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EXHIBIT 10.9
DEFERRED COMPENSATION PLAN
THE J. JILL GROUP, INC.
TRUST AGREEMENT
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RESTATED AS OF JANUARY 1, 2003
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TRUST AGREEMENT
TABLE OF CONTENTS
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ARTICLE PAGE
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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 DEFINITIONS.....................................................................................2
1.6 GRANTOR TRUST...................................................................................2
ARTICLE 2 GENERAL ADMINISTRATION...............................................................................2
2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION.........................................................2
2.2 CONTRIBUTIONS...................................................................................3
2.3 TRUST FUND......................................................................................3
2.4 DISTRIBUTION OF EXCESS TRUST FUND TO EMPLOYERS..................................................3
ARTICLE 3 POWERS AND DUTIES OF TRUSTEE.........................................................................3
3.1 INVESTMENT DIRECTIONS...........................................................................3
3.2 MANAGEMENT OF INVESTMENTS.......................................................................3
3.3 SECURITIES......................................................................................5
3.4 SUBSTITUTION....................................................................................6
3.5 DISTRIBUTIONS...................................................................................6
3.6 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.........................................8
3.7 COSTS OF ADMINISTRATION.........................................................................9
3.8 TRUSTEE COMPENSATION AND EXPENSES...............................................................9
3.9 PROFESSIONAL ADVICE.............................................................................9
3.10 PAYMENT ON COURT ORDER..........................................................................9
3.11 PROTECTIVE PROVISIONS..........................................................................10
3.12 INDEMNIFICATIONS...............................................................................10
ARTICLE 4 INSURANCE CONTRACTS.................................................................................11
4.1 TYPES OF CONTRACTS.............................................................................11
4.2 OWNERSHIP......................................................................................11
4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS...............................................................11
4.4 TRUSTEE'S DUTIES...............................................................................11
ARTICLE 5 TRUSTEE'S ACCOUNTS..................................................................................12
5.1 RECORDS........................................................................................12
5.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING............................................................12
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5.3 VALUATION......................................................................................12
5.4 DELEGATION OF DUTIES...........................................................................13
ARTICLE 6 RESIGNATION OR REMOVAL OF TRUSTEE...................................................................13
6.1 RESIGNATION; REMOVAL...........................................................................13
6.2 SUCCESSOR TRUSTEE..............................................................................13
6.3 SETTLEMENT OF ACCOUNTS.........................................................................13
ARTICLE 7 CONTROVERSIES, LEGAL ACTIONS AND COUNSEL............................................................13
7.1 CONTROVERSY....................................................................................13
7.2 JOINDER OF PARTIES.............................................................................14
7.3 EMPLOYMENT OF COUNSEL..........................................................................14
ARTICLE 8 INSURERS............................................................................................14
8.1 INSURER NOT A PARTY............................................................................14
8.2 AUTHORITY OF TRUSTEE...........................................................................14
8.3 CONTRACT OWNERSHIP.............................................................................14
8.4 LIMITATION OF LIABILITY........................................................................14
8.5 CHANGE OF TRUSTEE..............................................................................14
ARTICLE 9 AMENDMENT AND TERMINATION...........................................................................15
9.1 AMENDMENT......................................................................................15
9.2 FINAL TERMINATION..............................................................................16
9.3 FAIL SAFE PROVISION............................................................................16
ARTICLE 10 MISCELLANEOUS......................................................................................17
10.1 TAXES..........................................................................................17
10.2 THIRD PERSONS..................................................................................17
10.3 NONASSIGNABILITY; NONALIENATION................................................................17
10.4 THE PLAN.......................................................................................17
10.5 APPLICABLE LAW.................................................................................17
10.6 NOTICES AND DIRECTIONS.........................................................................17
10.7 SUCCESSORS AND ASSIGNS.........................................................................18
10.8 GENDER AND NUMBER..............................................................................18
10.9 HEADINGS.......................................................................................18
10.10 COUNTERPARTS...................................................................................18
10.11 BENEFICIAL INTEREST............................................................................18
10.12 THE TRUST AND PLAN.............................................................................18
10.13 EFFECTIVE DATE.................................................................................18
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TRUST AGREEMENT
FOR
THE J. JILL GROUP, INC.
