EXHIBIT 10.13
ENSERCH EXPLORATION, INC.
DEFERRED COMPENSATION TRUST
This Trust Agreement made this 13th day of August, 1997, by
and between Enserch Exploration, Inc., a Texas corporation (the
"Company") and Texas Commerce Bank National Association, a
national banking association ( the "Trustee");
WHEREAS, the Company and certain Affiliated Companies
enumerated on the attached Appendix A (collectively referred to
as the "Employers") have adopted or may adopt nonqualified
deferred compensation plans known as the Enserch Exploration,
Inc. Deferred Compensation Plan (the "Executive Plan") and the
Enserch Exploration, Inc. Deferred Compensation Plan for
Directors (the "Directors' Plan") (each sometimes referred to
herein as a "Plan" and collectively referred to herein as the
"Plans"); and
WHEREAS, the Employers have incurred or expect to incur
liability under the terms of such Plans with respect to the
individuals participating in such Plans; and
WHEREAS, the Employers wish to establish a trust
(hereinafter called the "Trust"), pursuant to which each Employer
will contribute assets that shall be allocated to a Separate
Account, as herein defined, for such Employer's Plan Participants
and beneficiaries, subject to the claims of such Employer's
creditors in the event of the Employer's Insolvency, as herein
defined, until paid to Plan Participants and their beneficiaries
in such manner and at such times as specified in the Plans; 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 Directors' Plan as an unfunded plan or the
Executive 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; and
WHEREAS, it is the intention of the Employers to make
contributions to the Trust to provide a source of funds to assist
them in the meeting of their liabilities under the Plans;
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.
(a) The Employers hereby deposit with the Trustee in trust
$1,000.00, which shall become the principal of the Trust to be
held, administered and disposed of by the Trustee as provided in
this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which
each Employer is the grantor with respect to its Separate
Account, within the meaning of subpart E, part 1, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon
shall be held separate and apart from other funds of the
Employers 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 Plans and this Trust
Agreement shall be mere unsecured contractual rights of Plan
Participants and their beneficiaries against the Employers. Any
amounts allocated to an Employer's Separate Account under the
Trust will be subject to the claims of such Employer's general
creditors under federal and state law in the event of Insolvency,
as defined in Section 4(a) herein.
(e) The Employers, in their sole discretion, may at any
time, or from time to time, make additional deposits of cash or
other property in trust with the Trustee to augment the principal
to be held, administered and disposed of by the Trustee as
provided in this Trust Agreement; provided, however, that each
Employer shall contribute to the Trust each calendar year an
amount of cash or property at least equal in value to the total
amount, of deferrals and contributions credited to the Deferral
Accounts and Employer Accounts of Participants employed by such
Employer pursuant to the Executive Plan and the Accounts of
Participants pursuant to the Directors' Plan during such calendar
year.
(f) Any provision of this Trust Agreement to the contrary
notwithstanding, upon a Change of Control, as defined in the
Plans, each Employer shall (i) as soon as possible, but in no
event more than 30 days following the date of such Change of
Control, make an irrevocable contribution to the Trust in an
amount, as determined by an Independent Committee, as defined
below, which when added to the total value of the assets
allocated to the Employer's Separate Account under the Trust at
such time equals the total amount credited to all Deferral
Accounts and Employer Accounts under the Executive Plan and all
Accounts under the Directors' Plan with respect to such
Employer's respective Plan Participants as of the date on which
the Change of Control occurred, and (ii) on and after the date of
the Change of Control, make monthly contributions to the Trust in
amounts sufficient, as determined by the Independent Committee,
to maintain the total value of the assets allocated to the
Employer's Separate Account at an amount equal to the total
amount credited to Deferral Accounts and Employer Accounts under
the Executive Plan and all Accounts under the Directors' Plan
with respect to such Employer's respective Plan Participants.
Any provision of this Trust Agreement to the contrary
notwithstanding, on and after the date of a Change of Control,
the assets allocated to each Employer's Separate Account under
this Trust, including any additional contributions made by such
Employer in accordance with this Section l(f) for the period
following such Change of Control and any earnings on such
Separate Account's proportionate share of the Trust's assets,
shall be held exclusively for the benefit of those Participants
in the Plans (or their beneficiaries) employed by such Employer
as of the date immediately prior to the date of such Change of
Control, subject to the claims of general creditors of such
Employer under federal and state law as set forth below.
