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EXHIBIT 99.4
AMENDMENT NO. 1 TO THE DELL COMPUTER CORPORATION MASTER TRUST AGREEMENT
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AMENDMENT NO. 1 TO THE
DELL COMPUTER CORPORATION
MASTER TRUST
THIS AGREEMENT is made as of this 26th day of December, 2000 by and
between DELL COMPUTER CORPORATION, a Texas corporation, (the "Company"), and THE
CHASE MANHATTAN BANK, N.A. (the "Trustee");
WHEREAS, the Company and the Trustee previously executed THE DELL
COMPUTER CORPORATION MASTER TRUST (the "Trust") effective April 1, 1996; and
WHEREAS, the Company and the Trustee desire to amend the Trust pursuant
to the authority reserved in Section 17;
NOW, THEREFORE, Section 4(b) of the of the Trust is hereby amended as
follows, but all other sections of the Trust shall remain in full force and
effect.
1. Section 4(b) is hereby amended, as underlined, to be and read as
follows:
"(b) Available Investment Options. The Administrator shall direct the
Trustee as to the investment options which shall be maintained or used
for Plan participant investments. The Administrator may determine to
offer investment options which may include, but shall not be limited
to, (i) securities issued by any investment company registered under
the Investment Company Act of 1940 ("Mutual Funds"), (ii) equity
securities issued by the Sponsor or an affiliate which are
publicly-traded and which are "qualifying employer securities" within
the meaning of Section 407(d)(5) of ERISA ("Sponsor Stock"), (iii)
notes evidencing loans to Plan participants in accordance with the
terms of the Plan, (iv) Directed Funds, as defined in Section 20 below,
and (v) short term investment funds maintained by the Trustee for
qualified plans. The Trustee shall be considered a fiduciary with
investment discretion only with respect to Pla. n assets that are
invested in short term investment funds maintained by the Trustee for
qualified plans and the Dell Computer Corporation Stock Fund."
2. The Trust is hereby amended by adding new Section 20 to the end
thereof, to be and read as follows:
"SECTION 20. DIRECTED FUNDS.
(a) General. The Trustee may, pursuant to the direction of the
Company, establish one or more segregated Investment Funds, each of
which shall consist of a part of the assets of the Trust for which the
Company has assigned to an Investment Manager pursuant to an investment
management agreement . For purposes of this provision, the
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term "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38)of
ERISA. The investment management agreement shall provide terms and
conditions of appointment, authority and retention of the Investment
Manager.
The Company shall promptly notify the Trustee in writing of
the appointment or removal of an Investment Manager. Any notice of
appointment pursuant to this Section shall constitute a representation
and warranty that the Investment Manager has been appointed in
accordance with the provisions of the Plan.
(b) Responsibility for Directed Funds. All transactions of any
kind or nature in or from a Directed Fund shall be made upon such terms
and conditions and from or through such brokers, dealers and other
principals and agents as the Investment Manager shall direct. Unless
specifically agreed to by the Trustee, no such transactions shall be
executed through the facilities of the Trustee except where the Trustee
shall make available its facilities solely for the purpose of temporary
investment of cash reserves of a Directed Fund. (However, nothing in
the preceding sentence shall confer any authority upon the Trustee to
invest the cash balances of any Directed Fund unless and until it
receives directions from the Investment Manager.)
(c) Investment Vehicles. Any Investment Vehicle, or interest
therein, acquired by or transferred to the Trustee upon the directions
of the Investment Manager shall be allocated to a designated Directed
Fund, and the Trustee's duties and responsibilities under this
Agreement shall not be increased or otherwise affected thereby. The
Trustee shall be responsible solely for the safekeeping of the physical
evidence, if any, and reporting of the Trust's ownership of or interest
or participation in such Investment Vehicle.
(d) Duty of Care. In exercising any of the powers delegated
under this Section, an Investment Manager shall discharge its duties
hereunder with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims, consistent with the
requirements of ERISA.
