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Lyondell Chemical - Non-employee Directors Benefit Plans Trust Agreement
Exhibit 10.14
LYONDELL CHEMICAL COMPANY NON-EMPLOYEE DIRECTORS BENEFIT PLANS
TRUST AGREEMENT
(As Amended and Restated August 19, 2003
and Effective as of January 1, 2002)
TABLE OF CONTENTS
PAGE
R E C I T A L S 1
SECTION 1
Creation of the Trust 2
SECTION 2
Limitation on Use of Funds 3
SECTION 3
Change in Control 3
SECTION 4
Independent Plan Administrator 6
SECTION 5
Excess Reversion 7
SECTION 6
Authority of Investment Officers 8
SECTION 7
Duties and Powers of Trustee with Respect to Investments 8
SECTION 8
Additional Powers and Duties of the Trustee 10
SECTION 9
Insurance Policies and Contracts 11
SECTION 10
Participating Plan Records 12
SECTION 11
Valuation 12
SECTION 12
Participant Records Prior to and Following a Change in Control 13
SECTION 13
Trustee Accounts 13
SECTION 14
Investment of Cash 14
SECTION 15
Payments by the Trustee 14
SECTION 16
Determination of Change in Control 15
SECTION 17
Trustee Compensation and Trust Expenses 16
SECTION 18
Payment of Taxes by Trustee 16
SECTION 19
Custodians and Agents 16
SECTION 20
Liability for Benefit Payments 17
SECTION 21
Company Insolvency 17
SECTION 22
Trustee Responsibility for Plan Administration and Trust Record Keeping after Change in Control 18
SECTION 23
Trustee Standards of Performance and Indemnifications 19
SECTION 24
Removal and Resignation of Trustee 20
SECTION 25
Termination of Participating Plan or Plans 20
SECTION 26
Rights of Company to Trust Assets 20
SECTION 27
Amendments of Trusts 21
SECTION 28
Termination of Trust 21
SECTION 29
Successors 22
SECTION 30
Communications 23
SECTION 31
Unclaimed Distributions 23
SECTION 32
Prohibition of Assignments 23
SECTION 33
Governing Laws 23
SECTION 34
Execution 24
APPENDIX A 25
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LYONDELL CHEMICAL COMPANY
NON-EMPLOYEE DIRECTORS BENEFIT PLANS
TRUST AGREEMENT
THIS AGREEMENT, as amended and restated August 19, 2003 and effective as of January 1, 2002, between LYONDELL CHEMICAL COMPANY (the " Company" ), and WILMINGTON TRUST COMPANY (the " Trustee" );
R E C I T A L S
A. Effective August 1, 2001, the Company and the Trustee enter into this Agreement to create a Trust (defined under Section 1 of this Trust Agreement) for purposes of the Lyondell Chemical Company Retirement Plan for Non-Employee Directors, the Lyondell Chemical Company Elective Deferral Plan for Non-Employee Directors and any benefit plans that may be established and maintained by the Company for its non-employee directors after the effective date of this Trust and that permit funding by this Trust. The benefit plans that may be funded by this Trust are listed in Appendix A attached hereto and shall hereinafter be referred to as the " Participating Plans" .
B. The amount and timing of benefit payments (" Benefits" ) to which the participants of the Participating Plans (the " Trust Beneficiaries" ) are or may become entitled under each of the Participating Plans are set forth in the Participating Plans.
C. The Company established this trust fund to assist it in accumulating the amounts necessary to satisfy its contractual liability to pay Benefits under the Participating Plans.
D. The Company is obligated to pay all Benefits from its general assets to the extent not paid by this Trust and this Trust Agreement shall not reduce or otherwise affect the Company' s continuing liability to pay Benefits from such assets, except that the Company' s liability shall be offset by actual benefit payments made from this Trust.
E. This trust is intended to be a " grantor trust" with the result that the corpus and income of the Trust shall be treated as assets and income of the Company pursuant to Sections 671 through 679 of the Internal Revenue Code of 1986, as amended (the " Code" ).
