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EXHIBIT 10.35
TRUST AGREEMENT
FOR
HERBALIFE 2001 EXECUTIVE RETENTION PLAN
Effective March 15, 2001
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TRUST AGREEMENT
FOR
HERBALIFE 2001 EXECUTIVE RETENTION PLAN
THIS TRUST AGREEMENT (the "Trust Agreement") is made and entered into as
of March 15, 2001 by and among Herbalife International, a Nevada corporation
(the "Parent"), as trustor, and U.S. Bank National Association, a Delaware
corporation, as trustee (the "Trustee"), to evidence the trust to be established
pursuant to the Herbalife 2001 Executive Retention Plan, effective as of March
15, 2001 (the "Plan"), which was established by the Parent and the Company to
provide financial incentives for a select group of management and highly
compensated employees of the Parent and the Company and its subsidiaries that
participate in the Plan, to provide services to the Parent and the Company and
its subsidiaries both before and after certain Change in Control events.
ARTICLE 1
Name, Deposit and Definitions
1.1 Name. The name of the Trust created by this Trust Agreement (the
"Trust") shall be:
Herbalife 2001 Executive Retention Trust
1.2 Initial Deposit. In the establishment of the Trust, the Company has
paid to the Trustee a deposit of $100. The Trustee agrees to hold and administer
the assets of the Plan that are delivered to it in accordance with this Trust
Agreement.
1.3 Plan Definitions. Except as otherwise provided herein, capitalized
terms in this Trust Agreement shall have the same meaning as under the Plan.
1.4 Additional Definitions. The following definitions are in addition to
those in the Plan and those set forth above:
(a) "Trust Fund" shall mean the assets held by the Trustee
pursuant to this Trust Agreement.
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ARTICLE 2
General Administration
2.1 Committee Directions. This Section 2.1 shall be effective until
there has occurred a Change in Control.
(a) The Committee shall be identified to the Trustee by a copy
of the resolution of the Board appointing the Committee. In the absence
thereof, the Board shall be the Committee. Persons authorized to give
directions to the Trustee on behalf of the Committee shall be identified
to the Trustee by written notice from the Committee, and such notice
shall contain specimens of the authorized signatures. The Trustee shall
be entitled to rely on such written notice as evidence of the identity
and authority of the persons appointed until a written cancellation of
the appointment, or the written appointment of a successor, is received
by the Trustee.
(b) Directions by the Committee, or its delegate, to the Trustee
shall be in writing and signed by the Committee or persons authorized by
the Committee, or may be made by such other method as is acceptable to
the Trustee.
(c) The Trustee may conclusively rely upon directions from the
Committee in taking any action with respect to this Trust Agreement,
including the making of payments from the Trust Fund and the investment
of the Trust Fund pursuant to this Trust Agreement. The Trustee shall
have no liability for actions taken, or for failure to act, on the
direction of the Committee. The Trustee shall have no liability for
failure to act in the absence of proper written directions.
(d) The Trustee may request instructions from the Committee and
shall have no duty to act or liability for failure to act if such
instructions are not forthcoming from the Committee. If requested
instructions are not received within a reasonable time, the Trustee may,
but is under no duty to, act on its own discretion to carry out the
provisions of this Trust Agreement.
2.2 Contributions. The Employers shall make contributions to or on
behalf of the Trust in accordance with the Plan. Such contributions may be in
cash or other assets. The Trustee shall have no duty to collect or enforce
payment to it of any contributions or to require that any contributions be made,
and shall have no duty to compute any amount to be paid to it nor to determine
whether amounts paid comply with the terms of the Plan.
2.3 Trust Fund. The contributions received by the Trustee from the
Employers shall be held and administered pursuant to the terms of this Trust
Agreement, without distinction between income and principal and without
liability for the payment of interest thereon.
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2.4 Establishment of Accounts.
(a) The Trustee shall establish and maintain the all
Participant's Accounts, the Administrative Account and the Employer
Death Benefit Account in accordance with the Plan.
(b) Allocations of the Employers' contributions to the accounts
described in Section 2.4(a) above, and the allocation of earnings on the
Employer's contributions held in the accounts described in Section
2.4(a) above, shall be made in accordance with Section 8.3(b) of the
Plan. The Trustee may rely on information provided to it by any service
provider providing record keeping services with respect to benefits
under the Plan, and shall be deemed to have used reasonable efforts and
to have fulfilled its obligations under the Section by relying on such
information, unless it has reason to believe that the information from
the service provider is unreliable. The accounts shall be maintained as
"separate shares" in accordance with Code Section 663(c).
