AutoZone, Inc.
Executive Deferred Compensation Plan
TABLE OF CONTENTS
ARTICLE I INTRODUCTION
INTRODUCTION
AutoZone, Inc. (the "Company") hereby adopts the AutoZone, Inc. Executive Deferred Compensation Plan (the "Plan").
I.2 Purposes of Plan.
The purposes of the Plan are to provide certain eligible employees of the Company the opportunity to defer elements of their compensation which might not otherwise be deferrable under other Company plans, including the AutoZone 401(k) Plan, and to receive the benefit of additions to their deferral comparable to those obtainable under the AutoZone 401(k) Plan in the absence of certain restrictions and limitations in the Internal Revenue Code. In addition the Plan is intended to provide benefits in addition to those provided by the AutoZone, Inc. Pension Plan which are limited due to certain restrictions and limitations in the Internal Revenue Code.
I.3 "Top Hat" Pension Benefit Plan.
The Plan is an "employee pension benefit plan" within the meaning of ERISA. The Plan is maintained, however, for a select group of management or highly compensated employees and, therefore, it is intended that the Plan is exempt from Parts 2, 3 and 4 of Title I of ERISA. The Plan is not intended to qualify under Code section 401(a).
I.4 Funding.
The Plan is unfunded. All benefits will be paid from the general assets of the Company.
I.5 Effective Date.
The Plan is effective as of the date adopted by AutoZone, Inc.
I.6 Administration.
The Plan shall be administered by the Administrative Committee.
DEFINITIONS AND CONSTRUCTION
For purposes of the Plan, the following words and phrases shall have
the respective meanings set forth below, unless their context clearly requires
a different meaning:
(b) "Administrative Committee" means the Compensation Committee of the Board of Directors.
(c) "Base Salary" means the base rate of cash compensation paid by the Company to or for the benefit of a Participant for services rendered or labor performed while a Participant, including base pay a Participant could have received in cash in lieu of (A) deferrals pursuant to Section 4.1 and (B) contributions made on his behalf to any qualified plan maintained by the Company or to any cafeteria plan under section 125 of the Code maintained by the Company.
(d) "Base Salary Deferral" means the amount of a Participant's Base Salary which the Participant elects to have withheld on a pre-tax basis from his Base Salary and credited to his Account pursuant to Section 4.1.
(e) "Beneficiary" means the person or persons designated by the Participant in accordance with Section 7.4.
(f) "Bonus Compensation" means the amount awarded to a Participant for a Plan Year under any bonus plan maintained by the Company.
(g) "Bonus Deferral" means the amount of a Participant's Bonus Compensation which the Participant elects to have withheld on a pre-tax basis from his Bonus Compensation and credited to his account pursuant to Section 4.1.
(h) "Change In Control" means the happening of any of the following events:
(ii) Individuals who, as of the date hereof, constitute the Board (the Incumbent Board") 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 directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, 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 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(j) "Company" means AutoZone, Inc. and its direct and indirect subsidiaries, as designated from time to time by the Compensation Committee of the Board of Directors of AutoZone, Inc.
(k) "Compensation" shall include only a Participant's Base Salary and Bonus Compensation. Severance Pay and non-cash compensation shall not be included. Compensation shall not be limited by Code § 401(a)(17). For purposes of computing the Pension Excess Benefit, a Participant's Compensation calculation shall disregard any effect of excluding voluntary salary or bonus deferrals to a nonqualified, unfunded plan of deferred compensation.
(l) "Deferral Period" means the period of time for which a Participant elects to defer receipt of the Base Salary Deferrals, and Bonus Deferrals credited to such Participant's Account and shall be either the Retirement Date, a period of years as specified in Section 5.2 or upon a Change In Control. Deferral Periods shall be measured on the basis of Plan Years, beginning with the Plan Year that commences immediately following the Plan Year for which the applicable Base Salary Deferrals, and Bonus Deferrals are credited to the Participant's Account.
