INVESTMENT OF THE FUND. Section 2.1. The Company shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto. Section 2.2. Each participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law. Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust; (a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection or commingled trust fund available only to employees trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan; (b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money; (c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan; (d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund; (e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant. (f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract; (g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement; (h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and (i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof. Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 3 contracts
Samples: Trust Agreement (Longview Fibre Co), Trust Agreement (Longview Fibre Co), Trust Agreement (Longview Fibre Co)
INVESTMENT OF THE FUND. Section 2.1. The Company shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("“Investment Funds"”). The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto.
Section 2.2. Each participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's ’s approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's ’s common stock ("“Company Stock"”), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' ’ investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection or commingled trust fund available only to employees trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "“Code"”), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("“Company Stock"”) that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's ’s separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 3 contracts
Samples: Trust Agreement (Longview Fibre Co), Trust Agreement (Longview Fibre Co), Trust Agreement (Longview Fibre Co)
INVESTMENT OF THE FUND. Section 2.13.1 The Trustee shall perform its functions as a nondiscretionary, noncustodial Trustee. The Company Trustee shall have no discretion or authority for the investment or management of the assets of the Fund and shall act solely as a directed trustee of the assets to which it holds title. The Trustee, as a nondiscretionary trustee, shall act only upon receipt of proper written directions from the Employer.
Section 3.2 The Employer shall have the exclusive authority and discretion to select the investment funds for investment under investments in which the Plan ("Investment Funds"). The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto.
Section 2.2. Each participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants Fund shall be timely furnished to the Trustee by the Plan Administratorinvested, except to the extent such directions are transmitted telephonically right may be given to Plan participants with respect to their plan account balances or otherwise by Participants directly delegated to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trusteean Investment Manager. In making any investment exercising such authority, the Employer shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. Solely for purposes of maintaining proper title to the assets of the Fund, the Employer will provide the Trustee shallwith information regarding the investment in the Fund and any changes.
Section 3.3 In taking title to any assets of the Fund, to the extent permitted by applicable law, including, without limitation, ERISA, Trustee shall be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and proceduresEmployer, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To The Trustee shall not be liable for the extent that Participants direct investment in acts or omissions of the Company's common stock ("Company Stock")Employer, the Trustee will use its best efforts and professional judgment Plan participants, any Investment Manager or any other person authorized to execute such trades in an orderly manner and act with respect to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority with respect to determine the investment or management of the any assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable lawPlan.
Section 2.3. 3.4 Subject to the provisions of Sections 2.1 3.1, 3.2 and 2.23.3, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;Trust in a nondiscretionary manner solely as directed by the Employer.
(a) to invest and reinvest take title to all or a part of the Fund in accordance with Participants' the Employer's investment directions directions, in any available Investment Fund investment selected by the Company Employer without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be by invested therein, any investment in a group annuity contract or similar insurance company product, shares in any mutual fund or in the common stock of the Employer or other business entity. The Trustee shall have such power even if the Trustee or an affiliate of the Trustee provides services as investment advisor or manager, sponsor, distributor, custodian, transfer agent, registrar, or similar related services to the investment company or investment trust and receives reasonable compensation for those services. Any person having investment authority with regard to the Fund may direct the investment of any part or all of the assets comprising the Fund in any common, collective collective, or commingled group trust fund (“Common Trust”) maintained by the Trustee. Any ; provided, however, that any such investment in, and any terms and conditions of, any common, collection will not adversely affect the qualified or commingled trust fund available only to employees trusts which meets the requirements exempt status of the Internal Revenue Code of 1986, as amended (the "Code"), Plan or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;Trust.
(b) to dispose transfer title, pursuant to the disposition of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund Fund, in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3Employer's directions, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(ed) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares of the investments which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the ParticipantEmployer.
(fe) upon the written direction of the Plan AdministratorEmployer, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment group annuity contract or annuity contractsimilar insurance company product;
(gf) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to in connection with its duties under the terms of the Plan and this Agreementagreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. 3.5 Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 2 contracts
Samples: Trust Agreement, Trust Agreement
INVESTMENT OF THE FUND. Section 2.1(a) The Company has on the date hereof established and delivered to the Trustee a statement of the investment policies and procedures to be applicable to the Trust and, subject to subsections (b) and (c), the Company may from time to time hereafter amend, modify, supplement or restate the policies and procedures and such policies and procedures as from time to time so amended, supplemented, restated or replaced are referred to herein as the ''Statement of Investment Policies and Procedures".
(b) In all events and at all times, the Statement of Investment Policies and Procedures shall provide that the Fund may only be invested in Qualified Investments(without limiting the ability of the Company to specify in any Statement of Investment Policies and Procedures that the investments in which the Fund may be invested shall be further restricted).
(c) Prior to amending, supplementing, restating or replacing the Statement of Investment Policies and Procedures, the Company shall provide prior written notice of such changes within the period and containing the information stipulated from time to time by the NEB.
(d) The Trustee is responsible for receiving, holding, investing and releasing the Fund. The Company Trustee shall control and hold the Funds and have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing complete control of the selection of the Investment Funds currently available for Fund's investment under the Plan, and any changes theretomanagement.
