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Exhibit 9.2
EXECUTION COPY
YOUNG & RUBICAM RESTRICTED STOCK TRUST AGREEMENT
Dated as of December 12, 1996
between
Young & Rubicam Holdings Inc.
and
The Bank of New York,
as Trustee,
for the benefit of
Participants in the Young & Rubicam Holdings Inc.
Restricted Stock Plan
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TRUST AGREEMENT made and entered into as of December
12, 1996 by and between Young & Rubicam Holdings Inc., a
corporation organized under the laws of the State of New York
(hereinafter referred to as the "Company"), and The Bank of New
York, a bank organized under the laws of the State of New York
(hereinafter referred to as the "Trustee").
WHEREAS, the Company maintains the Young & Rubicam
Holdings Inc. Restricted Stock Plan, for the benefit of certain
employees and independent contractors of the Company and its
affiliates (the "Plan") (a copy of which is attached hereto as
Exhibit A), which provides for the award (each, an "Award") of
restricted shares of Common Stock (as defined in Stockholders'
Agreement among the Company, the Trust (as defined herein) and
certain other parties, dated as of December 12, 1996 (the
"Stockholders' Agreement"));
WHEREAS, the Plan contemplates that the employees and
independent contractors covered by the Plan (collectively, the
"Participants") will receive shares of Common Stock upon the
occurrence of certain events;
WHEREAS, the Company wishes to establish a trust (the
"Young & Rubicam Restricted Stock Trust" or "Trust") to aid it in
meeting its obligations pursuant to Awards granted under the Plan
and agreements with such Participants evidencing such Awards (the
"Restricted Stock Agreements") and intends to make a contribution
to the Trust for such purpose;
WHEREAS, the Company intends that such contribution
shall be held by the Trustee and invested, reinvested and
distributed, all in accordance with the provisions of this Trust
Agreement and the Plan;
WHEREAS, the Trust is intended to be a "grantor trust"
with the corpus and income of the Trust treated as assets and income
of the Company pursuant to Sections 671 through 679 of the Code
(as defined in the Contribution Agreement) and the creation of this
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Trust does not create any right in any Affiliate (as defined in
the Plan) of the Company (other than any Indemnitee (as defined
below));
WHEREAS, pursuant to Article IX of the Contribution
Agreement among the Company, the Trust and certain other parties,
including the HFCP Investors (as defined therein), dated October
30, 1996 (the "Contribution Agreement"), the assets of the Trust
shall be subject to certain claims of the Indemnitees (as defined
in the Contribution Agreement);
WHEREAS, the Company intends that the assets of the
Trust shall at all times, after the obligations to the
Indemnitees have been satisfied, also be subject to the claims of
bankruptcy and judgment creditors of the Company as provided in
Section 14 of this Trust Agreement; and
WHEREAS, pursuant to the Management Voting Trust
Agreement, among the Company, the Trust and certain other
parties, dated as of December 12, 1996 (the "Management Voting
Trust Agreement"), at any time while such Management Voting Trust
Agreement is in effect, the Trust shall assign and transfer any
shares of Common Stock held in the Trust Fund to the Voting
Trustees, in their capacity as trustees of the Management Voting
Trust (each as defined in the Management Voting Trust Agreement),
in return for Voting Trust Certificates (as defined in the
Management Voting Trust Agreement) representing the shares so
deposited by the Trust.
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, the Company and the Trustee declare
and agree as follows:
SECTION 1. Establishment of the Trust.
1.1 Trust Fund. The Company hereby establishes the
Trust with the Trustee, consisting of such sums of money, shares
of Common Stock (and any related Voting Trust
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Certificates) and
other property acceptable to the Trustee as from time to time
shall be paid or delivered to the Trustee. The Trustee shall have
no duty or obligation to require the Company to make any
contribution to the Trust. All such money, shares of Common Stock
(and any related Voting Trust Certificates) and other property,
all investments and reinvestments made therewith or proceeds
thereof and all earnings and profits thereon, less all payments
and charges as authorized herein, shall constitute the "Trust
Fund." The Trust Fund shall be held by the Trustee in trust and
shall be dealt with in accordance with the provisions of this
Trust Agreement.
1.2 Irrevocability. Except as provided in Sections
4.5, 5.2 and 14, this Trust shall be for the exclusive purpose of
aiding the Company in meeting its obligations to Participants
under the Plan and no part of the income or corpus of the Trust
Fund shall be recoverable by the Company.
1.3 Claims of Creditors. The claims of the Indemnitees
pursuant to Article IX of the Contribution Agreement and Section
5.2 hereof shall be senior to, and satisfied prior to, the
distribution of any assets to any other creditors of the Company.
Subject to the foregoing, the Trust Fund shall at all times be
subject to the claims of bankruptcy and judgment creditors of the
Company as provided in Section 14 of this Trust Agreement. No
Participant shall have any greater claim against the Trust Fund
than a general unsecured creditor of the Company.
SECTION 2. Acceptance by the Trustee.
2.1 The Trustee accepts the Trust established under
this Trust Agreement on the terms and subject to the provisions
set forth herein, and it agrees to discharge and perform all of
the duties and obligations imposed upon it under this Trust
Agreement.
The Trustee shall be fully protected in acting in all
respects under this Agreement upon the basis that the Trust
constitutes a grantor trust pursuant to Sections 671 through 679 of
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the Code (as defined in the Contribution Agreement) and shall
incur no liability of any kind or nature whatsoever if the Trust,
without advance written notification from the Company of a change
in status, should fail to constitute a grantor trust.
