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Exhibit 10.1





THIS TRUST AGREEMENT, dated as of April 9, 2004, is made by and between BE, INC., as Grantor (the “Grantor”), WILMINGTON TRUST COMPANY, a Delaware banking corporation (in its individual capacity, the “Trust Company”, and not in its individual capacity but solely as Resident Trustee hereunder, the “Resident Trustee”) and Dan S. Johnston, an individual (in his individual capacity, “Johnston”, and not in his individual capacity but solely as Trustee hereunder, the “Trustee”) and their successors upon the terms and conditions set forth below.


Recitals :


WHEREAS, the liquidation, dissolution and winding up of the Grantor have been approved pursuant to a plan of liquidation in accordance with Delaware law;


WHEREAS, the Grantor may have a potential or a contingent tax obligation due the State of California (the “California Claim”), the exact amount of which cannot be determined;


WHEREAS, to close its business operations in the State of California, the Grantor must obtain a tax clearance certificate and provide for payment of any potential California Claim;


WHEREAS, Grantor wishes to form a Delaware statutory trust to provide for the payment of such of the California Claim as Trustee, in its sole discretion, shall recognize pursuant to the terms of this Agreement, or ultimately determined to be due and owing by a court of competent jurisdiction;


WHEREAS, Resident Trustee and Trustee have agreed to act pursuant to the terms of this Agreement and have agreed to hold the Trust Property (as hereinafter defined) in trust pursuant to the express terms of this Agreement;


NOW THEREFORE, with the intent to be legally bound hereby, the Grantor, Resident Trustee, and Trustee adopt the following Trust:






1.01. Grantor hereby appoints the Trust Company to act as Resident Trustee hereunder and Johnston to act as Trustee hereunder and grants, assigns and delivers to Trustee and to the Resident Trustee, and each of the Trustee and the Resident Trustee hereby accepts, the property listed on Exhibit A (the “Trust Property”) which, together with all proceeds and income therefrom, are to be held by the Trustee or the Resident Trustee pursuant to the terms of this Agreement.

1.02. Name . The Trust created hereby shall be known as Be, Inc. California Claims Trust in which name the Trustee, and the Resident Trustee to the extent expressly provided herein, may conduct business, make and execute deeds, mortgages, leases, contracts and other instruments; acquire, invest, hold, pledge, mortgage, lease, assign, convey and transfer Trust Property, or other property; and sue and be sued.


1.03. Office . The office of the Trust shall be in care of Trustee or at such other address as the Trustee may designate.


1.04. Purposes and Powers . The purpose of the Trust is to engage in the following activities and only the following activities: (i) holding such Trust Property transferred to or otherwise acquired by it; (ii) administering, investing, reinvesting, and disposing of the Trust Property; (iii) determining the validity of the California Claim; (iv) to pay, compromise, litigate or otherwise settle the California Claim; (v) determining the validity of claims other than the California Claim; (vi) subject to the approval of the Court, to compromise, pay or litigate claims other than the California Claim; (vii) activities which are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; (viii) to conduct its business, carry on its operations and have and exercise the powers granted to a Delaware statutory business trust in any state, territory, district or possession of the United States, or in any foreign country, that may be necessary, convenient or incidental to the accomplishment of the purposes of the Trust; (ix) to enter into, perform and carry out contracts of any kind necessary to, convenient to, or incidental to the accomplishment of the purposes of the Trust; (x) to sue and be sued, complain and defend, and participate in administrative or other proceedings, in its name; (xi) to appoint, hire, terminate and/or replace agents, employees and/or independent contractors of the Trust, and define their duties and fix their compensation; (xii) to make, execute, acknowledge and file any and all documents or instruments necessary, convenient or incidental to the accomplishment of the purposes of the Trust; (xiii) to make distributions to the Grantor, or, upon its dissolution and liquidation, to its Permitted Assignees (as hereinafter defined), but only after the California Claim has been fully resolved as herein provided; (xiv) to file and pay taxes on any and all income earned on the Trust Property.


1.05. Appointment of the Resident Trustee . The Grantor also appoints the Trust Company as Resident Trustee for purposes of satisfying the criteria of 12 Del . C . § 3807(a).