Section 2.2. Each participant (e) The Fund shall have be held, invested and reinvested by the exclusive rightTrustee, assisted as to investment and reinvestment by one or more Investment Managers, in accordance with the provisions Statement of Investment Policies and Procedures from time to time in effect, whether or not any such investment is of a character authorized by laws concerning investments by trustees, provided that the Trustee shall ensure that at all times the Fund is invested solely in Qualified Investments. The Trustee shall invest the principal and income of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent Fund without distinction between principal and income in such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to investments as it by the Plan Administrator or by Participants may select in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection or commingled trust fund available only to employees trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participanthereof.
(f) upon Provided that it has complied with the written direction Statement of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult Investment Policies and employ any suitable agent to act on behalf of the Trustee Procedures and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator acted in accordance with the provisions Standard of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of LaborCare, the Trustee shall not maintain be responsible for the indicia title, validity or genuineness of any Property or evidence of title thereto received by it or any defect in ownership in or title of any assets Property from time to time forming part of the Fund outside of the jurisdiction of the district courts of the United StatesFund.
Appears in 1 contract
Samples: Trust Agreement
INVESTMENT OF THE FUND. Section 2.1. The Company Plan Administrator shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds")) available for investment under the Plan. In making such selection, the Plan Administrator shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The available investments under the Plan shall be sufficiently diversified so as to seek to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto. The Plan Administrator may also direct the Trustee from time to time to cause assets in the Fund to be delivered to the trustee under that certain Master Trust Agreement of even date herewith between Dynegy Inc. and Vanguard Fiduciary Trust Company (the "Master Trust Agreement") establishing a master trust (the "Master Trust"), and to cause such assets to be held, administered and invested pursuant to the Master Trust Agreement. The Master Trust is hereby adopted as a part of this Agreement and the Plan.
Section 2.2. Each participant Except as otherwise provided in the Plan, each Participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To The Plan Administrator may designate a default fund under the extent that Participants direct investment Plan in the Company's common stock ("Company Stock"), which the Trustee will use its best efforts and professional judgment shall deposit contributions to execute such trades in an orderly manner and to avoid any undue influence the Fund on behalf of Participants who have been identified by the market for such Company StockPlan Administrator as having not specified investment choices under the Plan. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directionsdirections (which proper investment directions shall include the designation of a default fund as provided in the preceding sentence). Otherwise, it is specifically intended under the Plan and this Pg.3 Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company Plan Administrator without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of or the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;; Pg.4
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided in Section 5.2 and except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan (other than mutual fund shares acquired at the direction of a Participant pursuant to an individual brokerage account option that is an investment alternative under the Plan) solely in accordance with directions furnished to it by the CompanyPlan Administrator, and to vote in person or by proxy and to make all tender offer decisions with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.;
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this AgreementAgreement provided that the Plan Administrator has approved any additional costs which result from the use of such agents;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator Company shall have the responsibility for collecting all loan repayments required to be made under the Plan and for Pg.5 furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
Samples: Trust Agreement (Dynegy Inc /Il/)
INVESTMENT OF THE FUND. Section 2.1. The Company shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto.
Section 2.2. Each participant shall have the exclusive right, in In accordance with the provisions of the Plan, the Trustee shall invest and reinvest the Fund without distinction between principal and income in the Company’s common stock (herein “Company Stock”) in accordance with the terms of the Plan and this Agreement as directed by the Company. To the extent that contributions are made in Company Stock, the Trustee will be expected to retain such Company Stock. To the extent contributions are made in cash or other amounts are received in cash and are not needed to pay principal or interest on an ESOP loan, to pay distributions to participants and their beneficiaries or to pay expenses of the Trust, the Trustee will be expected to acquire Company Stock either from other shareholders or directly from the Company as directed by the Company. If at the time Company Stock is to be purchased, the Company has outstanding more than one class of Company Stock, the Company shall direct the investment Trustee as to which class of Company Stock shall be purchased.
Section 2.2. In accordance with the provisions of the Plan and except as provided in Section 2.1, all assets of the Fund shall be invested by the Trustee of all amounts allocated solely in Company Stock, with the exception that if the Trustee is notified by the Company that a participant is eligible to make a diversification election, if provided for under the separate accounts Plan, whereby the participant may transfer a specified portion of the Participant participant’s account to other investment options available under the Plan, the Trustee shall invest such specified portion of the participant’s account in accordance with the participant’s investment directions as provided for in the Plan and Section 2.3 hereof. The Company shall notify the Trustee of any such investment options currently available under the Plan among and any other plan sponsored by the Company which accepts such amounts and of any changes thereto, which changes shall be effective no earlier than 60 days after delivery of written notice to the Trustee (unless otherwise agreed to by the Trustee). In accordance with the provisions of the Plan, the Named Fiduciary of the Plan is authorized to appoint an “investment manager” as defined in Section 3(38) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), to be responsible for managing one or more of the designated investment options available Investment Fundsunder the Plan and selecting the specific investments that comprise any such investment option. In such case, the Named Fiduciary shall establish the investment policies and guidelines that the investment manager shall follow when managing the investment option for the Plan, but the Named Fiduciary shall not be responsible for the selection of the specific investments that comprise any such investment option. The Trustee shall follow the directions of the investment manager regarding the designated investment option(s) for which the investment manager is assigned responsibility.