(c) Notwithstanding any provisions in this Trust to the
contrary, the Participant's Accounts shall be bookkeeping entries only
and shall be utilized solely as devices for the measurement and
determination of the amounts to be paid pursuant to the Plan.
2.5 Allocation of Capital Gains to Income. Any gain from the sale,
exchange or other disposition of an asset held in an account shall be allocated
to accounting income (in accordance with Code Section 643(b)) and shall be
includable in distributable net income (in accordance with Code Section 643 and
the Treasury Regulations thereunder).
ARTICLE 3
Powers and Duties of Trustee
3.1 Investment Directions. Except as provided in Section 3.2 below, the
Committee shall provide the Trustee with all investment instructions in
accordance with the terms of the Plan and each Plan Agreement. The Trustee (i)
shall neither affect nor change investments of the Trust Fund except as directed
in writing by the Committee, and (ii) shall have no duty or responsibility to
recommend investments or investment changes; provided, that the Trustee may
deposit cash on hand from time to time in any interest bearing account, bank
savings account, certificate of deposit, or other instrument creating a deposit
liability for a bank, including the Trustee's own banking department if the
Trustee is a bank, without such prior direction.
3.2 Investment Upon Change in Control.
(a) In the event of a Change in Control, the authority of the
Committee to direct investments of the Trust Fund shall cease and the Trustee
shall have complete authority to
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direct investments in accordance with the terms of the Plan and each Plan
Agreement; provided, however, that should any of the Trust Fund be invested in
Policies, the Trustee is directed to invest such portion of the Trust Fund in
accordance with Section 3.2(c) below. In this connection, the Trustee, may, in
its sole and absolute discretion, disregard any investment instructions received
from the Committee on or after the date that is 90 days prior to a Change in
Control.
(b) The President of the Parent shall notify the Trustee in
writing when a Change in Control has occurred. The Trustee has no duty to
inquire whether a Change in Control has occurred and may rely on notification by
the President of the Parent of a Change in Control; provided, however, that if
any officer, former officer, director or former director of any Employer (other
than the President of the Parent), or any Participant notifies the Trustee that
there has been or there may be a Change in Control, the Trustee shall have the
duty to satisfy itself as to whether a Change in Control has in fact occurred.
The Trustee shall be entitled to engage the services of counsel, consultants,
accountants or service providers, which may be counsel, consultants, accountants
or service providers to the Parent or the Company, to ascertain whether a Change
in Control has occurred. The Parent and the Company shall each have a continuing
obligation to cooperate in any reasonable manner with the Trustee or its agents
in making such a determination. The Trustee shall be entitled to rely on any
opinion rendered by counsel engaged by it for the purpose of determining if a
Change in Control has occurred. The Employers shall indemnify and hold harmless
the Trustee for any damages or costs (including attorneys' fees) that may be
incurred because of reliance on the President's notice or lack thereof.
(c) If any of the Trust Fund is invested in Policies that permit
the Trustee to change investments of cash surrender value within the Policy, as
soon as practicable after the Change in Control, the Trustee shall change the
investment in all such Policies to a short-term money market fund investment, or
if such fund is unavailable, to a short-term governmental or commercial paper
fund. In addition, the Trustee shall have the right to liquidate such Policies
after a Change in Control and invest such proceeds in one or more money market
funds (which can be tax-exempt). Such action shall be deemed to constitute a
reasonable exercise of the Trustee's authority to direct investments.
3.3 No Entitlement; Distributions.
(a) The establishment of the Trust and the payment or delivery
to the Trustee of money or other property shall not vest in any
Participant or Beneficiary any right, title or interest in and to any
specific assets of the Trust.
(b) The Trustee shall from time to time, upon the written
direction of the Committee or, after a Change in Control, in accordance
with the terms of the Plan and each Plan Agreement (without regard to
any directions of the Committee), make distributions from the Trust Fund
to or for the benefit of such persons, in such manner, in such amounts
and for such purposes as may be specified in such directions or, after a
Change in Control, in accor-
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dance with the terms of the Plan and each Plan Agreement. Periodically,
but no less frequently than once each calendar quarter, the Parent or
the Company shall provide to the Trustee written information concerning
all Participants (or Beneficiaries) who are (or may become) entitled to
benefits under the terms of the Plan and the Plan Agreements, including
the total dollar amount (or undivided percentage of the Trust Fund) such
benefit is or would be if it were payable as of the date set forth in
the written information provided. With respect to written information
provided by the Parent or the Company pursuant to this subsection and
received prior to 90 days prior to a Change in Control, the Trustee may
rely on such information in determining distributions payable as of the
date of the written information, if any, and can further rely on it as a
starting point in determining distributions payable after the date of
such written information. In determining any benefits payable after the
date of the written information referred to in the previous sentence
(including the making of allocations to accounts in accordance with
Section 8.3(b) of the Plan), the Trustee shall be entitled engage the
services of counsel, consultants, accountants or service providers,
which may be counsel, consultants, accountants or service providers to
the Parent or the Company, and shall be entitled to rely on conclusions
drawn by such counsel, consultants, accountants or service providers,
unless clearly erroneous under the terms of the Plan and the Plan
Agreements. In directing the Trustee to make distributions, the
Committee shall follow the provisions of the Plan and each Plan
Agreement and shall not direct that any distribution be made, either
during the existence or upon discontinuance of the Plan, which would
cause any part of the Trust Fund to be used for or diverted to purposes
other than as provided in the Plan, each Plan Agreement and this Trust
Agreement. Prior to a Change in Control, the Trustee shall have no duty
to inquire whether directions by the Committee or its delegate conform
to the provisions of the Plan or a Plan Agreement.
