EXHIBIT 10.28
TRUST AGREEMENT
BETWEEN
----------------------------------------------
ANALOG DEVICES, INC.
AND
FIDELITY MANAGEMENT TRUST COMPANY
----------------------------------------------
ANALOG DEVICES, INC. DEFERRED COMPENSATION PLAN
TRUST
DATED AS OF OCTOBER 1, 2003
TABLE OF CONTENTS
SECTION PAGE ------- ---- 1 DEFINITIONS.................................................................................... 2
2 TRUST.......................................................................................... 3
(a) Establishment
(b) Grantor Trust
(c) Trust Assets
(d) Non-Assignment
(e) Change in Control
3 PAYMENTS TO SPONSOR............................................................................ 4
4 DISBURSEMENT................................................................................... 4
(a) Directions from Administrator
(b) Limitations
5 INVESTMENT OF TRUST............................................................................ 4
(a) Selection of Investment Options
(b) Available Investment Options
(c) Investment Directions
(d) Mutual Funds
(e) Trustee Powers
6 RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED...................................... 7
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
7 COMPENSATION AND EXPENSES...................................................................... 8
8 DIRECTIONS AND INDEMNIFICATION................................................................. 9
(a) Identity of Administrator
(b) Directions from Administrator
(c) Directions from Participants
(d) Indemnification
(e) Survival
9 RESIGNATION OR REMOVAL OF TRUSTEE.............................................................. 10
(a) Resignation & Removal
(b) Termination
(c) Notice Period
(d) Transition Assistance
(e) Failure to Appoint Successor
10 SUCCESSOR TRUSTEE............................................................................. 11
(a) Appointment
(b) Acceptance
(c) Corporate Action
i
TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE ------- ---- 11 RESIGNATION, REMOVAL, AND TERMINATION NOTICES.................................................. 11
12 DURATION....................................................................................... 11
13 INSOLVENCY OF SPONSOR.......................................................................... 11
14 AMENDMENT OR MODIFICATION...................................................................... 13
15 ELECTRONIC SERVICES ........................................................................... 13
16 CHANGE IN CONTROL.............................................................................. 14
(a) Definition
(b) Notification
(c) Duty
17 GENERAL........................................................................................ 15
(a) Performance by Trustee, its Agent or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
18 GOVERNING LAW.................................................................................. 16
(a) Massachusetts Controls
(b) Trust Agreement Controls
SCHEDULES
A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Administrator's Authorization Letter
D. Operational Guidelines for Non-Fidelity Mutual Funds
E. Exchange Guidelines
F. Operating Procedures for Moody's Baa Benchmark Fund
G. Operating Procedures for Merrill Lynch Semiconductor HOLDRS(sw) Fund
ii
TRUST AGREEMENT, dated as of the first day of October 2003, between ANALOG DEVICES, INC., a Massachusetts corporation, having an office at Three Technology Way, Norwood, MA 02062 (the "Sponsor"), and FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at 82 Devonshire Street, Boston, Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Analog Devices, Inc. Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish an irrevocable trust and to contribute to the trust assets that shall be held therein, subject to the claims of Sponsor's creditors in the event of Sponsor's Insolvency, as herein defined, until paid to Participants and their beneficiaries in such manner and at such times as specified in the Plan; and
WHEREAS, it is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan maintained for the purpose of providing deferred compensation for a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"); and
WHEREAS, it is the intention of the Sponsor to make contributions to the trust to provide itself with a source of funds to assist it in the meeting of its liabilities under the Plan; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan assets in trust among several investment options selected by the Sponsor; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain ministerial recordkeeping and administrative functions under the Plan; and
WHEREAS, the Sponsor (the "Administrator") is the administrator of the Plan; and
WHEREAS, the Trustee is willing to perform recordkeeping and administrative services for the Plan if the services are purely ministerial in nature and are provided within a framework of plan provisions, guidelines and interpretations conveyed in writing to the Trustee by the Administrator.