Section 2.3. In accordance with the provisions of the Plan, each participant who is eligible to make the diversification election described in Section 2.2 shall direct the Trustee as to the investment of that portion of his or her account subject to such election. All investment directions by Participants participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants participants and beneficiaries directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated the Trustee. A participant’s diversification election shall be effected in the manner (i.e., reinvestment in the Plan in other assets, or transfer to another tax-qualified plan sponsored by the Company, or directly to an individual retirement account for the benefit of the participant) determined by the Company and conveyed to the TrusteeTrustee by the Company in writing. In making any such investment or transfer of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such the directions from participants and/or the Company that are properly furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and proceduresTrustee, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, the Trustee shall be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.32.4. Subject to the provisions of Sections 2.1 Section 2.1, 2.2, and 2.22.3, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;Fund:
(a) with respect to the diversification election described in Section 2.2 above, to invest and reinvest all or a part of the assets of the Fund in accordance with Participants' the available investment directions in any available Investment Fund selected by options under the Company Plan without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee, investment company, mutual fund, or other security or investment option offered by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets meet the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance thereforthereof, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(gd) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(ie) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof; and
(f) generally to exercise any of the powers of an owner with respect to all or any part of the Fund.
Section 2.42.5. Each participant or beneficiary to whose account shares of Company Stock have been allocated shall, as a named fiduciary within the meaning of Section 403(a)(1) of ERISA, direct the Trustee with respect to the voting and, if applicable, tendering of shares of Company Stock allocated to his or her account, and the Trustee shall follow the directions of those participants and beneficiaries who provide timely instructions to the Trustee. The Trustee shall vote the shares of Company Stock allocated to the accounts of participants for whom no timely instructions have been received in the same proportion as those shares of Company Stock for which instructions were timely received, provided that the Plan requires that participants and beneficiaries be given advance notice as to the consequences of any failure to instruct the Trustee as to the voting of allocated shares of Company Stock. Allocated shares of Company Stock will not be tendered, unless directed by a participant or beneficiary to whose account shares of Company Stock have been allocated. The Company or an independent fiduciary (approved of by the Trustee) shall direct the Trustee with respect to the voting and, if applicable, tendering of shares of Company Stock which have not been allocated to the accounts of participants or beneficiaries; provided, however, that the Trustee may require, in its sole discretion, that an independent fiduciary (approved of by the Trustee) shall direct the Trustee with respect to the voting, and, if applicable, tendering of shares of Company Stock which have not been allocated with respect to any corporate matter which involves the voting of Company Stock with respect to the approval or disapproval of any corporate merger or consolidation, recapitalization, reclassification, liquidation, dissolution, a sale of substantially all assets of the business, or any similar transaction.
Section 2.6. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
INVESTMENT OF THE FUND. Section 2.1. The Company Committee shall have the exclusive authority and discretion to select the investment funds (“Investment Funds”) available for investment under the Plan ("Investment Funds")Plan. In making such selection, the Committee shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The Company available investments under the Plan shall be sufficiently diversified so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. The Committee shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto. The Committee, in its discretion may add Investment Funds or delete Investment Funds with prior notice to the Trustee. The Committee may establish an Investment Fund which shall be invested primarily in common stock of CIBC (“Company Stock”) or any other security which is a “qualifying employer security,” as that term is defined in Section 407 of ERISA; provided, however, that any such investment complies with all the requirements prescribed by ERISA with respect to such investment. Such securities may be contributed by CIBC, or may be purchased from or sold to CIBC on the open market.
Section 2.2. Each participant In accordance with and subject to such rules, procedures and limitations as the Committee shall establish, each Participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds, and shall have an opportunity to obtain written confirmation of such instructions. All investment directions by Participants shall be timely furnished to the Trustee by the Plan AdministratorCommittee, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator Committee and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by the Plan Administrator Committee or by Participants in accordance with the Plan Administrator's Committee’s approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To The Committee may designate a default fund under the extent that Participants direct investment Plan in the Company's common stock ("Company Stock"), which the Trustee will use its best efforts and professional judgment shall deposit contributions to execute such trades in an orderly manner and to avoid any undue influence the Fund on behalf of Participants who have been identified by the market for such Company StockCommittee as having not specified investment choices under the Plan. If Otherwise, if the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator Committee of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it It is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided. The establishment of the Trust’s Investment Funds, howeverthe investment changes authorized by the Plan, that nothing contained herein and the investment information provided to Participants and their beneficiaries, are designed to comply with the requirements of Section 404(c) of ERISA and regulations issued thereunder by the Department of Labor to permit Participants and their beneficiaries to direct the investment of their separate accounts in an informed manner. The Trustee shall be deemed responsible for the distribution to relieve Plan Participants of all materials listed on a separate Service Agreement for the Plan to support the Plan’s compliance with Section 404(c) of ERISA. If for any period the Committee suspends Participant direction of investments (e.g., an administrative freeze or blackout period), the Committee shall direct the Trustee with respect to the investment of its duties and responsibilities, under ERISA or other applicable lawPlan assets.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' Participants or Committee investment directions in any available Investment Fund selected by the Company Committee without restriction to investments authorized for fiduciaries, or pursuant to directions by an Investment Manager under Article V, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund fimd maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund fimd available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "“Code"”), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of or the written directions by the Plan Administrator Committee or Investment Manager furnished to it pursuant to Section 1.31.3 or Article V, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("“Company Stock"”) that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares and other securities which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.Committee;
(f) upon the written direction of the Plan AdministratorCommittee, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan AdministratorCommittee, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator Committee in accordance with the provisions of the Plan; provided that the Plan Administrator Committee shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; andPlan;
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof;
(j) to withhold taxes on distributions from the Plan, timely deposit such withheld taxes with the appropriate agency, and timely report such distributions to the appropriate agency in accordance with the Code, state law and regulations thereunder.
