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EXHIBIT 99.3
TRUST AGREEMENT BETWEEN DELL COMPUTER CORPORATION AND
THE CHASE MANHATTAN BANK, N.A
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TRUST AGREEMENT, effective as of April 1, 1996 between Dell Computer
Corporation, a Texas corporation (the "Sponsor"), and The Chase Manhattan Bank,
N.A., incorporated under the laws of the United States of America (the
"Trustee").
WITNESSETH:
WHEREAS, the Sponsor and certain of its subsidiaries and affiliated
organizations have adopted and may hereafter adopt defined contribution benefit
plans ("Separate Plans") for the benefit of certain employees of the Sponsor and
certain of its subsidiaries and affiliated organizations (each such plan being
herein sometimes referred to as a "Separate Plan" and the Separate Plans being
herein collectively referred to as the "Plan"); and
WHEREAS, the Sponsor has established a trust for the collective
investment of the assets of the Plan in a trust fund which may be divided into
separate investment accounts; and
WHEREAS, the Trustee has been named the Trustee of such trust; and
WHEREAS, the Administration Committee (the "Administrator") is a named
fiduciary of the Plan (within the meaning of Section 402(a) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets, in accordance with the terms of this Agreement, in trust among several
investment options selected by the Administrator and as directed by Plan
participants; and
WHEREAS, the Administrator is the administrator of the Plan (within the
meaning of Section 3(16)(A) of ERISA);
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
SECTION 1. TRUST.
The Sponsor hereby reestablishes the Dell Computer Corporation Master
Trust (the "Trust") with the Trustee. The Trust shall consist of an initial
contribution of money or other property acceptable to the Trustee in its sole
discretion, made by the Sponsor or transferred from the previous trustee under
the Plan, such additional sums of money and Sponsor Stock (hereinafter defined)
as shall from time to time be delivered to the Trustee under the Plan, all
investments made therewith and proceeds thereof, and all earnings and profits
thereon, less the payments that are made by the Trustee as provided herein,
without distinction between principal and income. The Trustee hereby accepts the
Trust on the terms and conditions set forth in this Agreement. In accepting this
Trust, the Trustee shall be accountable for the assets received by it, subject
to the terms and conditions of this Agreement. The Trustee shall not be
responsible for the collection of any contributions to the Plan or for the
determination of the amount or frequency of any contributions required by the
Plan or for interpreting, construing or enforcing the Plan or the Plan's
compliance with ERISA, and such responsibility shall be borne solely by the
Administrator.
SECTION 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS.
Except as provided under applicable law, no part of the Trust may be
used for, or diverted to, purposes other than the exclusive benefit of the
participants in the Plan or their beneficiaries prior to the satisfaction of all
liabilities with respect to the participants and their beneficiaries.
SECTION 3. DISBURSEMENTS.
(a) Directions from Administrator. The Trustee shall make disbursements
(which shall not include the transfer of funds for investment) in the amounts
and in the manner that the
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Administrator or Subtransfer Agent (as hereinafter defined) directs from time to
time. The Trustee shall have no responsibility to ascertain any direction's
compliance with the terms of the Plan, any applicable law, the direction's
effect for tax purposes or otherwise; nor shall the Trustee have any
responsibility to see to the application of any disbursement.
(b) Limitations. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. The Trustee shall not be required to make any
disbursement in cash unless the Administrator or Subtransfer Agent has provided
a direction as to the assets to be converted to cash for the purpose of making
the disbursement.
SECTION 4. INVESTMENT OF TRUST.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment option under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(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,
and (iv) short term investment funds maintained by the Trustee for qualified
plans. The Trustee shall be considered a fiduciary with investment discretion
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only with respect to Plan assets that are invested in short term investment
funds maintained by the Trustee for qualified plans and the Dell Computer
Corporation Stock Fund.
(c) Designation of Investment Options. Specific investment options
shall be designated in writing from time to time by the Administrator giving
sufficient notice thereof for the Trustee to implement any necessary operating
procedures. All investment options offered must be able to be valued on a daily
basis by the Trustee.
(d) Participant Direction. Each Plan participant shall direct the
subtransfer agent appointed by the Sponsor (the "Subtransfer Agent") in which
investment option(s) to invest the assets in the participant's individual
accounts.