DEFERRED COMPENSATION PLAN
THIS TRUST AGREEMENT ("Trust Agreement") between The J. Jill Group,
Inc. (the "Company") and Eastern Bank & Trust Co. (the "Trustee"), which was
originally effective as of January 1, 2002, is hereby restated as of January
1, 2003 in order to evidence the trust (the "Trust") to be established,
pursuant to The J. Jill Group, Inc. Deferred Compensation Plan (the "Plan"),
for the benefit of members of the Board of Directors of the Company and a
select group of management or highly compensated employees who contribute
materially to the continued growth, development and business success of the
Company.
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
THE J. JILL GROUP, INC. DEFERRED COMPENSATION 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 creditors in the event of its 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 employees for purposes of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). In
addition, it is the intention of the Company to make contributions to the
Trust to provide itself with a source of funds to assist them in the
meeting of its liabilities under the Plan.
1.3 IRREVOCABILITY; CREDITOR CLAIMS. The Trust hereby established shall be
irrevocable. Except as otherwise provided in Sections 2.4, 9.2 and 9.3,
the principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Company and shall be used
exclusively for the uses and purposes of the Participants and the general
creditors of the Company as herein 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.
Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
Insolvency.
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1.4 INITIAL DEPOSIT. The Company hereby deposits with the Trustee in trust
one hundred dollars ($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 is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986,
as amended (the "Code") and the Trust shall be construed accordingly.
ARTICLE 2
GENERAL ADMINISTRATION
2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION. 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 Board shall be the Committee. 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.
(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") to Participants or their Beneficiaries 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.
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2.2 CONTRIBUTIONS. Except as provided in the Plan, the Company, in its sole
discretion, may at any time, or from time to time, make additional
deposits of cash or other property in trust with the Trustee to augment
the principal to be held, administered and disposed of by the Trustee as
provided in 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 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.
2.3 TRUST FUND. The contributions received by the Trustee from the Company
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.
2.4 DISTRIBUTION OF EXCESS TRUST FUND TO EMPLOYERS. In the event that the
Committee 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, shall distribute to the Company such excess
portion of the Trust Fund.
ARTICLE 3
POWERS AND DUTIES OF TRUSTEE
3.1 INVESTMENT DIRECTIONS. Except as provided in this Section, 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.
3.2 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. 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:
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(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 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, 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;
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(g) To employ such agents including custodians and counsel as may be
reasonably necessary and to pay them reasonable compensation; to
settle, 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 10.5 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 operation 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 section
301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Code.
3.3 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
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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.
3.4 SUBSTITUTION. Notwithstanding any provision of the Plan or the Trust to
the contrary, the Company 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) 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.
3.5 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 any of
the Plan, such right shall be no greater than the right of an
unsecured general creditor of the Company and such Participant or
Beneficiary shall have only the unsecured promise of the Company
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, the Trustee shall make
payments to the Participants and their Beneficiaries in
accordance with such Payment Schedule. The Trustee, at the
direction of the Committee, 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.
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(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 shall make the balance of each
such payment as it falls due. The Trustee shall notify the
Company when principal and earnings are not sufficient.
(d) The Company may make payment of benefits directly to Participants
or their Beneficiaries as they become due under the terms of the
Plan. The Company shall notify the Trustee of its decision 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 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 to the Plan. Any remaining
assets (less any expenses or costs due under Sections 3.7 and 3.8
of this Trust Agreement) shall then be paid by the Trustee to the
Company 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. 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.
(g) 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.
The Trustee shall have no obligation to determine the identity of
persons entitled to benefits or their mailing addresses.