F. The Company intends that the Trust shall at all times be subject to the claims of the Company' s creditors as herein provided and that the Participating Plans shall not be deemed funded within the meaning of the Employee Retirement Income Security Act of 1974, as amended, (" ERISA" ) solely by virtue of the existence of this Trust Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
SECTION 1
CREATION OF THE TRUST
There is hereby established and continued with the Trustee a trust consisting of all sums paid to it for purposes of the Participating Plans, investments thereof and any earnings, appreciations or losses thereon, which, less disbursements made by Trustee, and amounts paid to the Company as provided in Section 2 of this Trust Agreement, are referred to herein as the " Trust" and shall be dealt with as provided in this Trust Agreement. The Trust shall be held for the exclusive purpose of providing payments to Trust Beneficiaries in accordance with the provisions of the Participating Plans, and defraying reasonable expenses of administration in accordance with the provisions of this Trust Agreement until all such payments required by this Trust Agreement have been made, subject to the provisions on the use of Funds under Section 2 of this Trust Agreement, and to the requirement that the Trust shall at all times be subject to the claims of the general creditors of the Company as set forth in Sections 21.1 and 21.2 of this Trust Agreement. The Trustee shall have no duty or authority to inquire into the correctness of amounts tendered to it or to enforce the collection of any contribution by the Company.
The Company shall direct the Trustee to establish a separate subtrust (" Subtrust" ) for each Plan to which the Trustee shall credit contributions it receives which are earmarked for that Plan and Subtrust. Each Subtrust shall reflect an undivided interest in assets of the trust fund and shall not require any segregation of particular assets. When Subtrusts are established, all contributions shall be designated by the Company for a particular Subtrust. However, any contribution received by the Trustee which is not designated by the Company for a particular Subtrust before a Change in Control shall be allocated among the Subtrusts in proportion to each Participating Plan' s pro rata interest in the Trust, as calculated during the last Valuation. When a Subtrust is established at a date subsequent to execution of this Agreement, the Trustee shall allocate the Trust assets among the separate Subtrusts as directed by the Company prior to a Change in Control.
The Company may direct the Trustee, or the Independent Plan Administrator may determine on its own initiative after a Change in Control, to maintain a separate sub-account within each Subtrust for a Plan for each Participant who is covered by the Subtrust. If so directed, each sub-account in a Subtrust shall reflect an individual interest in assets of the Subtrust and, as much as possible, shall operate in the same manner as if it were a separate Subtrust.
The Trustee shall allocate investment earnings and losses and expenses of the trust fund as of a valuation date among the Subtrusts in proportion to their balances. Payments to creditors as directed by a court of competent jurisdiction in the event of the Company' s insolvency shall be charged against the Subtrusts in proportion to their balances, except that payment of Plan benefits to a Participant as a general creditor shall be charged against the Subtrust for that Plan.
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Assets allocated to a Subtrust for one Plan may not be used to provide benefits under any other Plans until all benefits under such Plan have been paid in full, except that excess assets of a Subtrust may be transferred to other Subtrusts.
SECTION 2
LIMITATION ON USE OF FUNDS
No part of the corpus of the Trust shall be recoverable by the Company, borrowed by or against for the benefit of the Company or used for any purpose other than for the exclusive purpose of providing payments to Trust Beneficiaries in accordance with the provisions of the Participating Plans and defraying reasonable expenses of administration in accordance with the provisions of this Trust Agreement until all such payments required by this Trust Agreement have been made; provided, however, that (i) nothing in this Section 2 shall be deemed to limit or otherwise prevent the payment from the Trust of (a) amounts described in Section 5 of this Trust Agreement, (b) expenses and other charges as provided in Section 17 and 18 of this Trust Agreement, or (c) the application of the Trust as provided in Sections 15.5 or 28 of this Trust Agreement, and (ii) the Trust shall at all times be subject to the claims of the general creditors of the Company as set forth in Section 21.1 and 21.2 of this Trust Agreement.
SECTION 3
CHANGE IN CONTROL
Section 3.1. General. Various provisions of this Trust Agreement provide for certain rights and obligations upon and following a Change in Control of the Company.
