Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows: 7.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA; 7.2 Subject to 7.1 and 7.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses; 7.3 Subject to 7.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Committee given in exercise of that Committee's responsibility; 7.4 The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOUR, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereof. For currencies other than U.S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and 7.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund and respond to a tender or exchange offer in accordance with (a) of the following provisions: (a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the Committee. The Trustee shall tender such Company Stock as to which the Trustee or its agent have received instructions to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant to the Direction of the Committee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee. (b) No provision of this Section 7.5 shall prevent the Trustee from taking any action relating to its duties under this Section 7.5 if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA. (c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market. (d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement. 7.6 The Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund at the direction of the Committee.
Appears in 2 contracts
Samples: Master Retirement Savings Trust (Dole Food Company Inc), Master Retirement Savings Trust (Dole Food Co Inc)
Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 6.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 6.2 Subject to 7.1 Section 6.1 and 7.3Section 6.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large lossestosses;
7.3 6.3 Subject to 7.1Section 6.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Committee given in exercise of that the Committee's ’s responsibility;
7.4 The 6.4 Except as otherwise provided in Section 4.6, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOUR, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' ’ acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofthereof and regulated investment companies (including those for which The Northern Trust Company or any of its affiliates acts as advisor). For currencies other than U.S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest Interest bearing account of a foreign custodian; and;
7.5 6.5 The Committee shall have the sole investment responsibility with respect to the retention, sale, purchase or voting of any employer stock which has not been allocated to a Separate Account. The Trustee shall vote shares have custody of Company Stock held in the Company Stock Investment Fund such employer stock and respond to a tender or exchange offer in accordance shall act with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) respect thereto only as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised directed by the Committee. The Trustee shall tender not make any investment review of, consider the propriety of holding or selling, or vote any such Company Stock as employer stock. With respect to which such employer stock, the Committee shall have the investment power granted to the Trustee or its agent have received instructions by ARTICLE FIVE as limited by Section 6.1 and Section 6.2 of ARTICLE SIX, as if all references therein to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited referred to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant to the Direction of the Committee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 6.5 shall prevent the Trustee from taking any action relating with respect to its duties under this Section 7.5 the voting or tender of such employer stock if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.; and
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 6.6 The Committee shall have sole responsibility for determining the propriety of investment of the Trust Fund in foreign securities and the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's ’s fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund Fund at the direction of the Committee.
Appears in 1 contract
Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 6.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 6.2 Subject to 7.1 Section 6.1 and 7.3Section 6.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 6.3 Subject to 7.1Section 6.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Benefits Administration Committee given in exercise of that Committeecommittee's responsibility;
7.4 The 6.4 Except as otherwise provided in Section 3.6, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviservote, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except as directed by the Investment Adviser thereof. Further, the Benefits Administration Committee hereby directs that if any cash of a Separate Account, consisting of U.S. dollars in the Trustee’s custody, shall be invested in the collective Short Term Investment Fund maintained by the Trustee shall not have received contrary or its affiliate, unless the Trustee receives other instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting Advisor of U.S. dollars of a such Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofAccount. For currencies other than held by the Trustee outside the United States, including U.S. dollars, the Trustee shall invest such cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account thereof and such investments may include an interest bearing account of a foreign custodian; and;
7.5 6.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund powers and respond to a tender or exchange offer in accordance with (a) responsibilities of the following provisions:
(a) The Trustee, or the Company upon written notice Trustee relative to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner limited as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the Committee. The Trustee shall tender such Company Stock as to which the Trustee or its agent have received instructions to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant to the Direction of the Committee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 shall prevent the Trustee from taking any action relating to its duties under this Section 7.5 if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund at the direction of the Committee.follows:
Appears in 1 contract
Samples: 401(k) and Profit Sharing Plan Trust Agreement (Kimberly Clark Corp)
Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 Subject to 7.1 and 7.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 Subject to 7.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Investment Committee given in exercise of that Committee's responsibility;
7.4 The Except as otherwise provided in 4.6, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOUR, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereof. For currencies other than U.S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company Northern Trust Stock Investment Fund and respond to a tender or exchange offer in accordance with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Northern Trust Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Northern Trust Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Northern Trust Stock Investment Fund fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender tenders of, Company Stock of which the Trustee has been advised by the Administrative Committee. The Trustee shall tender such Company Stock as to which the Trustee or its agent have received instructions to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant same proportion thereof as the Company Stock as which the Trustee or its agent have received instructions from Participants to the Direction of the Committeetender bears to all Company Stock allocated to Participant accounts. The Administrative Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Administrative Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Northern Trust Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Northern Trust Stock Investment Fund that have not yet been allocated. .