SECTION 3. Investment of the Trust.
3.1 General Duty of Trustee. The Trustee shall hold
the shares of Common Stock (or any related Voting Trust
Certificates) in the Trust, and, with respect to any cash which
it might receive with respect to such shares, invest and reinvest
such cash in accordance with the investment guidelines attached
hereto as Exhibit B or such written guidelines as may be
substituted therefor from time to time by the Compensation
Committee of the Company (the "Committee") as may be reasonably
acceptable to the Trustee. In no event shall the Trustee engage
in any transaction with the Company or any person who, if the
Plan were subject to the Employee Retirement Income Security Act
of 1974, as it may from time to time be amended ("ERISA"), would
be a "party in interest" within the meaning of Section 3(14)(A),
(C), (E), (F), (G), (H) or (I) of ERISA by reason of being
related to the Company, except for those transactions
specifically contemplated herein or that would otherwise be
exempt under Section 408 of ERISA.
SECTION 4. Contributions and Establishment of Accounts.
4.1 Copy of the Plan. The Company has provided the
Trustee with a copy of the Plan, as in effect on the date hereof,
and shall provide the Trustee with a Company certified copy of
any amendment to the Plan promptly upon its adoption.
4.2 Establishment of Accounts. The Trustee shall
maintain within the Trust one or more separate accounts for each
Participant (each an "Account") and an account for shares of
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Common Stock (or any related Voting Trust Certificates) held in
the Trust which are not allocated to any Accounts pursuant to
Section 4.3 (the "Unallocated Account").
4.3 Allocation of Contributions. Upon the execution and
delivery of this Trust Agreement, the Company shall deliver to
the Trustee $7,391.30. Promptly after the execution and delivery
of this Trust Agreement, the Company shall deliver 739,130 shares
of Common Stock in exchange for such cash. The delivery of such
shares of Common Stock by the Company to the Trustee shall
constitute a deemed representation by the Company to the Trustee
that (a) subject to Section 630 of the New York Business
Corporation Law, such shares are validly issued, fully paid,
nonassessable and outstanding and (b) at the time of such
transfer, such transfer does not violate any applicable federal
or state securities law. The Trustee shall not be responsible for
ensuring compliance with any tax or other governmental
requirements in connection with the purchase of the Common Stock.
The shares of Common Stock delivered to the Trustee shall be held
in the Unallocated Account pending allocation to the Accounts of
Participants in accordance with this Section. Pursuant to the
Management Voting Trust Agreement, the Trustee shall deliver such
shares of Common Stock to the Voting Trustees in return for
Voting Trust Certificates representing such shares of Common
Stock. In addition to the foregoing, the Company shall deliver to
the Trustee such amounts as it shall from time to time determine.
As soon as practicable after execution of this Trust
Agreement or after execution of any Restricted Stock Agreement,
the Company shall deliver to the Trustee a written certificate
containing a list of Participants and Awards granted to such
Participants pursuant to the Plan. The Trustee shall allocate to
an Account for a Participant the number of shares of Common Stock
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(or related Voting Trust Certificates) set forth with respect to
such Participant's Award in such certificate.
4.4 Valuation of Accounts. The Trustee may invest any
or all of the cash held in the individual Accounts and the
Unallocated Account as a consolidated single fund. Each Account
and the Unallocated Account under the Trust Fund shall be
revalued by the Trustee as of each June 30 or December 31 (each a
"Regular Valuation Date"), at current market values. Current
market value shall be determined according to procedures
prescribed by the Committee from time to time that are reasonably
acceptable to the Trustee. Net investment gains and losses (i.e.,
appreciation or depreciation in the value of assets, income and
losses) shall be allocated by the Trustee to the Participants'
Accounts or the Unallocated Account giving rise to such
investment gain or loss. The Trustee shall maintain the record of
the value of each Participant's Account.
4.5 Limitation on Reduction of Accounts. Any Account of
a Participant shall not be reduced except (i) upon distribution
with respect to Participants or Indemnitees, as provided in
Section 5; (ii) to reflect investment losses allocated to such
Account in accordance with Section 4.4; (iii) upon payment of
taxes or expenses from a Participant's Account in accordance with
Section 6; or (iv) upon the holding of the assets of the Trust
Fund for the benefit of bankruptcy or judgment creditors of the
Company in accordance with Section 14.
4.6 Company Records. The Company shall keep accurate
books and records with respect to the Awards granted under the
Plan. The Company shall provide such information and access to
such books and records to the Trustee at such time or times as
the Trustee shall reasonably request.
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SECTION 5. Distributions by the Trustee.
