CC Resolution No. 3792 RESOLUTION N0. 3792
` A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
. ESTABLISHING A DEFERRED COMPENSATION PLAN BETWEEN THE CITY
OF CUPERTINO AND THE INTERNATIONAL CITY MANAGEMENT
ASSOCIATION RETIREMENT CORPORATION
WHEREAS, the Employer has certain employees rendering to it valuable
services; and
WHEREAS, the Employer is able to provide its employees with certain
benefits under this Plan which assure to those participating employees
reasonable retirement security; and
WHEREAS, the Employer receives benefits from this Plan by increasing
its ability to attract and retain competent personnel and by increasing its
flexibility in personnel management.~
NOW THEREFORE BE IT RESOLVED that the Employer has established this
International City Management Association Retirement Corporation Deferred
Compensation Plan and has caused it to be executed by the official affixing
his signature on behalf of the Employer's governing body.
This Deferred Compensation Plan, hereby established by the City of
Cupertino, hereinafter the Employer; by agreements with the International
City Management Association Retirement Corporation and with the employees,
officers, and officials of said employer who become.party to this agreement,
by reason of a"Joinder Agreement" signed at this time, or at some time in
the future.
PASSED AND ADOPTED at a regular meeting of the City Council of the City
of Cupertino this 16th day of December, 1974, by the following vote:
Vote Members of the City Council
AYES: Frolich, Jackson, Meyers, Nellis, Sparks
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Wm. E. Ryder /s/ Reed Sparks
City Clerk Mayor, City of Cupertino
, PRELIMINARY STATFMENT or percentages of both "baso pay" and "employers
ESTABLISHMENT OF THE PLAN contributions" or it rnay include amounts from or
~ AMENDMENTS percentages of only one of these components;
.The International City Management Association Retirement c. "Current compensation" is that portion of the Employee's
Corporation, hereinafter the Retirement Corporatio~ or ICMA-RC, . total compensation which is not deferred compensation as
is 3 ~onprofit Delaware Corporation. It has been classified as a deferred compensation is defined herein; and
' tax•exempt organization under the provisio~s of Section 501(c)(3) d. "Base pay" is the stated salary of the Employee.
of the Internal Revenue Code. As an aid in the improvement of state 1.3 The ~letermination of the initial amount or percentage and of
and municipal administration in general, the Retirement Corpora- any future change in amount or percentage of deferred
tio~ is organized for the purpose oF receiving and i~vesting deferred compensation must be made before the beginning of the
compensation funds of state and local governments and their related period of service for which the compensation is payable.
and controlled pubtic interest organizations which are tax exempt ~,4 The amount of total compensation may be adjusted from
under Section 501 of the Internal Revenue Code, hereinafter time to time without altering the terms of this Plan.
referred to as "Employers"; to act as trustee and/or agent for the • However, the percentage or amount of deferred
collection and reinvestment of the income tfierefrom; and to act as compensation may be adjusted in accordance witli 1.3 above.
' agent for such Employers and at their explicit direction for the Any such adjustment of the percentage or amount of
distribution of the funds and assets oi their accounts to their deferred compensation shatl be communicated to the
participating Emptoyees in accordance with options provided in this Employer's agent, the Retirement Corporation, and the
Inter~ational City Management Association Retirement Corporation deposits in the adjusted percentages or amounts, if changed
Deferred Compensation Plan, hereinafter referred to as the "Plan", from the prior existing percentages or amounts, shall
or the "ICMA-RC Plan". thereafter be made by the Employer into its Retirement '
The ICMA-RC Plan is set out below in two parts: I. The Corporation Account.
