Trust Agreement. same meanings as provided under the Plan, unless the context clearly indicates otherwise, as determined by the Trustee.

Transcription

1 Trust Agreement th Street, Suite 1700 Denver, CO Please direct mail to: Toll Free: PO Box Fax: Denver, CO THIS TRUST AGREEMENT (the Agreement ) is made as of this day of, 200, by and between an entity with its principal offices located at (the Company ) and TD AMERITRADE Trust Company, a corporation with its principal offices located at th Street, Suite 1700, Denver, CO (the Trustee ). WHEREAS, the Company has maintained a qualified retirement plan known as (the Plan ); and WHEREAS, pursuant to the provisions of the Plan, the Company may establish a trust for the purpose of receiving contributions payable under the Plan; NOW THEREFORE, the Company and the Trustee do hereby agree as follows: ARTICLE I: GENERAL 1.1 The Company hereby creates and establishes a trust to be known as (the Trust Fund ) in order to implement and carry out the purposes of the Plan. 1.2 The Plan, this Agreement and the Trust Fund are intended to meet all the requirements of Section 401(a) of the Internal Revenue Code of 1986, as it may be amended from time to time (the Code ), and the Trust Fund is intended to be exempt from taxation under Code Section 501(a). The Company shall be responsible for ensuring the continued qualification of the Plan and exemption of the Trust Fund. 1.3 The Company shall appoint in writing a person or persons or entity to act as the Plan Administrator as defined in the Employee Retirement Income Security Act ( ERISA ). Some (but not all) of the duties of the Plan Administrator are described, but not limited to such, in this Agreement. Such Plan Administrator may be comprised of an administrative committee established pursuant to the Plan, and if an administrative committee is so appointed, the term Plan Administrator shall mean any individual member of such administrative committee. 1.4 The Plan Administrator appointed by the Company may delegate any or all of the duties, responsibilities or authority imposed upon or granted to the Plan Administrator under the Plan or this Agreement to one or more persons; provided, however, that any such delegation may not violate the provisions of ERISA, and provided further that the Trustee must be notified in writing prior to the effective date of any such delegation of duty, responsibility or authority of the Plan Administrator to any person. The Plan Administrator shall not delegate any discretionary authority to the Trustee. 1.5 The terms Participant and Beneficiary shall have the same meanings as provided under the Plan. All other terms used in this Agreement that are defined in the Plan shall have the same meanings as provided under the Plan, unless the context clearly indicates otherwise, as determined by the Trustee. ARTICLE II: RECEIPT OF CONTRIBUTIONS 2.1 The Trustee shall hold in the Trust Fund all amounts received by the Trustee and designated as contributions to the Trust Fund, except to the extent required by law. All contributions so received, together with any income or other amount realized by the Trust Fund, shall be invested and administered by the Trustee in accordance with the terms of this Agreement. The Trustee shall have no responsibility or power with respect to the calculation or collection of any contributions owed to the Plan by or on behalf of the Company or any other party. ARTICLE III: PAYMENTS FROM TRUST FUND 3.1 The Trustee shall make payments from the Trust Fund to such persons, in such manner, at such times, and in such amounts as the Plan Administrator in its sole discretion shall specify in instructions to the Trustee. 3.2 The Plan Administrator shall be responsible for ensuring that any payment directed under this Article conforms to the provisions of the Plan, this Agreement, the Code and the provisions of ERISA, including, but not limited to, the account balance from which such payment is made, the vesting percentage of such account, and the form of distribution of such payment. Each direction of the Plan Administrator shall be in writing or in such other manner acceptable to the Trustee. Each such direction shall be deemed to include the Plan Administrator s certification that any distribution or other payment directed thereby is one which the Plan Administrator is authorized to direct, and the Trustee may conclusively rely on such direction and certification without further investigation. 3.3 Except insofar as the Plan permits the return of Company contributions under specified circumstances, it shall be impossible at any time prior to the satisfaction of all liabilities with respect to Plan Participants and their Beneficiaries for Page 1 of 6 TDTC 3403 Rev. 07/08