5.1 Distributions to Participants. (a) Subject to
Section 5.2 and Section 14 hereof, the Committee shall instruct
in writing the Trustee to distribute to Participants the amounts
held in the Participants' Accounts at such time as such amounts
are due to be distributed pursuant to the Plan. Notwithstanding
the foregoing provisions of this Section 5.1 but subject to
Section 5.2 hereof, the Trustee shall make payments to a
Participant, in the absence of the instructions of the Committee,
after having given 15 days' prior written notice to the HFCP
Investors and the Management Voting Trust, (i) if such
Participant claims such amounts are due and if a reputable
service provider (which has expertise in employee benefit matters
and which the Committee has appointed to determine claims for
benefits by Participants under the Plan, having given written
notice of such appointment to the Trustee) instructs in writing
the Trustee to make such payments or distributions to such
Participant or (ii) upon receipt of a final nonappealable order
of a court of competent jurisdiction determining that the Company
is obligated to make such payments or distributions to a
Participant. Except for any distribution pursuant to Section
5.2(b) hereof or Section 12.1 of the Plan, in no event shall any
distribution be made to any Participant in excess of the amount
in the Participant's Accounts. To the extent directed by the
Committee, the Trustee shall distribute any dividends on the
shares of Common Stock held in Participants' Accounts (or any
dividends with respect to the shares of Common Stock represented
by Voting Trust Certificates held in such Accounts).
(b) If any person to whom a payment or distribution is
to be made hereunder is known by the Committee to be at the time
such payment or distribution is to be made an infant, or if the
Committee determines that any person to whom a payment or
distribution is to be made hereunder is incompetent by reason of
physical or mental disability, the Trustee, at the direction of
the Committee, shall make such payment or distribution when due
to any parent of such
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person, any guardian, committee, conservator or other legal
representative, wherever appointed, of such person, any person
with whom such person is residing, or to any other person having
the care or control of such person; provided, however, that the
Trustee shall have no responsibility for the application of such
payment or distribution by any such person to whom such payment
or distribution is made.
(c) The Committee shall file with the Trustee the
current address of each Participant as shown on the most recent
Restricted Stock Agreement executed by such Participant and from
time to time thereafter upon any change in such addresses. In the
event that any payment or distribution ordered by the Committee
shall be mailed by the Trustee by mail to the person specified in
such order at the latest address for such person filed by the
Committee with the Trustee and shall be returned to the Trustee
because such person cannot be located at such address, the
Trustee shall promptly notify the Committee of such return. Upon
the expiration of thirty (30) days after such notification, such
order shall become void, unless and until a further order of the
Committee is received by the Trustee with respect to such payment
or distribution, and the Trustee shall thereafter continue to
administer the Trust Fund as if the original order had not been
made. The Trustee shall not be responsible in any way respecting
the purpose or propriety of any payment or distribution made
pursuant to a written order of the Committee.
(d) At the direction of the Committee, the Trustee
shall transfer all or any portion of the Trust Fund held in any
Account in the Trust created hereunder or in the Unallocated
Account to any other such Account (including the Unallocated
Account).
5.2 Distributions In Connection with Indemnification.
(a) In accordance with the provisions of Section 9.3 of the
Contribution Agreement, the Trustee shall deliver a copy of the
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Claim Notice (as defined in the Contribution Agreement) and
shares of Common Stock out of the Trust to the Company on behalf
of the Indemnitee or Indemnitees who have filed such Claim Notice
in an amount equal to the Indemnification Number (as defined in
the Contribution Agreement). The Trustee shall distribute the
following to the Company on behalf of the applicable Indemnitee
or Indemnitees until the Indemnification Number is satisfied: (i)
first, from any shares of Common Stock held in the Unallocated
Account (or any such shares represented by Voting Trust
Certificates held in the Unallocated Account), (ii) second, from
any shares of Common Stock held in the Participants' Accounts (or
any such shares represented by Voting Trust Certificates held in
such Accounts), (iii) third, from any other property held in the
Unallocated Account and (iv) fourth, from any other property held
in the Participants' Accounts; provided, however, that no such
shares or other property shall be subject to such distribution,
unless the date of the Claim Notice with respect thereto is prior
to the later of (i) the receipt by the HFCP Investors of the
Company's audited financial statements for the year ending
December 31, 1997 and (ii) the occurrence of an Initial Public
Offering or Change of Control (each as defined in the Plan). With
respect to any distributions made from Participants' Accounts,
each such Account shall be reduced pro rata with respect to
shares of Common Stock pursuant to clause (ii) above and then pro
rata with respect to any other property under clause (iv) above.
If the Management Voting Trust Agreement is in effect at the time
the Trustee is required to make a distribution pursuant to
Section 9.3 of the Contribution Agreement and the Trust Fund
holds Voting Trust Certificates in lieu of shares of Common
Stock, then the Trustee shall surrender such Voting Trust
Certificates to the Management Voting Trust and request the
Management Voting Trust to deliver the required number of shares of
Common Stock to the Company on behalf of the Indemnitee pursuant
to Section 3.5 of the Management Voting Trust Agreement. If
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the number of shares of Common Stock to be delivered to the
Company does not equal all of the shares of Common Stock
represented by such Voting Trust Certificates surrendered, the
Management Voting Trust shall deliver Voting Trust Certificates
back to the Trustee, adjusted to reflect the reduced number of
shares of Common Stock represented by such Voting Trust
Certificates, pursuant to Section 3.5 of the Management Voting
Trust Agreement. In no event shall any distribution be made to
the Company on behalf of any Indemnitee or Indemnitees in excess
of the shares of Common Stock held in the Trust Fund at the time
a Claim Notice is received by the Trustee.