Deferred Compensation Employment Agreement; and II. The •
Master Trust Agreemr.nt. As set out below, the Employer adopts 2- Deferred Compensation Account. Under this Plan, deferred
this plan as its agreement with the participating Employees and compensation shall be credited and paid into the Trust established
ICMA-RC, and the Employees shall participate in the Plan through and maintained with the Intemational City Management Association
the execution of a Joinder Agreement, which by its terms Retirement Corporation as Trustee. The Retirement Corporation is
incorporates all oF the provisions of the Plan. A copy of the Plan a honprofit corporation formed for the specific purpose of investi~g
shall be supplied to each Employee for his study and understanding and otherwise administering the funds of said Trust. Tho Trust rnay
prior to his execution of the Joi~der Agreement. The Employers, be revoked at any time by the ~mployer, end upon revoi:ation of
through their participation in the Plan, express their desire to have said Trust, all of the assets thereot shall return to and revert to the
the benefit of the continued loyalty, service and counsel of their Employer. The Employer shall keep accurate books and records
Emptoyees and to assist them in providing for the contingencies of with respect to the Employee's total compensatio~ or otherearned
old age dependency, d~sabiiity, and death. income and with respect to amounts paid into said Trust.
This Plan may be amended from time to time for purposes of 3. Ownership of Funds. Neither the Employee nor any beneficiary
assuring its conformance to the requirements of any applicable law thereof shall h2ve any interest whatsoever in the funds paid into the
or rule or regulation pursuant thereto, and to preserve the Deferred Compensation Account or in the accumulations or any
tax-exempt status of the Ptan and the Retirement Corporetion. No ~ncrements on such funds, which shall at all times remai~ as an asset
amendment may either direcdy or indirectly operate to deprive any of the Employer, subject to its absolute dominion, control, and
participating Employer of its beneficial interest in the Trust as it is riflht of withdrawal until such time as the funds or assets of the
then constituted. The Recirement Corporation will notify the Account are are distributed to the Emptoyee in accordance with the
participating Employers of any amendment to this Plan no later provisions of this Plan. The oblic~ations of the Employer to pay
than sixty days prior to its effective date. Any such amendment will deferred compensation is contractual onty, the Employee having no
become effective after the expiration of that period of time, except
to those Employers as may file an objection. No ame~dment Preferred or special interest or claim, by way of trust, pnnuity, or
proposed by participating Employers shall be effective unless agreed otherwise, in and to the' specific funds and assets held in the
to by the ICMA Retirement Corporation over the signature of an Deferred Compensation Account. The contractual obligations of the
, Employer to pay the funds and assets in its Deferred Compensation
Officer. ~ - Account to the Emptoyee or his beneficiary on the opplicable
PART I. DEFERRED COMPENSATION EMPLOYMENT distribution date shall be a continuing obligation upon the
~ • AGREEMENT Employer, and shall not be relieved by any agreement between the
Employer and any other party, except as provided in Section 2 of '
1. Deferred Compensation-Initial Decision-Future Changes Paraqraph 12 of this Plan, and ~hall not be affected in any manner '
1.1 There is no limit on the amount or percentage of the total by amendment or revocation of the Trust referred to in Pargraph 2
compensation of the Employee which may be deferred by herein or by reversion of the Trust Funds to the Employer. The
the Employer under this Plan. provisions of this Paragraph shall supersede and control any other
1.2 For the purpose of this Plan the following definitions apply: Provision of this Plan which could be interpreted to be in conflict
a. "Totat compe~sation" is the totat of compensation to be therewith.
paid by the Employer for the services of the Employee, q. Administration of Funds. The tunds deposited in the Deferred
regardless of the terms used for its components, as, for Compe~sation Account shall be invested and reirnested by the
• example, "base pay," "in additio~ to base pay," "employer's Retirement Corporation, as provideJ for in thc Trust Fund
contributions," etc.; described in Part II of this Plan, in any manner which in its sole
b. "~eferred compensation" is that amount or percentage oi discretian it deems desirable, without repard at a~~y time to any 1~7a1
~ , the total compensation of the Employee which the Employer limitation goveming tlie investnient of such tunds. ~fli~ Account
currently defers from the payment to the Employee, and, shall also reflect the gain or loss resulting irom the im-esunent and
instead, deposits~ sama into a Deferred Compensation reinvestment thereof. This Trust ~und may be comniinc~led with
Account with the Retirement Corporation under the terms of others established bV the Trusteo witli other Employers under this
this Plan. Deferred compensation may include amounts from Plan.