1.06. Declaration of Trust; Definitions . Each of the Trustee and the Resident Trustee hereby declares that it will hold the Trust Property in trust upon and subject to the conditions set forth herein. It is the intention of the parties hereto that the Trust constitutes a statutory trust under Chapter 38 of Title 12 of the Delaware Code. All capitalized terms herein are used as defined in Article IX of this Agreement. The parties further intend that the Trust qualify as an investment trust that is classified as a trust under Treasury Regulation § 301.7701-4(c), and it is neither the purpose nor the intent of the parties hereto to create a partnership, joint venture or association taxable as a corporation. In furtherance of the foregoing, the purpose of the Trust shall be to protect and conserve the trust estate, and the Trust shall not at any time engage in or carry on any kind of business or any kind of commercial or investment activity, except as provided in Section 4.02 hereof. In no event shall the Trustee, the Resident Trustee or any other Person have any power to vary the investments of the Trust or to substitute new investments or reinvest except in furtherance of the purpose of this Trust.



1.07. No Liability of Grantor, Trustee or Resident Trustee . Except as otherwise expressly provided for herein, no Grantor or Permitted Assignees shall be subject to any liability whatsoever to any Person in connection with the Trust Property or the acts, omissions, obligations or affairs of the Trust. Except as may be provided in Article VI, no trustee (including the Trustee and the Resident Trustee) shall be subject to any personal liability whatsoever to any Person in connection with the Trust Property or the acts, omissions, or obligations of the Grantor, or the acts, omissions, obligations or affairs of the Trust.


1.08. Situs of Trust . The Trust will be located and administered at the offices of the Trustee or the Resident Trustee and at such other locations as the Trustee, in its sole discretion, shall determine. The Trustee and the Resident Trustee may maintain one or more bank accounts at such locations as the Trustee and the Resident Trustee determine for receipts and disbursements of income and principal of the Trust.






2.01. Spendthrift . Except as provided below, the interest of the Grantor in either the income or the Trust Property of the Trust shall not be alienated in any manner, assigned, encumbered, or transferred, in whole or in part, by the Grantor without the express written consent of the Trustee, which consent may be given or withheld in Trustee’s sole and absolute discretion. Grantor’s interest in the Trust shall be exempt from execution, attachment, distress for rent, and other legal or equitable process which may be instituted by or on behalf of any creditor or assignee of Grantor. Notwithstanding the foregoing, upon the completion of the dissolution and liquidation of the Grantor, Grantor’s contingent interest to receive the Trust Property after resolution of the California Claim may be assigned to the Permitted Assignees provided that the Grantor notifies the Trustee (i) that it has fully dissolved and liquidated and (ii) of the names, addresses, federal identification numbers, and percentage interest of the Permitted Assignees.






3.01. Application of Income and Principal.


(a) Income with respect to and proceeds of Trust Property as well as Trust Property itself held by the Trustee shall be applied by the Trustee in the following order:


(i) first, to pay any amounts due to the Trustee or Resident Trustee in its individual capacity under this Agreement;


(ii) second, to pay any other expenses of the Trust, including federal and state income taxes on the income generated by the Trust Property, and the retention of advisors to assist in determining or litigating the California Claim;



(iii) third, to pay the expenses of the Trust, including its advisors, incurred in investigating, responding to or litigating claims, other than the California Claim, that might be asserted against the Trust, notwithstanding that such claims may have been barred, were not suspected or known and were not reasonably anticipated at the time of the Trust’s formation; and


(iv) fourth, to pay or fund a reserve to pay, the expenses associated with the distribution of the trust property to Grantor or Permitted Assignees.


(b) Income and proceeds with respect to the Trust Property held by the Trustee as well as Trust Property itself after the application of funds pursuant to Section 3.01(a) shall be applied in the following order:


(i) first, to pay the State of California in satisfaction of the California Claim in such amount as the Trustee, in its sole and absolute discretion, shall determine is appropriate, or as a court of competent jurisdiction shall finally determine;


(ii) second, to pay Claimants other than the State o

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