(c) The Trustee, at the direction of the Committee or, after a
Change in Control, on its own volition, may make any distribution
required to be made by it hereunder by delivering:
(i) Its check payable to the person to whom such
distribution is to be made, to such person;
(ii) Its check payable to an Insurer for the benefit of such
person, to the Insurer;
(iii) Contracts held on the life of the Participant to whom
or with respect to whom the distribution is being made, to the
Participant or Beneficiary; or
(iv) If a distribution is being made to a person, in whole
or in part, of other assets, assignments or other appropriate
documents or certificates necessary to effect a transfer of
title, to such person.
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(d) The Trustee shall deduct from each payment under this Trust
Agreement any federal, state, or local withholding or other taxes or
charges which the Trustee may be required to deduct under applicable
laws. In this regard, each Employer shall calculate and provide to the
Trustee an itemization of federal, state and/or local taxes required to
be withheld from each distribution to a Participant. The Trustee shall
promptly report to each Employer the amounts deducted from each
distribution, and it shall be the responsibility of each Employer to
prepare and deliver to the appropriate persons, including Participants
and governmental agencies, all tax returns, forms and reports as may be
required by applicable laws in connection with any such withholding.
(e) Prior to a Change in Control, payments by the Trustee shall
be delivered or mailed to addresses supplied by the Committee and the
Trustee's obligation to make such payments shall be satisfied upon such
delivery or mailing. In this regard, prior to a Change in Control, the
Trustee shall have no obligation to determine the identity of persons
entitled to benefits or their mailing addresses.
3.4 Rights of Participants or Beneficiaries Not Diminished. Nothing in
this Trust Agreement shall in any way diminish any rights of the Participants or
Beneficiaries to pursue their rights as general creditors of the Employers with
respect to amounts due under the Plan.
3.5 Costs of Administration. The Trustee is authorized to incur
reasonable obligations in connection with the administration of the Trust,
including attorney's fees, administrative fees and appraisal fees. Such
obligations shall be paid by the Employers. The Trustee is authorized to pay
such amounts first from the Administrative Account and thereafter from the
general Trust Fund (and thereafter seek reimbursement from the Employers) if the
Employers fail to pay them within 60 days of presentation of a statement of the
amounts due.
3.6 Trustee Compensation and Expenses. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed between the
Trustee and the Employers, prior to a Change in Control, and between the Trustee
and a majority (by number and not percentage interest in the Trust Fund) of the
Participants, on or after a Change in Control. The Trustee shall be entitled to
reimbursement for expenses incurred by it in the performance of its duties as
the Trustee, including reasonable fees for legal counsel. The Trustee's
compensation and expenses shall be paid by the Employers. The Trustee is
authorized to withdraw such amounts first from the Administrative Account and
thereafter from the general Trust Fund (and thereafter seek reimbursement from
the Employers) if the Employers fail to pay them within 60 days of presentation
of a statement of the amounts due.
3.7 Professional Advice. The Trustee may consult with legal counsel (who
may also be counsel for the Company and Employers or the Trustee generally) with
respect to any of its duties or obligations hereunder, with respect to the
transactions contemplated by this Trust or any act which the Trustee proposes to
take or omit, and shall be fully protected in acting or refraining from acting
in accordance with the advice of such counsel.
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The Trustee may hire agents, custodians, depositories, auditors,
accountants, actuaries, investment advisors, brokers, financial consultants or
other professionals, even if they are associated or affiliated with the Trustee,
to assist it in performing any of its duties or obligations hereunder.