(b) If shares of Common Stock have been distributed to
the Company on behalf of any Indemnitee or Indemnitees by the Trustee
pursuant to Section 5.2(a) hereof and subsequently such shares of
Common Stock are returned to the Trustee by such Indemnitee or
Indemnitees pursuant to Section 9.3(b) of the Contribution
Agreement, the Trustee shall allocate to the Unallocated Account
and to each Participant's Account or Accounts, if any, the number
of shares of Common Stock (or related Voting Trust Certificates)
by which such Unallocated Account or Participant's Account had
been reduced upon such prior distribution to the Company on
behalf of such Indemnitee or Indemnitees. If the amounts held in
any Participant's Accounts have already been distributed to him
pursuant to Section 5.1 hereof, the Trustee shall distribute such
shares of Common Stock directly to such Participant.
(c) The Trustee shall in no event distribute amounts
held in the Participants' Accounts to Participants in accordance
with Section 5.1 hereof prior to the later of (i) delivery to the
HFCP Investors of the Company's audited financial statements for
the year ending December 31, 1997 and (ii) with respect to shares
of Common Stock having an aggregate Public Market Value (as
defined in the Stockholders' Agreement) (as of the Regular
Valuation Date preceding,
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and closest in time to, the date of the applicable Claim Notice)
equal to the amount subject to any Claim Notice then pending and
unpaid, the earlier of the date such pending claim for
indemnification is (A) paid to the Indemnitee or Indemnitees, (B)
determined pursuant to a final Order (as defined in the
Contribution Agreement) not to be payable or (C) the HFCP
Investors and the Management Voting Trust otherwise agree (such
restriction on distribution, a "Hold-Back" and the shares of
Common Stock subject to such a Hold-Back, the "Hold-Back
Amount"). Any such Hold-Back shall be allocated as follows until
such Hold-Back Amount is satisfied: (i) first from any shares of
Common Stock held in the Unallocated Account (or any such shares
represented by Voting Trust Certificates held in the Unallocated
Account), (ii) second from any shares of Common Stock held in the
Participants' Accounts (or any such shares represented by Voting
Trust Certificates held in such Accounts), (iii) third, from any
other property held in the Unallocated Account and (iv) fourth,
from any other property held in the Participants' Accounts;
provided, however, that no such shares or other property shall be
subject to such Hold-Back, unless the date of the Claim Notice
with respect thereto is prior to the later of (i) the receipt by
the HFCP Investors of the Company's audited financial statements
for the year ending December 31, 1997 and (ii) the occurrence of
an Initial Public Offering or Change of Control. With respect to
any Hold-Back Amount restricted from being distributed out of
Participants' Accounts, each such Account shall be subject to the
Hold-Back pro rata with respect to shares of Common Stock under
clause (ii) above and then pro rata with respect to any other
property under clause (iv) above. If any such shares of Common
Stock or other property is subsequently released from such a
Hold-Back, such shares or other property shall then be available
for distribution in accordance with Section 5.1 hereof.
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(d) Whenever the Trustee is required to value other
property pursuant to this Section 5.2, it shall value such
property based upon procedures agreed upon between the HFCP
Investors and the Management Voting Trust and reasonably
acceptable to the Trustee and, in the absence of such procedures,
based upon the advice of a valuation agent retained by the
Trustee. The Trustee shall be entitled to rely conclusively upon
such agent's valuation.
5.3 Protection of Trustee. The Trustee shall not make
any payments with respect to Participants or Indemnitees from the
Trust Fund except as provided in Sections 5.1, 5.2 and 5.5, and
the Trustee shall, to the maximum extent permitted by applicable
law, be fully protected in acting in respect of or upon the Plan,
the Contribution Agreement, the Management Voting Trust Agreement
and any written statement, affidavit, direction, order or
certification provided for hereunder. The Trustee shall at all
times, to the maximum extent permitted by applicable law, be
fully protected in making payments with respect to Participants
and Indemnitees pursuant hereto. With respect to any action
required to be taken, or not taken, by the Trustee based upon the
occurrence of an Initial Public Offering or Change in Control,
the Trustee must have actual knowledge of such event. With
respect to any action required to be taken, or not taken, by the
Trustee based upon a Holdback, the Trustee must have received the
Claim Notice giving rise to such Holdback. With respect to any
delivery of shares of Common Stock by the Management Voting Trust
to the Company requested by the Trustee pursuant to Section
5.2(a) hereof or any delivery of shares of Common Stock by the
Company to any Indemnitee pursuant to Section 9.3 of the
Contribution Agreement, the Trustee shall not be required to take
any action to compel any such delivery not explicitly required by
this Trust Agreement.
5.4 Company as Owner of Accounts. It is the intention
of the Company to have each Account established hereunder treated
as a separate account designed to satisfy
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the Company's legal liability under the Plan in respect of the
Participant for whom such Account has been established. The
Company therefore agrees that all income, deductions and credits
of each such Account belong to it as owner for income tax
purposes and will be included to the extent appropriate on the
Company's income tax returns.
5.5 Withholding Tax. Any amounts required to be paid
under this Section 5 shall be reduced by the amount of income or
excise tax withholding required by law, and the Committee shall
instruct in writing the Trustee as to any such amounts to be so
withheld whereupon the Trustee shall pay such amounts to the
appropriate governmental authorities. The Committee shall also
direct in writing the Trustee as to any information reporting or
filings required by applicable law. The Trustee shall not
withhold any amounts respecting any excise tax imposed pursuant
to Code Section 4999 if prior to the payment of amounts or the
distribution of any property purportedly giving rise to such
excise tax, the Participant furnishes to the Trustee an opinion
of counsel reasonably acceptable to the Trustee and the Company
in form and substance to the effect that there is a reasonable
basis to conclude that such withholding is not required.