Section 3.2. Definition of " Change in Control" . For purposes of this Trust Agreement, a " Change in Control" shall be deemed to have occurred as of the date that one or more of the following occurs:
(i) Individuals who, as of February 1, 1999, constitute the entire Board (" Incumbent Directors" ) cease for any reason to constitute at least a majority of the Board; provided , however , that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company' s shareholders, was approved by a vote of at least a majority of the then Incumbent Directors shall be considered as though such individual was an Incumbent Director, but excluding, for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, as such terms are used in Rule 14a-11 under the Securities Exchange Act of 1934, as amended or other actual or
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threatened solicitation of proxies or consents by or on behalf of any Person (as defined below) other than the Board;
(ii) The stockholders of the Company shall approve any merger, consolidation or recapitalization of the Company (or, if the capital stock of the Company is affected, any subsidiary of the Company), or any sale, lease, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company (each of the foregoing being an " Acquisition Transaction" ) where (1) the shareholders of the Company immediately prior to such Acquisition Transaction would not immediately after such Acquisition Transaction beneficially own, directly or indirectly, shares or other ownership interests representing in the aggregate eighty percent (80%) or more of (a) the then outstanding common stock or other equity interests of the corporation or other entity surviving or resulting from such merger, consolidation or recapitalization or acquiring such assets of the Company, as the case may be, or of its ultimate parent corporation or other entity, if any (in either case, the " Surviving Entity" ), and (b) the Combined Voting Power of the then outstanding Voting Securities of the Surviving Entity or (2) the Incumbent Directors at the time of the initial approval of such Acquisition Transaction would not immediately after such Acquisition Transaction constitute a majority of the Board of Directors, or similar managing group, of the Surviving Entity; provided , however , that, notwithstanding the foregoing, a Change of Control shall not be deemed to have occurred for purposes of this Subsection (ii) if each of the following conditions are met: (a) the Acquisition Transaction is between the Company and/or its Affiliates, on the one hand, and Millennium Chemicals Inc. (" Millennium" ) and/or its Affiliates, on the other hand, (b) the Company or an entity that was a wholly owned subsidiary of the Company prior to the Acquisition Transaction has a class of equity securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, immediately after completion of the Acquisition Transaction, (c) Millennium or an entity that was a wholly owned subsidiary of Millennium prior to the Acquisition Transaction has a class of equity securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, immediately after completion of the Acquisition Transaction, and (d) as a result of the Acquisition Transaction, the Company or its Affiliates own a greater percentage equity interest in Equistar Chemicals, LP (" Equistar" ) than was owned, directly or indirectly, by the Company immediately prior to such Acquisition Transaction;
(iii) The stockholders of the Company shall approve any plan or proposal for the liquidation or dissolution of the Company; or
(iv) Any Person shall be or become the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of the Company representing in the aggregate more than twenty percent (20%) of either (A) the then outstanding shares of common stock of the Company (" Common Shares" ) or (B) the Combined Voting Power of all then outstanding Voting Securities of the Company; provided , however , that notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of this Subsection (iv):
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(1) Solely as a result of an acquisition of securities by the Company which, by reducing the number of Common Shares or other Voting Securities outstanding, increases (a) the proportionate number of Common Shares beneficially owned by any Person to more than twenty percent (20%) of the Common Shares then outstanding, or (b) the proportionate voting power represented by the Voting Securities beneficially owned by any Person to more than twenty percent (20%) of the Combined Voting Power of all then outstanding Voting Securities;
(2) Solely as a result of an acquisition of securities directly from the Company, except for any conversion of a security that was not acquired directly from the Company; or
(3) Solely as a result of a direct or indirect acquisition by Occidental Petroleum Corporation (" Occidental" ) or Millennium, or any Affiliate of either of them, of beneficial ownership of securities representing, (x) in the case of Occidental (with its Affiliates), no more than forty percent (40%), (y) in the case of Millennium (with its Affiliates), no more than forty percent (40%), and (z) in the case of Occidental (with its Affiliates) and Millennium (with its Affiliates) in the aggregate, no more than forty-nine percent (49%), of either (A) the then outstanding Common Shares or (B) the Combined Voting Power of all then outstanding Voting Securities of the Company, pursuant to or as contemplated under any agreement between the Company and Occidental and/or Millennium or Affiliates of either of them (including any subsequent related transaction or series of related transactions or acquisitions of Voting Securities of the Company by Occidental and/or Millennium or their Affiliates or assignees approved by the Incumbent Directors prior to the consummation of such transaction or series of related transactions) where, as a result of such transaction or series of related transactions, the Company or a Surviving Entity owns, directly or indirectly, a greater percentage equity interest in Equistar than was owned, directly or indirectly, by the Company immediately prior to such transaction or series of related transactions;
provided, further, that if any Person referred to in paragraph (1) or (2) of this Subsection (iv) shall thereafter become the beneficial owner of additional shares or other ownership interests representing one percent (1%) or more of the outstanding Common Shares or one percent (1%) or more of the Combined Voting Power of the Company (other than (x) pursuant to a stock split, stock dividend or similar transaction or (y) as a result of an event described in paragraph (1), (2) or (3) of this Subsection (iv)), then a Change in Control shall be deemed to have occurred for purposes of this Subsection (iv).