(k) to invest all or any portion of an Investment Fund in qualifying employer securities (as that term is defined in Section 407 of ERISA); provided that any such investment complies with all requirements prescribed by ERISA with respect to such investment;
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
Samples: Trust Agreement (Canadian Imperial Bank of Commerce /Can/)
INVESTMENT OF THE FUND. Section 2.1(a) The Company has on the date hereof established and delivered to the Trustee a statement of the investment policies and procedures to be applicable to the Trust and, subject to subsections (b) and (c), the Company may from time to time hereafter amend, modify, supplement or restate the policies and procedures and such policies and procedures as from time to time so amended, supplemented, restated or replaced are referred to herein as the ''Statement of Investment Policies and Procedures".
(b) In all events and at all times, the Statement of Investment Policies and Procedures shall provide that the Fund may only be invested in Qualified Investments(without limiting the ability of the Company to specify in any Statement of Investment Policies and Procedures that the investments in which the Fund may be invested shall be further restricted).
(c) Prior to amending, supplementing, restating or replacing the statement of Investment Policies and Procedures, the Company shall provide prior written notice of such changes within the period and containing the information stipulated from time to time by the NEB.
(d) The Trustee is responsible for receiving, holding, investing and releasing the Fund. The Company Trustee shall control and hold the Funds and have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing complete control of the selection of the Investment Funds currently available for Fund's investment under the Plan, and any changes theretomanagement.
Section 2.2. Each participant (e) The Fund shall have be held, invested and reinvested by the exclusive rightTrustee, assisted as to investment and reinvestment by one or more Investment Managers, in accordance with the provisions Statement of Investment Policies and Procedures from time to time in effect, whether or not any such investment is of a character authorized by laws concerning investments by trustees, provided that the Trustee shall ensure that at all times the Fund is invested solely in Qualified Investments. The Trustee shall invest the principal and income of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent Fund without distinction between principal and income in such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to investments as it by the Plan Administrator or by Participants may select in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection or commingled trust fund available only to employees trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participanthereof.
(f) upon Provided that it has complied with the written direction Statement of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult Investment Policies and employ any suitable agent to act on behalf of the Trustee Procedures and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator acted in accordance with the provisions Standard of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of LaborCare, the Trustee shall not maintain be responsible for the indicia title, validity or genuineness of any Property or evidence of title thereto received by it or any defect in ownership in or title of any assets Property from time to time forming part of the Fund outside of the jurisdiction of the district courts of the United StatesFund.
Appears in 1 contract
Samples: Trust Agreement
INVESTMENT OF THE FUND. Section 2.1. The Company Committee shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds")) available for investment under the Plan. In making such selection, the Committee shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The Company Committee shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto.
Section 2.2. Each participant Participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. The Committee shall have the right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of amounts allocated to the separate accounts of Participants who failed to furnish timely instructions to the Trustee and amounts that have not been allocated to Participants' separate accounts. All investment directions by Participants or the Committee shall be timely furnished to the Trustee by the Plan AdministratorCommittee, except to the extent such directions are transmitted telephonically or otherwise by Participants or the Committee directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator Committee and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by Participants or the Plan Administrator or by Participants Committee in accordance with the Plan AdministratorCommittee's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator Committee of that fact, and the Trustee may, in its discretion, shall hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation in accordance with the Committee's investment direction pending receipt of proper investment directions. Otherwise, it It is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' or the Committee's investment directions in any available Investment Fund selected by the Company Committee, subject to any limitations adopted by the Committee, without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants or the Committee furnished to it pursuant to Section 2.2 of or the written directions by the Plan Administrator Committee furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of voting common stock or any class of capital stock convertible into voting stock of the Company Employer ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all shares of the mutual fund shares funds which are held by the Plan solely in accordance with directions furnished to it by the CompanyCommittee, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.Participant or the Committee, where the Participant has not furnished timely directions;
(f) upon the written direction of the Plan AdministratorCommittee, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan AdministratorCommittee, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator Trustee in accordance with the provisions of the PlanPlan and pursuant to procedures approved by the Committee; provided that the Plan Administrator Committee shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and;
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, provided that at least ten days prior to the making of any such payment the Trustee must mail notice to the Committee of its intention to make such payment, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof; and
(j) to commingle the Company Stock held in the Trust with Company Stock held in other trusts forming part of other qualified employee benefit plans maintained by the Company.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
INVESTMENT OF THE FUND. Section 2.1. The Company Plan Administrator shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds")) available for investment under the Plan. In making such selection, the Plan Administrator shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The available investments under the Plan shall be sufficiently diversified so as to seek to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto. The Plan Administrator may also direct the Trustee from time to time to cause assets in the Fund to be delivered to the trustee under that certain Master Trust Agreement of even date herewith between Dynegy Inc. and Vanguard Fiduciary Trust Company (the "Master Trust Agreement") establishing a master trust (the "Master Trust"), and to cause such assets to be held, administered and invested pursuant to the Master Trust Agreement. The Master Trust is hereby adopted as a part of this Agreement and the Plan.