The Trustee shall invest the assets allocated to Plan participant
accounts only when, if and in the manner, directed by the Subtransfer Agent and
shall not be under any obligation to invest or otherwise manage any of such
assets. It shall be the duty of the Trustee to act strictly in accordance with
the Subtransfer Agent's directions and the Trustee shall be under no liability
for any loss of any kind which may result by it taking or refraining from taking
any action in accordance with any such direction. The Subtransfer Agent shall
certify to the Trustee the identity of the person or persons authorized to give
instructions or directions on its behalf. The Trustee may continue to rely on
all certifications under this paragraph unless otherwise notified in writing by
the Administrator or the Subtransfer Agent, as the case may be.
In the event that the Trustee fails to receive directions with respect
to any assets held in the Trust outside of its own collective funds, such assets
shall be invested in the Short Term Investment Fund until the Trustee receives
further direction.
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(e) Mutual Funds. Trust investments in Mutual Funds shall be subject to
the following limitations:
(i) Execution of Purchases and Sales. Purchases, sales and
exchanges of Mutual Funds shall be made on the date on which the Trustee
receives from the Subtransfer Agent in good order all information and
documentation necessary in time to effect such purchases, sales and exchanges,
and in the case of a purchase, has or receives funds necessary to make such
purchase. For this purpose, the Administrator may designate certain funds
between which an exchange shall not be deemed a purchase. The Trustee shall not
be obligated to make exchanges between other funds unless sufficient balances
are available for the purchase of such Mutual Fund shares.
(ii) Voting. At the time of mailing of notice of each annual
or special stockholders' meeting of any Mutual Fund, unless the Administrator
has appointed a different agent for this purpose, the Trustee shall send a copy
of the notice and all proxy solicitation materials to each Plan participant who
has shares of the Mutual Fund credited to the participant's accounts, together
with a voting direction form for return to the Trustee or its designee. Sponsor
will ensure that the appropriate documentation and proxy voting materials are
provided for distribution to participants. Each participant, as a named
fiduciary of the Plan, shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote the shares credited to the participant's
accounts (both vested and unvested). The Trustee shall not vote shares for which
it has received no directions from the participant. With respect to all rights
other than the right to vote, the Trustee shall follow the directions of the
participant and if no such directions are received, the directions of the
Administrator. The Trustee shall have no duty to solicit direction from
participants.
(f) Sponsor Stock. Trust investments in Sponsor Stock shall be made via
the Dell Computer Corporation Stock Fund which shall consist of shares of
Sponsor Stock and short-term
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liquid investments, including a commingled money market fund maintained by the
Trustee, necessary to satisfy the Fund's cash needs for transfers and payments.
The Dell Computer Corporation Stock Fund shall be valued on a daily unitized
basis which valuation shall be provided by the Trustee to the Subtransfer Agent.
(i) Acquisition Limit. Pursuant to the Plan, the Trust may be
invested in Sponsor Stock to the extent necessary to comply with investment
directions from the Administrator or under Section 4(d) of this Agreement.
(ii) Fiduciary Duty of Administrator. The Trustee shall not be
liable for any loss, or by reason of any breach, which arises from the
directions of the Administrator with respect to the acquisition and holding of
Sponsor Stock, unless it is clear on their face that the actions to be taken
under such directions are contrary to the terms of this Agreement or applicable
law.
(iii) Execution of Purchases and Sales.
(A) Purchases and sales of Sponsor Stock shall be made on the
open market on the date which the Trustee receives from the Administrator or the
Subtransfer Agent in good order all information and documentation necessary to
accurately effect such purchases and sales and, in the case of purchases,
receives a wire transfer of the funds necessary to make such purchases. Prior to
engaging in any transaction in Sponsor Stock, the Trustee shall offset purchase
and sale directions so that only the net number of shares shall be purchased or
sold. Such general rules shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number
of shares required to be purchased or sold on such date; or
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(2) If the Trustee determines that it is imprudent to
purchase or sell the total number of shares required to be purchased or sold on
such day as a result of market conditions; or
(3) If the Trustee is prohibited by the Securities
and Exchange Commission, the New York Stock Exchange, or any other regulatory
body from purchasing or selling any or all of the shares required to be
purchased or sold on such day.
In the event of the occurrence of the circumstances described in (1) or
(3) above, the Trustee shall purchase or sell such shares as soon as possible
thereafter and shall determine the price of such purchases or sales according to
normal operating procedures. In the event of the occurrence of the circumstances
described in (2) above, the Trustee shall consult with the Administrator before
taking any action.