The Trustee is authorized to pay fees, expenses and compensation related
to these services first from the Administrative Account and thereafter from the
general Trust Fund (and thereafter seek reimbursement from the Employers) if the
Employers fail to pay them within 60 days of presentation of a statement of the
amounts due.
3.8 Payment on Court Order; Defense of Action.
(a) To the extent permitted by law, the Trustee is authorized to
make any payments directed by court order in any action in which the
Trustee has been named as a party.
(b) Prior to a Change in Control, the Trustee shall not be
obligated to defend actions in which the Trustee is named, but shall
notify the Employers or Committee of any such action and may tender
defense of the action to the Employers, Committee, Participant or
Beneficiary whose interest is affected. The Trustee may in its
discretion, prior to a Change in Control, and shall, on or after a
Change in Control, defend any action in which the Trustee is named, and
any expenses incurred by the Trustee shall be paid by the Employers. The
Trustee is authorized to pay such expenses first from the Administrative
Account and thereafter from the general Trust Fund (and thereafter seek
reimbursement from the Employers) if the Employers fail to pay them
within 60 days of presentation of a statement of the amounts due.
3.9 Indemnifications.
(a) The Employers shall indemnify and hold the Trustee harmless
from and against all loss or liability (including expenses and
reasonable attorneys' fees) to which it may be subject by reason of its
execution of its duties under this Trust, or by reason of any acts taken
in good faith in accordance with directions, or acts omitted in good
faith due to absence of directions, from the Board, the Committee, the
Participants (if such directions are given pursuant to this Trust
Agreement) or any other person designated to act on such persons behalf,
unless such loss or liability is due to the Trustee's negligence,
willful misconduct or similar conduct.
(b) In the event that the Trustee is named as a defendant in a
lawsuit or proceeding involving the Plan, a Plan Agreement and/or the
Trust Fund, the Trustee shall be entitled to receive on a current basis
the indemnity payments provided for in this Section, provided, however,
that if the final judgement entered in the lawsuit or proceeding holds
that the Trustee is guilty of negligence, willful misconduct or similar
conduct with respect to the Trust Fund, the Trustee shall be required to
refund the indemnity payments that it has received.
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(c) All releases and indemnities provided in this Trust
Agreement shall survive the termination of this Trust Agreement.
3.10 Cash and Unproductive Investments. The Trustee may retain in cash
or other investments which are unproductive of income so much of the Trust Fund
as it may deem advisable pending investment or disbursement, which may include
retention of Trust assets in non-interest bearing accounts in the banking
department of the Trustee or of any affiliate thereof, notwithstanding the
banking department's or other entity's receipt of "float" from such uninvested
cash.
3.11 Affiliated Entities. In carrying out its obligations under this
Trust Agreement, to the fullest extent permitted by law, the Trustee is
expressly authorized to (i) retain the services of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc. and/or U.S. Bancorp Investments, Inc., each being affiliates of U.S. Bank
National Association, and/or any other registered broker-deal organization
hereafter affiliated with U.S. Bank National Association, and any future
successors in interest thereto (collectively for the purposes of this paragraph
referred to as the "Affiliated Entities"), to provide services to assist in or
facilitate the purchase or sale of investment securities in the Trust, (ii)
acquire as assets of the Trust shares of mutual funds to which Affiliated
Entities provides, for a fee, services in any capacity and (iii) acquire in the
Trust any other services or products of any kind or nature from the Affiliated
Entities regardless of whether the same or similar services or products are
available from other institutions. The Trust may directly or indirectly (through
mutual funds fees and charges for example) pay management fees, transaction fees
and other commissions to the Affiliated Entities for the services or products
provided to the Trust and/or such mutual funds at such Affiliated Entities'
standard or published rates without offset (unless required by law) from any
fees charged by the Trustee for its services as Trustee. The Trustee may also
deal directly with the Affiliated Entities regardless of the capacity in which
it is then acting, to purchase, sell, exchange or transfer assets of the Trust
even though the Affiliated Entities are receiving compensation or otherwise
profiting from such transaction or are acting as a principal in such
transaction. Each of the Affiliated Entities is authorized to (i) effect
transactions on national securities exchanges for the Trust as directed by the
Trustee, and (ii) retain any transactional fees related thereto, consistent with
Section 11(a)(1) of the Securities Exchange Act of 1934, as amended, and related
Rule 11a2-2(T). Included specifically, but not by way of limitation, in the
transactions authorized by this provision are transactions in which any of the
Affiliated Entities are serving as an underwriter or member of an underwriting
syndicate for a security being purchased or are purchasing or selling a security
for its own account. In the event the Trustee is directed by the Company or
Employers or any designated investment manager, as applicable hereunder
(collectively referred to for purposes of this paragraph as the "Directing
Party"), the Directing Party shall be authorized, and expressly retains the
right hereunder, to direct the Trustee to retain the services of, and conduct
transactions with, Affiliated Entities fully in the manner described above.