Section 2.2. Each participant Except as otherwise provided in the Plan, each Participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To The Plan Administrator may designate a default fund under the extent that Participants direct investment Plan in the Company's common stock ("Company Stock"), which the Trustee will use its best efforts and professional judgment shall deposit contributions to execute such trades in an orderly manner and to avoid any undue influence the Fund on behalf of Participants who have been identified by the market for such Company StockPlan Administrator as having not specified investment choices under the Plan. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directionsdirections (which proper investment directions shall include the designation of a default fund as provided in the preceding sentence). Otherwise, it is specifically intended under the Plan and Pg.3 this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company Plan Administrator without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of or the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;; Pg.4
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided in Section 5.2 and except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan (other than mutual fund shares acquired at the direction of a Participant pursuant to an individual brokerage account option that is an investment alternative under the Plan) solely in accordance with directions furnished to it by the CompanyPlan Administrator, and to vote in person or by proxy and to make all tender offer decisions with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.;
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) with the consent of the Plan Administrator, to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator Company shall have the responsibility for collecting all loan repayments required to be made under the Plan and for Pg.5 furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
Samples: Trust Agreement (Dynegy Inc /Il/)
INVESTMENT OF THE FUND. Section 2.1(a) The Company has on the date hereof established and delivered to the Trustee a statement of the investment policies and procedures to be applicable to the Trust and, subject to subsections (b) and (c), the Company may from time to time hereafter amend, modify, supplement or restate the policies and procedures and such policies and procedures as from time to time so amended, supplemented, restated or replaced are referred to herein as the ''Statement of Investment Policies and Procedures".
(b) In all events and at all times, the Statement of Investment Policies and Procedures shall provide that the Fund may only be invested in Qualified Investments (without limiting the ability of the Company to specify in any Statement of Investment Policies and Procedures that the investments in which the Fund may be invested shall be further restricted).
(c) Prior to amending, supplementing, restating or replacing the Statement of Investment Policies and Procedures, the Company shall provide prior written notice of such changes within the period and containing the information stipulated from time to time by the NEB.
(d) The Trustee is responsible for receiving, holding, investing and releasing the Fund. The Company Trustee shall control and hold the Funds and have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing complete control of the selection of the Investment Funds currently available for Fund's investment under the Plan, and any changes theretomanagement.
Section 2.2. Each participant (e) The Fund shall have be held, invested and reinvested by the exclusive rightTrustee, assisted as to investment and reinvestment by one or more Investment Managers, in accordance with the provisions Statement of Investment Policies and Procedures from time to time in effect, whether or not any such investment is of a character authorized by laws concerning investments by trustees, provided that the Trustee shall ensure that at all times the Fund is invested solely in Qualified Investments. The Trustee shall invest the principal and income of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent Fund without distinction between principal and income in such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to investments as it by the Plan Administrator or by Participants may select in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection or commingled trust fund available only to employees trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participanthereof.
(f) upon Provided that it has complied with the written direction Statement of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult Investment Policies and employ any suitable agent to act on behalf of the Trustee Procedures and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator acted in accordance with the provisions Standard of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of LaborCare, the Trustee shall not maintain be responsible for the indicia title, validity or genuineness of any Property or evidence of title thereto received by it or any defect in ownership in or title of any assets Property from time to time forming part of the Fund outside of the jurisdiction of the district courts of the United StatesFund.
Appears in 1 contract
Samples: Trust Agreement
INVESTMENT OF THE FUND. Section 2.1. The Company shall have the exclusive authority and discretion to select the investment funds for investment under the Plan ("Investment Funds")) available for investment under the Plan. In making such selection, the Company shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The available investments under the Plan shall be sufficiently diversified so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto.. Pg. 2
Section 2.2. Each participant Participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of or the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.;
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
Samples: Trust Agreement (Sequa Corp /De/)
INVESTMENT OF THE FUND. Section 2.1. The Company Plan Administrator shall have the exclusive authority and discretion to select the investment funds (“Investment Funds”) available for investment under the Plan. In making such selection, the Plan ("Investment Funds")Administrator shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The available investments under the Plan shall be sufficiently diversified so as to seek to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto. The Plan Administrator may also direct the Trustee from time to time to cause assets in the Fund to be delivered to the trustee under that certain Master Trust Agreement effective January 1, 2002, between Dynegy Inc. and Vanguard Fiduciary Trust Company (the “Master Trust Agreement”) which established a master trust (the “Master Trust”), and to cause such assets to be held, administered and invested pursuant to the Master Trust Agreement. The Master Trust is hereby adopted as a part of this Agreement and tire Plan.
Section 2.2. Each participant Except as otherwise provided in the Plan, each Participant shall have the exclusive right, in accordance with the provisions of the Plan, to direct the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's ’s approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To The Plan Administrator may designate a default fund under the extent that Participants direct investment Plan in the Company's common stock ("Company Stock"), which the Trustee will use its best efforts and professional judgment shall deposit contributions to execute such trades in an orderly manner and to avoid any undue influence the Fund on behalf of Participants who have been identified by the market for such Company StockPlan Administrator as having not specified investment choices under the Plan. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directionsdirections (which proper investment directions shall include the designation of a default fund as provided in the preceding sentence). Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' ’ investment directions in any available Investment Fund selected by the Company Plan Administrator without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "“Code"”), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of or the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided in Section 5.2 and except as provided further in Article IV hereof with respect to shares of common stock of the Company ("“Company Stock"”) that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by the Plan (other than mutual fund shares acquired at the direction of a Participant pursuant to an individual brokerage account option that is an investment alternative under the Plan) solely in accordance with directions furnished to it by the CompanyPlan Administrator, and to vote in person or by proxy and to make all other offer decisions with respect to all other securities credited to a Participant's ’s separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.;
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this AgreementAgreement provided that the Plan Administrator has approved any additional costs which result from the use of such agents;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator Company shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
Samples: Trust Agreement (Dynegy Inc.)