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(h) The entitlement of a Participant or his or her Beneficiaries to
benefits under the Plan shall be determined by the Company or
such party as it shall designate under the Plan, and any claim
for such benefits shall be considered and reviewed under the
procedures set out in the Plan.
3.6 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.
(a) The Trustee shall cease payment of benefits to Participants and
their Beneficiaries if the Company is Insolvent. The Company
shall be considered "Insolvent" for purposes of this Trust
Agreement if:
(i) the Company is unable to pay its debts as they become due,
or
(ii) the Company is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
(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 under
federal and state law as set forth below:
(i) The Board and the CEO of the Company shall have the duty
to inform the Trustee in writing of the Company's
Insolvency. If a person claiming to be a creditor of the
Company alleges in writing to the Trustee that the Company
has become Insolvent, the Trustee shall determine whether
the Company is Insolvent and, pending such determination,
the Trustee shall discontinue payment of benefits to the
Participants or their Beneficiaries, or on their behalf to
the 401(k) Trust. 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.
(ii) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company, or a
person claiming to be a creditor alleging that the Company
is Insolvent, the Trustee shall have no duty to inquire
whether the Company is Insolvent. The Trustee may in all
events rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee and that
provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency. In this
regard, the Trustee may rely upon a letter from the
Company's auditors as to the Company's financial status.
(iii) If at any time the Trustee has determined that the Company
is Insolvent, the Trustee shall discontinue payments to
the Participants or their Beneficiaries and shall hold the
assets of the Trust for the benefit of the Company's
general creditors. Nothing in this Trust Agreement shall
in any way diminish any rights of Participants or their
Beneficiaries to pursue their rights as general creditors
of the Company with respect to benefits due under the Plan
or otherwise.
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(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 Company 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 3.6(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to 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 in lieu of the
payments provided for hereunder during any such period of
discontinuance. The Committee shall instruct the Trustee as to
such amounts.
3.7 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 attorneys' fees shall be as
authorized and approved by the Company. Such obligations shall be paid by
the Company. The Trustee is authorized to pay such amounts from the Trust
Fund if the Company fails to pay them within sixty (60) days of
presentation of a statement of the amounts due.
3.8 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, 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 3.7, 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. The Trustee is authorized to
withdraw such amounts from the Trust Fund if the Company fail to pay them
within sixty (60) days of presentation of a statement of the amounts due.
3.9 PROFESSIONAL ADVICE. The Company 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 the Insolvency of the
Company. The Trustee and/or Administrator shall be fully protected in
acting upon the advice of such legal counsel or advisors.
3.10 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 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
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defense of the action to the Company, Committee, Participant or
Beneficiary whose interest is affected. Subject to Section 3.7, 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. The Trustee is authorized to pay such amounts from the Trust
Fund if the Company fails to pay them within sixty (60) days of
presentation of a statement of the amounts due.
3.11 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.
3.12 INDEMNIFICATIONS.
(a) The Company 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.
(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 shall indemnify and hold the Administrator 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 Administrator's gross negligence or
willful misconduct. The indemnity described herein shall be
provided by the Company.
(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
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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 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 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 (i) loan to the Company 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 if under other provisions of this
Trust Agreement the Company is entitled to receive assets from the Trust.
4.4 TRUSTEE'S DUTIES. The Trustee shall have no duty or obligation with
respect to any insurance policy held by the Trust except the safekeeping
of the policy, until, in accordance with directions received by the
Trustee from the Committee, (i) the policy becomes due and payable upon
the death of the insured to the Trust, as beneficiary under the policy,
and the proceeds thereof become distributable from the Trust, or (ii) the
policy is terminated or there is a withdrawal or loan from the policy or
the policy is distributed in kind. The Trustee shall have not
responsibility for the validity of any insurance policy held by the
Trust, nor shall the Trustee be liable for the performance or financial
strength of any insurance company issuing any such policy. The Trustee
shall assume no responsibility for the ongoing performance or performance
rating of any insurance policy held by the Trust or any insurance company
issuing any such policy.