2 any part of the Trust Fund to be used for or diverted to purposes other than the exclusive benefit of Plan Participants and their Beneficiaries, except that payment of taxes and administrative expenses may be made from the Trust Fund as provided in Article VI. 3.4 Payments by the Trustee may be made by its check to the order of the payee the Plan Administrator designates, or in any other manner of payment the Plan Administrator directs and that is acceptable to the Trustee. Payments or other distributions may be mailed to the payee at the address the Plan Administrator last furnished to the Trustee, or if no such address has been so furnished, to the payee in care of the Plan Administrator. The Trustee shall not incur any liability or other damages to any person on account of any payments or other distributions it makes in accordance with the direction of the Plan Administrator. 3.5 If any check in payment of a benefit hereunder, which had been mailed by regular U.S. mail to the payee at the last address the Plan Administrator furnished to the Trustee, is returned unclaimed, the Trustee shall so notify the Plan Administrator or its designated agent and shall discontinue further payments to such payee until it receives the further instructions of the Plan Administrator. ARTICLE IV: INVESTMENT OF TRUST FUND 4.1 Unless an Investment Manager is appointed under Section 4.2 below, or Participant direction of investment is allowed under Sections 4.6 and 4.7, the Plan Administrator shall have exclusive responsibility for management of the Trust Fund. The direction of the investment of the Trust Fund shall be the sole responsibility of the Plan Administrator, any Investment Manager, or the Participants (if Participant direction of investment is allowed under Sections 4.6 and 4.7), and the Trustee is not authorized to and will not make any decision or direction with respect to the investment of the Trust Fund. 4.2 The Company may appoint an Investment Manager for all or a portion of the Trust Fund. The Investment Manager shall be a fiduciary: (a) who has the power to manage, acquire, or dispose of any assets of the Plan; (b) who is (1) registered as an investment adviser under the Investment Adviser s Act of 1940 (the Act ); (2) a bank, as defined in the Act; or (3) an insurance company qualified to perform services described in paragraph (a) under the laws of more than one state; and (c) who has acknowledged in writing that he is a fiduciary with respect to the Plan. If the Company appoints an Investment Manager, the Investment Manager will have exclusive responsibility for directing investment and management of the assets of the Trust Fund to which its appointment applies. If more than one Investment Manager is appointed, each Investment Manager will have exclusive responsibility for directing the investment and management of a specified portion of the assets of the Trust Fund as the Company shall determine. The Company shall notify the Trustee in writing of its appointment of any Investment Manager. 4.3 The Trustee shall have no obligation to question any investment direction by the Investment Manager, the Plan Administrator or the Participant with investment discretion. The Trustee shall comply as promptly as possible with any investment direction from an Investment Manager, the Plan Administrator or the Participant with investment discretion, to the extent such direction is properly provided pursuant to procedures the Trustee establishes as applicable. The Company (or a properly appointed Investment Manager) has sole authority over the selection of investments for the Plan and the Trustee has no discretionary authority over the selection of investments for the Plan, nor for determining whether the Plan s investments comply with the requirements of law, including ERISA Section 404(c). 4.4 The Trustee, subject to the investment direction of any Investment Manager, Plan Administrator or Participant with investment discretion, shall have the power to invest and/or reinvest any and all money or property of any description at any time it holds that constitutes a part of the Trust Fund, without previous application to, or subsequent ratification of, any court, tribunal, or commission, or any federal or state governmental agency. The Trustee, subject to the investment direction of any Investment Manager, Plan Administrator or Participant with investment discretion, may invest in bonds, notes, debentures, mortgages, commercial paper, preferred stocks, common stocks, or other securities, rights, obligations, or property, including shares or certificates of participation issued by regulated investment companies or regulated investment trusts, shares or units of participation in qualified common trust funds, qualified pooled funds or pooled investment funds of any insurance company qualified to do business in the state, annuity or endowment contracts, and certificates of deposits or savings accounts in a bank or other savings institution supervised by the United States or a state. The Investment Manager, Plan Administrator or Participant with investment discretion may direct the Trustee with regard to the