1
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth below, the Sponsor and the Trustee agree as follows:
SECTION 1. DEFINITIONS. The following terms as used in this Trust Agreement have the meaning indicated unless the context clearly requires otherwise:
(a) "Administrator" shall mean, with respect to the Plan, the person or
entity which is the "administrator" of such Plan.
(b) "Agreement" shall mean this Trust Agreement, as the same may be amended
and in effect from time to time.
(c) "Code" shall mean the Internal Revenue Code of 1986, as it has been or
may be amended from time to time.
(d) "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it has been or may be amended from time to time.
(e) "Fidelity Mutual Fund" shall mean any investment company advised by
Fidelity Management & Research Company or any of its affiliates.
(f) "Mutual Fund" shall refer both to Fidelity Mutual Funds and
Non-Fidelity Mutual Funds.
(g) "Non-Fidelity Mutual Fund" shall mean certain investment companies not
advised by Fidelity Management & Research Company or any of its
affiliates.
(h) "Participant" shall mean, with respect to the Plan, any employee (or
former employee) with an account under the Plan, which has not yet been
fully distributed and/or forfeited, and shall include the
beneficiary(ies) with respect to the account of any deceased employee
(or deceased former employee) until such account has been fully
distributed and/or forfeited.
(i) "Participant Recordkeeping Reconciliation Period" shall mean the period
beginning on the date of the initial transfer of assets to the Trust
and ending on the date of the completion of the reconciliation of
Participant records.
(j) "Plan" shall mean the Analog Devices, Inc. Deferred Compensation Plan.
(k) "Plan Administration Manual" shall mean the document which sets forth
the administrative and recordkeeping duties and procedures to be
followed by the Trustee in administering the Plan, as such document may
be amended and in effect from time to time.
(l) "Reporting Date" shall mean the last day of each fiscal quarter, the
date as of which the Trustee resigns or is removed pursuant to Section
9 hereof and the date as of which this Agreement terminates pursuant to
Section 11 hereof.
(m) "Sponsor" shall mean Analog Devices, Inc., a Massachusetts corporation,
or any successor to all or substantially all of its businesses which,
by agreement, operation of law or otherwise, assumes the responsibility
of the Sponsor under this Agreement.
(n) "Trust" shall mean the Analog Devices, Inc. Deferred Compensation Plan
Trust, being the trust established by the Sponsor and the Trustee
pursuant to the provisions of this Agreement.
2
(o) "Trustee" shall mean Fidelity Management Trust Company, a Massachusetts
trust company and any successor to all or substantially all of its
trust business. The term Trustee shall also include any successor
trustee appointed pursuant to this agreement to the extent such
successor agrees to serve as Trustee under this Agreement.
SECTION 2. TRUST.
(a) Establishment. The Sponsor hereby establishes the Trust, with the Trustee. The Trust hereby established shall be irrevocable. The Trust shall consist of an initial contribution of money or other property acceptable to the Trustee in its sole discretion, made by the Sponsor or transferred from a previous trustee under the Plan, such additional sums of money as shall from time to time be delivered to the Trustee under the Plan, all investments made therewith and proceeds thereof, and all earnings and profits thereon, less the payments that are made by the Trustee as provided herein, without distinction between principal and income. The Trustee hereby accepts the Trust on the terms and conditions set forth in this Agreement. In accepting this Trust, the Trustee shall be accountable for the assets received by it, subject to the terms and conditions of this Agreement.
(b) Grantor Trust. The Trust is intended to be a grantor trust, of which the Sponsor 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, and shall be construed accordingly.
(c) Trust Assets. The principal of the Trust, and any earnings thereon shall be held separate and apart from other funds of the Sponsor and shall be used exclusively for the uses and purposes of Participants and general creditors as herein set forth. 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 Agreement shall be mere unsecured contractual rights of Participants and their beneficiaries against the Sponsor. Any assets held by the Trust will be subject to the claims of the Sponsor's general creditors under federal and state law in the event of Insolvency, as defined in Section 13(a).
(d) Non-Assignment. Benefit payments to Participants and their beneficiaries funded under this Trust 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.