(B) Purchases and Sales from or to Sponsor. The Trustee may
purchase or sell Sponsor Stock from or to the Sponsor if the purchase or sale is
for adequate consideration (within the meaning of Section 3(18) of ERISA) and no
commission is charged. If Plan participant or Sponsor contributions under the
Plan are to be invested in Sponsor Stock, the Sponsor may transfer Sponsor Stock
in lieu of cash to the Trust. In this case the number of shares transferred
shall be determined by dividing the amount of the contribution by the closing
price of the Sponsor Stock on the composite tape on the trading day immediately
preceding the date as of which the contribution is made. Purchases and sales to
or from third parties may also be made subject to similar arrangements, such
arrangements as approved in writing by the Sponsor.
(C) Use of an Affiliated Broker. The Administrator hereby
authorizes the Trustee to use Chase Securities, Inc. ("CSI") to provide
brokerage services in connection with
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any purchase or sale of Sponsor Stock in accordance with directions from Plan
participants or the Administrator. The provision of brokerage services shall be
subject to the following:
(i) The quality of execution of trades shall not be
adversely affected by the use of CSI.
(ii) As consideration for such brokerage services,
the Administrator agrees that CSI shall be entitled to remuneration under this
authorization provision pursuant to a written agreement between the
Administrator and CSI.
(iii) Following the procedures set forth in
Department of Labor Prohibited Transaction Class Exemption 86-128, the Trustee
will provide the Administrator with the following documents: (1) a description
of CSI's brokerage placement practices; (2) a copy of PTCE 86-128, and (3) a
form by which the Administrator may terminate this authorization to use a broker
affiliated with the Trustee. The Trustee will provide the Administrator with
this termination form annually, as well as an annual report which summarizes all
securities transaction-related charges incurred by the Plan, and the Plan's
annualized turnover rate.
(iv) Any successor organization of CSI, through
reorganization, consolidation, merger or similar transactions, shall, upon
consummation of such transaction and written notice to the Administrator, become
the successor broker in accordance with the terms of this authorization
provision.
(v) The Trustee and CSI shall continue to rely on
this authorization provision until notified to the contrary. The Administrator
reserves the right to terminate this authorization at any time upon written
notice to CSI (or its successor) and the Trustee, in accordance with Section 11
of this Agreement.
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(iv) Securities Law Reports. The Sponsor shall be responsible
for filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Sponsor Stock, including, without
limitation, any reports required under Section 13 or 16 of the Securities
Exchange Act of 1934, and shall immediately notify the Trustee in writing of any
requirement to stop purchases or sales of Sponsor Stock pending the filing of
any report. The Trustee shall provide to the Sponsor such information on the
Trust's ownership of Sponsor Stock as the Sponsor may reasonably request in
order to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement the provisions of this Section shall govern the
voting and tendering of Sponsor Stock. The Sponsor, after consultation with the
Trustee, shall pay for all printing, mailing and other out-of-pocket costs
associated with the voting and tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of the Sponsor Stock files
definitive proxy solicitation materials with the Securities and Exchange
Commission, the Sponsor shall cause a copy of all materials to be simultaneously
sent to the Trustee. Based on these materials the Trustee shall prepare a voting
instruction form or approve a form prepared by the Sponsor. At the time of
mailing of notice of each annual or special stockholders' meeting of the issuer
of the Sponsor Stock, the Trustee shall cause a copy of the notice and all proxy
solicitation materials to be sent to each Plan participant with an interest in
Sponsor Stock held in the Trust, together with the foregoing voting instruction
form to be returned to the Trustee or its designee. The Trustee shall provide
the Administrator with a copy of any materials provided to the participants and
shall certify to the Administrator that the materials have been mailed or
otherwise sent to participants.
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(2) Each participant with an interest in the Dell
Computer Corporation Stock Fund shall have the right, acting in the capacity of
a named fiduciary within the meaning of Section 402 of ERISA, to direct the
Trustee as to the manner in which the Trustee is to vote (including not to vote)
that number of shares of Sponsor Stock reflecting such participant's
proportional interest in the Dell Computer Corporation Stock Fund (both vested
and unvested). Directions from a participant to the Trustee concerning the
voting of Sponsor Stock shall be held in confidence by the Trustee and shall not
be divulged to the Sponsor, or any officer or employee thereof, or any other
person. Upon its receipt of the directions, the Trustee shall vote the shares of
Sponsor Stock reflecting the participant's proportional interest in the Dell
Computer Corporation Stock Fund as directed by the participant. Subject to
applicable law, the Trustee shall vote shares of Sponsor Stock reflecting a
participant's proportional interest in the Dell Computer Corporation Stock Fund
for which it has received no directions from the participant proportionally in
accordance with the votes of shares for which it has received instructions.