investment of any cash in the Trust Fund in any of the investments specified in the preceding sentence, provided such investment meets the Trustee s criteria for administrative feasibility. In the event such directions are not received by the Trustee, the appropriate party shall be deemed to have directed the Trustee to invest such cash in the cash investment option available to the Plan under agreement with the Trustee, which cash investment option may include a savings instrument or deposit account of the Trustee or its affiliates, which bears a reasonable rate of interest. The Trustee may hold a reasonable portion of the Trust Fund in cash pending payment of current expenses or benefits from the Trust, or pending the consummation of transactions entered into on behalf of the Trust Fund, without liability to the Trust Fund for interest thereon. 4.5 The Plan Administrator specifically authorizes the Trustee, at the direction of any Investment Manager, Plan Administrator or Participant with investment discretion, to invest all or any portion of the assets comprising the Trust Fund in any group trust fund which at the time of the investment provides for the pooling of the assets of plans qualified under Code Section 401(a). This authorization applies solely to a group trust fund exempt from taxation under Code Section 501(a) and the trust agreement of which satisfies the requirements of Revenue Ruling The provisions of the group trust Page 2 of 6 TDTC 3403 Rev. 07/08

3 fund agreement, as amended from time to time, are by this reference incorporated within this Agreement. The provisions of the group trust fund will govern any investment of Plan assets in that fund. The Plan Administrator must specify, in a form acceptable to the Trustee, to which group trust fund(s) this authorization applies. 4.6 Where the Company and the Trustee have agreed to allow Participant directed investments, each Participant, through the Plan Administrator (or other party appointed by the Plan Administrator and designated to the Trustee in writing or such other manner acceptable to the Trustee), shall direct the Trustee regarding the investment of that portion of the Trust Fund over which such Participant has investment direction authority (the Participant s Directed Investment Account ). Participant-directed investments are limited to those investments permitted under the Plan and under any agreement between the Company and the Trustee. If the Trustee does not receive directions as to the investment of any portion of a Participant s Directed Investment Account, the Participant shall be deemed to have directed the Trustee to invest such cash in the cash investment option available to the Plan under agreement with the Trustee, which may include a savings instrument or deposit account of the Trustee or its affiliates, which bears a reasonable rate of interest. 4.7 Notwithstanding and in addition to the foregoing Section 4.6, if the Plan allows a Participant to invest in publicly traded securities which constitute qualifying employer securities, as defined in section 407 of ERISA ( Employer Stock ) the Participant s Directed Investment Account may include investment in Employer Stock. Pursuant to the Plan, the Trust may be invested in Employer Stock to the extent necessary to comply with investment directions under Section 4.6 of this Trust Agreement. (a) A Named Fiduciary or the Plan Administrator for the Plan other than the Trustee shall continually monitor the suitability under the fiduciary duty rules of section 404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA) of permitting Participant-directed investment in acquiring and holding Employer Stock. The Trustee shall not be liable for any loss, or by reason of any breach, which arises from offering of investments in, and the acquisition and holding of Employer Stock. (b) Purchases and sales of Employer Stock (other than exchanges of Employer Stock) shall be made on the open market after the Trustee receives from the Company or its agent in good order all information and documentation necessary to accurately effect such purchases and sales pursuant to the operational procedures provided to the Plan Administrator s delegatee. Exchanges of Employer Stock shall be made in a manner similar to all other exchanges made under this Trust Agreement. (c) The Company shall be responsible for the preparation and filing of all reports required under federal or state securities laws with respect to the Trust s ownership of Employer Stock including, without limitation, any reports required under section 13 or 16 of the Securities Exchange Act of 1934, and shall immediately notify the Trustee in writing of any requirement to stop purchases or sales of Employer Stock pending the filing of any report. The Trustee shall provide to the Company such information with respect to the Trust s ownership of Employer Stock as the Company may reasonably request in order to comply with Federal or