(m) "Executive Deferred Compensation Agreement" means the written agreement entered into between the Company and a Participant pursuant to which the Participant elects the amount of his Base Salary and/or his Bonus Compensation to be deferred into the Plan and the Deferral Period, the deemed investment and the form of payment for such amounts.
(n) "Directors" means the Board of Directors of the Company.
(o) "Effective Date" means January l, 2000.
(p) "Employee" means any common-law employee of the Company.
(q) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
(r) "401(k) Plan" means the AutoZone 401(k) Plan.
(s) Participant" means each Employee who has been selected for participation in the Plan and who has become a Participant pursuant to Article III.
(t) "Plan" means the AutoZone, Inc. Executive Deferred Compensation Plan, as amended from time to time.
(v) "Retirement Date" means the date the Participant is eligible for and retires under any qualified retirement plan maintained by the Company.
(w) "Valuation Date" means the last business day of each calendar month and each special valuation date designated by the Administrative Committee.
(x) "Pension Plan" means the AutoZone, Inc. Pension Plan.
(y) "Defined Benefit Accrual" means the amounts accrued to a Participant pursuant to Article V.
(z) "Defined Contribution Benefit" means the amounts accrued to a Participant
pursuant to Article IV.
Wherever appropriate herein, words used in the singular shall be considered to include the plural and words used in the plural shall be considered to include the singular. The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender.
II.3 Headings.
The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the
test of the Plan, the text shall control.
PARTICIPATION AND ELIGIBILITY
Participants in the Plan are those Employees who are (a) subject to the income tax laws of United States, (b) determined by the Company to be members of a select group of highly compensated or management Employees of the Company, and (c) selected by the Administrative Committee, in its sole discretion, as Participants. The Administrative Committee shall notify each Participant of his selection as a Participant. Subject to the provisions of Section 3.3 a Participant shall remain eligible to continue participation in the Plan for each Plan Year following his initial year of participation in the Plan, provided the Participant continues to satisfy Sections 3.1(a) and (b) above.
An Employee shall become a Participant effective as of the date the Administrative Committee determines, which date shall be on or after the date his Executive Deferred Compensation Agreement becomes effective. Newly eligible employees must make deferral elections during the first 30 days after becoming eligible.
III.3 Cessation of Active Participation.
Notwithstanding any provision herein to the contrary, an individual
who has become a Participant in the Plan shall cease to be a Participant
hereunder effective as of any date designated by the Administrative Committee.
DEFERRALS AND MATCHING CREDITS
At least thirty days preceding the first day of each Plan Year (or the remaining portion thereof for an Employee who commences participation in the Plan other than on the first day of a Plan Year), a Participant may file with the Administrative Committee an Executive Deferred Compensation Agreement pursuant to which such Participant elects to make Base Salary Deferrals and/or Bonus Deferrals. The Participant's Base Salary Deferrals and Bonus Deferrals shall not exceed twelve percent (12%) of the Participant's Compensation, minus the Participant's elective deferrals under the 401(k) Plan. Base Salary Deferrals and Bonus Deferrals shall not be limited by Code § 402(g), or Code § 401(k) or Code § 401(m), or Code § 415(c). Any such Participant election shall be subject to any maximum or minimum percentage or dollar amount limitations and to any other rules prescribed by the Administrative Committee in its sole discretion. Base Salary Deferrals will be credited to the Account of each Participant as of the last day of each calendar month, provided that such Participant is an Employee on the last day of such calendar month. A Participant whose employment terminates during the calendar month shall be paid the amount of his Base Salary Deferrals for such month in cash. Bonus Deferrals will be credited to the Account of each Participant as of the day of the month in which such Bonus Compensation otherwise would have been paid to the Participant in cash, provided that the Participant is an Employee on the payment date. If a Participant fails to file a new Executive Compensation Agreement or revoke a prior Executive Compensation Agreement, the latest Executive Compensation Agreement on file with the Committee shall remain in effect for each Plan Year subsequent to its filing.