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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 or its 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 and all persons having or
claiming any interest in the Plan or the Trust Fund were made
parties.
(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. 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
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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. The Trustee may rely upon information from the Company, 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 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.
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. The Trustee may be removed by the Company on sixty (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. 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, as it deems
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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 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 and the Company. 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) 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 as it shall receive at its home office
written notice of the appointment and qualification of a successor
Trustee.
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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 and
Section 9.3, 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 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 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, 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.
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(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. Such remaining assets shall be
paid by the Trustee to the Company 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.
9.3 FAIL SAFE PROVISION
(a) OPERATION. This Section 9.3 shall become operative upon the
enactment of any change in applicable statutory law or the
promulgation by the Internal Revenue service of a final
regulation or other pronouncement having the force of law, which
statutory law, as changed, or final regulation or pronouncement,
as promulgated, would cause any Participant to include in his or
her federal gross income amounts accrued by the Participant under
the Plan on a date (an "Early Taxation Event") prior to the date
on which benefits are made available to him or her hereunder due
to the existence of this Trust. This Section 9.3 shall become
effective on the date this Section 9.3 is executed (the
"Amendment Effective Date") and shall not impact any assets of
the Trust Fund contributed under this Trust prior to the
Amendment Effective Date.
(b) REVOCABILITY. Notwithstanding any other Section of this Trust
Agreement to the contrary, as of an Early Taxation Event, the
Company and its creditors shall have access to the Trust Fund to
the extent, and only to the extent, required to prevent the
Participant from being required to include in his or her federal
gross income amounts accrued by the Participant under the Plan
and for which amounts are held in the Trust prior to the date on
which benefits are made available to him or her hereunder. Upon
the occurrence of an Early Taxation Event, the Trustee shall
separately account for the assets of the Trust Fund that were
contributed to the Trust Fund on and after the Amendment
Effective Date or, if later, on or after the date on which the
making of contributions under this Trust would require taxation
to a Participant, and earnings on such contributions. The portion
of the Trust Fund held prior to such date shall not be impacted
by this Section 9.3. If the law only impacts a Participant who
has a certain status with respect to the Company, this Section
9.3 shall apply only to amounts identified by the Company in
writing to the Trustee as are intended by the Company to be
attributable to Participants in the impacted class.
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ARTICLE 10
MISCELLANEOUS
10.1 TAXES. The Company 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, the Trustee shall have the power to pay
such taxes out of the Trust Fund and shall seek reimbursement from the
Company. 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 expense, and only if it has received an indemnity bond or other
security satisfactory to it to pay any such expenses. 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.
10.2 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.
10.3 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.
10.4 THE PLAN. The Trust and the Plan are parts of a single, integrated
employee 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.
10.5 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 Massachusetts. 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.
10.6 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.
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10.7 SUCCESSORS AND ASSIGNS. This Trust Agreement shall be binding upon and
inure to the benefit of the Company and the Trustee and their respective
successors and assigns.
10.8 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.
10.9 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.
10.10 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.
10.11 BENEFICIAL INTEREST. The Company is the true beneficiary 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 liability therefore under the Plan. Nothing in this Trust
Agreement shall establish any beneficial interest in any person other
than the Company.
10.12 THE TRUST AND PLAN. This Trust, the Plan and each Participant's Plan
Agreement are part of and constitute a single, integrated employee
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.
10.13 EFFECTIVE DATE. The effective date of this Trust Agreement, as amended
and restated, shall be January 1, 2003.
IN WITNESS WHEREOF, the Company and the Trustee have signed this Trust
Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
Eastern Bank & Trust Co. The J. Jill Group, Inc.
By: /s/ Thomas A. Nussbaum By: /s/ Olga L. Conley
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Title: Vice President Title: Chief Financial Officer
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