state securities laws. (d) In the event the Employer Stock is to be voted as directed by the Participants, or in the event of a tender offer with respect to any Employer Stock held in the Trust, the Company shall appoint a person or entity to manage all communications with, and to collect all directions from, the Participants with respect to such vote or tender offer. The Company shall notify the Trustee in writing of the appointment of such person or entity. The Trustee shall take such actions with respect to the voting or tender of Employer Stock as directed by such person or entity, until such time as the Company shall notify the Trustee otherwise in writing. To the extent no instructions are received from the appointed person or entity, the Trustee shall take such action with respect to the Employer Stock as may be directed by the Named Fiduciary (other than the Trustee). (e) With respect to all rights appurtenant to the Employer Stock (other than the right to vote, the right to tender, and the right to withdraw shares previously tendered) in the case of Employer Stock credited to a Participant s Account, the Trustee shall follow the directions of the Plan Administrator or its delagatee, and if no such directions are received, the directions of the Named Fiduciary (other than the Trustee). The Trustee shall have no duty to solicit directions from Participants. With respect to all rights (other than the right to vote, the right to tender and the right to withdraw shares previously tendered), in the case of Employer Stock not credited to Participants accounts, the Trustee shall follow the directions of the Named Fiduciary. (f) All provisions of this Section 4.7 shall also apply to any qualifying employer securities received as a result of any exchange or conversion of, or dividend received on, Employer Stock. 4.8 The Trustee shall be under no duty to question any direction provided on behalf of a Participant through the Plan Administrator (or other party appointed by the Plan Administrator or the Company and designated to the Trustee in writing or such other manner acceptable to the Trustee). A Participant s Beneficiary, upon the death of a Participant, or an alternate payee, in the event of a qualified domestic relations order, shall provide investment directions through the Plan Administrator (or other appointed party) and such Beneficiary or alternate payee shall assume all rights and responsibilities for investment of the Participant s Directed Investment Account which is assigned to such Beneficiary or alternate payee. The exercise of investment direction by a Participant shall not cause such Participant to be a fiduciary solely by reason of its exercise, and neither the Trustee nor any other fiduciary of the Plan shall be liable for any loss, or by reason of any breach, that results from the exercise of investment direction by a Participant. Page 3 of 6 TDTC 3403 Rev. 07/08

4 ARTICLE V: POWERS OF THE TRUSTEE 5.1 The Trustee shall have all the powers necessary or advisable to carry out the provisions of the Trust and all inherent, implied, and statutory powers now or subsequently provided by law, including specifically the power to do any of the following, at the direction of any Investment Manager, Plan Administrator or Participant with investment discretion: (a) to cause any securities or other property to be registered and held in the Trustee s name as Trustee, or in the name of one or more of its nominees, without disclosing the fiduciary capacity, or to keep the same in unregistered form payable to bearer; (b) to sell, grant options to sell, exchange, pledge, encumber, mortgage, deed in trust, or use any other form of hypothecation, or otherwise dispose of the whole or any part of the Trust Fund on such terms and for such property or cash, or part cash and credit; to retain, hold, maintain, or continue any securities or investments that it may hold as part of the Trust Fund for such length of time as it may be directed; and generally, in all respects, to do all things and exercise each and every right, power, and privilege in connection with and in relation to the Trust Fund as could be done, exercised, or executed by an individual holding and owning such property in absolute and unconditional ownership; (c) to abandon, compromise, contest, and arbitrate claims and demands; to institute, compromise, and defend actions at law (but without any obligation to do any of the foregoing); (d) to borrow money for this Trust and to secure the repayment of such by the mortgage or pledge of any assets of the Trust Fund; (e) to vote at the direction of the Investment Manager, Plan Administrator or Participant with investment direction, as the case may be, in person or by proxy any shares of stock or rights held in the Trust Fund; to participate in and to exchange securities or other property in reorganization, liquidation, or dissolution of any corporation, the securities of which are held in