INVESTMENT OF THE FUND. Section 2.1. The Fund shall be invested primarily in Company Stock. Each Qualified Participant, as defined in the Plan, shall have the exclusive authority and discretion right to select the investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the Plan, and any changes thereto.
Section 2.2. Each participant shall have the exclusive rightdiversify his account, in accordance with the provisions of the PlanPlan and Section 401(a)(28) of the Code, to direct by directing the investment by the Trustee of all amounts allocated to the separate accounts of the Participant under the Plan eligible for diversification among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan AdministratorCommittee, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator Committee and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, shall be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan AdministratorCommittee's approved rules and proceduresof procedure, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, shall be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it It is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided.
Section 2.2. To the extent to which the Fund is not invested in Company Stock, howeverthe Committee shall have the exclusive authority and discretion to select the investment funds ("Investment Funds") available for investment under the Plan. In making such selection, the Committee shall use the care, skill, prudence and diligence under the circumstances then prevailing that nothing contained herein a prudent person 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. The Committee shall be deemed to relieve notify the Trustee in writing of its duties the selection of the Investment Funds currently available for investment under the Plan, and responsibilities, under ERISA or other applicable lawany changes thereto.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2, the Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Trust;:
(a) to invest promptly in Company Stock, and to the extent allowable and appropriate, in securities of or guaranteed by the United States of America, or any agency thereof, in short-term commercial paper, or in certificates of deposit, or in mutual funds holding such securities, or the Trustee may temporarily hold the funds in cash; and to invest and reinvest all or a part of the Fund in accordance with Qualified Participants' investment directions in any available Investment Fund selected by the Company Committee without restriction to investments authorized for fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants or the Committee furnished to it pursuant to Section 2.2 of 2.1 or the written directions by the Plan Administrator Committee furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested to the extent necessary to pay benefits or expenses of the Plan;
(d) to cause any investment of the Fund to be registered in the name of the Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") Stock that are held by the Fund, to vote in person or by proxy with respect to all shares of the mutual fund shares funds which are held by the Plan solely in accordance with directions furnished to it by the CompanyCommittee, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participant.;
(f) upon the written direction of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Trustee to manage and administer the Fund according to the terms of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(ig) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, provided that at least ten days prior to the making of any such payment the Trustee must mail notice to the Committee of its intention to make such payment, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof;
(h) to commingle the Company Stock held in the Trust with Company Stock held in other trusts forming part of other qualified employee benefit plans maintained by the Company; and
(i) to borrow funds and/or to contract for the purchase of Company Stock which qualifies under Section 409(l) of the Code to be paid for in installments, subject to the limitations set forth in the Plan.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
INVESTMENT OF THE FUND. Section 2.1A. The Trustee shall invest and reinvest the principal and income of the Fund and keep the same invested without distinction between principal and income. The Company shall have the exclusive authority and discretion Except to select the establish separate investment funds for investment under the Plan ("Investment Funds"). The Company shall notify the Trustee in writing pursuant to Section 5.2 of the selection of the Investment Funds currently available for investment under the Plan, and except as provided in Article II.B. below, the selection and retention or disposition of any changes theretoinvestment shall be determined by the Trustee.
Section 2.2. Each participant B. The Trustee or the Company, through its Board of Directors, or the Committee may appoint an Investment Manager (as defined in the Plan) which Investment Manager, in its sole discretion, shall have authority with respect to the exclusive rightinvestment of that portion of the Fund over which the Trustee, the Company or the Committee shall grant the Investment Manager investment control. The Trustee shall be under no obligation to invest or otherwise manage any asset of the Fund which is subject to the management of an Investment Manager.
(1) If an Investment Manager is appointed, the Company or the Trustee, as the case may be, may delegate to such Investment Manager those powers of the Trustee as may be specified in any agreement between the Trustee or the Company and the Investment Manager.
(2) If an Investment Manager is appointed, the Trustee shall not be liable for the acts or omissions of the Investment Manager unless the Trustee participates knowingly in, or knowingly undertakes to conceal, an act or omission of the Investment Manager which is a breach of fiduciary responsibility.
(3) If an Investment Manager is appointed, the Investment Manager shall be directed to act in accordance with the provisions Plan’s funding policy and investment guidelines and solely in the interest of the Plan Participants and their beneficiaries and for the exclusive purpose of providing benefits to such individuals and to defray reasonable expenses of administering the Plan, and to direct act with the investment by the Trustee of all amounts allocated to the separate accounts of the Participant care, skill, prudence and diligence under the Plan among any one or more circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of the available Investment Funds. All investment directions by Participants shall be timely furnished to the Trustee by the Plan Administrator, except an enterprise of a like character and with like aims.
C. Except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate set forth in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment Section 5.2 of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine the investment of the assets of the Fund; provided, however, that nothing contained herein shall be deemed to relieve the Trustee of its duties and responsibilities, under ERISA or other applicable law.
Section 2.3. Subject to the provisions of Sections 2.1 and 2.2Plan, the Trustee shall have the authority, following powers in addition to the powers customarily vested in trustees by law and in no way in derogation thereof:
(1) With any authority given cash at any time held by lawthe Trustee, to exercise the following powers purchase or subscribe for any Authorized Investment (as defined in the administration of the Trust;Article II.D below), and to retain such Authorized Investment in trust.
(a2) to invest and reinvest To sell for cash or on credit, convert, redeem, exchange for another Authorized Investment, or otherwise dispose of, any Authorized Investment at any time held by the Trustee.