(B) Tender Offers
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the Trustee shall notify,
or request the Subtransfer Agent to notify, each Plan participant with an
interest in such Sponsor Stock of the tender offer and utilize reasonable
efforts to timely distribute or cause to be distributed to the participants the
same information that is distributed to shareholders of the issuer of Sponsor
Stock in connection with the tender offer. After consulting with the Trustee and
the Subtransfer Agent, the Sponsor shall provide and pay for a means by which
the participant may direct the Trustee (including directions via the Subtransfer
Agent) whether or not to tender the Sponsor Stock reflecting such participant's
proportional interest in the Dell Computer Corporation Stock Fund (both vested
and
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unvested). The Trustee shall provide the Sponsor with a copy of any material
provided to the participants and shall certify to the Sponsor that the materials
have been mailed or otherwise sent to participants.
(2) Each participant with an interest in the Dell
Computer Corporation Stock Fund shall have the right, acting in the capacity of
a named fiduciary within the meaning of Section 402 of ERISA, to direct the
Trustee (directly or through the Subtransfer Agent) to tender or not to tender
some or all of the shares of Sponsor Stock reflecting such participant's
proportional interest in the Dell Computer Corporation Stock Fund (both vested
and unvested). Directions from a participant (or from the Subtransfer Agent) to
the Trustee concerning the tender of Sponsor Stock shall be communicated in
writing, by facsimile transmission or such similar means as is agreed upon by
the Trustee, the Subtransfer Agent and the Sponsor under the preceding
paragraph. These directions shall be held in confidence by the Trustee and shall
not be divulged to the Sponsor, or any officer or employee thereof, or any other
person except to the extent that the consequences of such directions are
reflected in reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's services hereunder. The Trustee shall
tender or not tender shares of Sponsor Stock as directed by the participant (or
the Subtransfer Agent if directions are provided to it by the participants).
Subject to applicable law, the Trustee shall not tender shares of Sponsor Stock
reflecting a participant's proportional interest in the Dell Computer
Corporation Stock Fund for which it has received no directions from the
participant or the Subtransfer Agent.
(3) A participant who has directed the Trustee or the
Subtransfer Agent to tender some or all of the shares of Sponsor Stock
reflecting the participant's proportional interest in the Dell Computer
Corporation Stock Fund may, at any time prior to the
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tender offer withdrawal date, direct the Trustee or the Subtransfer Agent to
withdraw some or all of the tendered shares reflecting the participant's
proportional interest and the Trustee upon receipt of such directions from the
participant or the Subtransfer Agent, as the case may be, shall withdraw the
directed number of shares from the tender offer prior to the tender offer
withdrawal deadline. A participant shall not be limited as to the number of
directions to tender or withdraw that the participant may give to the Trustee or
the Subtransfer Agent, as the case may be.
(4) Pending receipt of directions from the
Subtransfer Agent or the Administrator, as provided in the Plan, as to which of
the remaining investment options the proceeds should be invested in, the Trustee
shall invest the proceeds in the Plan's Short Term Investment Fund or as may
otherwise be directed by the Administrator.
(vi) Shares Credited. For all purposes of this Section, the
number of shares of Sponsor Stock deemed "credited" or "reflected" to a
participant's proportional interest shall be determined as of the last preceding
valuation date.
(vii) General. With respect to all rights other than the right
to vote, the right to tender, and the right to withdraw shares previously
tendered, in the case of Sponsor Stock credited to a participant's proportional
interest in the Dell Computer Corporation Stock Fund, the Trustee shall follow
the directions of the Subtransfer Agent and if no such directions are received,
the directions of the Administrator. The Trustee shall have no duty to solicit
directions from any party.
(viii) Conversion. All provisions in this Section 4(f) shall
also apply to any securities received as a result of a conversion of Sponsor
Stock.