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ARTICLE 4
Insurance Contracts
4.1 Types of Contracts. To the extent that the Trustee is directed by
the Committee prior to a Change in Control to invest part or all of the Trust
Fund in insurance contracts, the Insurer, the type of contract and amount
thereof shall be specified by the Committee. The Trustee shall be under no duty
to make inquiry as to the propriety of the Insurer, type or amount so specified.
4.2 Ownership. Each insurance contract issued shall provide that the
Trustee shall be the owner thereof with the power to exercise all rights,
privileges, options and elections granted by or permitted under such contract or
under the rules of the Insurer, but it may exercise its ownership rights in such
contract only to the extent that such exercise is in accordance with the Plan
and the respective Plan Agreements.
ARTICLE 5
Trustee's Accounts
5.1 Records. The Trustee shall maintain accurate records and detailed
accounts of all investments, receipts, disbursements and other transactions
hereunder. Such records shall be available at all reasonable times for
inspection by the Parent or the Company or its authorized representative. The
Trustee, at the direction of the Committee, and if it so agrees, shall submit to
the Committee and to any Insurer such valuations, reports or other information
as the Committee may reasonably require.
5.2 Annual Accounting; Final Accounting.
(a) Within 60 days following the end of each Plan Year and
within 60 days after the removal or resignation of the Trustee or the
termination of the Trust, the Trustee shall file with the Committee (and
on or after a Change in Control, with a copy being sent to all
Participants) a written account setting forth a description of all
properties purchased and sold, all receipts, disbursements and other
transactions effected by it during the Plan Year or, in the case of
removal, resignation or termination, since the close of the previous
Plan Year, and listing the properties held in the Trust Fund as of the
last day of the Plan Year or other period and indicating their values.
Such values shall be either cost or market as directed by the Committee
in accordance with the Plan.
(b) The Committee may approve such account either by written
notice of approval delivered to the Trustee or by its failure to express
written objection to such account delivered to the Trustee within 90
days after the date of which such account was delivered to
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the Committee. On or after a Change in Control, the majority of
Participants (by number and not percentage interest in the Trust Fund)
may approve such account either by written notice of approval delivered
to the Trustee or by the failure to express written objection to such
account delivered to the Trustee within 90 days after the date of which
such account was delivered to the Participants.
(c) Prior to a Change in Control, the approval by the Committee
of an accounting, as provided in (b) above, shall be binding as to all
matters embraced in such accounting on all parties to this Trust
Agreement and on all Participants and Beneficiaries, to the same extent
as if such accounting had been settled by a judgment or decree of a
court of competent jurisdiction in which the Trustee, the Committee, the
Employers and all persons having or claiming any interest in the Plan, a
Plan Agreement or the Trust Fund were made parties. On or after a Change
in Control, the approval by the Participants of an accounting, as
provided in (b) above, shall be binding as to all matters embraced in
such accounting on all parties to this Trust Agreement and on all
Participants and Beneficiaries, to the same extent as if such accounting
had been settled by a judgment or decree of a court of competent
jurisdiction in which the Trustee, the Committee, the Employers and all
persons having or claiming any interest in the Plan, a Plan Agreement or
the Trust Fund were made parties.
(d) Despite the foregoing, nothing contained in this Trust
Agreement shall deprive the Trustee of the right to have an accounting
judicially settled, if the Trustee, in the Trustee's sole discretion,
desires such a settlement.
5.3 Valuation. The assets of the Trust Fund shall be valued at their
respective fair market values on the date of valuation, as determined by the
Trustee based upon such sources of information as it may deem reliable,
including, but not limited to, stock market quotations, statistical evaluation
services, newspapers of general circulation, financial publications, advice from
investment counselors, brokerage firms or insurance companies, or any
combination of sources. Prior to a Change in Control, the Committee shall
instruct the Trustee as to the value of assets for which market values are not
readily obtainable by the Trustee. If the Committee fails to provide such
values, the Trustee may take whatever action it deems reasonable, including
employment of attorneys, appraisers, life insurance companies or other
professionals, the expense of which shall be an expense of administration of the
Trust Fund and payable by the Employers. Prior to a Change in Control, the
Trustee may rely upon information from the Employers, the Committee, appraisers
or other sources and shall not incur any liability for an inaccurate valuation
based in good faith upon such information.