(v) For purposes of this definition of Change in Control, the following capitalized terms have the following meanings:
(1) " Affiliate" shall mean, as to a specified person, another person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person, within the meaning of such terms as used in Rule 405 under the Securities Act of 1933, as amended, or any successor rule.
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(2) " Combined Voting Power" shall mean the aggregate votes entitled to be cast generally in the election of the Board of Directors, or similar managing group, of a corporation or other entity by holders of then outstanding Voting Securities of such corporation or other entity.
(3) " Person" shall mean any individual, entity (including, without limitation, any corporation, partnership, trust, joint venture, association or governmental body) or group (as defined in Sections 14(d)(3) or 15(d)(2) of the Exchange Act and the rules and regulations thereunder); provided , however , that Person shall not include the Company, LYONDELL-CITGO Refining LP (" LCR" ) or Equistar, any of their subsidiaries, any employee benefit plan of the Company, LCR or Equistar or any of their majority-owned subsidiaries or any entity organized, appointed or established by the Company, LCR, Equistar or such subsidiaries for or pursuant to the terms of any such plan.
(4) " Voting Securities" shall mean all securities of a corporation or other entity having the right under ordinary circumstances to vote in an election of the Board of Directors, or similar managing group, of such corporation or other entity.
Section 3.3. Funding on Change in Control. The Company, within 30 days following a Change in Control, shall be required to irrevocably deposit additional cash or other property, acceptable to the Trustee, to this Trust in an amount equal to the Certified Benefit Values, as described in Section 5, as certified by an Enrolled Actuary unaffiliated with the Company, which may become payable as a result of a Change in Control, less the present value of Trust assets determined as of the date of the Change in Control.
SECTION 4
INDEPENDENT PLAN ADMINISTRATOR
Various provisions of this Trust Agreement refer to the term " Independent Plan Administrator" which shall mean, unless stated otherwise in a specific provision of this Trust Agreement, and, except as provided below, an entity which is unrelated to, and unaffiliated with, the Company, and which, prior to a Change in Control has accepted in writing the position of Independent Plan Administrator under this Trust Agreement. The Independent Plan Administrator shall not be considered to be related to or affiliated with the Company solely as a result of an agreement between the Independent Plan Administrator and the Company to provide individual financial counseling services to specified Company executives or to provide financial counseling services to survivors of deceased Company employees. The Independent Plan Administrator shall be appointed by the Company and shall have its duties specified in an agreement executed by the Company and the Independent Plan Administrator prior to a Change in Control. The Trustee shall be given advance written notification of such appointment by the Company. Following a Change in Control, if the Company had failed to designate an Independent Plan Administrator prior to a
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Change in Control, the Independent Plan Administrator shall be appointed by the Trustee following a Change in Control and shall have its duties specified in an agreement executed by the Trustee and the Independent Plan Administrator. In the event the Independent Plan Administrator fails to act, provides services to the Company other than in its capacity as Independent Plan Administrator other than as provided above, or resigns, the Company prior to a Change in Control, or the Trustee after a Change in Control, shall retain a successor Independent Plan Administrator. Notwithstanding any other provision of this Trust Agreement, the Trustee shall be responsible only for the prudent selection of an Independent Plan Administrator after a Change in Control (i) following notice by the Company or the Independent Plan Administrator of disqualification of the Independent Plan Administrator through the provision of services to the Company other than in its capacity as Independent Plan Administrator, (ii) upon resignation or failure to act by the Company-appointed Independent Plan Administrator, or (iii) in the event the Company failed to appoint an Independent Plan Administrator prior to a Change in Control. The Trustee shall be entitled to conclusively rely on the determinations of a qualified Independent Plan Administrator.