the Trust Fund; (f) to vote or tender at the direction of the person or entity appointed by the Company, in person or by proxy, the shares of Employer Stock or rights appurtenant to Employer Stock held in the Trust Fund. (g) to pay any amount due on any loan or advance made to the Trust Fund, to charge against and pay from the Trust Fund all taxes of any nature levied, assessed, or imposed upon the Trust Fund; and (h) to execute the application for any insurance contract to be applied for under the Plan; to pay from the Trust Fund premiums, assessments, dues, charges, and interest to acquire or maintain any insurance contracts held in the Trust Fund; to collect and receive all dividends or payments of any kind payable under any insurance contracts held in the Trust Fund or to leave the same with the issuing insurance company; and to exercise any other power or take any other action permitted under any insurance contract held in the Trust Fund. 5.2 All right, title, and interest in and to the Trust Fund shall at all times be vested exclusively in the Trustee. 5.3 The Trustee may consult with legal counsel concerning any question which may arise with reference to this Agreement and its powers and duties hereunder. The written opinion of such counsel shall be full and complete protection of the Trustee in respect to any action taken by the Trustee with respect to the duties of the Trustee under this Trust Agreement in good faith reliance on said opinion. ARTICLE VI: FEES AND TAX WITHHOLDING AND REPORTING 6.1 The Trustee shall be entitled to receive reasonable compensation for services rendered and payment for the reimbursement of expenses properly and actually incurred in the performance of its duties under the Trust Fund. All compensation and expenses shall be paid by the Plan from the assets of the Trust Fund, unless the Company elects to pay all or any part of such compensation and expenses. 6.2 The Trustee shall pay out of the Trust Fund all personal property taxes, income taxes and other taxes of any and all kinds levied or assessed under existing or future laws against the Trust Fund. Until notified to the contrary by the Plan Administrator in writing, the Trustee shall assume that the Trust Fund is exempt from federal, state and local income taxes, and shall act in accordance with that assumption. 6.3 The Plan Administrator shall timely file all federal, state and local tax and information returns relating to the Plan and Trust Fund. The Plan Administrator shall be responsible for withholding any tax which by any present or future law is required to be withheld from any payment under the Plan. ARTICLE VII: RECORDS AND ACCOUNTS 7.1 The Trustee shall keep all such records and accounts which may be necessary in the administration and conduct of the Trust Fund. The Trustee s records and accounts shall be open to inspection by the Company and the Plan Administrator at all reasonable times during business hours. All income, profits, recoveries, contributions, forfeitures, and any and all moneys, securities, and properties of any kind at any time received or held by the Trustee with respect to the Plan shall be held for investment purposes as a commingled trust fund. Separate accounts or records may be maintained for operational and accounting purposes, but no such account or record shall be considered as segregating any funds or property from any other funds or property contained in the commingled trust fund, except as otherwise provided. The valuation date of the Trust Fund shall be the last day of each plan year, and such other dates agreed to in writing by the Plan Administrator and the Trustee, and the Trustee shall report the fair market value of the Trust Fund as of such valuation dates. Within a reasonable period of time after the close of each month, the Trustee shall render to the Company and the Plan Administrator a written statement and report setting forth all investments, all receipts and disbursements and all other financial transactions affecting the Trust Fund since the date of the last such statement and report. Page 4 of 6 TDTC 3403 Rev. 07/08

5 ARTICLE VIII: DUTIES AND OBLIGATIONS 8.1 The Trustee shall discharge its duties under this Agreement solely in the interest of the Participants of the Plan and their Beneficiaries and for the exclusive purpose of providing benefits to such Participants and their Beneficiaries and defraying reasonable expenses of administering the Plan, with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, all in accordance with the provisions of this Agreement insofar as they are consistent with the provisions of ERISA. 8.2 Upon written request from the Trustee, the Company or the Plan Administrator shall furnish to the Trustee within a reasonable period of time in writing any necessary information reasonably requested by the Trustee in connection with any of the Trustee s responsibilities, or powers (including, without limitation, the names, addresses, and specimen signatures of all parties authorized to furnish instructions or notices to the Trustee as described in any provision of this Agreement). 