(e) Change in Control. Upon a Change in Control, the Sponsor shall, as soon as possible, but in no event longer than thirty (30) days following the Change in Control, as defined herein, make an irrevocable contribution to the Trust in an amount that is sufficient to pay each Participant the benefits to which Participants would be entitled pursuant to the terms of the Plan as of the date on which the Change in
3
Control occurred. The Sponsor shall also provide additional funding in such amounts as are reasonably estimated to cover any expenses of the Trust for five (5) years after such Change in Control.
SECTION 3. PAYMENTS TO SPONSOR. Except as provided under Section 13, the Sponsor shall have no right to retain or divert to others any of the Trust assets before all payment of benefits have been made to the Participants and their beneficiaries pursuant to the terms of the Plan.
SECTION 4. DISBURSEMENTS.
(a) Directions from Administrator. The Trustee shall disburse monies to the Sponsor for benefit payments in the amounts that the Administrator directs from time to time in writing. The Trustee shall have no responsibility to ascertain whether the Administrator's direction complies with the terms of the Plan or any applicable law. Notwithstanding any other agreements between the Sponsor and any affiliates of the Trustee as documented in the Plan Administration Manual, the Trustee shall not be responsible for: (i) making benefit payments to Participants under the Plan, (ii) any Federal, State or local income tax reporting or withholding with respect to such Plan benefits, and (iii) FICA (Social Security and Medicare) or any Federal or State unemployment tax with respect to Plan distributions.
(b) Limitations. The Trustee shall not be required to make any disbursement in excess of the net realizable value of the assets of the Trust at the time of the disbursement. The Trustee shall not be required to make any disbursement in cash unless the Administrator has provided a written direction as to the assets to be converted to cash for the purpose of making the disbursement.
SECTION 5. INVESTMENT OF TRUST.
(a) Selection of Investment Options. The Trustee shall have no responsibility for the selection of investment options under the Trust and shall not render investment advice to any person in connection with the selection of such options.
(b) Available Investment Options. The Sponsor shall direct the Trustee as to what investment options the Trust shall be invested in (i) during the Participant Recordkeeping Reconciliation Period, and (ii) following the Participant Recordkeeping Reconciliation Period, subject to the following limitations. The Sponsor may determine to offer as investment options to Participants only (i) Mutual Funds and (ii) Benchmark Funds identified on Schedule "A" attached hereto; provided, however, that the Trustee shall not be considered a fiduciary with investment discretion. The Trust shall be invested in Mutual Funds or other registered securities as directed by the Sponsor, however, the Trustee shall not be considered a fiduciary with investment discretion. The Sponsor may add or remove investment options with
4
the consent of the Trustee and upon mutual amendment of this Agreement and the Schedules thereto to reflect such additions.
(c) Investment Directions. In order to provide for an accumulation of assets comparable to the contractual liabilities accruing under the Plan, the Sponsor may direct the Trustee in writing to invest the assets held in the Trust to correspond to the hypothetical investments made for Participants under the Plan. Such directions may be made by Participants by use of a Participant service representative, the Voice Response System ("VRS"), the internet or such other electronic means as may be agreed upon from time to time by the Sponsor and the Trustee, maintained for such purposes by the Trustee or its agents, in accordance with Schedule "E." In the event that the Trustee fails to receive a proper direction from the Sponsor or from Participants regarding investments for Participant deferrals, the deferrals shall be invested in the Moody's Baa Index until the Trustee receives a proper direction. However for assets in the TIP Restoration source, in the event that the Trustee fails to receive a proper direction from the Sponsor or from Participants, regarding investments for Participant deferrals, the deferrals shall be invested in the Fidelity Money Market Trust: Retirement Money Market Portfolio until the Trustee receives a proper direction. All assets received into the Trust for which no direction has been received by the Trustee shall be invested in Fidelity Institutional Money Market: Portfolio Class I.