5. Designation of Investments. Each participating Employer, being Corporation as its duly authorized agent, due consideration bcing
~ advised of the preferences of, and for the bene6it of each of its given to health, financial circumstances and family obliy~tions of
participating Employees, shall desig~ate the percentage of the the Employee. In this reg~rd, the Employee may be consuited;
~ deferred compensation involved which shalf be invested in the however, he shall have no voice in the decisio~ reaclied.
respective types of investment funds (accounts) of the Retirement $ payments in the Event of Death.
~ Corporation, such as the Equity (Variable) Fund or the ~
i . Fixed-Income Fund, unless the laws of the applicable state or local a. During the Period of Distribution. In the event of the
~ $overnment require otherwise, in which case those laws shall govern. Employee's death durin~ the period of distribution, the
' Future elections to change the percentage to bc invested in each Employee's beneficiary shall be entitied to receive payments in
~ type of Fund may only be made prior to and for the next accordance with the payment methnd being employed at the
~ succeedi~g annual period of service for which the compensation is time of the Employee's death. With the co~sent ot the
payabte by filing written notice thereof with the Retirement Employer, acting through the Retirement Corporation as its duly
Corporation. Such notice will not be effective until received by the authorized agent, said beneficiary may elect to receive a
Retirement Corporation, lump-sum in lieu of installment payments.
6. Payment of Deferred Compensation. The words "designated b. Prior to Distribution. In the event of the death of the
~ age", as used in this Paragraph and in Paragraph 9 of this Plan, shall Employee prior to the distribution, tlie funds and assets of the
~ mean the designated age which appears in the Joinder Agreement Deferred Compensation A~count shall be paid in accordance
~ executed by the participating Employee. These words, as used in with one of the methods described in subparagraph; a, b, c, or d
this Paragraph, in Paragraph 9, and in the Joinder Agreement, shall of Paragraph 6 hereof, The selestion of said method shall be
also include the following, without repetition therein: "or later, in made by the • Employer acting through the Retirement
the sole discretion of the Employer, at the end of his employment Corporation as its duly authorized agent.
, agreement, if. Employee continues in the employ of the Employer 9 payment Dates. Payments shall CommenCe on the first day of the
~ aiter he attains the designated age." At such time as the Employee month, following the attainment of the designated age, or later, on
, reaches the designated age, becomes permanently disabled, or dies, the first day of the month after the end of his employment
whichever occurs first, he, or his be~eficiary or beneficiaries, a9reement, if Employee continues in the employ of tho Employer
nominee or estate is/are entitled to receive payment in the Deferred after he attains the designated age, or likewise following permanent
r , Compensation Account outstanding on the date on which one of
disability, or death; and, in the case of installment payments, shall
. the foregoing occurs. Payments occasioned by the Employee having be made continuously thereafter on the first day of each succeeding
• ' reached the designated age, becoming permanently disab~ed, or by month, or, in the event quarterly, semi-zinnual, or annual payment
his death shall be made in accordance with the provisions of ~ installment periods are applied, then continuo:isly thereafter on the
Paragreph 7 hereof as follows: , first day of each succeeding month which begins the time period
• a. Payments in monthly, quarterly, semi-annual, or annual (quarterly, etc.) involved until, such time as the D~ferred
payments over the period of life expectancy of the Employee in Compensation Account is depletad in its entirety.