IV.2 Matching Credits.
IV.4 Modification or Revocation of Election by Participant.
A Participant may not change the amount of his Base Salary Deferrals
or Bonus Deferrals during a Plan Year. However, a Participant may discontinue
a Base Salary Deferral or Bonus Deferral election at any time by filing,
on such forms and subject to such limitations and restrictions as the Administrative
Committee may prescribe in its discretion, a revised Executive Deferred
Compensation Agreement with the Administrative Committee. If approved by
the Administrative Committee, revocation shall take effect as of the first
payroll period next following its filing. A Participant who discontinues
a Base Salary Deferral or Bonus Deferral election during a Plan Year will
not be permitted to elect to make Base Salary Deferrals or Bonus Deferrals
again until the next Plan Year. Under no circumstances may a Participant's
Executive Deferred Compensation Agreement be made, modified or revoked
retroactively. A Participant' s Executive Deferred Compensation Agreement
shall remain in effect in the event of a Change in Control.
DEFINED BENEFIT
A Participant shall accrue, each Plan Year, a benefit under this Plan equal to the benefit the Participant would accrue under the Pension Plan for such Plan Year absent the effect of Code § 401(a)(17) and Code § 415(b), less the benefit accrued under the Pension Plan for such Plan Year.
V.2 Service Credit.
The Administrative Committee shall determine the service to be credited
to the Participant for purposes of calculating the Defined Benefit Accrual
provided by Section 5.1 of this Plan. Such service may only include, service
for the Company or service for a prior employer that is related or formerly
related to the Company.
VESTING, DEFERRAL PERIODS AND EARNINGS ELECTION
A Participant shall be 100% vested in his Account at all times.
VI.2 Deferral Periods.
A Deferral Period may be for any period of five (5) years, or ten (10)
years or any period of one (l) year or more after the Participant has completed
one (l) year of participation, or more, and may not end later than the
year in which the Participant attains age 70. A Participant must specify
on the Executive Deferred Compensation Agreement the Deferral Period for
the Base Salary Deferrals, and Bonus Deferrals to be made to the Plan for
the Plan Year (or the remaining portion thereof for a Participant who enters
the Plan other than on the first day of a Plan Year) to which the Executive
Deferred Compensation Agreement relates, subject to certain rules as determined
by the Administrative Committee from time to time. A Participant may change
an election of a Deferral Period at any time prior to the first day of
the calendar year in which payments are to commence.
Amounts credited to a Participant's Account shall he credited with earnings
and losses based on hypothetical investment directions made by the Participant,
in accordance with investment options and procedures adopted by the Administrative
Committee from time to time. Any amounts credited to a Participant's Account
with respect to which a Participant does not provide investment direction
shall be credited with earnings in an amount determined by the Administrative
Committee in its sole discretion. A Participant's Account shall be adjusted
as of each Valuation Date to reflect investment gains and losses.
ACCOUNTS
A separate bookkeeping account shall be maintained for each Participant. Such account shall he credited with the Participant's Base Salary Deferrals, Bonus Deferrals and Matching Credits and credited (or charged, as the case may be) with the hypothetical investment results determined pursuant to Section 6.3. A separate bookkeeping account shall also be maintained for each Participant's Defined Benefit Accruals, but shall not be adjusted for hypothetical or actual investment results.
VII.2 Subaccounts.
Separate subaccounts shall be maintained to the extent necessary for the administration of the Plan. For example, it may be necessary to maintain separate subaccounts where the Participant has specified different Deferral Periods, methods of payment or investment directions with respect to Base Salary Deferrals, and Bonus Deferrals for different Plan Years.
VII.3 Hypothetical Nature of Accounts.
PAYMENT OF ACCOUNT
Distribution of a Participant's Account shall be made or commence as soon as practicable following the date the Deferral Period for such amounts ends. Notwithstanding the foregoing, the Participant's entire Account shall be distributed to him (or his Beneficiary in the event of his death) as soon as practicable following the earliest to occur of the following: (i) the Participant's death; (ii) the Participant's permanent disability (as defined in the Company's long-term disability program; or (iii) the Participant's termination of employment.