(e) Powers of Investment Managers. Without in any way limiting
the powers and discretion conferred upon any Investment Manager by the
other provisions of this Agreement or by law, each Investment Manager
shall be vested with the following powers and discretion with respect
to the assets of the Fund subject to its management and control, and,
upon the directions of the Investment Manager of a Directed Fund, the
Trustee shall make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to enable such Investment Manager
to carry out such powers and discretion:
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(1) to sell, exchange, convey, transfer or otherwise
dispose of any property by private contract or at public
auction (subject to the provisions of the Plan and this
Agreement with respect to shares of Company Stock), and no
person dealing with the Investment Manager shall be bound to
see to the application of the purchase money or to inquire
into the validity, expediency or propriety of any such sale or
other disposition;
(2) to enter into contracts or to make commitments
either alone or in company with others to sell or acquire
property;
(3) to purchase or sell, write or issue, puts, calls
or other options, covered or uncovered, to enter into
financial futures contracts, forward placement contracts and
standby contracts, and in connection therewith, to deposit,
hold (or direct the Trustee, to deposit or hold)or pledge
assets of a Directed Fund);
(4) to purchase part interests in real property or in
mortgages on real property, wherever such real property may be
situated;
(5) to lease to others for any term without regard to
the duration of the Trust any real property or part interest
in real property; to delegate to a manager or the holder or
holders of a majority interest in any real property or
mortgage on real property or in any oil, mineral or gas
properties, the management and operation of any part interest
in such property or properties (including the authority to
sell such part interests or otherwise carry out the decisions
of such manager or the holder or holders of such majority
interest);
(6) to vote upon any stocks, bonds or other
securities (but subject to the suspension of any voting rights
as a result of any broker loan or similar agreement and
subject, further, to the provisions of the Plan and this
Agreement with respect to shares of Sponsor Stock); to give
general or special proxies or powers of attorney with or
without power of substitution; to exercise any conversion
privileges, subscription rights or other options and to make
any payments incidental thereto; to consent to or otherwise
participate in corporate reorganizations or other changes
affecting corporate securities and to delegate discretionary
powers and to pay any assessments or charges in connection
therewith.; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities or other
property;
(7) to direct the Trustee to organize corporations
under the laws of any state for the purpose of acquiring or
holding title to property or to appoint an ancillary trustee
acceptable to the Trustee for such purpose;
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(8) to invest in a fund consisting of securities
issued by corporations and selected and retained solely
because of their inclusion in, and in accordance with, one or
more commonly used indices of such securities, with the
objective of providing investment results for the fund which
approximate the overall performance of such designated index;
(9) to enter into any partnership, as a general or
limited partner, or joint venture;
(10) to purchase units or certificates issued by an
investment company or pooled trust or comparable entity;
(11) to transfer money or other property to an
insurance company issuing an insurance contract or to a
financial institution pursuant to an investment agreement;
(12) to transfer assets of Directed Fund to a common,
collective or commingled trust fund exempt from tax under the
Code maintained by the Investment Manager or an affiliate of
the Investment Manager or by another trustee, to be held and
invested subject to all of the terms and conditions thereof,
and such trust shall be deemed adopted as part of the Trust
and the Plan to the extent that assets of the Trust are
invested therein;
(13) to be reimbursed for the expenses incurred in
exercising any of the foregoing powers or to pay the
reasonable expenses incurred by any agent, manager or trustee
appointed pursuant hereto to the extent permitted by the Plan;
(14) to require the Trustee to borrow money on behalf
of the Directed Fund, and to require the Trustee to pledge any
asset of the Directed Fund as security therefore, for any
purpose which the Investment Manager deems necessary to the
normal administration of the Directed Fund; and
(15) to arrange for custody of assets of the Directed
Fund with custodians of its choice.
(f) Limitations on Trustee Responsibility.
(1) Trustee Not Responsible for Investments in
Directed Funds. The Trustee shall be under no duty or
obligation to review or to question any direction of any
Investment Manager, or to review securities or any other
property held in any Directed Fund with respect to prudence or
proper diversification or compliance with any limitation on
the Investment Manager's authority under this Agreement or the
Plan, any agreement entered into between the Company and the
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Investment Manager or imposed by applicable law, or to make
any suggestions or recommendation to the Company, the
Committee or the Investment Manager with respect to the
retention or investment of any assets of any Directed Fund,
and shall have no authority to take any action or to refrain
from taking any action with respect to any asset of a Directed
Fund unless and until it is directed to do so by the
Investment Manager.
The Company shall limit, restrict or impose
guidelines affecting the exercise of the discretion conferred
on any Investment Manager. The limitations, restrictions or
guidelines applicable to the Trustee, as Investment Manager,
shall be communicated in writing to the Trustee. The Trustee
shall have no responsibility with respect to the formulation
of any funding policy or any investment or diversification
policies embodied therein. The Company or the Committee shall
be responsible for communicating, and monitoring adherence to,
any limitations or guidelines imposed on any other Investment
Manager by the guidelines described above.