A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment ininvest, votingvote, tender, tender or exchange or sale of Company Stock allocated to the Participant's account and their with respect to the Participant's proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 shall prevent the Trustee from taking any action relating to its duties under this Section 7.5 if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Northern Trust Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange tender or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange tender or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Investment Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Investment Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Investment Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund Fund at the direction of the Investment Committee.
7.7 The Trustee shall have no responsibility for: (a) any condition which now exists or may hereafter be found to exist in, under, or about any real estate investment of the Trust Fund or of a corporation organized under Section 501(c)(2) or 501(c)(25) of the Code, the stock of which is held as an asset of the Trust Fund; or (b) any violation of any applicable environmental or health or safety law, ordinance, regulation or ruling; or (c) the presence, use, generation, storage, release, threatened release, or containment, treatment or disposal of any hazardous or toxic substances or materials including such situations at or activities on any investment of the Trust Fund or of a Section 501(c)(2) or 501(c)(25) corporation, the stock of which is held as an asset of the Trust Fund. The Trustee is hereby authorized to pay from the Trust Fund all costs and expenses (including attorneys fees) relating to or connected with any condition, violation, presence or other situation referred to in (a), (b) and (c) above, and notwithstanding anything to the contrary in this agreement, to the extent permitted by law, THE NORTHERN TRUST COMPANY shall be indemnified from the Trust Fund from all claims, suits, losses and expenses (including attorneys fees) arising therefrom. The authority to pay from the Trust Fund and the right of indemnification set forth in the preceding sentence include and relate to, without limitation, any claims, suits, liabilities, losses and expenses (including attorneys fees) arising from any matters relating to the existence of petroleum including crude oil and any fraction thereof, hazardous substances, pollutants, or contaminants as defined in the Comprehensive Environmental, Responsibility, Compensation, and Liability Act, as amended, 42 U.S.C. Section 9601 et seq., or hazardous wastes as defined in the Resource Conservation and Liability Act, 42 U.S.C. Section 6906 et seq., or as any of the foregoing terms or similar terms may be defined in similar state environmental laws or subsequent federal or state legislation of a similar nature which may be enacted from time to time. This paragraph shall survive the sale or other disposition of any real estate investment of the Trust Fund and the termination of this agreement. Nothing in this paragraph shall be construed to in any way limit the indemnification rights of the Trustee provided for in ARTICLE TEN.
Appears in 1 contract
Samples: Master Retirement Savings Trust Agreement (Northern Trust Corp)
Limitations on Powers. For purposes of this agreementAgreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 5.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 5.2 Subject to 7.1 Section 5.1 and 7.3Section 5.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 5.3 Subject to 7.1Section 5.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Committee given in exercise of that Committee's responsibilityInvestment Subcommittee;
7.4 The 5.4 Except as otherwise provided in Section 3.7, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. U. S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States U.S. Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofthereof and regulated investment companies (including those for which the Trustee or any of its affiliates acts as advisor). For currencies other than U.S. U. S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund and respond to a tender or exchange offer in accordance with (a) of the following provisions:;
(a) The Trustee, or Investment Subcommittee shall have the Company upon written notice sole investment responsibility with respect to the Trusteeretention, shall furnish to each Participant who has sale, purchase or voting of any Company Stock credited to his or her individual account under the other than Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or been allocated to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to Separate Account over which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as Subcommittee has delegated investment responsibility to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock an Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the CommitteeAdviser. The Trustee shall tender have custody of such Company Stock and shall act with respect thereto as directed by an Investment Adviser of a Separate Account holding Company Stock or the Investment Subcommittee with respect to which Company Stock in a Company Stock Account. The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote any such Company Stock. With respect to such Company Stock, the Investment Subcommittee shall have the investment powers granted to the Trustee or its agent have received instructions by ARTICLE FOUR as limited by Section 5.1 and Section 5.2 of ARTICLE FIVE, as if all references therein to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant referred to the Direction of the CommitteeInvestment Subcommittee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 5.5 shall prevent the Trustee from taking any action relating with respect to its duties under this Section 7.5 the voting or tender of such Company Stock if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISAXXXXX.