Section 2. Payments to Plan Participants and their
Beneficiaries.
(a) The Administrative Committee of each Plan shall deliver
to the Trustee a schedule (the "Payment Schedule") that indicates
the amounts payable with respect to each Plan Participant (and
his or her beneficiaries) and the Separate Account of the
Employer from which such amounts are payable, that provides a
formula or other instructions acceptable to the Trustee for
determining the amounts so payable, the form in which such amount
is to be paid (as provided for or available under the Plans), and
the time of commencement for payment of such amounts. An updated
Payment Schedule shall be provided by each Administrative
Committee to the Trustee periodically, but no less frequently
than once each calendar year. Except as otherwise provided
herein, the Trustee shall make payments to the Plan Participants
and their beneficiaries in accordance with such Payment Schedule.
The Trustee shall make provision for the reporting and
withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall pay amounts withheld
to the appropriate taxing authorities or determine that such
amounts have been reported, withheld and paid by an Employer
under the Executive Plan or by Company under the Directors' Plan.
(b) The entitlement of a Plan Participant or his or her
beneficiaries to benefits under a Plan shall be determined by
each Administrative Committee or such other party as may be
designated under the Plan, and any claim for such benefits shall
be considered and reviewed under the procedures set out in the
Plan.
(c) The Employers participating in the Executive Plan or
the Company with respect to the Directors' Plan may make payments
of benefits directly to Plan Participants or their beneficiaries
as they become due under the terms of each Plan in lieu of
payment from the Trust. The applicable Administrative Committee
shall notify the Trustee of an Employer's or the Company's
decision to make payments of benefits directly prior to the time
amounts are payable to Participants or their beneficiaries. In
addition, if the assets allocated to an Employer's Separate
Account under the Trust are not sufficient to make payments of
benefits to its respective Plan Participants and beneficiaries in
accordance with the terms of the Plans, such Employer shall make
the balance of each such payment as it falls due, and the
Separate Accounts of other Employers hereunder shall not be
liable for the payment of such benefits. The Trustee shall
notify the Company immediately when the assets allocated to an
Employer's Separate Account under the Trust are not sufficient to
satisfy all payments due.
(d) Any provision of this Section 2 to the contrary
notwithstanding, upon and after a Change of Control, the Trustee
shall make payments to Plan Participants or their beneficiaries
in accordance with the direction of the Independent Committee
rather than an Administrative Committee, regardless of whether
the Trustee has received a Payment Schedule or any other form of
direction from an Administrative Committee to make such payments.
Section 3. Appointment of Independent Committee.
(a) Any provision of this Trust Agreement to the contrary
notwithstanding, upon a Change of Control, an Independent
Committee consisting of at least three members shall be appointed
by the Compensation Committee subject to the written approval of
a majority of the Participants in the Plans on the date of such
Change of Control. The Independent Committee shall:
(i) determine the amount of the irrevocable
contributions to be made by each Employer pursuant to
Section l(f) hereof;
(ii) determine in accordance with the Plans the amounts
payable with respect to each Plan Participant (and his or
her beneficiaries), the form in which such amounts are to be
paid, and the time of commencement for payment of such
amounts pursuant to Section 2(a) hereof;
(iii) determine the entitlement of Plan
Participants and beneficiaries to benefits under the terms
of. the Plans pursuant to Section 2(b) hereof;
(iv) direct the Trustee to make payments to Plan
Participants and their beneficiaries pursuant to Section 2
hereof; and
(v) select a successor Trustee for the Trust if a
Trustee resigns or is removed on or after the date of a
Change of Control pursuant to Section 12.
(b) Each member of the Independent Committee so appointed
shall serve in such office until his or her death, resignation or
removal. The Compensation Committee may remove any member of the
Independent Committee effective upon the written approval of a
majority of the Plan Participants. Vacancies on the Independent
Committee shall be filled from time to time by the Compensation
Committee effective upon the written approval of a majority of
the Participants in the Plans on the date such vacancy is filled.