SECTION 5
EXCESS REVERSION
Prior to a Change in Control, upon a determination that the assets of the Trust have a value exceeding one hundred twenty-five percent (125%) of the actuarial present value of accrued but unpaid benefits of the Participating Plans, considered on the basis of assets being allocated to Participating Plans, all or a portion of the amount of such assets which constitute the " Excess Reversion" (as defined below) may be repaid to the Company upon direction of the Company. However, prior to any such repayment, the Company must deliver to the Trustee a certified statement by an actuary who is an Enrolled Actuary under ERISA and who is not affiliated with the Company of (i) the amount equal to one hundred (100%) percent of the actuarial present value of the accrued but unpaid benefits under the Participating Plans, calculated on an individual plan basis, as described above, (the " Certified Benefit Values" ), (ii) the value of the Trust assets, allocated to each Participating Plan, as described above, and (iii) the amount, if any, by which the value of the Trust assets under (ii) exceeds the Certified Benefit Values under (i), and (iv) the amount, if any, by which the value of the Trust assets under (ii) exceeds one hundred twenty-five (125%) percent of the Certified Benefit Values (the " Excess Reversion" ). The actuary shall make each determination required to prepare the certified statement based on reasonable factors, assumptions and tables (as determined solely by such actuary). The Trustee shall repay assets of the Trust to the Company as directed by the Company and in an amount up to but not greater than the Excess Reversion. Any repayment of assets of the Trust to the Company may be made only prior to a Change in Control and shall be made within thirty (30) days (or as soon as practicable) after the later of the Trustee' s receipt of the certified statement by the actuary and the Company' s direction to make such a payment. Any separate allocations of assets pursuant to this Section 5 shall be solely for the purpose of completing the valuation tests described in this Section and shall not reflect any legal commitment of assets to any Trust Beneficiary under a particular Participating Plan.
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SECTION 6
AUTHORITY OF INVESTMENT OFFICER
Prior to a Change in Control, the Trustee shall be subject to the direction of the Investment Officer (as defined below) of the Company with respect to the investment of the assets of the Trust. Unless the Company and the Trustee have mutually agreed in a separate writing that the Trustee shall have and exercise investment discretion with respect to all or a portion of the assets of the Trust, the Company shall have complete discretion with respect to the investment of such assets at all times prior to a Change in Control, and shall direct the Trustee accordingly. From time to time, the Trustee shall be notified in a writing signed by an officer of the Company of the person or persons constituting the " Investment Officer" for purposes of this Section and the Trust. In each such notice, the Company shall warrant that all directions given by the Investment Officer are proper. The Trustee shall have no responsibility to review, or to consider the propriety of holding or selling any life insurance, retirement income or annuity policies or contracts.
Notwithstanding the Company' s discretion to invest the Trust assets, the Company shall not exercise this discretion to reacquire part or all of the assets held in the Trust by substitution of or exchange for any other property held by the Company directly or indirectly through any third party, related or unrelated, and whether or not the property is equivalent, marketable, liquid, or secured.
SECTION 7
DUTIES AND POWERS OF TRUSTEE WITH RESPECT TO INVESTMENTS
After a Change in Control, the Trustee shall have sole discretion to invest and reinvest the assets of, and to invest any additions to, the Trust in personal property consisting of equity securities, debt instruments at the time of purchase rated not less than BBB- by Standard & Poor' s Corporation and its successors (" S&P" ) or Baa3 by Moody' s Investor Service, Inc. and its successors (" Moody' s) or the equivalent of such ratings by S&P or Moody' s for the types of investments specified in Section 14 of this Trust Agreement (" Investment Grade Securities" ) with the power to appoint any independent investment manager to fulfill such obligation; provided, however, that (i) the Trustee shall be subject to any prior directions and instructions of the Company prior to a Change in Control regarding insurance, retirement income or annuity policies or contracts unless the Independent Plan Administrator otherwise directs the Trustee, (ii) the Independent Plan Administrator shall have sole power on and after a Change in Control regarding the management, including the purchase, sale or retention (including all powers of the Company under Sections 7(C) and 9 of this Trust Agreement) of any insurance, retirement income or annuity policies or contracts, (iii) any such powers of the Trustee or Independent Plan Administrator described above may not be delegated, in whole or in part, after a Change in Control to the Company or any affiliate of the Company, and (iv) the Trustee shall not be required to liquidate any investments that were made pursuant to the directions of the Investment Officer that are not
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Investment Grade Securities. Subject to the foregoing provisions of Sections 6 and 7 of this Trust Agreement, the Trustee shall have the following powers:
A. To invest and reinvest the Trust, without distinction between principal and income, in any form of domestic or foreign real or personal property, whether or not productive of income or consisting of wasting assets, provided that investments of the Plan shall be diversified so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so;
B. To sell, convey, redeem, exchange, grant options for the purchase or exchange of, or otherwise dispose of, any real or personal property, other than an exchange of Trust assets to the Company as described in Section 6, at public or private sale, for cash or upon credit, with or without security, without obligation on the part of any person dealing with the Trustee to see to the application of the proceeds of, or to inquire into the propriety of, any such disposition;