accordance with the following procedure: '
10. Disbursing Agent. 7he Retirement Corporation shall act as
Upon reaching the designated age, or becoming perma~ently
agent of the Ernployer for purposes of disbursing payments. The
disabled from permanent full•time employment, whichever ultimate obli ation for makin such
g g payments, however, shall
first occurs, the Employee's life expectancy shall be remain with tlie Employer. '
~ determined by reference to Standard U.S. Mortatity Tables:
the amounts of assets and accumulatio~s in the Deferred 11. Accumulation During the Distribution Period. ~ During the
Compensation Account shall be computed together with a period of distribution, the Employee or his beneficiary or
reasonable rate of return on said assets, less the amount of beneficiaries, nominee or estate, as the case may be, shall continue
expected monthly distribution, over the life expectancy of to be credited with all the interest, accumulations, and increments
the Employee; and a monthly amount shall then be on the undistributed funds and assets in the Deferred Compensation
math~ematically determined, the payment of which, in equal Account, until such Account is depleted in its entirety.
monthly installments over the period of the life expectancy ~2, Section 1. Termination of Employment. Upon termination of
of the EmploYee, shalt completely deplete the said Account the Employee's services, for any reason other than death, the funds,
at the end of the last year of life expectancy; or assets, and accumulations in the Deferied Compensation Account
b. Payments in monthly, quarterly, semi-annual, or annual shall not be transferred to an account witli a new employer oi the
. payments in accordance with the following procedure: Employee, and, instead, they shall remain in the original Account as
Unless the Employee's employment terminates prior to the assets of :he old Employur until such time as thcy are distributed in
time he attains the designated age, amounts equal to the accordance with tlie provisions of this Plan, except as provided in
benefits received bY ~the Employer, under retirement annuity Section 2 of this ParagraRl~.
policies, shall be paid to the Employee, at such time as he Section 2. Transfer of Employment witl~ Consideration Between
attains the designated age; or, in the case of death, payment Employers-Tripartite Agreement.
to his beneficiary or beneficiaries, nominee or estate pursuant In the event thc Employeeaccepts employment with a new emp;oyer
to the procedures provided in said policies and Paragraphs 7 partici?k~ting in the ICfJIA-RC Deferred Cornpensation Plan, then, if
and 8 of this Plan; or ' the past Employer finds that it has no present or future need of the
C. Payments in monthly, quarterly, semi-annual, or annual funds, assets, and accumulations in the said Account for the
installments over a period of not exceeding ten (10) years, said PaYment of its genereil creditors ur for any other purpose
. payments to include a reasonable return on the funds, assets and whatsoever, in consideration of its desire to avad the continuing
, eCCUmulations in the Deferred Compensation ACCOUnt, less the expf;nse of maintaining records, ar.d receiving, examining, verifying
amount of expeCted monthly, quarterly, semi•annual, or annual and filing annual reports uf the Retirement Corporation, and in
distribution, over the said ten (10) yearperiod; or consideration of avoiding the possible futurr. ex~~eses of litination of
' Employee's eontinuing contractual ri~hts to payment of de:erred
d. One lump sum paymcnt. .