8.3 Except as otherwise required by law, no party dealing with the Trustee need inquire into the authority of the Trustee or into the application by the Trustee of any funds or other property such party transfers. The decisions of the Trustee in the exercise of any of its powers or the carrying out of any of its responsibilities shall be final and conclusive as to all persons for all purposes, to the extent permitted by law. ARTICLE IX: RELIANCE AND INDEMNIFICATION 9.1 The Trustee may rely upon a representation of the Plan Administrator in the form and manner acceptable to the Trustee with respect to any instruction, direction or approval of such Plan Administrator, and if an administrative committee is the Plan Administrator, the Trustee may rely upon a representation of the Company in the form and manner acceptable to the Trustee as to the membership of the administrative committee as it then exists, and may continue to rely upon such representation until a subsequent representation is provided to the Trustee. 9.2 The Trustee shall be fully protected in acting upon any instrument, certificate, representation, or paper of the Company, or its Board of Directors, or the Plan Administrator, or any Investment Manager believed by the Trustee to be genuine and to be signed or presented by any authorized person, and the Trustee shall be under no duty to make any investigation or inquiry as to any such representation but may accept the same as fully authorized by the Company, its Board of Directors, the Plan Administrator, or any Investment Manager, as the case may be. 9.3 The Trustee shall be further protected in relying upon a representation from any Investment Manager appointed by the Company as to the persons authorized to give instructions or directions on behalf of such Investment Manager and may continue to rely upon such representation until a subsequent representation in the form and manner acceptable to the Trustee is provided. 9.4 The Company shall indemnify and save harmless the Trustee for and from any loss or expense (including reasonable attorneys fees) arising: (a) out of any matter as to which this Agreement provides that the Trustee is directed, protected, not liable, or not responsible except to the extent of negligence, willful misconduct on the part of the Trustee or its delegates, or the Trustee s failure to fulfill its responsibilities under this Agreement; or (b) by reason of any breach of any statutory or other duty owed to the Plan by the Company, any adopting employer, the Plan Administrator, any Investment Manager or any delegate of any of them (and for the purposes of this sentence the Trustee shall not be considered to be such a delegate). 9.5 The Trustee shall indemnify and save harmless the Company for and from any loss or expense (including reasonable attorneys fees) arising (a) out of the Trustee s negligence, willful misconduct on the part of the Trustee or its delegates, or the Trustee s failure to fulfill its responsibilities under this Agreement; or (b) by reason of any breach of any statutory or other duty owed to the Plan by the Trustee. ARTICLE X: CHANGE OF TRUSTEE 10.1 A Trustee may be removed by the Company at any time upon 60 days notice in writing to the Trustee or on such shorter notice as may be agreed to by the Company and the Trustee. A Trustee may resign at any time upon 60 days notice in writing to the Company. Upon such resignation or removal, the Company shall appoint a successor Trustee and the successor Trustee shall have the same powers and duties as those conferred upon the Trustee named in this Agreement. The removal of a Trustee and the appointment of a successor Trustee shall be by written instrument delivered to the Trustee A successor Trustee shall accept its appointment in writing no later than the effective date of resignation or removal of the then current Trustee. The Plan Administrator shall send a copy of such acceptance to the then current Trustee. No successor Trustee will be required to inquire into the trusteeship, or any actions or omissions, of its predecessor. The successor Trustee may conclusively presume that the assets it receives from the predecessor constitute the entire Trust Fund. No successor Trustee will be liable to any person for any action, or failure to act, of any predecessor Trustee. A resigning or removed Trustee will be exonerated from liability (absent its own fraud, negligence, willful misconduct or failure to fulfill its responsibilities under this Agreement) with respect to its trusteeship unless errors, omissions or other irregularities are brought to its attention by the Plan Administrator or the successor Trustee within 90 days from the later of, (a) the date of such Trustee s resignation or removal, or (b) the date on which the Trustee provides a final accounting of Trust assets that is reasonably acceptable to the Company and the successor Trustee In the event that any corporate Trustee hereunder shall be converted into, shall merge or consolidate with, or shall sell or transfer substantially all of its assets and business to another entity, the surviving entity resulting from such conversion, merger, or consolidation, or the entity to which Page 5 of 6 TDTC 3403 Rev. 07/08