SECTION 6. Taxes, Expenses and Compensation.
6.1 Taxes. The Trustee shall from time to time pay
taxes out of the Trust Fund of any and all kinds whatsoever which
at any time are levied or assessed upon or become payable in
respect of the Trust Fund, the income or any property forming a
part thereof, or any security transaction pertaining thereto. The
Trustee shall, in its discretion at the Company's expense,
contest the validity of such taxes in any manner deemed
appropriate by the Company or its counsel. Alternatively, the
Company may itself contest the validity of any such taxes.
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6.2 Expenses and Compensation. The Trustee shall be
paid compensation by the Company in accordance with the schedule
of fees set forth in Exhibit C hereto, as it may be amended by the
Company and the Trustee from time to time. The Trustee shall be
reimbursed by the Company for its reasonable expenses of
management and administration of the Trust (including, but not
limited to, the reasonable fees and expenses of any valuation
agent retained by the Trustee to aid in it valuation of property
held (other than Common Stock) in any Account or the Unallocated
Account) and compensation of counsel incurred in good faith by
the Trustee to assist it in such management and administration.
In the event that the Company shall fail or refuse to make such
reimbursement upon demand, the Trustee may satisfy such
obligations out of any cash assets of the Trust Fund (first out
of Unallocated Account and then by charging all Participant
Accounts in proportion to their respective Account Balances upon
the immediately preceding Regular Valuation Date); in that event,
the Company shall immediately upon demand by the Trustee deposit
into the Trust Fund a cash sum equal to the amount paid by the
Trust Fund for such fees and expenses, but the Trustee shall not
be required to take any further action to collect such amounts
from the Company.
SECTION 7. Administration and Records.
7.1 Records. The Trustee shall keep or cause to be
kept accurate and detailed accounts of any investments, receipts,
disbursements and other transactions hereunder, and all accounts,
books and records relating thereto shall be open to inspection
and audit during normal business hours by any person designated
by the Company, including an independent certified public
accountant. All such accounts, books and records shall be
preserved (in original form, or on microfilm, magnetic tape or
any other similar process) for such period as the Trustee may
determine, but the Trustee may only destroy such accounts, books
and records after first
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notifying the Company in writing of its intention to do so and
transferring to the Company any of such accounts, books and
records requested.
7.2 Settlement of Accounts. Within 60 days after the
close of each calendar year, and within 60 days after the removal
or resignation of the Trustee or the termination of the Trust, the
Trustee shall file with the Company a written account setting
forth all investments, receipts, disbursements and other
transactions effected by it during the preceding calendar year or
during the period from the close of the preceding calendar year
to the date of such removal, resignation, or termination,
including a description of all investments and securities
purchased and sold, with the cost or net proceeds of such
purchases or sales, and showing all cash, securities and other
property held at the end of such calendar year or other period
and the Trustee shall give notice of such filing to the
Management Voting Trust and the HFCP Investors. Each account so
filed shall be open to inspection at the office of the Trustee
during normal business hours by any of the Company, the
Management Voting Trust or the HFCP Investors (and any person
designated by such an entity) at a time mutually acceptable to
the Trustee and such entity (or such designee) for a period of 60
days immediately following the date on which the account is filed
with the Company.
If within 90 days after the filing of such account the
Company, acting through the Committee, has not filed with the
Trustee notice of any objection to any act or transaction of the
Trustee, the initial account shall become an account stated as
between the Trustee, the Company, and all persons having or
claiming to have an interest in the Trust Fund. If any objection
has been filed, and if the Company, acting through the Committee,
is satisfied that it should be withdrawn, the objecting party
shall in writing filed with the Trustee signify its approval of
the account, and it shall become an account stated as between the
Trustee, the Company, and all
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persons having or claiming to have an interest in the Trust Fund.
If the account is adjusted following an objection thereto, the
Trustee shall file with the Company and make available for
inspection by any of the Management Voting Trust or the HFCP
Investors the adjusted account, and if within 30 days after such
filing of the adjusted account the Company, acting through the
Committee, has not filed with the Trustee notice of any objection
to the transactions as so adjusted, the adjusted account shall
become an account stated as between the Trustee, the Company, and
all persons having or claiming to have an interest in the Trust
Fund.
Unless an account is fraudulent, when it becomes an
account stated it shall be finally settled, and the Trustee
shall, to the maximum extent permitted by applicable law, be
forever released and discharged from all liability and
accountability with respect to the propriety of its acts and
transactions shown in such account.
7.3 Judicial Settlement. Nothing contained in this
Trust Agreement shall be construed as depriving the Trustee, the
Company, the Management Voting Trust or the HFCP Investors of the
right to have a judicial settlement of any of the Trustee's
accounts that have not previously been settled pursuant to
Section 7.2 hereof, and upon any proceeding for a judicial
settlement of the Trustee's accounts or for instructions the only
necessary parties thereto in addition to the Trustee shall be the
Company, the Management Voting Trust and the HFCP Investors.
7.4 Delivery of Records to Successor. In the event of
the removal or resignation of the Trustee, the Trustee shall
deliver to the successor Trustee all records which shall be
required by the successor Trustee to enable it to carry out the
provisions of this Trust Agreement.
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7.5 Tax Filings. In addition to any returns required of
the Trustee by law, the Trustee shall prepare and file such tax
reports, information reports and other returns as the Company and
the Trustee may from time to time agree.