compensation on his ret~rement as herein provided in the event of
7. Selection of Method of Payment. The method of payment shall any possit~le fucure revocaiion and wichdrawd by the past Employer
be selected by the Emptoyer, acting through the Retirement of the funds, assets, ond accumulations in Ihe said Account, thC ~k~St
~ Employer may, et its discretio~, authorize the Retirement desires to set aside periodc amounts equal to the percentage or
. Corporation, as its age~it, to propose to the new Employer that the amount of tnta! periodic compensation deferred;
i:inds, assets, and accumulations of the said Account be transferred WNEREAS, the funds set aside, to9ether with any ond all
to the ownership, control, and right of withdrawal of the new investments thereto, are to be exclusively within the dominion,
E,mployer, and to do so in the event the new Employer, in control, and ownership of the Employer, and subject to the
. consideratio~ of the increased value of the Employee's services by Employer's absolute riytit of withdrawal, the Employee having no
reason of the experience gained while in past employment, agrees interest whatsoever tfierein;
' • to accept same, and the respective Employers and the Employee •
' sig~ an appropriate form of Agreement in which the new Empfoyer NOW, THEREFORE, this Agreement witnesseth that la) the
also agrees to assume the continuing contractual liability to pay Employer will pay monies to the Trustee to be placed in deferred
deferred compensation so transferred upon retireme~t of the compensation accounts for the Employer; (b) the Trustee covenants
Employee a~d the Employee releases the past Employer from said that it will hold said sums, and any other funds wfiich it may receive
continuing obligation to do same. hereunder, in trust for the uses and purposes and upon the terms
and conditions hereinafter stated; and (c) the parties hereto agree as
13. Losses. The Employer shall ~ot be responsible for any loss due
to investment or failure of investment of funds and assets in said follows:
Deferred Compensation Account nor shall the Employer be required ARTICLE 1. Genera! Dnties of the Parties.
to replace any loss whatsoever which maV result from said Section 1.1 Ge~eraf De~ty of the Employer. The Employer shall
investments.
make regular periodic payments equal to the percentages of or
14. Nonassignability of Deferred Compensation. The Employee amounts from its participating Employees' totol periodic
. during his lifetime shall not be entitled to commute, encumber, sell compensations which are deferred in accordance with the terms and
or otherwise dispose of his rights to receive deferred compensation conditions of Deferred Compensation Employment Agreements
payments provided for herein, and the right thereto shall be ~vith such Employees, o? nriith any subsequent modification thereof.
. nonassignable and nontransferable. In the event of any attempted
• assignment or transfer thereof, the Employer shall have no further Section 1.2. General Qu~ties of the Trustea. The Trustee shall
liability under this A~reement. hold all funds received by it hereunder, which, together with the
income therefrom, sha(I ¢onstitute the Trust Funds. It shall
15. Participation in other Employee Be~efit Plans. Nothing herein administer the Trust Fur~G, collect the income thereof, and make
contained shall in any manner modify, impair, or affect the existing payments therefrom, all a: hereinafter provided. The Trustee shall
or future rights or shall in any manner modify, impair, or affect the also hold all Trust Funds uvhicn are transferred to it as successor
existing or future rights or interest of the Employee (a) to receive Trustee by the Employea• from existing deferred compensatio~
any employee benefits to which he would otherwise be entitled, or arrangements with its Ev~ployees which meet the same Internal
(b) as a participant in any future pension plan, it being understood~ Re~•enue Code requirem~: which govern the ICMA-RC Deferred '
tliat the rights and interests of the Employee to any employee Compensation Plan. Suc7~ lfr•ust Fur,ds shall be subject to all of the
~ benefiis or as a participant or beneficiary in or under any or all such terms and provisions of th.-~sAgreement.
plans respectively shall continue in full force and effect unimpaired,
• a~d the Employee shall have the right at any time hereafter to ARTICLE II. Powers ~d Duties of tha Trustee in Investment,
become a beneficiary under or pursuant to any and all such plans. Administration, and Disb~..ement of the Trust Fund.