6 such sale or transfer shall be made, shall thereupon become and be the Trustee under this Agreement with the same effect as though originally so named, without any further action being required to effect such substitution of Trustee The Trustee shall accept its appointment as soon as practical by executing this Agreement or by delivering a signed document to the Company, a copy of which the Trustee shall send to the Plan Administrator. The Company shall appoint a new Trustee if a Trustee fails to accept its appointment in writing. ARTICLE XI: AMENDMENT AND TERMINATION 11.1 Any amendment to this Agreement shall be in writing and signed by both parties The term Plan as used herein shall include any amendment, whether made before or after the effective date or the execution of this Agreement, provided that any such amendment shall not alter the responsibilities or powers of the Trustee without the Trustee s written consent. In such case, unless the Trustee otherwise agrees, the Trustee shall be provided at least 30 days after consenting to any amendment before such amendment shall be effective In the event of the termination of the Plan and Trust Fund as provided in the Plan, the Trustee shall dispose of the Trust Fund in accordance with the written direction of the Plan Administrator to the extent consistent with the terms of the Plan. ARTICLE XII: MISCELLANEOUS 12.1 This Agreement shall be construed and enforced according to the laws of the State of Colorado, and all provisions shall be administered according to the law of Colorado If any provision of the Plan document is in conflict with the terms of this Agreement, the terms of this Agreement will control If any provision of this Agreement is held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of this Agreement. On the contrary, the remaining provisions shall be fully severable and this Agreement shall be construed and enforced as if the illegal or invalid provision had never been inserted therein No benefit to which a Participant or Beneficiary or an alternate payee is or may become entitled under the Plan shall at any time be subject in any manner to alienation or encumbrance, nor be resorted to, appropriated or seized in any proceeding at law, in equity or otherwise. No Participant or other person entitled to receive a benefit under the Plan shall, except as specifically provided in such Plan, have power in any manner to transfer, assign, alienate or in any way encumber such benefit under such Plan, or any part thereof, and any attempt to do so shall be void All claims and disputes of every type and matter which may arise under this Agreement shall be submitted to binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association; that such arbitration proceedings and hearings shall take place only in Denver, Colorado; and that, to the extent not pre-empted by federal law, Colorado statutory law (including without limitation the statutes governing the award of damages in arbitration) and Colorado common law shall control during arbitration. The Company and the Trustee expressly waive any right the Company or the Trustee may have to institute or conduct litigation or arbitration in any other forum or location, or before any other body, whether individually, representatively or in any other capacity. Arbitration is final and binding on the parties. An award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the parties. Under the rules of the American Arbitration Association, there may be no right to pre-arbitration discovery, including depositions or written questions and document production. The arbitrator award is not required to include factual findings or legal reasoning, and any party s right to appeal or to seek modification or rulings by the arbitrator(s) is strictly limited. IN WITNESS WHEREOF, the Company and the Trustee have caused this Agreement to be executed by their respective duly authorized officers on the date or dates shown below. DATED this 200. COMPANY Signature: X Date: Title: Print Name: TD AMERITRADE TRUST COMPANY Signature: X Date: Title: Print Name: day of, TD AMERITRADE Trust Company is a non-depository trust company, acts as a custodian and/or directed trustee and is not a member of FINRA/SIPC. TD AMERITRADE Trust Company is a subsidiary of TD AMERITRADE Holding Corporation. TD AMERITRADE is a trademark jointly owned by TD AMERITRADE IP Company, Inc. and The Toronto-Dominion Bank TDAMERITRADE IP Company, Inc. All rights reserved. Used with permission. TDTC 3403 Rev. 07/08 Page 6 of 6