(3) To retain uninvested all or a part of the Fund in accordance with Participants' investment directions and to deposit the same in any available banking or savings institution.
(4) To exercise any options appurtenant to any Authorized Investment in which the Fund selected by is invested for conversion thereof into another Authorized Investment, or to exercise any rights to subscribe for additional Authorized Investments, and to make all necessary payments therefor.
(5) To join in, consent to, dissent from, oppose, or deposit in connection with, the Company without restriction to investments authorized for fiduciariesreorganization, includingrecapitalization, without limitation on consolidation, sale, merger, foreclosure, or readjustment of the amount that finances of any corporations or properties in which the Fund may be invested thereininvested, or the sale, mortgage, pledge or lease of any common, collective such property or commingled trust fund maintained by the Trustee. Any investment in, and property of any such corporation upon such terms and conditions ofas the Trustee may deem wise, to do any act (including the exercise of options, making of agreements or subscriptions, and payment of expenses, assessments, or subscriptions) which may be deemed necessary or advisable in connection therewith; and to accept any Authorized Investment which may be issued in or as a result of any such proceeding, and thereafter to hold the same.
(6) To vote, in person or by general or limited proxy, at any election of any corporation in which the Fund is invested, and similarly to exercise, personally or by a general or limited power of attorney, any commonright appurtenant to any Authorized Investment held in the Fund.
(7) To sell, collection either at public or commingled trust fund available only private sale, option to employees trusts which meets sell, mortgage, lease for a term of years less than or continuing beyond the requirements possible date of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws termination of the United Statestrust created hereunder, shall constitute an integral part of this Agreement and the Plan;
(b) to dispose of all partition or exchange any part of the investments, securities, or other real property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 a portion of the written directions by Fund, for such prices and upon such terms as the Plan Administrator furnished to it pursuant to Section 1.3Trustee may deem best, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, therefor and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership theretothereof to the purchaser, free and discharged of all trusts and without liability on the part of such purchasers to see to the proper application of the purchase money;price.
(c8) To repair, alter or improve any buildings which may be on any real estate forming part of the Fund, or to erect entirely new structures thereon.
(9) To renew or extend or participate in the renewal or extension of any mortgage, upon such terms as the Trustee may deem advisable, and to hold cash uninvested agree to a reduction in the rate of interest on any mortgage or to any other modification or change in the terms of any mortgage or of any guarantee pertaining thereto, in any manner and to any extent that the Trustee may deem advisable for the protection of the Fund or the preservation of the value of the investment; to waive any default, whether in the performance of any covenant or condition of any mortgage or in the performance of any guarantee, or to enforce any such default in such manner and to such extent as the Trustee may deem advisable; to exercise and enforce any and all rights to foreclosure, to bid in property on foreclosure, to take a deed in lieu of foreclosure with or without paying a consideration therefor, and in connection therewith to release the obligation on the bond secured by such mortgage; and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies in respect to any mortgage or guarantee.
(10) To purchase Authorized Investments at a premium or discount.
(11) To employ suitable agents and counsel and to pay their reasonable expenses and compensation.
(12) To borrow or raise moneys, for the purposes of the Fund, in such amount and upon such terms and conditions as the Trustee may deem advisable, and for any sum so borrowed to issue the Trustee’s promissory note as trustee and to secure the repayment thereof by pledging or mortgaging all or any part of the Fund. No person lending money to the extent necessary Trustee shall be bound to pay benefits or expenses see to the application of the Plan;money lent or to inquire into the validity, expediency or propriety of any such borrowing.
(d13) to To cause any investment of in the Fund to be registered in in, or transferred into, the Trustee’s name of the Trustee as trustee or the name of its a nominee or nominees or to retain such investment them unregistered or in a form permitting transfer by delivery; provided that , but the books and records of the Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further , and the Trustee shall be fully responsible for any misappropriation or defalcation in Article IV hereof with respect to shares of common stock of the Company ("Company Stock") that are any investment held by the Fund, to vote a nominee or held in person or by proxy with respect to all mutual fund shares which are held by the Plan solely in accordance with directions furnished to it by the Company, and to vote in person or by proxy with respect to all other securities credited to a Participant's separate accounts under the Plan solely in accordance with directions furnished to it by the Participantunregistered form.
(f14) upon the written direction of the Plan Administrator, to To apply for, purchase, hold or transfer hold, transfer, pay premiums on, surrender and exercise all incidents of ownership of any life insurance, retirement income, endowment investment or annuity contract;contract which the Trustee is directed to purchase from an insurance company by the Committee.
(g15) To do all acts which the Trustee may deem necessary or proper and to consult exercise any and employ any suitable agent to act on behalf all powers of the Trustee under this Trust Agreement upon such terms and to contract for legal, accounting, clerical and other services deemed necessary by conditions which the Trustee to manage and administer may deem are for the Fund according to the terms best interests of the Plan and this Agreement;
(h) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the Plan; provided that the Plan Administrator shall have the responsibility for collecting all loan repayments required to be made under the Plan and for furnishing the Trustee with copies of all promissory notes evidencing such loans; and
(i) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereofFund.
Section 2.4. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
Samples: Retirement Plan Trust Agreement (New Swank Inc Retirement Plan Trust)
INVESTMENT OF THE FUND. Section 2.1. The Company Plan Administrator shall have the exclusive authority and discretion to select the investment funds (“Investment Funds”) available for investment under the Participating Plans. In making such selection, the Plan ("Investment Funds")Administrator shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person 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. The Company available investments under the Participating Plans shall be sufficiently diversified so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. The Employer shall notify the Trustee in writing of the selection of the Investment Funds currently available for investment under the PlanParticipating Plans, and any changes thereto.