C. To purchase and maintain, as owner, life insurance policies as provided in Section 9 of this Trust Agreement and only as directed by the Investment Officer of the Company prior to a Change in Control and the Independent Plan Administrator after a Change in Control;
D. To exercise, personally or by general or limited proxy or power of attorney, all voting and other rights appurtenant to any investment held in the Trust and to delegate discretionary power to exercise all or any such rights to trustees of a voting trust for any period of time;
E. To join in or oppose any reorganization, recapitalization, consolidation, merger or liquidation or any plan therefor, or any lease, mortgage or sale of the property of any organization the securities of which are held in the Trust; to pay from the Trust any assessments, charges or compensation specified in any plan of reorganization, recapitalization, consolidation, merger or liquidation; to deposit any property with any committee or depository; and to retain any property allotted to the Trust in any reorganization, recapitalization, consolidation, merger or liquidation;
F. To exercise or sell, personally or by general or limited power of attorney, any conversion, subscription or other rights, including the right to vote, appurtenant to any investment held in the Trust;
G. To borrow money for purposes of this Trust Agreement in any amount and upon any reasonable terms and conditions from any lender (other than the Trustee in its individual capacity), and to pledge or mortgage any property held in the Trust to secure the repayment of any such loan;
H. To compromise, settle or arbitrate any claim, debt, or obligation of or against the
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Trust; to enforce or abstain from enforcing any rights, claim, debt or obligation; and to abandon any property determined by it to be worthless;
I. To commence or defend suits or legal proceedings and to represent the Trust in all suits or legal proceedings; to settle, compromise or submit to arbitration any claims, debts or damages, due to or owing from the Trust;
J. To engage any legal counsel, including counsel to the Company, any enrolled actuary, or any other suitable agents; to consult with such counsel, enrolled actuary, or agents with respect to the construction of this Trust Agreement, the duties of the Trustee hereunder, the transactions contemplated by this Trust Agreement or any act which the Trustee proposes to take or omit; to rely upon the advice of such counsel, enrolled actuary or agents and to pay all reasonable fees, expenses and compensations of such counsel, actuary or agents; and
K. To organize and incorporate under the laws of any state one or more corporations (and to acquire an interest in any such corporation that it may have organized and incorporated) for the purpose of acquiring and holding title to any property, interest or rights that the Trustee is authorized to acquire.
SECTION 8
ADDITIONAL POWERS AND DUTIES OF THE TRUSTEE
Following a Change in Control, should the Company attempt to enjoin any benefit payment (other than for reasons of manifest error) that the Trustee has been directed to make under the terms of this Trust Agreement, the Trustee shall commence legal action to allow such payment. The Trustee may withdraw from the Trust assets any amounts it deems necessary to pay legal expenses, including attorneys' fees, incurred in the course of such legal action. Under no circumstances shall the Trustee be required to make such payments for benefits or expenses from any source other than the Trust. Except as otherwise limited by Section 6, the Trustee shall also have the following powers:
A. To cause any asset, real or personal, to be held in a corporate depository or federal book entry account system or registered in the Trustee' s name or in the name of a nominee or in such other form as the Trustee deems best without disclosing the trust relationship; provided, however, that nothing contained in this Section shall be deemed to relieve the Trustee of any custodial responsibility allocated to it under this Trust Agreement;
B. To employ agents in the management of the Trust, including employees of the Company and its subsidiaries and affiliates prior to a Change in Control, provided, that the Trustee shall be responsible for the acts of such agents (other than acts of the United States Postal Service) as much as if they were acts of the Trustee;
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C. To make, execute and deliver, as the Trustee, any deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts, waivers, releases or other instruments in writing that the Trustee may deem necessary or desirable in the exercise of its powers under this Trust Agreement;
D. To transfer assets of the Trust to a successor Trustee as provided in Section 24 of this Trust Agreement;
E. To hold any portion of the Trust in cash pending investment, or for the payment of expenses or Benefits; and
F. To exercise, generally, any of the powers which an individual owner might exercise in connection with property, either real, personal or mixed held by the Trust and to do all other acts that the Trustee may deem necessary or proper to carry out any of the powers set forth in this Trust Agreement or otherwise in the best interests of the Trust.
SECTION 9
INSURANCE POLICIES AND CONTRACTS
Prior to a Change in Control, the Company reserves the right to transfer life insurance, retirement income or annuity policies or contracts, to the Trust, regardless of the nature or type of such contract and regardless of the Company' s interest in, or power to direct the investments under, such policies or contracts, or prior to a Change in Control, to direct the Trustee to purchase any such policies or contracts, and following a Change in Control the Independent Plan Administrator shall have the same powers regarding such insurance policies and contracts. Any such policy or contract shall be an asset of the...
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