(c) The Independent Committee shall act by a majority of
its members at the time in office and such action may be taken
either by a vote at a meeting or in writing without a meeting.
The Independent Committee may by such majority action authorize
any one or more of its members to execute any document or
documents on behalf of the Independent Committee, in which event
the Independent Committee shall notify the Trustee in writing of
such action and the name or names of its member or members so
authorized to act. Every interpretation, choice, determination
or other exercise by the Independent Committee of any power or
discretion given either expressly or by implication to it shall
be conclusive and binding upon all parties having or claiming to
have an interest under the Trust or otherwise directly or
indirectly affected by such action, without restriction, however,
on the right of the Independent Committee to reconsider and
redetermine such action.
(d) Any provision of this Trust Agreement to the contrary
notwithstanding, in the event that (i) the Compensation Committee
shall not appoint an Independent Committee within 30 days
following a Change of Control or a majority of the Participants
in the Plans do not approve in writing at least three members
selected by the Compensation Committee to serve on an Independent
Committee within such 30-day period or (ii) the Compensation
Committee does not fill a vacancy on the Independent Committee
within 30 days of the date such office becomes vacant or a
majority of the Participants in the Plans do not approve in
writing the Compensation Committee's selection to fill a vacancy
on the Independent Committee within such 30-day period, then the
Participants in the Plans shall elect, by majority vote, up to
three individuals to the extent necessary to ensure that the
Independent Committee consists of three members.
Section 4. Trustee Responsibility Regarding Payments to
Trust Beneficiary when an Employer Is Insolvent.
(a) The Trustee shall cease payment of benefits to Plan
Participants and their beneficiaries if the Participants'
Employer is Insolvent. An Employer shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) the
Employer is unable to pay its debts as they become due, or (ii)
the Employer is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as
provided in Section l(d) hereof, the principal and income of each
Employer's Separate Account under the Trust shall be subject to
claims of general creditors of the Employer under federal and
state law as set forth below.
(i) The Compensation Committee and the Chief Executive
Officer of an Employer shall have the duty to inform the
Trustee in writing of the Employer's Insolvency. If a
person claiming to be a creditor of an Employer alleges in
writing to the Trustee that the Employer has become
Insolvent, the Trustee shall determine whether the Employer
is Insolvent and, pending such determination, the Trustee
shall discontinue payment of benefits to the Employer's
respective Plan Participants or their beneficiaries.
(ii) Unless the Trustee has actual knowledge of an
Employer's Insolvency, or has received notice from the
Employer or a person claiming to be a creditor alleging that
the Employer is Insolvent, the Trustee shall have no duty to
inquire whether the Employer is Insolvent. The Trustee may
in all events rely on such evidence concerning the
Employer's solvency as may be furnished to the Trustee and
that provides the Trustee with a reasonable basis for making
a determination concerning the Employer's solvency.
(iii) If at any time the Trustee has determined
that an Employer is Insolvent, the Trustee shall discontinue
payments to the Employer's respective Plan Participants or
their beneficiaries and shall hold the assets allocated to
the Employer's Separate Account under the Trust for the
benefit of the Employer's general creditors. Nothing in
this Trust Agreement shall in any way diminish any rights of
Plan Participants or their beneficiaries to pursue their
rights as general creditors of an Employer with respect to
benefits due under the Plans or otherwise.
(iv) The Trustee shall resume the payment of benefits
to an Employer's respective Plan Participants or their
beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee has determined that the
Employer is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets allocated to
an Employer's Separate Account under the Trust, if the Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 4(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to Plan Participants or
their beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments
made to Plan Participants or their beneficiaries by the Employers
participating in the Executive Plan or by the Company with
respect to the Directors' Plan in lieu of the payments provided
for hereunder during any such period of discontinuance.
Section 5. Payments to the Employers.
(a) Except as provided in Sections 4 and 5(b) hereof, the
Employers shall have no right or power to direct the Trustee to
return to the Employers or to divert to others any of the Trust
assets before payment of all benefits have been made to Plan
Participants and their beneficiaries pursuant to the terms of the
Plans.