SECTION 8. Removal or Resignation of the Trustee and Designation
of Successor Trustee.
8.1 Removal. At any time, the Company may remove the
Trustee with or without cause upon at least 90 days' notice in
writing to the Trustee. No removal of the Trustee shall be
effective until the Company has appointed in writing a successor
Trustee, which must be a bank or trust company, and such
successor has accepted the appointment in writing.
8.2 Resignation. Trustee may resign at any time upon at
least 90 days' notice in writing to the Company, except that any
such resignation shall not be effective until the Company has
appointed in writing a successor Trustee, which must be a bank or
trust company, acceptable to both the Management Voting Trust and
the HFCP Investors, and such successor has accepted the
appointment in writing.
8.3 Successor Trustee. Each successor Trustee, during
such period as it shall act as such, shall have the powers and
duties herein conferred upon the Trustee, and the word "Trustee"
wherever used herein, except where the context otherwise
requires, shall be deemed to include any successor Trustee. Upon
designation of a successor Trustee and delivery to the resigned
or removed Trustee of written acceptance by the successor Trustee
of such designation, such resigned or removed Trustee shall
promptly assign, transfer, deliver and pay over to such successor
Trustee, in conformity with the requirements of applicable law,
the funds and properties in its control or possession then
constituting the Trust Fund.
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SECTION 9. Enforcement of Trust Agreement.
9.1 The Company shall have the right to enforce any
provision of this Trust Agreement, any Participant shall have the
right as a beneficiary of the Trust to enforce any provision of
this Trust Agreement that affects the right, title and interest
of such Participant in the Trust and any HFCP Investor shall have
the right to enforce any provision of this Trust Agreement that
affects the right and interest of such HFCP Investor in the
Trust. In any action or proceeding affecting the Trust other than
a judicial settlement of accounts pursuant to Section 7.3 hereof,
the only necessary parties shall be the Company, the Management
Voting Trust, the Trustee and the affected Participants or
affected HFCP Investor and, except as otherwise required by
applicable law, no other person shall be entitled to any notice
or service of process. Any judgment entered in such an action or
proceeding shall to the maximum extent permitted by applicable
law be binding and conclusive on all persons having or claiming
to have any interest in the Trust.
9.2 Except for the right to enforce the Trust Agreement
as provided in Section 9.1, Participants and HFCP Investors shall
have no right to any property comprising the Trust Fund.
9.3 Neither the creation of the Trust nor anything
contained in the Trust Agreement shall be construed as giving any
Person (as defined in the Contribution Agreement), including any
individual employed by the Company or any Affiliate (as defined
in the Plan) of the Company, any equity or interest in the
assets, business, or affairs of the Company except to the extent
that any such Person is entitled to exercise stockholder rights
with respect to shares of Common Stock pursuant to Section 15.
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SECTION 10. Termination.
10.1 Except as provided in Section 14, the Trust shall
be irrevocable and shall continue until (a) all distributions
required by Section 5 have been made or (b) until the Trust Fund
contains no assets and retains no claims to recover assets from
the Company or any Indemnitee pursuant to any provision hereof,
whichever shall first occur.
10.2 Upon making distribution of the Trust Fund
pursuant to Section 10.1, the Trustee shall be relieved from all
further liability. The powers of the Trustee hereunder shall
continue so long as any assets of the Trust Fund remain in its
hands.
SECTION 11. Amendment.
11.1 Amendment. The Committee may, with the written
consent of the HFCP Investors during the Consent Period (as defined
in the Plan) and the Management Voting Trust, from time to time
amend, in whole or in part, any or all of the provisions of this
Trust Agreement; provided, however, that (a) no amendment to this
Trust Agreement or the Plan shall cause the assets of the Trust
Fund to be taxable to Participants unless such amendment shall
have received the prior written consent of the Management Voting
Trust, and (b) no amendment to this Trust Agreement or the Plan
shall (i) adversely affect the rights of any Participant under
any Award as of the date prior to such amendment or the amount of
assets of the Trust Fund allocated to any Account of any
Participant, (ii) purport to alter the irrevocable character of
the Trust established under this Trust Agreement, or (iii)
increase the duties or responsibilities or lessen the rights of
the Trustee unless the Trustee consents thereto in writing. The
Trustee shall be entitled to rely upon a certificate of the
Committee that any amendment to this Trust Agreement has been
effected in accordance with this Section 11.1.
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11.2 Execution of Amendments. The Company and the Trustee
shall execute such amendments of this Trust Agreement as shall be
necessary to give effect to any amendment made pursuant to this
Section 11.
SECTION 12. Nonalienation.
12.1 Except insofar as applicable law may otherwise
require or as set forth in the Trust Agreement, (a) no amount or
property payable to or in respect of any Participant or any
Indemnitee at any time under the Trust shall be subject in any
manner to alienation by anticipation, sale, transfer, assignment,
bankruptcy, pledge, attachment, charge, or encumbrance of any
kind, and any attempt to so alienate, sell, transfer, assign,
pledge, attach, charge, or otherwise encumber any such amount,
whether presently or thereafter payable, shall be void and (b)
the Trust Fund shall in no manner be liable for or subject to the
debts or liabilities of any Participant or any Indemnitee.
SECTION 13. Communications.
13.1 To the Company. Communications to the Company shall
be addressed to the Company at
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
provided, however, that upon the Company's written request, such
communications shall be sent to such other address as the Company
may specify.