(g) Notes. Unless other arrangements are made, the Administrator shall
act as the Trustee's agent for the purpose of holding all trust investments in
participant loan notes ("Notes")
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and related documentation and as such shall (i) hold physical custody of and
keep safe the Notes and other loan documents, (ii) collect and remit all
principal and interest payments to the Trustee, (iii) keep the proceeds of such
loans separate from the other assets of the Administrator and clearly identify
such assets as Plan assets, (iv) advise the Trustee of the date, amount and
payee of the checks to be drawn representing loans, and (v) cancel the Notes and
other loan documentation when a loan has been paid in full. Notwithstanding
anything contained in this Agreement to the contrary, the Trustee shall retain
the original negotiated checks through which the Trustee pays the loan amounts
to the participants, and shall have no right, authority or duty to determine the
amount of or enforce in its discretion any payment of principal or interest or
the amount or application of any security under any Note, to allocate to any
Note or Notes any payments received by the Administrator or any disbursements or
transfers made therefrom, or to maintain any security under the Notes, and the
Administrator shall be solely responsible for the terms and enforcement of any
Notes or security interests thereunder, for the maintenance of appropriate
records reflecting the individual interests of Plan participants in any Notes or
payments or security relating thereto and for compliance with the requirements
of the Internal Revenue Code of 1986, as amended (the "Code") and any applicable
truth in lending or other consumer protection laws relating to loans under the
Plan. The Administrator shall report to the Trustee in writing periodically as
reasonably required by the Trustee as to the Notes in the Sponsor's possession
and/or their disposition. The Trustee and its independent auditors shall be
granted reasonable access to the records of the Administrator for audit purposes
in determining compliance with this provision.
(h) Reliance of Trustee on Directions. (i) The Trustee shall not be
liable for any loss, or by reason of any breach, which arises from any
Subtransfer Agent's direction or lack of
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direction or participant's exercise or non-exercise of rights under this Section
4 over the assets in the participant's accounts.
(ii) The Trustee shall not be liable for any loss or by reason
of any breach, which arises from the Administrator's exercise or non-exercise of
rights under this Section 4 unless it is clear on their face that the actions to
be taken under the Administrator's directions were contrary to the terms of this
Agreement or applicable law.
(i) Trustee Powers. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b), (c), (d), (e), (f) and (g) of
this Section 4, to sell, exchange, convey, transfer, or otherwise dispose of any
property held in the Trust, by private contract or at public auction. No person
dealing on behalf of the Sponsor with the Trustee shall be bound to see to the
application of the purchase money or other property delivered to the Trustee or
to inquire into the validity, expediency, or propriety of any such sale or other
disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4, to
invest in the investment media described in Section 4 and short term investments
(including interest bearing accounts with the Trustee or money market mutual
funds managed by affiliates of the Trustee) and in short term collective
investment funds maintained by the Trustee for qualified plans, in which case
the provisions of each short term collective investment fund in which the Trust
is invested shall be deemed adopted by the Sponsor and the provisions thereof
incorporated as a part of this Trust as long as the fund remains exempt from
taxation under Sections 401(a) and 501(a) of the Code.
(iii) To cause any securities or other property held as part
of the Trust to be registered in the Trustee's own name, in the name of one or
more of its nominees, or in the
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Trustee's account with the Depository Trust Company of New York and to hold any
investments in bearer form, but the books and records of the Trustee shall at
all times show that all such investments are part of the Trust.
(iv) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein granted.
(v) To settle, compromise, or submit to arbitration any
claims, debts, or damages due to or arising from the Trust; to commence or
defend suits or legal or administrative proceedings; to represent the Trust in
all suits and legal and administrative hearings; and to pay all reasonable
expenses arising from any such action, from the Trust if not paid by the
Sponsor.
(vi) To employ, subject to the approval of the Sponsor, which
shall not be unreasonably withheld, legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of this Agreement
and to pay their reasonable expenses and compensation from the Trust if not paid
by the Sponsor.
(vii) To do, subject to the consent of the Sponsor, which
shall not be unreasonably withheld, all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out any of the
foregoing powers and the purposes of the Trust.
SECTION 5. ACCOUNTS OF THE TRUSTEE.
The Trustee shall render from time to time accounts of its transactions
to the Administrator and the Administrator may approve such accounts by an
instrument in writing delivered to the Trustee. In the absence of the filing in
writing with the Trustee by the Administrator or of exceptions or objections to
any such account within sixty (60) days of the filing of Form 5500 for the Plan
for the period covered by the account, the Administrator shall be deemed to have
approved such account; and in such case or upon the written approval of the
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Administrator of any such account, the Trustee shall, to the maximum extent
permitted by ERISA, be released, relieved and discharged with respect to all
matters and things set forth in such accounts as though such account had been
settled by the decree of a court of competent jurisdiction in an action or
proceeding in which the Administrator, all other persons having fiduciary
responsibility with respect to the trust, and all persons having any beneficial
interest in the Trust Fund were parties. Except as provided by applicable law,
no persons other than the Sponsor or the Administrator may require an accounting
or bring any action against the Trustee with respect to the trust or its actions
as Trustee.