(b) To the extent that an Administrative Committee
determines that the value of the assets allocated to an
Employer's Separate Account under the Trust based upon
information provided to the Administrative Committee by the
Trustee, at any time, exceeds 110% of the amounts credited to
Participants' Deferral Accounts or Employer Accounts under the
Executive Plan and Accounts under the Directors' Plan as of the
most recent Adjustment Date plus any deferrals or contributions
made since that date, the Trustee shall pay such excess to such
Employer upon receipt of written request therefor from the
Company; provided, however, that no such payment of excess assets
to an Employer shall be made on or after the date of a Change of
Control without the written approval of the Participants in the
Plans.
Section 6. Investment Authority.
(a) The Trustee shall establish and maintain a separate
account within the Trust for each Employer (the "Separate
Account"). All amounts deposited with the Trustee by an Employer
shall be allocated to such Employer's Separate Account. The
Separate Accounts shall be maintained for recordkeeping purposes
only, and the assets of the Trust may remain invested as a single
fund. At the end of each calendar year and at such other times
as the Company may determine, the Trustee shall determine the
fair market value of the assets of the Trust. On the basis of
such valuation, the Trustee shall adjust the Separate Account of
each Employer to reflect its proportionate share of the earnings,
losses and expenses of the Trust for the valuation period then
ended.
(b) The Trustee shall have full power and authority to
invest and reinvest the Trust assets, or any part thereof, in
such stocks (common or preferred), bonds, mortgages, notes,
interest-bearing deposits (including such deposits with any
corporate trustee acting hereunder), options and contracts for
the future or immediate receipt or delivery of property of any
kind, or other securities, producing or nonproducing oil and gas
royalties and payments and other producing and nonproducing
interests in minerals, or in commodities, life insurance
policies, annuity contracts or other property of any kind or
nature whatsoever, whether real, personal or mixed, as the
Trustee, in the Trustee's absolute discretion and judgment, deems
appropriate for the Trust, and to hold cash uninvested at any
time and from time to time in such amounts and to such extent as
the Trustee, in the Trustee's absolute discretion and judgment,
deems appropriate for the Trust. The Trustee shall have full
power and authority to manage, handle, invest, reinvest, sell for
cash or credit, or for part cash or part credit, exchange, hold,
dispose of, lease for any period of time (whether or not longer
than the life of the Trust), improve, repair, maintain, work,
develop, use, operate, mortgage, or pledge, all or any part of
the assets and property from time to time constituting any part
of the trust funds held in trust under the Trust; borrow or loan
money or securities; write options and sell securities or other
property short or for future delivery; engage in hedging
procedures; buy and sell futures contracts; execute obligations,
negotiable and nonnegotiable; vote shares of stock in person and
by proxy, with or without power of substitution; register
investments in the name of a nominee; sell, convey, lease and/or
otherwise deal with any producing or nonproducing oil, gas and
mineral leases or mineral rights, payments and royalties; pay all
reasonable expenses; execute and deliver any deeds, conveyances,
leases, contracts, or written instruments of any character
appropriate to any of the powers or duties of the Trustee, and
shall, in general, have as broad power respecting the management,
operation and handling of the Trust assets and property as if the
Trustee were the owner of such assets and property in the
Trustee's own right. The preceding provisions of this paragraph
to the contrary notwithstanding, the Company shall have the right
and power at any time and from time to time to give the Trustee
broad guidelines within which it shall invest the assets of the
Trust; provided, however, that on and after the date of a Change
of Control, the Independent Committee, rather than the Company,
shall have the sole authority to exercise such right.
(c) All rights associated with assets of the Trust shall be
exercised by the Trustee or the person designated by the Trustee,
and shall in no event be exercisable by or rest with Plan
Participants.
(d) Each Employer shall have the right, at any time, and
from time to time in its sole discretion, to substitute assets of
equal fair market value for any asset held by the Trust;
provided, however, that on and after the date of a Change of
Control, any assets transferred to the Trust in substitution for
assets held by the Trust must consist of cash or marketable
securities acceptable to the Independent Committee and the fair
market value of the respective assets shall be determined by the
Trustee. This right is exercisable by the Employer in a
nonfiduciary capacity without the approval or consent of any
person in a fiduciary capacity.