13.2 To the Trustee. Communications to the Trustee shall
be addressed to it at
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
provided, however, that upon the Trustee's written
request, such communications shall be sent to such other address
as the Trustee may specify.
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13.3 To a Participant. Communications to a Participant
shall be addressed to the Participant at the address indicated on
the most recent Restricted Stock Agreement executed by such
Participant.
13.4 To an HFCP Investor. (a) Communications to the
HFCP Investors shall be addressed to H&F Investors III, Inc. at
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
provided, however, that upon the HFCP Investors' written request,
such communications shall be sent to such other address as the
HFCP Investors may specify.
(b) Whenever the Trust Agreement contemplates delivery
to, or action (such as consent, approval or waiver) by, the HFCP
Investors, delivery to, or action (evidenced in writing) by, the
Ultimate General Partner (as defined in the Contribution
Agreement) shall bind the HFCP Investors.
13.5 To the Management Voting Trust. (a) Communications
to the Management Voting Trust shall be addressed to the Management
Voting Trust at
c/o Young & Rubicam Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.,
Voting Trustee Representative
Facsimile: (000) 000-0000
(b) Whenever the Trust Agreement contemplates delivery
to, or action (such as consent, approval or waiver) by, the
Management Voting Trust, delivery to, or action (evidenced in
writing) by, the Voting Trustee representative (set forth in
subsection(a) of this Section 13.5) shall bind the Management
Voting Trust.
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(c) Whenever the Trust Agreement requires delivery to,
or action (such as consent, approval or waiver) by, the
Management Voting Trust, such delivery or action shall only be
required while the Management Voting Trust is extant.
13.6 Binding Upon Receipt. No communication shall be
binding on the Trustee until it is received by the Trustee, no
communication shall be binding on the Company until it is
received by the Company, no communication shall be binding on a
Participant until it is received by the Participant, no
communication shall be binding on an HFCP Investor until it is
received by the Ultimate General Partner and no communication
shall be binding on the Management Voting Trust until it is
received by the Voting Trustee representative (set forth in
Section 13.5(a)).
13.7 Authority to Act. The Secretary of the Company shall
from time to time certify in writing to the Trustee the person or
persons authorized to act for the Company and for the Committee
and provide the Trustee with such information regarding the
Company as the Trustee may reasonably request. The Trustee may
continue to rely on any such certification until notified in
writing to the contrary.
13.8 Authenticity of Instruments. 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.
SECTION 14. Claims of Company's Creditors.
14.1 Insolvency of Company. As used in this Section
14, the Company shall be deemed to be "Insolvent" if the Company
is unable to pay its debts as they become due or is
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subject to a pending proceeding as a debtor under the federal
Bankruptcy Code (or any successor federal statute) or any state
bankruptcy code.
14.2 Procedure upon Insolvency. (a) The claims of the
Indemnitees pursuant to Article IX of the Contribution Agreement
and Section 5.2 hereof shall be senior to, and satisfied prior
to, the distribution of any assets to any other creditors of the
Company. Subject to the foregoing, in the event of the Insolvency
of the Company, the Trust Fund will be available to pay the
claims of any creditor of the Company to whom a distribution may
be made in accordance with state and federal bankruptcy laws. In
the event the Company becomes Insolvent, the Board of Directors
and chief executive officer of the Company shall notify the
Trustee of that event as soon as practicable. Upon receipt of
such notice, or if the Trustee receives other written allegation
of the Company's Insolvency from a third party considered by the
Trustee to be reliable and responsible, the Trustee shall cease
making payments or distributions to Participants from the Trust
Fund and, unless the Trustee shall receive an opinion under
Section 14.3 within 30 days after the first date of such
discontinuance, shall hold the assets of the Trust Fund for the
benefit of the Indemnitees and the Company's creditors. In the
case that the assets of the Trust Fund are so held, the Trustee
will deliver assets of the Trust Fund to satisfy claims of the
Indemnitees and the Company's creditors in the priority set forth
herein as directed pursuant to a final order of a court of
competent jurisdiction.
(b) The claims of the Indemnitees pursuant to Article
IX of the Contribution Agreement and Section 5.2 hereof shall be
senior to, and satisfied prior to, the distribution of any assets
to any other creditors of the Company. Subject to the foregoing,
the Trust Fund will be available to pay any claim or claims of
any judgment creditors of the Company to the extent such claim or
claims are then payable and the Company otherwise shall fail to
pay such claim or
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claims. The Board of Directors and the chief executive officer of
the Company shall notify the Trustee as soon as practicable in
the event of any such failure of the Company to pay a judgment
creditor. Upon receipt of such notice, or if the Trustee receives
other written allegations of the Company's failure to pay a
judgment creditor or judgment creditors from a third party
considered by the Trustee to be reliable and responsible, the
Trustee shall, to the extent of such failure, and unless the
Trustee shall receive an opinion under Section 14.3 within 30
days after the receipt of such notice, hold the assets of the
Trust Fund for the benefit of the Indemnitees and such judgment
creditor or judgment creditors. In the event that the assets are
so held, subject to the prior claim of the Indemnitees, the
Trustee will deliver assets of the Trust Fund to satisfy claims
of the Company's judgment creditors as directed pursuant to a
final order of a court of competent jurisdiction. In the event
that the Trustee is required to hold any assets of the Trust Fund
for the benefit of any judgment creditor hereunder, such assets
shall be first taken from the Unallocated Account and then from
Participants' Accounts ratably.