• 16. Definitions. The meaning of any term or terms, phrase, clause, Section 2.1 Investmecvt Powers and Duties of the Trustee. The
• or sentence used in this Agreement, which is also used in the Trustee shall have the pomzr in its discretion to invest and reinvest
By-Laws of the Retirement Corporation, shall be defined as these the principal and income of the Trust Fund and keep the Trust
are defined in ARTICLE II, Section 2 of the By-Laws. Masculine Fund invested, without di~aihction between principal and income, in
, pronouns, whenever used herein, include the feminine pronouns, such securities or in oit~ property, real or personal, wherever
and the singular includes the plural unless the context requires situated, as the Trustee 9}nall deem advisable, including, but not •
another meaninc~. limited to, stocks, commmm or preferred, bonds, retirement annuity
and insurance policies, mortgages, and other evidences of
17. Va~idity of Agreement. This Agreement shall not be valid or indebtedness or ow~ersfigp, and in common trust funds of approved
. enforceable unless signed by an officer of Employer, authorized, by financial or investment imsatutions, with such institutions acting as
• the governi~g body of the Employer, as, for example, the City
Council, and unless this Agreement is implemented by the execution Trustee of such common rowst funds, or separate and different types
of the Joinder Agreement. of funds (accounts) inclu~ing equity, fixed-income, and those which
fulfill requirements of sta~and local governmental laws, established
with such approved fimawsiel or investment institutions. For these
PART'll. MASTER TRUST AGREEMENT
, purposes, this Trust "fvmd may be commingled with others
AGREEMENT made by and between the aforenamed Employer esta~lished by the Trustee wnder this form of agreement with other ~
~ and the International City Management Association Retirement Employers. In making ssi¢ta investments, the Trustee shall not be
Corporation (hereinafter the "Trustee" or "Retirement subject at any time to ar~l~gal limitation governing the investment
Corporation"1, a nonprofit corporation organized and existing of such funds. Investmersa powers and investment discretion vested
under the lav,rs of the State of Oelaware, for the purpose of investing in the Trustee by this S+eEtio~ may be delegated bY the Trustee to
. and otherwise administering the funds set aside by Employers in any bank, insurance or m~st company, or any invastment advisor,
connection with Deferred Compensation Agreements with ~nager or agent selectedt~y- it.
Employees. Section 2.2. Adminatracive PoN~ers of the Trustee. The Trustee
WHEREAS, The Employer desires to enter into agreements with shall have the power in its discretion:
. its Emptoyees whereby its Employees agree to defer payments of (a) To purchase, or subscribe for, any securities or other ~
specified percentages of or amounts from their total compensation property and to retain,the same in trust.
~ as "deferred compensation" is defined in said agreements until the (b) To sell, exchange, convey, transfer or otherwi~e dispose
occurence ot certain events;
of 3ny securities or otiier propcrty held by it, by private
~ WHEREAS, in order that there will be sufficient funds available Contract, or at pubtic auction. No person dealing with .the
to discharge the foregoing contractual obligations, the Employer Trustee shall be b~u~d to see tlie application of the purchase
money or to inquire i~to the validity, expediency, or ARTICIE 111. For Protectio~ of Trustae.
. propriety of any such sale or other disposition. Section 3.1, Evidence of Action by Employer. The T~ustee may
(t) To vote upon any stocks, bonds, or other securities; to rely upon any certificate, notice or direction purporti~ig t0 have
. ~ give general or special proxies or powers of attorney with or been signed on behalf of the Employer which the Trustee believes to
without power of substitution; to exercise any conversio~ have been signed'by a duly designated official of the Employer. No
privileges, subscription rights, or other options, and to make communication shall be b+nding upon any of the Trust Funds or
` any payments incidental thereto; to oppose, or to consent to, Trustee until they are received by the Trustee.
~
or otherwise participate in, corporate reorganizations or Section 3.2. Advice of Counsel. The Trustee may consult with
other changes affecting corporate securities, and to delegate any legal counsel with respect to the construction of this
discretionary powars, and to pay any assessments or charges
in connection therewith; and generally to exercise any of the Agreement, its duties hereunder, or any act, which it proposes to
take or omit, and shall not be liable for any action taken or omitted
powers of an owner with respect to stocks, bonds, securities ~n good faith pursuant to such advice.
or other property held as part of the Trust Funds.
(d) To cause any securities or other property held as part of Section 3.3. Miscellaneous. The Trustee shall use ordinary care
. and reasonable diligence, but shall not be liable for any mistake of
the Trust Funds to be registered in its own name, and to hold
any Investments in bearer form, but the books and records of ludgment or other action taken in good faith. The Trustee shall not
be liable for any loss sustained by the Trust Funds by reason of a~y
the Trustee shall at ail times show that all such investments ~nvestment made in
are a part of the Trust Funds. good faith and in accordance with the
provisions of this Agreement.