5.4 Delegation of Duties. The Employers or the Committee, or both, may
at any time employ the Trustee, with the Trustee's consent, as their agent to
perform any act, keep any records or accounts and make any computations that are
required of the Employers or the Committee by this Trust Agreement, the Plan or
any Plan Agreement. The Trustee may be compensated for such employment and such
employment shall not be deemed to be contrary to
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the Trust. Nothing done by the Trustee as such agent shall change or increase
its responsibility or liability as Trustee hereunder.
ARTICLE 6
Resignation or Removal of Trustee
6.1 Procedure.
(a) Resignation; Removal. The Trustee may resign as Trustee at
any time by delivery of written notice of resignation to the Committee
(and, on or after a Change in Control, with a copy sent to each
Participant). Prior to a Change in Control, the Trustee may be removed
by the Committee by delivery of written notice of removal to the
Trustee; on or after a Change in Control, the Trustee may be removed by
a majority (by number and not percentage interest in the Trust Fund) of
the Participants.
(b) Effective Time. Any resignation or removal shall take effect
on the date specified in the notice, which date, except as provided in
the next sentence, shall not be less than 60 days after the delivery
thereof unless an earlier date shall be mutually agreed upon. If the
Trustee is removed for negligence or willful misconduct, the notice
shall so state, and such removal shall take effect on the date specified
in the notice.
6.2 Successor Trustee. Upon any resignation or removal of the Trustee,
the Committee shall promptly appoint a successor Trustee. The successor shall be
a bank, trust company, or independent individual unrelated to the Employers and
qualified under applicable law to serve in such capacity. After the occurrence
of a Change in Control, a successor Trustee may not be appointed without the
consent of a majority of the Participants. Should no successor Trustee be named
by the Committee within 60 days after delivery of notice of resignation or
removal, the Trustee may, at the expense of the Employers, apply to a court of
competent jurisdiction for the appointment of a successor Trustee. Such expenses
shall be paid by the Employers; the Trustee is authorized to pay such expenses
first from the Administrative Account and thereafter from the general Trust Fund
(and thereafter seek reimbursement from the Employers) if the Employers fail to
pay them within 60 days of presentation of a statement of the amounts due.
6.3 Settlement of Accounts. Upon the effective date of such resignation
or removal of the Trustee, the former Trustee shall transfer all of the Trust
Fund to the successor Trustee, whereupon such successor shall succeed to all of
the powers and duties given to the Trustee in this Trust Agreement. The
resigning or removed Trustee shall render an account in the form and manner and
at the time prescribed in Section 5.2. The approval of such accounting and
discharge of the Trustee shall be as provided in such Section.
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ARTICLE 7
Revocation, Creditor Claims,
Amendment and Termination
7.1 Irrevocability; Creditor Claims. The Trust is irrevocable, and the
Trust Fund shall not be subject to the claims of the any creditor of the
Employers. Except as provided in the Plan and this Trust Agreement, no part of
the corpus or income of the Trust Fund shall be recoverable by the Employers or
used for any purpose other than for the exclusive purpose of providing benefit
payments to Participants, their Beneficiaries, the Employers and defraying
reasonable expenses of administering the Trust in accordance with the provisions
of this Trust Agreement.
7.2 Amendment. This Trust Agreement may not be amended, altered, changed
or modified in any respect, except as follows:
(a) General Rule. Subject to Sections 7.2(b), (c) and (d) below,
this Trust Agreement may be amended:
(i) By the Parent or the Company and the Trustee, provided,
however, that if an amendment would in any way adversely affect
the rights created by the Plan, any Plan Agreement or this Trust
Agreement of any Participant or Beneficiary in the Trust Fund,
each and every Participant and Beneficiary whose rights in the
Trust Fund would be adversely affected must consent to the
amendment before this Trust Agreement may be so amended; and
(ii) By the Parent or the Company and the Trustee, as may be
necessary to comply with laws which would otherwise render the
Trust void, voidable or invalid in whole or in part.
(b) Limitation. Notwithstanding that an amendment may be
permissible under Section 7.2(a) above, this Trust Agreement shall not
be amended by an amendment that would:
(i) Cause any of the assets of the Trust to be used for or
diverted to purposes other than for the exclusive benefit of
Participants, Beneficiaries and the Employers as set forth in
the Plan and the respective Plan Agreements; and
(ii) Be inconsistent with the provisions of the Plan and the
related Plan Agreements, including the provisions of the Plan
regarding termination, amendment or modification of the Plan and
any Plan Agreement.
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(c) Writing and Consent. Any amendment to the Trust Agreement
shall be set forth in writing and signed by the Parent or the Company
and the Trustee, and, if consent of any Participant or Beneficiary is
required under Section 7.2(a), the Participant or Beneficiary whose
consent is required. Any amendment may be current, retroactive or
prospective, in each case as provided therein.