Section 7. Disposition of Income. During the term of
this Trust, all income received by the Trust, net of any
applicable expenses and taxes, shall be accumulated and
reinvested.
Section 8. Accounting by Trustee. The Trustee shall
keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in
writing between the Company and the Trustee. Within 30 days
following the close of each calendar year and within 30 days
after the removal or resignation of the Trustee, the Trustee
shall deliver to the Company a written account of its
administration of the Trust and to each Employer a written
account of its administration of the Employer's Separate Account
during such year or during the period from the close of the last
preceding year to the date of such removal or resignation,
setting forth all investments, receipts, disbursements and other
transactions effected by it, including a description of all
securities and investments purchased and sold with the cost or
net proceeds of such purchases or sales (accrued interest paid or
receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of
such year or as of the date of such removal or resignation, as
the case may be.
Section 9. Responsibility of the Trustee.
(a) The Trustee shall act with the care, skill, prudence
and diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims; provided, however, that the Trustee
shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by an Employer
which is contemplated by, and in conformity with, the terms of
the Plans or this Trust and is given in writing by the Employer.
In the event of a dispute between an Employer and a party, the
Trustee may apply to a court of competent jurisdiction to resolve
the dispute.
(b) If the Trustee undertakes or defends any litigation
arising in connection with this Trust, the Employers agree to
indemnify the Trustee against the Trustee's costs, expenses and
liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such
payments. If the Employers do not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain
payment from the Trust; provided, however, that in the event any
such costs, expenses and liabilities are paid from the Trust, the
Trustee shall notify the Employers in writing that such payment
has been made and the Employers shall reimburse the Trust for
such payment within 15 days from the date of such notice.
(c) The Trustee may consult with legal counsel (who may
also be counsel for the Employers generally) with respect to any
of its duties or obligations hereunder.
(d) The 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.
(e) The Trustee shall have, without exclusion, all powers
conferred on trustees by applicable law, unless expressly
provided otherwise herein; provided, however, that except as
provided in Sections 5(b) and 6(d) hereof, if an insurance policy
is held as an asset of the Trust, the Trustee shall have no power
to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to
any person the proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to the Trustee
pursuant to this Trust Agreement or applicable law, the 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. Compensation and Expenses of the Trustee.
The Trustee shall be paid such reasonable compensation
commensurate with the services and responsibilities involved
hereunder as shall from time to time be agreed upon by the
Trustee and the Company. The Employers shall pay all
administrative and the Trustee's fees and expenses, but, if not
so paid, such fees and expenses shall be paid from the Trust;
provided, however, that in the event any such fees and expenses
are paid from the Trust, the Trustee shall notify the Employers
in writing that such payment has been made and the Employers
shall reimburse the Trust for such payment within 15 days from
the date of such notice.
Section 11. Resignation and Removal of the Trustee.
(a) The Trustee may resign at any time by written notice to
the Company, which shall be effective 30 days after receipt of
such notice unless the Company and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company on 30 days
notice or upon shorter notice accepted by the Trustee; provided,
however, that the Trustee may not be removed by the Company on or
after the date of a Change of Control except with the written
consent of a majority of the Plan Participants.
(c) Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently
be transferred to the successor Trustee. The transfer shall be
completed within 30 days after receipt of notice of resignation,
removal or transfer, unless the Company extends the time limit.
(d) If the Trustee resigns or is removed, a successor shall
be appointed, in accordance with Section 12 hereof, by the
effective date of resignation or removal under paragraph(s) (a)
or (b) of this section. If no such appointment has been made,
the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of
the Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
Section 12. Appointment of Successor.
(a) If the Trustee resigns or is removed in accordance with
Section 11(a) or (b) hereof, the Company may appoint any third
party, such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor
to replace the Trustee upon resignation or removal; provided,
however, that if the Trustee resigns or is removed on or after
the date of a Change of Control, the Independent Committee shall
select a successor Trustee in accordance with this Section 12.
The appointment shall be effective when accepted in writing by
the new Trustee, who shall have all of the rights and powers of
the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument
necessary or reasonably requested by the Company or the successor
Trustee to evidence the transfer.