(cb) Purchases and sales If the Investment Subcommittee or its designee determines to swap shares of Company Stock may be made tocommon stock of FMC Corporation with another trust or to enter into non-market trades, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) it shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by direct the Trustee with respect to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open marketterms and conditions of such trades.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock 5.6 The Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee Subcommittee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the CommitteeInvestment Subcommittee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the CommitteeInvestment Subcommittee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund Fund at the direction of the CommitteeInvestment Subcommittee.
Appears in 1 contract
Samples: Quarterly Report
Limitations on Powers. For purposes of this agreementAgreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 5.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 5.2 Subject to 7.1 Section 5.1 and 7.3Section 5.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 5.3 Subject to 7.1Section 5.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Committee given in exercise of that Committee's responsibilityInvestment Subcommittee;
7.4 The 5.4 Except as otherwise provided in Section 3.7, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. U. S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States U.S. Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofthereof and regulated investment companies (including those for which the Trustee or any of its affiliates acts as advisor). For currencies other than U.S. U. S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and;
7.5 5.5 The Trustee Investment Subcommittee shall vote shares have the sole investment responsibility with respect to the retention, sale, purchase or voting of any Company Stock held in the stock other than Company Stock Investment Fund and respond stock which has been allocated to a tender or exchange offer in accordance with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to Separate Account over which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as Subcommittee has delegated investment responsibility to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock an Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the CommitteeAdviser. The Trustee shall tender have custody of such Company stock and shall act with respect thereto as directed by an Investment Adviser of a Separate Account holding Company stock or the Investment Subcommittee with respect to Company stock in a Company Stock as Account. The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote any such Company stock. With respect to which such Company stock, the Investment Subcommittee shall have the investment powers granted to the Trustee or its agent have received instructions by ARTICLE FOUR as limited by Section 5.1 and Section 5.2 of ARTICLE FIVE, as if all references therein to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant referred to the Direction of the CommitteeInvestment Subcommittee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 5.5 shall prevent the Trustee from taking any action relating with respect to its duties under this Section 7.5 the voting or tender of such Company stock if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.;
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock 5.6 The Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee Subcommittee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the CommitteeInvestment Subcommittee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the CommitteeInvestment Subcommittee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund Fund at the direction of the CommitteeInvestment Subcommittee.
