) effected by Trustee during said year (or until its removal
or resignation), shall show the investments at the end of the year (or date
of removal or resignation), including the cost and fair market value of
each item, and the amounts allocated to each Subtrust.
SECTION 6.3 THIRD PERSONS.
A third person dealing with Trustee shall not be required to make any
inquiry as to whether the Company or the Committee has instructed Trustee,
or Trustee is otherwise authorized, to take or omit any action, and shall
not be required to follow the application by Trustee of any money or
property which may be paid or delivered to Trustee.
SECTION 6.4 LIMITATION ON OBLIGATION OF TRUSTEE.
Trustee shall have no responsibility for the validity of the Plan or
of the Trust and does not guarantee the payment of any amount which may
become payable to any Trust Beneficiary under the terms hereof.
7
ARTICLE 7
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 7.1 METHOD AND PROCEDURE.
(a) Trustee may resign at any time by delivering to the Company a
written notice of resignation, to take effect on a date specified therein,
which shall be not less than 30 days after the delivery thereof, unless
such notice shall be waived.
(b) The Company may remove Trustee at any time by delivering to
Trustee a written notice of removal, to take effect on a date specified
therein, which shall be not less than 30 days after the delivery thereof,
unless such notice shall be waived.
(c) In case of the resignation or removal of Trustee, Trustee shall
have a right to a settlement of its accounts, which may be made, at the
option of Trustee, either (1) by a judicial settlement in an action
instituted by Trustee in a court of competent jurisdiction, or (2) by an
agreement of settlement between Trustee and the Company.
(d) Upon such settlement, all right, title and interest of such
Trustee in the assets of the Trust, and all rights and privileges under the
Trust theretofore vested in such Trustee shall vest in the successor
Trustee, and thereupon all liabilities of such Trustee shall terminate;
provided, however, that Trustee shall execute, acknowledge and deliver all
documents and written instruments which are necessary to transfer and
convey all the right, title and interest in the assets of the Trust, and
all rights and privileges in the Trust to the successor Trustee.
(e) The Company, upon receipt of, or giving notice of, the
resignation or removal of Trustee, shall promptly appoint a successor
Trustee. The successor Trustee shall be a bank or trust company qualified
and authorized to do trust business in the United States of America and
having on the date of appointment total assets of at least $10,000,000,000
and a credit rating from Moody's of A or better (or a comparable credit
rating from another well-known credit rating service). In the event of the
failure or refusal of the Company to appoint such a successor Trustee
within 30 days after the notice of resignation or removal, Trustee may
secure, at the expense of the Company, the appointment of such successor
Trustee by an appropriate action in a court of competent jurisdiction. Any
successor Trustee so appointed may qualify by executing and delivering to
the Company an instrument accepting such appointment and, upon delivery,
such successor, without further act, shall become-vested with all the
right, title and interest, and all rights and privileges of the predecessor
Trustee with like effect as if originally named as Trustee herein.
8
ARTICLE 8
AMENDMENT AND TERMINATION
SECTION 8.1 AMENDMENTS.
The Company shall have the right to amend (but not terminate) the
Trust from time to time and to amend further or cancel any such amendment.
The amendment procedure for the Trust shall, to the extent applicable, be
the identical amendment procedure contained in the Plan. Any amendment
shall be stated in an instrument in writing executed by the Company and
Trustee, and this Trust Agreement shall be amended in the manner and at the
time therein set forth, and the Company and Trustee shall be bound thereby;
provided, however:
(a) No amendment shall have any retroactive effect so as to
deprive any Participant or Beneficiary of any benefits already vested
under the Plan, or create a reversion of Trust assets to the Company
except as already provided in this Trust Agreement, other than such
changes, if any, as may be required in order for the Trust to be
considered a component of a plan described in Section 9.3;
(b) No amendment shall make the Trust revocable; and
(c) No amendment shall increase the duties or liabilities of
Trustee without its written consent.
SECTION 8.2 DURATION AND TERMINATION.