(e) To borrow or raise money for the purpose of the Trust in The Trustee's duties and obligations.shall be limited to those
such amount, and upon such terms and co~ditions, as the
expressly imposed upon it by this agreement, notwithstanding any
Trustee shall deem advisable; and, for any sum so borrowed, reference of the Plan.
to issue its promissory note as Trustee, and to secure the
repayment thereof bV pledging all, or any part, of the Trust ARTICLE IV. Taxes, Expenses and Compensatio~ of Trustee.
Funds. No person lending money to the Trustee shall be Section 4.1 Taxes. The Trustee shall deduct from and charge
bound to see the application of the money lent or to inquire against the Trust Funds any taxes o~ the Trust Funds or the income
into its validity, expediency or prupriety of any such thereof or which the Trustee is required to pay with respect to the
borrowing. interest of any person therein.
(f) To keep such portion of the Trust Funds in cash or cash Section 4.2. Expenses. The Trustee shall deduct from any
balances as the Trustee, from time to time, may deem to be charge against the Trust funds all reasonable expenses incurred by
in the best interests of the Trust created hereby, without the Trustee in the administration of the Trust Funds, includi~~g
liability for interest thereon. counsel, agency and other ~ecessary fees.
(g) To accept and retain for such time as it may deem ARTICLE V. .Settlement of Accounts The trustee shall
advisabte any securities or other property received or keep accurate and detailed accounts of all investments, receipts,
acquired by it as Trustee hereunder, whether or not such disbursements, and other transactions hereunder.
securities or other property would rormally be purchased as y~~thin 90 days after the close of each fiscal year, the Trustee
investments hereunder. shall render in duplicate to the Employer an account of its acts and .
(h) To make, execute, acknowledge, and deliver any and all transactions as Trustee hereunder. If any part of th~ Trust Fund
documents of transfer and conveyance and any a~d all other shall be invested through the medium of any common, collective or
instruments that may be necessary or appropriate to carry commingled Trust Funds, the last annual rBport of such Trust Funck
out the powers herein grented. shall be submitted with and incorporated in the account.
(i) To settle, compromise, or submit to arbitration any If within 90 days after the mailing of the account or any
claims, debts, or damages due or owing to or from the Trust amended account the Employer nas not filed with the Trustee
Funds; to commence or defend suits or legal or notice of any objection to any act or transaction of the Trustee, the
administrative proceedings; and to represent the Trust Funds account or amended account shall become an accour,t stated. I f any
' in all suits a~d legal and administrative proceedings. objection has been filed, and if the Employer is satisfied that it
(j) To do all such acts, take all such proceedings, and should be withdrawn or if the account is adjusted to tlie Employer's
exercise all such ri hts and satisfaction, the Employer shall in writing filed with the Trustee
g privileges, although not
specifically mentioned herein, as the Trustee may deem • signify approval of the account and it shall become an account
necessary to admi~ister the Trust Funds and to carry out the stated.
purposes of this Trust. When an account becomes an account stated, such'account shall
Section 2.3. ~istributions from the Trust Funds. The Employer be finally settled, and the Trustee shall be completely discharged
hereby appoints the Trustee as its agent for purposes of selecting the a~d released, as if such account had been settled and allowed by a
method by which distributions from the Trust Funds are to be ludgment or decree of a court of competent jurisdiction in an action
made, as well as for purposes of making such distributions. In this or proceeding in which the Trustee and the Employer were parties.
regard the terms and conditions set forth in the Agreements to be The Trustee shall have the right to apply at any time to a court
executed between the Employer and its Employees, and any of competent jurisdiction for the judicial settlement of its account.
subsequent modifications thereof, are to guide and control the
Trustee's power. ARTICLE VI. Resignation and Removal of Trustee.