The Sponsor's designation of available investment options under paragraphs (a) and (b) above, the maintenance of accounts for each Participant and the crediting of investments to such accounts, the giving of investment directions by Participants under this paragraph (c), and the exercise by Participants of any other powers relating to investments under this Section 5 are solely for the purpose of providing a mechanism for measuring the obligation of the Sponsor to any particular Participant under the applicable Plan. As provided in Section 2(c) above, no Participant or beneficiary will have any preferential claim to or beneficial ownership interest in any asset or investment, and the rights of any Participant and his or her beneficiaries under the applicable Plan and this Agreement are solely those of an unsecured general creditor of the Sponsor with respect to the benefits of the Participant under the Plan.
(d) Mutual Funds. On the effective date of this Agreement, in lieu of receiving a printed copy of the prospectus for each Fidelity Mutual Fund selected by the Sponsor as a Plan investment option or short-term investment fund, the Sponsor hereby consents to receiving such documents electronically. The Sponsor shall access each prospectus on the internet after receiving notice from the Trustee that a current version is available online at a website maintained by the Trustee or its affiliate. Trustee represents that on the effective date of this Agreement, a current version of each such prospectus is available at https://www.fidelity.com or such successor website as Trustee may notify the Sponsor of in writing from time to time. Named Fiduciary represents that it has accessed/will access each such prospectus at
5
https://www.fidelity.com or such successor website as Trustee may notify the Sponsor of in writing from time to time as of the effective date of this Agreement. Trust investments in Mutual Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of Fidelity Mutual Funds (other than for Exchanges) for both Participant activity and those necessary for assetizing the Trust shall be made on the date on which the Trustee receives from the Sponsor in good order all information and documentation necessary to accurately effect such purchases and sales (or in the case of a purchase, the subsequent date on which the Trustee has received a wire transfer of funds necessary to make such purchase). Transactions involving Mutual Funds not advised by Fidelity Management & Research Company shall be executed in accordance with the operating procedures set forth in Schedule "D" attached hereto. Exchanges of Mutual Funds shall be done in accordance with Schedule "E" attached hereto.
(ii) Voting. At the time of mailing of notice of each annual or special stockholders' meeting of any Mutual Fund, the Trustee shall send a copy of the notice and all proxy solicitation materials to the Sponsor for the shares of the Mutual Fund held in the Trust together with a voting direction form for return to the Trustee or its designee. The Sponsor shall have the right to direct the Trustee as to the manner in which the Trustee is to vote the shares held in the Trust. The Trustee shall vote the shares held in the Trust in the same manner as directed by the Sponsor under the Plan. The Trustee shall not vote shares for which it has received no corresponding directions from the Sponsor. With respect to all rights other than the right to vote, the Trustee shall follow the directions of the Sponsor. The Trustee shall have no duty to solicit directions from the Sponsor.
(e) Trustee Powers. The Trustee shall have the following powers and authority:
(i) Subject to paragraphs (b), (c) and (d) of this Section 5, to sell, exchange, convey, transfer, or otherwise dispose of any property held in the Trust, by private contract or at public auction. No person dealing with the Trustee shall be bound to see to the application of the purchase money or other property delivered to the Trustee or to inquire into the validity, expediency, or propriety of any such sale or other disposition.
(ii) To cause any securities or other property held as part of the Trust to be registered in the Trustee's own name, in the name of one or more of its nominees, or in the Trustee's account with the Depository Trust Company of New York and to hold any investments in bearer form, but the books and records of the Trustee shall at all times show that all such investments are part of the Trust.
6
(iii) To keep that portion of the Trust in cash or cash balances as the Sponsor or Administrator may, from time to time, deem to be in the best interest of the Trust.
(iv) To make, execute, acknowledge, and deliver any and all documents of transfer or conveyance and to carry out the powers herein granted.
(v) With the prior consent of the Sponsor, to settle, compromise, or submit to arbitration any claims, debts, or damages due to or arising from the Trust; to commence or defend suits or legal or administrative proceedings; to represent the Trust in all suits and legal and administrative hearings; and to pay all reasonable expenses arising from any such action, from the Trust if not paid by the Sponsor.
(vi) With the prior consent of the Sponsor, to employ legal, accounting, clerical, and other assistance as may be required in carrying out the provisions of this Agreement and to pay their reasona ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.