Nothing contained in this Agreement or in the Plan shall deprive the
Trustee of the right to have a judicial settlement of its accounts. In any
proceeding for a judicial settlement of the Trustee's accounts, or for
instructions in connection with the trust, the only necessary parties thereto in
addition to the Trustee shall be the Sponsor and the Administrator. If the
Trustee so elects, it may bring in as a party or parties defendant any other
person or persons.
SECTION 6. COMPENSATION AND EXPENSES.
Within thirty (30) days of receipt of the Trustee's xxxx, which shall
be computed and billed in accordance with Schedule "A" attached hereto and made
a part hereof, as amended from time to time, the Sponsor shall send to the
Trustee a payment in such amount. All brokerage commissions incurred by the
Trustee relating directly to the acquisition and disposition of investments
constituting part of the Trust, and all taxes of any kind whatsoever that may be
levied or assessed under existing or future laws upon or in respect of the Trust
or the income thereof, shall be a charge against and paid from the appropriate
Plan participants' accounts.
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SECTION 7. DIRECTIONS AND INDEMNIFICATION.
(a) Directions. The Trustee shall be fully protected in relying upon a
certification of any person authorized to act on behalf of the Administrator
with respect to any instruction, direction or approval of the Administrator, and
protected also in relying upon a certification of the Sponsor as to the persons
authorized to act on behalf of the Administrator, and in continuing to rely upon
such certification until a subsequent certification is filed with the Trustee.
The Trustee shall be further protected in relying upon a certification from the
Subtransfer Agent appointed by the Sponsor as to the person or persons
authorized to give instructions or directions on behalf of such Subtransfer
Agent and may continue to rely upon such certification until a subsequent
certification is filed with the Trustee. Unless otherwise provided herein, any
directions to be given to the Trustee under this Agreement by the Administrator
or Subtransfer Agent shall be given in writing or by electronic means mutually
satisfactory to the Trustee and the person giving the direction.
The Trustee shall be fully protected in acting upon any instrument,
certificate, or paper believed by it to be genuine and to be signed or presented
by the proper person or persons, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statement contained in any such writing
but may accept the same as conclusive evidence of the truth and accuracy of the
statements therein contained.
The Trustee shall not be liable for the proper application of any part
of the Trust Fund if payments are made in accordance with the directions of the
Administrator or Subtransfer Agent as herein provided, nor shall the Trustee be
responsible for the adequacy of the Trust Fund to meet and discharge any and all
payments and liabilities under the Plan. All persons dealing with the
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Trustee are released from inquiry into the decision or authority of the Trustee
and from seeing to the application of any moneys, securities or other property
paid or delivered to the Trustee.
(b) Indemnification. The Sponsor shall indemnify the Trustee against,
and hold the Trustee harmless from, any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against the Trustee by reason of any third party claim, regulatory
proceeding, or litigation arising from any act done or omitted to be done by any
individual or person with respect to the Manor Trust, including without
limitation the selection of GICs and similar investments by the Sponsor,
excepting only any and all loss, etc., to the extent that it arises from the
Trustee's failure to perform in accordance with the Trust Agreement, except to
the extent that the Trustee reasonably concludes that non-performance is
justified under ERISA.
The Trustee shall indemnify the Sponsor against, and hold the Sponsor
harmless from, any and all loss, damage, penalty, liability, cost and expense,
including without limitation, reasonable attorneys' fees and disbursements that
may be incurred by, imposed upon or asserted against the Sponsor or
Administrator by reason of any third party claim, regulatory proceeding or
litigation to the extent that it arises from the Trustee's failure to perform in
accordance with the Trust Agreement, except to the extent that the Trustee
reasonably concludes that non-performance is justified under ERISA.
(c) Survival. The provisions of this Section 7 shall survive the
termination of this Agreement.
SECTION 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Resignation. The Trustee may resign at any time upon sixty (60)
days' notice in writing to the Sponsor, unless a shorter period of notice is
agreed upon by the Sponsor.
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(b) Removal. The Sponsor may remove the Trustee at any time upon sixty
(60) days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
SECTION 9. SUCCESSOR TRUSTEE.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, the Sponsor may in writing appoint a successor trustee under this
Agreement. The successor trustee shall have all of the rights, powers,
privileges, obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor trustee
shall not be liable for the acts or omissions of the other with respect to the
Trust.
(b) Acceptance. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trustee assets shall
immediately vest in the successor trustee without any further action on the part
of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
be requested in writing by the Sponsor or the successor trustee to vest title to
all Trust assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through reorganization, consolidation, or
merger, or any similar transaction, shall, upon consummation of the transaction,
become the successor trustee under this Agreement.