VIII.2 Adjustment for Investment Gains and Losses Upon Distribution.
Upon a distribution pursuant to this Article VII, the balance of a Participant's Account shall be determined as of the Valuation Date immediately preceding the date of the distribution to be made and shall be adjusted for investment gains and losses which have accrued to the date of distribution but which have not been credited to his Account.
VIII.3 Form of Payment or Payments.
The Participant's Account shall be distributed in accordance with the
form of payment elected by the Participant on the Executive Deferred Compensation
Agreement to which such amounts relate. The form of payment with respect
to amounts and the earnings credited thereon may be in any of the following
forms:
(b) In the event of distribution after the Participant's death or permanent disability, distribution shall be made in a lump sum:
(c) In the event of distribution after termination of employment other than by reason of death or disability, distribution shall be made in a lump sum if the value of the Participant's Account is Fifty Thousand Dollars ($50,000) or less, and shall be made as follows, if the Account exceeds Fifty Thousand Dollars ($50,000):
(ii) the remaining balance shall be distributed in annual installments
of at least Five Thousand Dollars ($5,000) over a period of up to five
(5) years.
Upon termination of a Participant's employment following a Change in Control (unless elected as a Deferral Period in the Executive Deferred Compensation Agreement), a Participant's Account shall be distributed as described in 8.3(c)(1) and (2) above in five (5) annual installments with the first installment payment to begin commencing no later than ninety (90) days after the Participant's employment is terminated. However, such Participant or Beneficiary, as the case may be, may apply to the Administrative Committee for payment of installments over a shorter period of time, including the right to distribute the entire Account in a lump sum payment.
VIII.4 Defined Benefit Accrual Payments.
Payment of Defined Benefit Accruals shall be in the form elected by the Participant for payment of benefits under the Pension Plan.
VIII.5 Designation of Beneficiaries.
Each Participant shall have the right to designate the beneficiary or beneficiaries to receive payment of his benefit in the event of his death. A beneficiary designation shall be made by executing the beneficiary designation form prescribed by the Administrative Committee and filing the same with the Administrative Committee. Any such designation may be changed at any time by execution of a new designation in accordance with this Section. If no such designation is on file with the Administrative Committee at the time of the death of the Participant or such designation is not effective for any reason as determined by the Administrative Committee, then the designated beneficiary or beneficiaries to receive such benefit shall be the Participant's surviving spouse, if any, or if none, the Participant's executor or administrator, or his heirs at law if there is no administration of such Participant's estate.
In the case of a benefit payable on behalf of such Participant, if the Administrative Committee is unable to locate the Participant or beneficiary to whom such benefit is payable, such benefit may be forfeited to the Company, upon the Administrative Committee's determination. Notwithstanding the foregoing, if subsequent to any such forfeiture the Participant or beneficiary to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit shall be paid by the Company or restored to the Plan by the Company.
VIII.7 Hardship Withdrawals.
A Participant may apply in writing to the Administrative Committee for,
and the Administrative Committee may permit, a hardship withdrawal of all
or any part of a Participant's Account if the Administrative Committee,
in its sole discretion, determines that the Participant has incurred a
severe financial hardship resulting from a sudden and unexpected illness
or accident of the Participant or of a dependent (as defined in section
1 52(a) of the Code) of the Participant, loss of the Participant's property
due to casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, as
determined by the Administrative Committee, in its sole and absolute discretion.
The amount that may be withdrawn shall be limited to the amount reasonably
necessary to relieve the hardship or financial emergency upon which the
request is based, plus the federal and state taxes due on the withdrawal,
as determined by the Administrative Committee. The Administrative Committee
may require a Participant who requests a hardship withdrawal to submit
such evidence as the Administrative Committee, in its sole discretion,
deems necessary or appropriate to substantiate the circumstances upon which
the request is based.