Appears in 1 contract
Samples: Defined Benefit Retirement Trust Agreement (FMC Corp)
Limitations on Powers. For purposes of this agreementAgreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 5.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 5.2 Subject to 7.1 Section 5.1 and 7.3Section 5.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 5.3 Subject to 7.1Section 5.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Committee given in exercise of that Committee's responsibilityInvestment Subcommittee;
7.4 The 5.4 Except as otherwise provided in Section 3.7, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. U. S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States U.S. Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofthereof and regulated investment companies (including those for which the Trustee or any of its affiliates acts as advisor). For currencies other than U.S. U. S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund and respond to a tender or exchange offer in accordance with (a) of the following provisions:;
(a) The Trustee, or Investment Subcommittee shall have the Company upon written notice sole investment responsibility with respect to the Trusteeretention, shall furnish to each Participant who has sale, purchase or voting of any Company Stock credited to his or her individual account under the other than Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or been allocated to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to Separate Account over which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as Subcommittee has delegated investment responsibility to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock an Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the CommitteeAdviser. The Trustee shall tender have custody of such Company Stock and shall act with respect thereto as directed by an Investment Adviser of a Separate Account holding Company Stock or the Investment Subcommittee with respect to which Company Stock in a Company Stock Account. The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote any such Company Stock. With respect to such Company Stock, the Investment Subcommittee shall have the investment powers granted to the Trustee or its agent have received instructions by ARTICLE FOUR as limited by Section 5.1 and Section 5.2 of ARTICLE FIVE, as if all references therein to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant referred to the Direction of the CommitteeInvestment Subcommittee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 5.5 shall prevent the Trustee from taking any action relating with respect to its duties under this Section 7.5 the voting or tender of such Company Stock if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(cb) Purchases and sales If the Investment Subcommittee or its designee determines to swap shares of Company Stock may be made tocommon stock of FMC Corporation with another trust or to enter into non-market trades, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) it shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by direct the Trustee with respect to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open marketterms and conditions of such trades.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock 5.6 The Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee Subcommittee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the CommitteeInvestment Subcommittee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the CommitteeInvestment Subcommittee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund Fund at the direction of the CommitteeInvestment Subcommittee.
Appears in 1 contract
Samples: Defined Benefit Retirement Trust (FMC Technologies Inc)
Limitations on Powers. For purposes of this agreementAgreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 5.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 5.2 Subject to 7.1 Section 5.1 and 7.3Section 5.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 5.3 Subject to 7.1Section 5.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Committee given in exercise of that Committee's responsibilityInvestment Subcommittee;
7.4 The 5.4 Except as otherwise provided in Section 3.7, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. U. S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States U.S. Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofthereof and regulated investment companies (including those for which the Trustee or any of its affiliates acts as advisor). For currencies other than U.S. U. S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and;
7.5 5.5 The Trustee Investment Subcommittee shall vote shares have the sole investment responsibility with respect to the retention, sale, purchase or voting of any Company Stock held in the stock other than Company Stock Investment Fund and respond stock which has been allocated to a tender or exchange offer in accordance with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to Separate Account over which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as Subcommittee has delegated investment responsibility to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock an Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the CommitteeAdviser. The Trustee shall tender have custody of such Company stock and shall act with respect thereto as directed by an Investment Adviser of a Separate Account holding Company stock or the Investment Subcommittee with respect to Company stock in a Company Stock as Account. The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote any such Company stock. With respect to which such Company stock, the Investment Subcommittee shall have the investment powers granted to the Trustee or its agent have received instructions by ARTICLE FOUR as limited by Section 5.1 and Section 5.2 of ARTICLE FIVE, as if all references therein to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant referred to the Direction of the CommitteeInvestment Subcommittee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 5.5 shall prevent the Trustee from taking any action relating with respect to its duties under this Section 7.5 the voting or tender of such Company stock if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund at the direction of the Committee.;
Appears in 1 contract
Samples: Defined Benefit Retirement Trust Agreement (FMC Technologies Inc)
Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 6.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 6.2 Subject to 7.1 6.1 and 7.36.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 6.3 Subject to 7.16.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Investment Committee given in exercise of that Committee's responsibility;
7.4 The 6.4 Except as otherwise provided in 3.6, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviser, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereof. For currencies other than U.S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund and respond to a tender or exchange offer in accordance with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the Committee. The Trustee shall tender such Company Stock as to which the Trustee or its agent have received instructions to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant to the Direction of the Committee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 shall prevent the Trustee from taking any action relating to its duties under this Section 7.5 if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund at the direction of the Committee.than
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Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 6.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the those Participants and Beneficiaries under the Plans and who are eligible to receive such benefits in accordance with the care, skill, prudence terms and diligence under conditions of the circumstances then prevailing that a prudent man acting Plan and in like capacity and familiar with such matters and consistent accordance with the standards of a prudent man under ERISA;
7.2 6.2 Subject to 7.1 Section 6.1 and 7.3Section 6.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 6.3 Subject to 7.1Section 6.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Investment Committee given in exercise of that Committee's committee’s responsibility;
7.4 6.4 The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOUR, except as directed by the Investment Adviser thereof. Further, if the Trustee shall not have received contrary instructions from the Investment Adviser of a Separate Account, the Trustee, in its discretion, shall invest for short term purposes any cash of such Separate Account, in its custody, in participations in common funds maintained by The Northern Trust Company or any of its affiliates; and
6.5 The Investment Committee shall have the sole investment responsibility with respect to the retention, sale, purchase or voting of any employer stock which has not been allocated to a Separate Account. The Trustee shall have custody of such employer stock and shall act with respect thereto only as directed by the Investment Committee. The Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by any such employer stock. With respect to such employer stock, the Investment Adviser, any assets of Committee shall have the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOUR, except that if the Trustee shall not have received contrary instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting of U.S. dollars of a Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereof. For currencies other than U.S. dollars, the Trustee shall invest cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account and such investments may include an interest bearing account of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund and respond to a tender or exchange offer in accordance with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished investment powers granted to the Trustee (or to a tabulating agent appointed by the Trustee) ARTICLE FIVE as to the voting at that meeting limited by Section 6.1 and Section 6.2 of Company Stock credited to the Participant's account. If the Participant furnishes such instructions this ARTICLE SIX, as if all references therein to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice referred to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the Committee. The Trustee shall tender such Company Stock as to which the Trustee or its agent have received instructions to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant to the Direction of the Committee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 6.5 shall prevent the Trustee from taking any action relating with respect to its duties under this Section 7.5 the voting or tender of such employer stock if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund at the direction of the Committee.
Appears in 1 contract
Samples: Retiree Medical Plan Trust Agreement (Phelps Dodge Corp)
Limitations on Powers. For purposes of this agreement, the powers and responsibilities allocated to the Trustee shall be limited as follows:
7.1 6.1 The powers of the Trustee shall be exercisable for the exclusive purpose of providing benefits to the Participants and Beneficiaries under the Plans Plan and in accordance with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters and consistent with the standards of a prudent man under ERISA;
7.2 6.2 Subject to 7.1 Section 6.1 and 7.3Section 6.3, the Trustee shall diversify the investments of that portion of the Trust Fund for which it has investment responsibility so as to minimize the risk of large losses;
7.3 6.3 Subject to 7.1Section 6.1, the Trustee shall, with respect to that portion of the Trust Fund for which it has investment responsibility, follow the investment guidelines established by the Benefits Administration Committee given in exercise of that Committee's committee’s responsibility;