SECTION 10. TERMINATION.
This Agreement may be terminated at any time by the Sponsor upon sixty
(60) days' notice in writing to the Trustee. On the date of the termination of
this Agreement, the Trustee shall forthwith transfer and deliver to such
individual or entity as the Sponsor shall designate, all cash and assets then
constituting the Trust. If, by the termination date, the Sponsor has not
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notified the Trustee in writing as to whom the assets and cash are to be
transferred and delivered, the Trustee may bring an appropriate action or
proceeding for leave to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
SECTION 11. RESIGNATION, REMOVAL AND TERMINATION NOTICES.
All notices of resignation, removal, or termination under this
Agreement must be in writing and mailed to the party to which the notice is
being given by certified or registered mail, return receipt requested, to the
Sponsor c/o Secretary of the Administration Committee, 0000 X. Xxxxxx Xxxx,
Xxxxx X, Xxxxxx, XX 00000, and to the Trustee c/o Xxxx Xxxxxxx, Relationship
Manager, The Chase Manhattan Bank, N.A., Global Securities Services, 000
Xxxxxxxx 00xx Xx., Xxx Xxxx, XX 00000, or to such other addresses as the parties
have notified each other of in the foregoing manner.
SECTION 12. SINGLE FUND.
The assets of the Trust shall be held, administered, invested and
managed in all respects as a single trust even though portions of such assets
may be attributable to different employers and the employees of each, or to
separate plans maintained by the same employer or different employers. The
Subtransfer Agent shall be responsible to maintain and determine the appropriate
share of the Trust fund held in respect of any such group of employees in the
event that such maintenance or determination shall be required by the Plan, this
Agreement or the operation of law. The determination by the Sponsor of the
shares of the Trust fund held in respect of any such employee group or plan
shall be final and conclusive upon all persons.
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SECTION 13. TRANSFER OF ASSETS.
Upon written direction of the Administrator the Trustee shall (i)
transfer and deliver such part of the assets or the Trust fund as may be
specified in such direction to any trustee or insurance carrier maintaining any
other investment medium of the Plan or to any trustee or insurance carrier
maintaining any investment medium of a plan, other than the Plan, which
qualifies under Section 401(a) of the Code into which plan the Plan (or any
portion thereof) shall be merged or consolidated, or (ii) accept the transfer to
the Trust fund of assets acceptable to it from any trustee or insurance carrier
maintaining any other investment medium of the Plan or from any trustee or
insurance carrier maintaining any investment medium of a plan, other than the
Plan which qualifies under Section 401(a) of the Code and which (or any portion
of which) shall be merged or consolidated with the Plan. Any such transfer shall
be subject to the provisions of Section 12 hereof and the Trustee shall have no
liability or responsibility (i) to determine whether such transfer shall be in
conformity with the provisions of any plan or of ERISA, or (ii) with regard to
the effect of such transfer upon any shares of the Trust fund held in respect of
participants or beneficiaries in the Plan whose interests (or any portion
thereof) in the Trust fund are being so transferred to other funding media, or
in respect of participants or beneficiaries in the Plan whose shares in the
Trust fund are not directly subject to any such transfer. Any such direction by
the Administrator shall constitute a certification that the transfer so directed
is one which the Administrator is authorized to direct and which is in
conformity with the provisions of the Plan or any other plan, this Agreement and
ERISA.
The provisions of Section 10 relating to administrative determinations
shall be applicable with respect to any payments or transfers under this Section
13.
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SECTION 14. ADOPTION OF TRUST BY SEPARATE PLAN.
A Separate Plan may be funded in whole or in part through this trust
and become a participating Separate Plan hereunder only if all of the following
conditions have been met:
(a) The Sponsor, subsidiary or an affiliate has established the
Separate Plan;
(b) The Separate Plan is intended to meet the requirements for
qualification under Section 401(a) of the Code;
(c) This trust is exempt from taxation under Section 401(a) of the
Code;
(d) This trust (as then in effect and as the same may be amended from
time to time) has been duly adopted as the trust for purposes of funding such
Separate Plan;
(e) This trust is maintained at all times as a domestic trust in the
United States;
(f) The Sponsor or the Administrator is duly authorized to exercise on
behalf of such Separate Plan all of the authority vested in it by the terms of
this trust;
(g) This Agreement is constituted as a part of the Separate Plan to the
extent of the beneficial interest of each such Separate Plan in the Trust Fund;
and
(h) Each Separate Plan is prohibited from making any assignment, either
in whole or part, of its beneficial interest in the Trust Fund.