(2) Responsibility for Directed Funds. All
transactions of any kind or nature in or from a Directed Fund
shall be made upon such terms and conditions and from or
through such brokers, dealers and other principals and agents
as the Investment Manager shall direct. Unless specifically
agreed to by the Trustee, no such transactions shall be
executed through the facilities of the Trustee except where
the Trustee shall make available its facilities solely for the
purpose of temporary investment of cash reserves of a Directed
Fund. (However, nothing in the preceding sentence shall confer
any authority upon the Trustee to invest the cash balances of
any Directed Fund unless and until it receives directions from
the Investment Manager.)
(3) Reliance on Investment Manager. The Trustee shall
be required under this Agreement to execute documents, to
settle transactions, to take action on behalf of or in the
name of the Trust and to make and receive payments on the
direction of the Investment Manager. The Trustee may rely on
the direction of the Investment Manager (i) that the
transaction is in accord with applicable law, (ii) that any
contract; agency, joinder, adoption, participation or
partnership agreement, deed, assignment or other document of
any kind which the Trustee is requested or required to execute
to effectuate the transaction has been reviewed by the
Investment Manager and, to the extent it deems advisable and
prudent, its counsel, (iii) that such instrument or document
is in proper form for execution by the Trustee, (iv) that,
where appropriate, insurance protecting the Trust against loss
or liability has been or will be maintained in the name of or
for the benefit of the Trustee, and (v) that all other acts to
perfect and protect the Trust's rights have been taken, and
the Trustee shall have no duty to make any independent inquiry
or investigation as to any of the foregoing before acting upon
such direction. In
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addition, the Trustee shall not be liable for the default of
any Person with respect to any Investment Vehicle or any
investment in a Directed Fund or for the form, genuineness,
validity, sufficiency or effect of any document executed by,
delivered to or held by it for any Directed Fund on account of
such investment, or if, for any reason (other than the
negligence or willful misconduct of the Trustee)any rights of
the Trust therein shall lapse or shall become unenforceable or
worthless.
(4) Merger of Funds. The Trustee shall not have any
discretionary responsibility or authority to manage or control
any asset held in a Directed Fund upon the resignation or
removal of an Investment Manager unless and until it has been
notified in writing by the Company that the Investment
Manager's authority has terminated and that such Directed
Fund's assets are to be integrated with the other investment
funds maintained under the Trust Fund. Such notice shall not
be deemed effective until two bank business days after it has
been received by the Trustee. The Trustee shall not be liable
for any losses to the Fund resulting from the disposition of
any investment made by the Investment Manager or for the
retention of any illiquid or unmarketable investment or any
investment which is not widely publicly traded or for the
holding of any other investment acquired by the Investment
Manager if the Trustee is unable to dispose of such investment
because of any restrictions imposed by the Securities Act of
1933 or other Federal or state law, or if an orderly
liquidation of such investment is impractical under prevailing
conditions, or for failure to comply with any investment
limitations imposed pursuant to Section 4, or for any other,
violation of the terms of this Agreement, the Plan or
applicable law as a result of the addition of Directed Fund
assets to the other investment funds maintained under the
Trust Fund.
(5) Notification of Company in Event of Breach. If
the Trustee has actual knowledge that a breach of fiduciary
duty committed by an Investment Manager, it shall notify the
Company thereof.
(6) Duty to Enforce Claims. The Trustee shall have no
duty to commence or maintain any action, suit or legal
proceeding on behalf of the Trust on account of or growing out
of any investment made in or for a Directed Fund unless the
Trustee has been directed to do so by the Investment Manager
or the Company and unless the Trustee is either in possession
of funds sufficient for such purpose or unless it has been
indemnified to its satisfaction for counsel fees, costs and
other expenses and liabilities to which it, in its sole
judgment, may be subjected by beginning or maintaining such
action, suit or legal proceeding.
(7) Limitations on Transfers. Nothing herein shall be
deemed to empower any Investment Manager to direct the Trustee
to transfer any asset of a
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Directed Fund to itself except for purposes of the payment of
its fee if such means of payment is permitted by its
investment management agreement."
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Amendment to be executed and their respective corporate seals to be affixed and
arrested by their respective corporate officers on the day and year first
written above.
DELL COMPUTER CORPORATION
By: /s/ XXXXXXXX XXXXX
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Its: Director of Global Benefits
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ATTEST:
/s/ Xxxxx X. Xxxxxx
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Its: Corporate Counsel
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CHASE MANHATTAN BANK, N.A.
By: /s/ XXXXXXX X. WASP
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Its: Vice President
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ATTEST:
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Its: Assistant Secretary
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