ADMINISTRATION
The Plan shall be administered by an Administrative Committee appointed by the Board of Directors. The Administrative Committee shall be responsible for the general operation and administration of the Plan and for carrying out the provisions thereof. The Administrative Committee may delegate to others certain aspects of the management and operational responsibilities of the Plan including the employment of advisors and the delegation of ministerial duties to qualified individuals, provided that such delegation is in writing.
The Administrative Committee shall have all powers necessary or appropriate to enable it to carry out its administrative duties. Not in limitation, but in application of the foregoing, the Administrative Committee shall have the duty and power to interpret the Plan and determine all questions that may arise hereunder as to the status and rights of Employees, Participants, and Beneficiaries. The Administrative Committee may exercise the powers hereby granted in its sole and absolute discretion. No member of the Administrative Committee shall be personally liable for any actions taken by the Administrative Committee unless the member's action involves willful misconduct.
IX.3 Indemnification of Administrative Committee.
The Company shall indemnify, hold harmless, and defend the members of
the Administrative Committee against any and all claims, losses, damages,
expenses, including attorney's fees, incurred by them, and any liability,
including any amounts paid in settlement with their approval arising from
their action or failure to act, except when the same is judicially determined
to be attributable to their gross negligence or willful misconduct.
DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND ADMINISTRATION
A person who believes that he is being denied a benefit to which he is entitled under the Plan (hereinafter referred to as a "Claimant") may file a written request for such benefit with the Administrative Committee, setting forth his claim, The request must be addressed to the Administrative Committee at the Company at its then principal place of business.
X.2 Claim Decision.
Upon receipt of a claim, the Company shall advise the Claimant that
a reply will be forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. The Company may, however, extend
the reply period for an additional ninety (90) days for reasonable cause.
MISCELLANEOUS
The adoption and maintenance of the Plan shall not be deemed to be a contract between the Company and any person or to be consideration for the employment of any person.
Nothing herein contained shall be deemed to give any person the right to be retained in the employ of the Company or to restrict the right of the Company to discharge any person at any time nor shall the Plan be deemed to give the Company the right to require any person to remain in the employ of the Company or to restrict any person's right to terminate his employment at any time.
XI.2 Non-Assignability of Benefits.
No Participant, Beneficiary or distributee of benefits under the Plan shall have any power or right to transfer, assign, anticipate, hypothecate or otherwise encumber any part or all of the amounts payable hereunder, which are expressly declared to be unassignable and nontransferable. Any such attempted assignment or transfer shall be void. No amount payable hereunder shall, prior to actual payment thereof, be subject to seizure by any creditor of any such Participant, Beneficiary or other distributee for the payment of any debt judgment or other obligation, by a proceeding at law or in equity, nor transferable by operation of law in the event of the bankruptcy, insolvency or death of such Participant, Beneficiary or other distributee hereunder.
XI.3 Withholding.
All deferrals and payments provided for hereunder shall be subject to applicable withholding and other deductions as shall be required of the Company under any applicable local, state or federal law.
XI.4 Amendment and Termination.
The Company may from time to time, in its discretion, amend, in whole or in part, any or all of the provisions of the Plan: provided, however, that no amendment may be made that would impair the rights of a Participant with respect to amounts already allocated to his Account. The Company may terminate the Plan at any time. In the event that the Plan is terminated, the balance in a Participant's Account shall be paid to such Participant or his Beneficiary in a single cash lump sum, in full satisfaction of all such Participant's or Beneficiary's benefits hereunder.
Nothing contained in this Agreement, and no action taken pursuant to its provisions by either party hereto, shall create, nor be construed to create, a trust of any kind or a fiduciary relationship between the Company and the Participant, his beneficiary, or any other person.
XI.6 Unsecured General Creditor Status Of Employee.