When the trust is adopted as a trust under the Separate Plan of any
subsidiary or affiliate of the Sponsor, such subsidiary or affiliate shall be
bound by the decisions, instructions, actions and directions of the Sponsor or
the Administrator under this Agreement and the Trustee shall be fully protected
by the Sponsor and such subsidiary or affiliate in relying upon such decisions,
instructions, actions and directions of the Sponsor or the Administrator. The
Trustee shall not be required to give notice to or obtain the consent of any
such subsidiary or affiliate with respect to
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any action which is taken by the Trustee pursuant to this Agreement, and the
Sponsor shall have the sole authority to enforce this Agreement on behalf of any
such subsidiary or affiliate.
Any Separate Plan may at any time segregate from further participation
in the trust under this Trust Agreement. The Sponsor establishing such Separate
Plan shall file with the Trustee a document evidencing its segregation from the
Trust Fund and its continuance as a trust in accordance with the provisions of
this Trust Agreement as though such Sponsor were the sole creator thereof. In
such event, the Trustee shall deliver to itself, as Trustee of such trust, the
beneficial interest of such Separate Plan as determined under the provisions of
Section 12 hereof. Such Sponsor may thereafter exercise in respect of this Trust
Agreement all the rights and powers reserved to the Administrator under the
provisions of this Trust Agreement.
In lieu of the establishment of a separate trust with respect to the
participants and beneficiaries under a segregating Separate Plan in accordance
with the foregoing provisions of this Article, such beneficial interest may be
segregated as provided above and transferred directly to the trustee or
insurance company maintaining the funding medium of a plan other than the
Separate Plan in accordance with the provisions of Section 13 hereof.
SECTION 15. AGREEMENT INCORPORATED IN SEPARATE PLANS.
This Agreement constitutes a part of each Separate Plan and of any
separate trust created in connection therewith and is part thereof to the extent
of the beneficial interest of each Separate Plan or separate trust in the Trust
Fund. Trust assets will be accepted or retained for investment hereunder only
from or on account of Separate Plans or separate trusts which are qualified as
tax free employee benefit trusts under the provisions of the Internal Revenue
Code as in effect from time to time. Any separate trust shall be prohibited from
making any assignment, either in whole or in part, of its beneficial interest in
the Trust Fund.
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SECTION 16. DURATION.
This Trust shall continue in effect without limit as to time, subject,
however, to the provisions of this Agreement relating to amendment,
modification, and termination thereof.
SECTION 17. AMENDMENT OR MODIFICATION.
(a) Entire Agreement. This Agreement contains all of the terms agreed
upon between the parties with respect to the subject matter hereof.
(b) Waiver. No wavier by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(c) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(d) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(e) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
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SECTION 18. GOVERNING LAW.
(a) New York Law Controls. This Agreement and the trust created hereby
shall be construed, regulated and administered under the laws of the United
States or State of New York, as applicable, and, except where otherwise
specifically required by the provisions of ERISA, the Trustee shall be liable to
account only in the courts of the New York. All contributions to the Trustee
shall be deemed to take place in the State New York.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan,
and in the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
DELL COMPUTER CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Attest:
/s/ XXXX XXXXXXXX
-------------------------------
THE CHASE MANHATTAN BANK, N.A.
By: XXXX X. XXXXXXX, XX.
--------------------------------------
Vice President
Attest:
/s/ XXXXXX X. XXXX
-------------------------------
Vice President
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FEE AGREEMENT
Dell Computer Corp.
Unless otherwise specified, the following rates are annualized and will be
billed on a calendar quarter basis:
Account Charge
o $1,500 per account
o $1,500 per Loan account
o $5,000 for Company Stock account
o Account charged waived where Chase Manhattan Bank investment vehicle
is the investment option
Transaction Charge
o $12.00 per Buy/Sell transaction, excluding STIF transactions
Administrative Charge
o 1/2 basis point on total market value
Benefit Payments
o $5 per lump sum on total market value
Short Term Investment Management Fee
o .37% (.12% after rebate) on amounts invested in our Short Term
Investment Fund per year, charged directly monthly
Dell Computer Corp. The Chase Manhattan Bank, N.A.
By: Xxxxx X. Xxxxxxx By: Xxxx X. Xxxxxxx, Xx.
----------------------------------- -------------------------------------
Title: Vice President Title: Vice President
------------------------------ -------------------------------------
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