This Trust shall not be revocable and shall continue until the
earliest of (a) the accomplishment of the purpose for which it was created,
(b) the exhaustion of all appeals of a final determination of a court of
competent jurisdiction that the interest in the Trust of Trust
Beneficiaries is includable for federal income tax purposes in the gross
income of such Trust Beneficiaries, without such determination having been
reversed (or the earlier expiration of the time to appeal), (c) if required
to comply with applicable state law rules regulating the maximum length for
which trusts may be established, the expiration of twenty years and six
months after the death of the last surviving Trust Beneficiary who is
living and is a Participant or Beneficiary on the date this Trust is
established, (d) a determination of the Company to terminate the Trust
because applicable law requires it to be amended in a way that could make
it taxable and failure to so amend the Trust would subject the Company to
material liabilities, (e) a determination of the Company to terminate the
Trust because the Company concludes, after consulting with legal counsel,
that judicial authority or the opinion of the U.S. Department of Labor (as
expressed in its proposed or final regulations, advisory opinions, or
similar administrative announcements) creates a significant possibility
that the Trust will not be considered a component of a plan described in
Section 9.3 of this Trust Agreement, or (f) the dissolution or liquidation
of the Company.
SECTION 8.3 DISTRIBUTION UPON TERMINATION.
Upon termination of this Trust, Trustee shall liquidate the Trust fund
and provide a final account to the Company and the Committee. To the extent
Trust assets are sufficient, the Trustee shall pay to each Participant the
appropriate Benefit Amount. After its final account has been settled as
provided in Section 7.1(c), Trustee shall return to the Company any assets
remaining after the distributions described in this Section 8.3. Upon
making such distributions, Trustee shall be relieved from all further
liability. The powers of Trustee hereunder shall continue so long as any
assets of the Trust fund remain in its hands.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 LIMITATION ON PARTICIPANTS' RIGHTS.
Participation in the Trust shall not give Participants the right to be
retained in the Company's or an Affiliate's employ or any right or interest
in the Trust other than as herein provided. The Company reserves the right
to dismiss Participants without any liability for any claim either against
the Trust, except to the extent provided herein, or against the Company.
All benefits payable hereunder shall be provided solely from the assets of
the Trust.
SECTION 9.2 RECEIPT OR RELEASE.
Any payment to a Trust Beneficiary in accordance with the provisions
of the Trust shall, to the extent thereof, be in full satisfaction of all
claims against Trustee and the Company, and Trustee may require such Trust
Beneficiary, as a condition precedent to such payment, to execute a receipt
and release to such effect.
SECTION 9.3 GOVERNING LAW.
This Trust Agreement and the Trust hereby created shall be construed,
administered and governed in all respects under applicable federal law, and
to the extent that federal law is inapplicable, under the laws of the State
of California; provided, however, that if any provision is susceptible to
more than one interpretation, such interpretation shall be given thereto as
is consistent with the Trust being (a) classified as a grantor trust as
defined in Sections 671 ET SEQ. of the Code and (b) classified as a
component of an unfunded plan maintained primarily to provide deferred
compensation for a select group of management or highly compensated
employees, as described in Section 201(2) of ERISA . If any provision of
this instrument shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions hereof shall continue to
be fully effective.
SECTION 9.4 HEADINGS. ETC., NO PART OF AGREEMENT.
Headings and subheadings in this Trust Agreement are inserted for
convenience of reference only and are not to be considered in the
construction of the provisions hereof.
SECTION 9.5 INSTRUMENT IN COUNTERPARTS.
This Trust Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute
but one and the same instruments, which may be sufficiently evidenced by
any one counterpart.
SECTION 9.6 SUCCESSORS AND ASSIGNS.
This Trust Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns.
SECTION 9.7 INDEMNITY.
(a) Except in the case of liabilities and claims arising out of
Trustee's willful misconduct or gross negligence, Company shall indemnify
and hold Trustee harmless from and against all liabilities and claims
(including reasonable attorney's fees and expenses in defense thereof)
arising out of or in any way connected with the Plan or the Trust fund or
the management, operation, administration or control thereof and based in
whole or in part on:
(1) Any act or inaction of Company or Committee (which term
includes, in this paragraph, any actual or ostensible agent of
Company) or
(2) Any act or inaction of Trustee resulting from the absence of
proper directions hereunder, or in accordance with any directions,
purported or real, from Company or Committee, whether or not proper
hereunder, if relied upon in good faith by Trustee.
(b) The Trustee does not warrant and shall not be liable for any tax
consequences associated with the Trust or the Plans.
(c) The Trustee shall not be liable for the inadequacy of the Trust
to pay all amounts due under the Plans.
IN WITNESS WHEREOF the undersigned have executed this Trust Agreement
as of the date first written above.
AVNET, INC.
By: /S/ RAYMOND SADOWSKI
Its:SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FIRST AMERICAN TRUST COMPANY
By: /S/ DENISE C. MEHUS
Its:VICE-PRESIDENT