Section 2.4. Valuation of Trust Funds. At least once a year as of Section 6.1. Resi9~ation of Trustee. The Trustee may resign et
Valuotion Dates designated by the Trustees, the Trustee shall any time by filing with the Employer its writtc~ resignation, Such
determine the value of the Trust Funds. Assets of the Trust Funds resignation shall take effect 60 days from the dato of suct~ fili~g and
, shall be valued at their market values at tne close of business on the upon appointment of a successor pursuant to Section 6.3, whichever
Valuation Uate, or, in the absence of readily ascertainable market shall first occur.
vplues as the Trustee shall determine, in accordance with methods Section 6.2. Removal of trusteo. The Employer may remove
consistently followed and uniformly applied. the Trustee at any time by delivering to the Trustee a written notice
i •
of its removal and an appointment ot a successor pursuant to revocation of this Trust, ail of the assets thereof shall return to anc!
Section 6.3. Sucl~ rerroval shall ~ot take ei(ect prior to 60 days revert to the Employer. Termination of this Trust shall not,
from such delivery unless the Trustee agrees to an earlier effective however, relieve the Employer of the Employer's continuing
' date. ' obligatiun to pay deferred compensation upon the applicable
~ 'Section 6.3. Appointment of Successor Trustee. The distribution date to a~y and/or each Employee with whom the
appointment of a successor to the Trustee shall take effect upon the . Employer has entered into a Deferred Compensation Employment
~ de~ivery to the Trustee (a) an instrument in writing executed by the Agreement.
Employer appointing such successor, and exonerating such successor Section 7.2. Amendment. The Employer shall have the right to
from liability for the acts and omissions of its predecessor, and (b) amend this Agreement in whole and in part but only with the
an acceptance i~ writing, executed by such successor. Trustee's written consent. Any such amendme~t shall become
All of the provisions set forth herein with respect to the Trustee effective upon la) delivery to the Trustee of a written instrument of
shall retate to each successor with the same force and effect as if amendment, and (b) the endorsement by the Trustee on such
such successor had been origi nally named as Trustee hereunder. ~~strument of its consent thereto. ~
Ii a successor is not appointed within 60 days after the Trustee ARTICLE VII1. Miscellaneous.
gives notice of its resignation pursuant to Section 6.1, the Trustee Section 8.1. Laws of the State of Delavrare to Govern. This
may apply to any court of competent jurisdiction for appointment agreement and the Trust hereby created shall be construed and
of a successor. regulated by the laws of the State of Delaware.
Section 6.4 Transfer of Funds to Successor. Upon the Section 8.2. Successor Employers. The term "Employer" shall
resignation or removal of the Trustee and appointment of a include any person who succeeds the Employer an~J who adopts the
successor, and after the final account of the Trustee has been Deferred Cempensation Plan of the Retirement Corporation and
properly settled, the Trustee shall transfer and deliver any of the becomes a party to this agreement with the consent of the Trustee.
Trust Funds invoived to such successor. Section 8.3. Withdrawals. The Employer may, at any time, and
ARTICLE VI1. Duration and Revocation of Trust Agreement. from time to time, withdraw a portion or all of the Trust Funds
Section 7.1. Duration and Revocation. This Trust shall continue created by this Agreement and. related Deferred Compensation
for such time as may be necessary to accomplish the purpose for Employment Agreements.
which it was created but may be termi~ated or revoked at any time Section 8,4. Definitions. Definitions in the ByLaws of terms,
by the Employer as it relates to any and/or all related participating phrases, etc., used herein apply to the same herein. Tho masculine
Employees. Written notice of such termination or revocation shall • includes the feminine and the singular includes the plural unless the
be given to the Trustee by the Employer. Upon termination or context requires another meaning.
. '