The payments to Participant, his Beneficiary or any other distributee hereunder shall he made from assets which shall continue, for all purposes, to be a part of the, general, unrestricted assets of the Company; no person shall have nor acquire any interest in any such assets by virtue of the provisions of this Agreement. The Company's obligation hereunder shall be an unfunded and unsecured promise to pay money in the future. To the extent that the Participant Beneficiary or other distributee acquires a right to receive payments from the Company under the provisions hereof, such right shall be no greater than the right of any unsecured general creditor of the Company: no such person shall have nor require any legal or equitable right, interest or claim in or to any property or assets of the Company.
In the event that, in its discretion, the Company purchases an insurance policy, or policies insuring the life of the Employee (or any other property) to allow the Company to recover the cost of providing the benefits, in whole, or in part, hereunder, neither the Participant, Beneficiary or other distributee shall have nor acquire any rights whatsoever therein or in the proceeds therefrom. The Company shall be the sole owner and beneficiary of any such policy or policies and, as such, shall possess and, may exercise all incidents of ownership therein. No such policy, policies or other property shall be held in any trust for a Participant, Beneficiary or other distributee or held as collateral security for any obligation of the Company hereunder.
XI.7 Severability.
If any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof; instead, each provision shall be fully severable and the Plan shall be construed and enforced as if said illegal or invalid provision had never been included herein.
XI.8 Governing Laws.
All provisions of the Plan shall be construed and enforced in accordance with the laws of the State of Tennessee, and in the courts situated in that State.
This Plan shall be binding on each Participant and his heirs and legal representatives and on the Company and its successors and assigns.
XI.10 Entire Agreement.
This document and any amendments contain all the terms and provisions of the Plan and shall constitute the entire Plan, any other alleged terms or provisions being of no effect.
IN WITNESS WHEREOF, the Company has caused this Plan to be properly executed on
| ATTEST:
|
AUTOZONE, INC.
By: /s/ Harry L. Goldsmith Title: Senior Vice President |
This Agreement made this day of , by and between AUTOZONE, INC. (Company) and the AutoZone, Inc. Executive Deferred Compensation Administrative Committee (Trustee):
WHEREAS, Company has adopted the AutoZone, Inc. Executive Deferred Compensation Plan (the "Plan").
WHEREAS, Company has incurred or expects to incur liability under the terms of such Plan(s) with respect to the individuals participating in the Plan;
WHEREAS, Company wishes to establish a trust (hereinafter called "Trust") and to contribute to the Trust assets that shall be held therein, subject to the claims of Company's creditors in the event of Company's Insolvency, as herein defined, until paid to Plan participants and their beneficiaries in such manner and at such time as specified in the Plan.
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.
WHEREAS, it is the intention of Company 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.
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust
(b) The Trust hereby established is revocable by Company; it shall become irrevocable upon a Change of Control, as defined herein.
(d) The principal of the Trust, and any earnings thereon shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan participants and general creditors as herein set forth Plan 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(s) and this Trust Agreement shall be mere unsecured contractual rights of Plan participants and their beneficiaries against Company. Any assets held by the Trust will be subject to the claims of Company's general creditors under federal and state law in the event of Insolvency, as defined in Section 3(a) herein.
(e) 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 Trustee to augment the principal to be held, administered and disposed of by Trustee as provided in this Trust Agreement. Neither Trustee nor any Plan participant or beneficiary shall have any right to compel such additional deposits.
(f) Within thirty (30) days following the end of each Plan Year ending
after the Trust has become irrevocable pursuant to Section l(b) hereof,
Company shall be required to irrevocably deposit additional cash or other
property to the Trust in an amount sufficient to pay each Plan participant
or beneficiary the benefits payable pursuant to the terms of the Plan as
of the close of such Plan year(s).
(c) Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan(s).
Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, 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(s), Company shall make the balance of each such
payment as it falls due Trustee shall notify Company where principal and
earnings are not sufficient.