7.4 The 6.4 Except as otherwise provided in Section 3.6, the Trustee shall not make any investment review of, consider the propriety of holding or selling, or vote other than as directed by the Investment Adviservote, any assets of the Trust Fund allocated to a Separate Account in accordance with ARTICLE FOURTHREE, except as directed by the Investment Adviser thereof. Further, the Benefits Administration Committee hereby directs that if any cash of a Separate Account, consisting of U.S. dollars in the Trustee’s custody, shall be invested in the collective Short Term Investment Fund maintained by the Trustee shall not have received contrary or its affiliate, unless the Trustee receives other instructions from the Investment Adviser thereof, the Trustee shall invest for short term purposes any cash consisting Advisor of U.S. dollars of a such Separate Account in its custody in bonds, notes and other evidences of indebtedness having a maturity date not beyond five years from the date of purchase, United States Treasury bills, commercial paper, bankers' acceptances and certificates of deposit, and undivided interests or participations therein and (if subject to withdrawal on a daily or weekly basis) participations in common or collective funds composed thereofAccount. For currencies other than held by the Trustee outside the United States, including U.S. dollars, the Trustee shall invest such cash of a Separate Account as directed by the Investment Adviser with respect to that Separate Account thereof and such investments may include an interest bearing account of a foreign custodian; and;
7.5 6.5 The Trustee shall vote shares of Company Stock held in the Company Stock Investment Fund powers and respond to a tender or exchange offer in accordance with (a) responsibilities of the following provisions:
(a) The Trustee, or the Company upon written notice Trustee relative to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund the date and purpose of each meeting of the stockholders of the Company at which Company Stock is entitled to be voted. The Trustee, or the Company if it has furnished the above information, shall request from each Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting at that meeting of Company Stock credited to the Participant's account. If the Participant furnishes such instructions to the Trustee or its agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with the Participant's instructions. All Company Stock credited to Participant accounts as to which the Trustee or its agent do not receive instructions as specified above, and all unallocated Company Stock held in the Company Stock Investment Fund shall be voted by the Trustee proportionately in the same manner limited as it votes Company Stock as to which the Trustee or its agent have received voting instructions as specified above. Similarly, the Trustee, or the Company upon written notice to the Trustee, shall furnish to each Participant who has Company Stock credited to his or her individual account under the Company Stock Investment Fund notice of any tender offer for, or a request or invitation for tenders of, Company Stock received by the Trustee. The Trustee, or the Company if it has furnished such notice, shall request from each such Participant instructions to be furnished to the Trustee (or to a tabulating agent appointed by the Trustee) as to the tendering of Company Stock credited to the Participant's account and for this purpose the Trustee or the Company, as the case may be, shall provide Participants with a reasonable period of time in which they may consider any such tender offer for, or request or invitation for tender of, Company Stock of which the Trustee has been advised by the Committee. The Trustee shall tender such Company Stock as to which the Trustee or its agent have received instructions to tender from Participants within the time specified by the Trustee or the Company, as the case may be. Company Stock credited to Participant accounts as to which the Trustee or its agent have not received instructions from Participants shall not be tendered. As to all unallocated Company Stock held by the Trustee, the Trustee shall tender the shares pursuant to the Direction of the Committee. The Committee shall provide the Trustee with timely information regarding proxy voting and tender offers and in carrying out its responsibilities under this provision the Trustee may conclusively rely on information furnished to it by the Committee, including the names and current addresses of Participants, the number of shares of Company Stock credited to Participant accounts under the Company Stock Investment Fund, and the number of shares of Company Stock held by the Trustee in the Company Stock Investment Fund that have not yet been allocated. A Participant shall be a "named fiduciary" under ERISA to the extent of the Participant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the Participant's account and their proportionate share of unallocated Company Stock held by the Trustee.
(b) No provision of this Section 7.5 shall prevent the Trustee from taking any action relating to its duties under this Section 7.5 if the Trustee determines in its sole discretion that such action is necessary in order for the Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through any source, provided that such purchases from or sales to a party in interest (as defined in Section 3(14) of ERISA) shall comply with the requirements of Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company Stock shall be exercised by the Trustee to the extent that there is cash available for the investment; to the extent cash is not available, the same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Company Stock Investment Fund to the purchase of Company Stock. The Trustee shall not be liable for the purchase, retention, voting, tender, exchange or sale of Company Stock and the Company (which has the authority to do so under the laws of the state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense, including reasonable legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain by reason of purchase, retention, voting, tender, exchange or sale of Company Stock. This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to maintain the custody of foreign investments abroad. Except as otherwise directed by the Committee, custody of foreign investments shall be maintained with foreign custodians selected by the Trustee. The Trustee shall have no responsibility for losses to the Trust Fund resulting from the acts or omissions of any foreign custodian appointed by the Trustee unless due to the foreign custodian's fraud, negligence or willful misconduct. The Trustee shall maintain custody of foreign investments in any jurisdiction where the Trustee has not selected a custodian solely as directed by the Committee. The Trustee shall have no responsibility for the financial condition, acts or omissions of any foreign custodian holding assets of the Trust fund at the direction of the Committee.follows:
Appears in 1 contract
Samples: 401(k) and Profit Sharing Plan Trust Agreement (Kimberly Clark Corp)