(d) Change in Control. In connection with the exercise of the
rights under this Section 7.2, after a Change in Control, the power of
the Parent or the Company to amend this Trust Agreement shall cease, and
the power to amend that was previously held by the Parent and/or the
Company shall, instead, be exercised by a majority of the Participants
(by number and not by percentage interests in the Trust Fund) and the
Trustee, provided that such amendment otherwise complies with the
requirements of Sections 7.2(a), (b) and (c) above (substituting "a
majority of Participants (by number and not by percentage interests in
the Trust Fund)," for "Parent" or "Company" therein).
(e) Consistency Requirement. If the Parent or the Company elects
to amend, modify or terminate the Trust under this Section 7.2, the
Parent or the Company may do so only to the extent that such amendment,
modification or termination is not inconsistent with the provisions of
the Plan and the related Plan Agreements, including the provisions
regarding the amendment, modification or termination of the Plan or any
Plan Agreement.
7.3 Final Termination. The Trust shall cease and terminate upon the last
of the following to occur:
(a) The Trust Fund is exhausted and it is not anticipated that
additional funds will be forthcoming from the Employers; or
(b) The claims of each and every Participant, Beneficiary and
Employer under the Plan have been compromised, settled or paid.
If on termination of the Trust and the Plan (and only on such
termination), there should be any balance in the Trust Fund after satisfaction
of all liabilities with respect to Participants, Beneficiaries and Employers,
such balance shall be paid by the Trustee to the Employers, in such amounts and
in the manner instructed by the Parent or the Company, whereupon the Trustee
shall be released and discharged from all obligations hereunder. From and after
the date of termination and until final distribution of the Trust Fund, the
Trustee shall continue to have all of the powers provided herein as are
necessary or expedient for the orderly liquidation and distribution of the Trust
Fund.
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ARTICLE 8
Controversies, Legal Actions and Counsel
8.1 Controversy. If any controversy arises with respect to the Trust,
the Trustee shall take action as directed by the Committee or, in the absence of
such direction or on or after a Change in Control, as it deems advisable,
whether by legal proceedings, compromise or otherwise. The Trustee may retain
the funds or property involved without liability pending settlement of the
controversy. The Trustee shall be under no obligation to take any legal action
of whatever nature unless there shall be sufficient property in the Trust to
indemnify the Trustee with respect to any expenses or losses to which it may be
subjected.
8.2 Joinder of Parties. In any action or other judicial proceedings
affecting the Trust, it shall be necessary to join as parties the Trustee, the
Committee, and the Employers. Prior to a Change in Control, no Participant or
other person shall be entitled to any notice or service of process; on or after
a Change in Control, each Participant shall be entitled to notice and service of
process. Any judgment entered in such a proceeding or action shall be binding on
all persons claiming under the Trust. Nothing in this Trust Agreement shall be
construed as to deprive a Participant of his right to seek adjudication of his
rights by administrative process or by a court of competent jurisdiction.
8.3 Employment of Counsel. The Trustee may consult with legal counsel
(who may be counsel for any Employer) and shall be fully protected with respect
to any action taken or omitted by it in good faith pursuant to the advice of
counsel.
ARTICLE 9
Insurers
9.1 Insurer Not a Party. No Insurer shall be deemed to be a party to the
Trust and an Insurer's obligations shall be measured and determined solely by
the terms of contracts and other agreements executed by it.
9.2 Authority of Trustee. An Insurer shall accept the signature of the
Trustee to any documents or papers executed in connection with such contracts.
The signature of the Trustee shall be conclusive proof to the Insurer that the
person on whose life an application is being made is eligible to have a contract
issued on his life and is eligible for a contract of the type and amount
requested.
9.3 Contract Ownership. An Insurer shall deal with the Trustee as the
sole and absolute owner of any insurance contracts and shall have no obligation
to inquire whether any
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action or failure to act on the part of the Trustee is in accordance with or
authorized by the terms of this Trust Agreement.
9.4 Limitation of Liability. An Insurer shall be fully discharged from
any and all liability for any action taken or any amount paid in accordance with
the direction of the Trustee and shall have no obligation to see to the proper
application of the amounts so paid. An Insurer shall have no liability for the
operation of the Trust, the Plan or any Plan Agreement, whether or not in
accordance with their terms and provisions.
9.5 Change of Trustee. An Insurer shall be fully discharged from any and
all liability for dealing with a party or parties indicated on its records to be
the Trustee until such time as it shall receive at its home office written
notice of the appointment and qualification of a successor Trustee.