(b) At all times during the continuance of this Trust, as provided in
Section I (d) hereof, the principal and income of the Trust shall be subject
to claims of general creditors of Company under federal and state law as
set forth below.
(2) Unless Trustee has actual knowledge of Company's insolvency, or has received notice from Company or a person claiming to be a creditor alleging that Company is Insolvent, Trustee shall have no duty to inquire whether Company is Insolvent. Trustee may in all events rely on such evidence concerning Company's solvency as may be furnished to Trustee and that provides Trustee with a reasonable basis for making a determination concerning Company's solvency.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust Agreement
only after Trustee has determined that Company is not Insolvent (or is
no longer Insolvent).
(b) Company shall have the right, at anytime, and from time to time
in its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust.
(b) If Trustee undertakes or defends any litigation arising in connection with this Trust, Company agrees to indemnify Trustee against Trustee's costs, expenses and liabilities (including without limitation, attorneys' fees and expenses) relating thereto and to be primarily liable for such payments. If Company does not pay such costs, expenses and liabilities in a reasonable timely manner, Trustee may obtain payment from the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for Company generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals to assist it in performing any of its duties or obligations hereunder.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law. 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 Internal Revenue
Code.
Section 10. Resignation and Removal of TrusteeCompany shall pay all administrative and Trustee's fees and expenses. If not so paid, the fees and expenses shall be paid from the Trust.
(b) Trustee may be removed by Company on ten (10) days notice or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may not be removed by Company for five (5) years(s), and the composition of the Administrative Committee shall not be changed during such period.
(d) If Trustee resigns within five (5) years(s) after a Change of Control, as defined herein, Company shall apply to a court of competent jurisdiction for the appointment of a successor Trustee or for instructions.
(e) Upon resignation or removal of 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 Company extends the time limit.
(f) If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation
or removal under paragraph(s) (a) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee
in connection with the proceeding shall be allowed as administrative expenses
of the Trust.
(b) If Trustee resigns or is removed pursuant to the provisions of Section 10(e) hereof and selects a successor Trustee, Trustee may appoint any bank or trust company or other entity having trust powers under state law. The appointment of a successor Trustee shall be effective when accepted in writing by the new Trustee. The new Trustee shall have all the rights and powers of the former Trustee, including ownership rights in Trust assets. The former Trustee shall execute any instrument necessary or reasonably requested by the successor Trustee to evidence the transfer.
(c) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject
to Sections 7 and 8 hereof. The successor Trustee shall not be responsible
for and Company shall indemnify and defend the successor Trustee from any
claim or liability resulting from any action or inaction of any prior Trustee
or from any other past event, or any condition existing at the time it
becomes successor Trustee.
(b) The Trust shall not terminate until the date on which Plan participants and their beneficiaries are no longer entitled to benefits pursuant to the terms of the Plan(s) unless sooner revoked in accordance with Section 1 (b) (hereof upon termination of the Trust any assets remaining in the Trust shall be returned to Company).
(c) Sections(s) 1,10,11 and 12 of this Trust Agreement may not be amended
by Company for five (5) year(s) following a Change of Control, as defined
herein.
(b) Benefits payable to Plan 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.
(c) This Trust Agreement shall be governed by and construed in accordance with the laws of Tennessee.
(d) For purposes of this Trust, Change of Control shall mean: the purchase
or other acquisition by any person, entity or group of persons, within
the meaning of section 13(d) or 14(d) of the Securities Exchange Act of
1934 ("Act"), or any comparable successor provisions, of beneficial ownership
within the meaning of Rule 13d-3 promulgated under the Act) of 20 percent
or more of either the outstanding shares of common stock or the combined
voting power of Company's then outstanding voting securities entitled to
vote generally, or the approval by the stockholders of Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who
were stockholders of company immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more than 50
percent of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated Company's
then outstanding securities, or a liquidation or dissolution of Company
or of the sale of all or substantially all of Company's assets".
The effective date of this Trust Agreement shall be January 1, 2000.
"Trustee"
By
Its