(b) 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 8 and 9 hereof. The successor
Trustee shall not be responsible for and the Employers 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.
Section 13. Amendment or Termination.
(a) This Trust Agreement may be amended by a written
instrument executed by the Trustee and the Company.
Notwithstanding the foregoing, no such amendment shall conflict
with the terms of the Plans or shall make the Trust revocable.
(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 Plans. Upon termination
of the Trust any assets that remain allocated to an Employer's
Separate Account under the Trust shall be returned to such
Employer.
(c) Upon written approval of at least two-thirds of the
Participants and beneficiaries entitled to payment of benefits
pursuant to the terms of the Plans, the Company may terminate
this Trust prior to the time all benefit payments under the Plans
have been made. All assets allocated to an Employer's Separate
Account under the Trust at termination shall be returned to such
Employer.
(d) The Company may terminate this Trust with respect to
the Separate Account of any Employer with the written approval of
at least two-thirds of the Employer's respective Plan
Participants and beneficiaries who are entitled to payment of
benefits pursuant to the terms of the Plans. All assets
allocated to an Employer's Separate Account under the Trust on
the date of such termination shall be returned to such Employer.
(e) Any provision of this Trust Agreement to the contrary
notwithstanding, this Trust Agreement may not be amended or
terminated by the Company on or after the date of a Change of
Control without the written consent of a majority of the
Participants in the Plans on the date of such Change of Control.
Section 14. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
(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 and construed in
accordance with the internal laws (and not the principles
relating to conflicts of laws) of the State of Texas, except
where superseded by federal law.
(d) Unless the context clearly indicates otherwise, when
used in this Trust
Agreement:
(i) "Administrative Committee" shall mean the
"Administrative Committee" appointed to administer each of
the Plans.
(ii) "Participant" shall mean each "Participant" as
that term is defined in the Executive Plan and each Director
who has an amount credited to his or her Account under the
Directors' Plan or who has elected to have all or any
portion of his or her Annual Fee deferred under the terms of
that Plan.
(e) Except where otherwise defined, capitalized terms used
herein shall have the meaning given to them in the Plans.
(f) In the event that a dispute arises between a Plan
Participant or beneficiary and the Participant's Employer, the
Company or the Trustee with respect to the payment of amounts
from the Trust and the Participant or beneficiary is successful
in pursuing a benefit to which he or she is entitled under the
terms of the Plans and this Trust against the Participant's
Employer, the Company, the Trustee or any other party in the
course of litigation or otherwise and incurs attorneys' fees,
expenses and costs in connection therewith, the Participant's
Employer shall reimburse the Plan Participant or beneficiary for
the full amount of any such attorneys' fees, expenses and costs.
(g) Upon the written consent of the Company delivered to
the Trustee, any other affiliate of the Company which adopts the
Executive Plan may become a party to this Trust by delivering to
the Trustee a certified copy of a resolution of its board of
directors or other governing authority adopting this Trust. For
purposes of this Trust, any such affiliate which adopts this
Trust with the written consent of the Company shall be an
Employer hereunder.
IN WITNESS WHEREOF, this Agreement has been executed this
13th day of August, 1997, to be effective as of July 1, 1997.
Enserch Exploration, Inc.
By: /s/ T ▇. ▇▇▇▇▇▇▇▇
Title:Chairman, President and
Chief Executive Officer
Texas Commerce Bank National Association
By
Title:
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, a notary public in and
for said County and State, on this day personally appeared
______________________________________, known to me to be the
person whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said Enserch
Exploration, Inc., a Texas corporation, and that he/she executed
the same as the act of such corporation for the purposes and
consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_____________________, 1997.
Notary Public, State of Texas
My Commission expires:
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, a notary public in and
for said County and State, on this day personally appeared
______________________________________, known to me to be the
person whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said Texas
Commerce Bank National Association, a national banking
association, and that he/she executed the same as the act of such
banking association for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of
_____________________, 1997.
Notary Public, State of Texas
My Commission expires:
APPENDIX A
TO THE
ENSERCH EXPLORATION, INC.
DEFERRED COMPENSATION TRUST
Participating Affiliates