Section 2.2. Each participant shall have the exclusive right, in accordance with the provisions As of the Planeffective date of this Agreement, to direct the investment by the Trustee of all amounts allocated to the separate accounts purpose of the Participant under the Plan among any one or more of the available Investment Funds. All investment directions by Participants shall be timely furnished Master Trust is to the Trustee by the Plan Administrator, except to the extent such directions are transmitted telephonically or otherwise by Participants directly to the Trustee or its delegate in accordance with rules and procedures established and approved by the Plan Administrator and communicated to the Trustee. In making any investment of the assets of the Fund, the Trustee shall, to the extent permitted by applicable law, including, without limitation, ERISA, be fully entitled to rely on such directions furnished to it by the Plan Administrator or by Participants in accordance with the Plan Administrator's approved rules and procedures, and shall, except as required otherwise by applicable law, including, without limitation, ERISA, be under no duty to make any inquiry or investigation with respect thereto. To the extent that Participants direct investment in the Company's common stock ("Company Stock"), the Trustee will use its best efforts and professional judgment to execute such trades in an orderly manner and to avoid any undue influence on the market for such Company Stock. If the Trustee receives any contribution under the Plan that is not accompanied by instructions directing its investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the Trustee may, in its discretion, hold or return all or a portion of the contribution uninvested without liability for loss of income or appreciation pending receipt of proper investment directions. Otherwise, it is specifically intended under the Plan and this Agreement that the Trustee shall have no discretionary authority to determine facilitate the investment of the assets of the Participating Plans that comprise the Dynegy Stock Fund; provided, howeverthe Stable Value Fund, that nothing contained herein shall be deemed to relieve the Trustee of its duties Strategic Growth Fund, the Strategic Moderate Growth Fund and responsibilities, under ERISA or other applicable lawthe Strategic Conservative Growth Fund.
Section 2.32.2. Subject to the provisions of Sections 2.1 and 2.2Section 2.1, the Master Trustee shall have the authority, in addition to any authority given by law, to exercise the following powers in the administration of the Master Trust;:
(a) to invest and reinvest all or a part of the Fund in accordance with Participants' ’ investment directions in any available Investment Fund selected by the Company without restriction to investments authorized for by fiduciaries, including, without limitation on the amount that may be invested therein, any common, collective or commingled trust fund maintained by the Master Trustee. Any investment in, and any terms and conditions of, any common, collection collective or commingled trust fund available only to employees employee trusts which meets the requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or corresponding provisions of subsequent income tax laws of the United States, shall constitute an integral part of this Agreement and the PlanParticipating Plans;
(b) to dispose of all or any part of the investments, securities, or other property which may from time to time or at any time constitute the Fund in accordance with the investment directions by Participants furnished to it pursuant to Section 2.2 of the written directions by the Plan Administrator furnished to it pursuant to Section 1.3, and to make, execute and deliver to the purchasers thereof good and sufficient deeds of conveyance therefor, and all assignments, transfers and other legal instruments, either necessary or convenient for passing the title and ownership thereto, free and discharged of all trusts and without liability on the part of such purchasers to see to the application of the purchase money;
(c) to hold cash uninvested short-term investments to the extent necessary to pay benefits or expenses of the PlanParticipating Plans;
(d) to cause any investment of the Fund to be registered in the name of the Master Trustee or the name of its nominee or nominees or to retain such investment unregistered or in a form permitting transfer by delivery; provided that the books and records of the Master Trustee shall at all times show that all such investments are part of the Fund;
(e) except as provided further in Article IV hereof with respect to shares of common stock of the Company Employer ("“Company Stock"”) that are held by the Fund, to vote in person or by proxy with respect to all mutual fund shares which are held by Participating Plans (other than mutual fund shares acquired at the Plan direction of a Participant pursuant to an individual brokerage account option that is an investment alternative under the Plan) solely in accordance with directions furnished to it by the CompanyPlan Administrator, and to vote in person or by proxy and to make all tender offer decisions with respect to all other securities credited to a Participant's ’s separate accounts under the Plan Participating Plans solely in accordance with written directions furnished to it by the Participant.;
(f) upon with the written direction consent of the Plan Administrator, to apply for, purchase, hold or transfer any life insurance, retirement income, endowment or annuity contract;
(g) to consult and employ any suitable agent to act on behalf of the Master Trustee and to contract for legal, accounting, clerical and other services deemed necessary by the Master Trustee to manage and administer the Fund according to the terms of the Plan Participating Plans and this Agreement;
(hg) upon the written direction of the Plan Administrator, to make loans from the Fund to Participants in amounts and on terms approved by the Plan Administrator in accordance with the provisions of the PlanParticipating Plans; provided that the Plan Administrator Employer shall have the responsibility for collecting all loan repayments required to be made under the Plan Participating Plans and for furnishing the Master Trustee with copies of all promissory notes evidencing such loans; and
(ih) to pay from the Fund all taxes imposed or levied with respect to the Fund or any part thereof under existing or future laws, and to contest the validity or amount of any tax, assessment, claim or demand respecting the Fund or any part thereof.
Section 2.42.3. Except as may be authorized by regulations promulgated by the Secretary of Labor, the Master Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the jurisdiction of the district courts of the United States.
Appears in 1 contract