ARTICLE 10
Miscellaneous
10.1 Directions Following Change in Control. Despite any other provision
of this Trust Agreement that may be construed to the contrary, except Section
7.3, following a Change in Control, all powers of the Committee, the Parent and
the Company to direct the Trustee under this Trust Agreement shall terminate,
and the Trustee shall act on its own volition to carry out the terms of this
Trust Agreement in accordance with the Plan and the related Plan Agreements.
10.2 Taxes. The Employers shall contribute from time to time, as
necessary, funds sufficient to pay taxes of any and all kinds whatsoever that at
any time are lawfully levied or assessed upon or become payable in respect of
the Trust Fund, the income or any property forming a part thereof, or any
security transaction pertaining thereto. This obligation to contribute shall not
extend to individual taxes levied or assessed against the individual Participant
with respect to the Trust Fund. To the extent that contributions are not made
within 30 days of the Trustee's request for such contributions, the Trustee
shall have the power to pay such taxes out of the Trust Fund and shall seek
reimbursement from the Employers. Prior to making any payment, the Trustee may
require such releases or other documents from any lawful taxing authority as it
shall deem necessary. The Trustee shall contest the validity of taxes in any
manner deemed appropriate by the Employers, but at the Employers' expense, and
only if it has received an indemnity bond or other security satisfactory to it
to pay any such expenses. The Trustee shall not be liable for any nonpayment of
tax when it distributes an interest hereunder on directions from the Committee.
The Employers and the Company shall cooperate with each other as necessary to
minimize the Trust's tax liability.
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10.3 Third Persons. All persons dealing with the Trustee are released
from inquiring into the decisions or authority of the Trustee and from seeing to
the application of any moneys, securities or other property paid or delivered to
the Trustee.
10.4 Nonassignability; Nonalienation. None of the benefits, payments,
claims or interests hereunder of any Participant or Beneficiary shall be subject
to any claim of such Participant's or Beneficiary's creditors and, in
particular, the same shall not be subject to attachment or garnishment or other
legal process by any such creditors, nor shall any Participant or Beneficiary
have any right to alienate, anticipate, commute, pledge, encumber or assign any
of the benefits, payments, claims or interest which he may expect to receive,
contingently or otherwise, under the Trust, except that the foregoing shall not
apply to any family support obligations set forth in a court order.
10.5 The Plan. The Trust, the Plan and all related Plan Agreements are
parts of a single, integrated employee benefit plan system and shall be
construed together. In the event of any conflict between the terms of this Trust
Agreement, the agreement that constitutes the Plan and any Plan Agreement, such
conflict shall be resolved in favor of this Trust Agreement. In addition, if on
or after a Change in Control, the Plan or Plan Agreement, or any provision of
the Plan or Plan Agreement, is determined by any court to be, rejected, invalid
or unenforceable, then for purpose of this Trust Agreement, the Trustee shall
still interpret and apply the Plan and Plan Agreement according to its written
terms and not according to the court's determination.
10.6 Applicable Law. This Trust Agreement shall be construed,
administered and governed under the laws of the State of California, without
regard to conflicts of law principles. If any provision of this Trust Agreement
shall be invalid or unenforceable, the remaining provisions hereof shall
continue to be fully effective.
10.7 Notices and Directions. Whenever a notice or direction is given by
the Committee to the Trustee, it shall be in the form required by Section 2.1.
Actions by the Parent or the Company shall be by the Board or a duly authorized
officer(s), with such actions certified to the Trustee by an appropriately
certified copy of the action taken. The Trustee shall be protected in acting
upon any such notice, resolution, order, certificate or other communication
believed by it to be genuine and to have been signed by the proper party or
parties.
10.8 Successors and Assigns. This Trust Agreement shall be binding upon
and inure to the benefit of the Employers and the Trustee and their respective
successors and assigns.
10.9 Gender and Number. Words used in the masculine shall apply to the
feminine where applicable, and when the context requires, the plural shall be
read as the singular and the singular as the plural.
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10.10 Headings. Headings in this Trust Agreement are inserted for
convenience of reference only and any conflict between such headings and the
text shall be resolved in favor of the text.
10.11 Counterparts. This Trust Agreement may be executed in an original
and any number of counterparts, each of which shall be deemed to be an original
of one and the same instrument.
IN WITNESS WHEREOF, the Parent and the Trustee have signed this Trust
Agreement as of the date first above written.
TRUSTEE: PARENT:
U.S. BANK NATIONAL ASSOCIATION HERBALIFE INTERNATIONAL, INC.,
a Delaware corporation a Nevada corporation
By: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Title: EVP-CFO
By: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Title: SVP
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