14.3 Resumption of Distributions. In the event the
Trustee ceases making distributions to Participants from Accounts
pursuant to Section 14.2(a), the Trustee shall resume such
distributions to Participants under this Trust Agreement in
accordance with Section 5 hereof only if the Trustee (i) has
received an opinion from the certified public accountant
regularly auditing the Company's books that the Company is not
(or no longer is) Insolvent and (ii) the resumption of payments
is not in contravention of any court order or automatic stay.
Notwithstanding the preceding sentence, the Trustee shall comply
with an order of a court of competent jurisdiction requiring such
distributions.
If the Trustee discontinues distributions to Participants
pursuant to Section 14.2(a) and subsequently resumes such payment,
the first payment on account of a Participant following
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such discontinuance shall, as directed by the Committee, include
an aggregate amount equal to the difference between the payments
which would have been made on account of such Participant under
this Trust Agreement but for Section 14.2(a) and the aggregate
payments actually made on account of such Participant by the
Company during any such period of discontinuance, plus interest
on such amount at a rate, as determined by the Committee based on
earnings information requested by it and provided to it by the
Trustee, that is equivalent to the net rate of return earned by
the Trust Fund during the period of such discontinuance and
payable in such form of property held in the Trust Fund as the
Committee shall direct (with such adjustments to investment gains
and losses under Section 4.4 being made as the Committee shall
direct to reflect the payment of such interest).
In the event the Trustee holds any assets of the Trust Fund for
the benefit of a judgment creditor pursuant to Section 14.2(b),
the Trustee shall, if the Trustee has received an opinion from
the certified public accountant regularly auditing the Company's
books that the Company does not owe any amount to a judgment
creditor, allocate the then remaining amounts that had been held
for the benefit of any such judgment creditor to the
Participants' Accounts that were reduced pursuant to Section
14.2(b), pro rata in proportion to the excess of the reduction in
each such Participant's Accounts over the amounts paid by the
Company to each such Participant as a result of such reduction.
No Participant shall receive a restoration that exceeds the
amount of the reduction together with the earnings that would
have accrued had no reduction been effected, less amounts paid to
the Participant by the Company as a result of the reduction.
Notwithstanding any other provision of this Section, the Trustee
shall restore Participants' Accounts in accordance with an order
of a court of competent jurisdiction. In the event the amount
available for restoration exceeds the amount required to be
restored to Participants'
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Accounts, such excess shall be allocated to the Unallocated
Account. In making any determination under this Section, the
Trustee may rely upon a certificate of the Board of Directors and
the chief executive officer of the Company.
SECTION 15. Voting.
While the Management Voting Trust Agreement is in
effect, the shares of Common Stock represented by the Voting Trust
Certificates held in the Trust Fund shall be voted by the Voting
Trustees in accordance with the terms of such Management Voting
Trust Agreement. After the Management Voting Trust Agreement is
no longer in effect, the provisions of this Section 15 shall
govern with respect to the voting of shares of Common Stock held
in the Trust. Each Participant shall be entitled to instruct the
Trustee as to the voting of any shares of Common Stock held in
any Account for such Participant. The Company shall, at the time
of mailing notice of any annual or special meeting of the
stockholders of the Company, send to the Trustee a copy for the
records of the Trustee and a copy for each Participant of such
notice and of all proxy solicitation material relating to such
meeting, and the Trustee shall promptly forward a copy of such
notice and material to each Participant. Each Participant may
instruct the Trustee in writing how the shares of Common Stock
held in any Account for such Participant shall be voted for such
meeting, and the Trustee shall vote the shares of Common Stock
held in any Account for any Participant in accordance with such
instructions as such Participant may give the Trustee in a timely
manner. Shares of Common Stock held in any Account with respect
to which no such instructions are so given and unallocated shares
of Common Stock held in the Unallocated Account shall be voted by
the Trustee pro rata in accordance with the vote of the allocated
shares of Common Stock as to which such instructions are so
given.
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SECTION 16. Consolidation, Merger or Sale of the Company.
In the case of any consolidation of the Company with,
or merger of the Company with or into, any corporation or
corporations, or any sale or conveyance of all or substantially
all of the assets of the Company, the corporation formed by such
consolidation, or with or into which the Company is merged, or
the person which acquires the assets of the Company, shall
expressly assume in writing in form satisfactory to the Trustee,
the duties and obligations of the Company under this Trust
Agreement and the Plan.
SECTION 17. Indemnification of Trustee.
The Company hereby indemnifies and holds the Trustee
harmless from and against any and all losses, damages, costs,
expenses or liabilities (herein, "Liabilities"), including
attorneys' fees and other costs of litigation incurred in good
faith by the Trustee, to which the Trustee may become subject
pursuant to, arising out of, occasioned by, incurred in
connection with or in any way associated with this Trust
Agreement, except for any act or omission constituting gross
negligence or willful misconduct of the Trustee. If one or more
Liabilities shall arise, or if the Company fails to indemnify the
Trustee as provided herein, or both, then the Trustee may engage
counsel of the Trustee's choice, but at the Company's expense,
either to conduct the defense against such Liabilities or to
conduct such actions as may be necessary to obtain the indemnity
provided for herein, or to take both such actions. The Trustee
shall notify the Company within fifteen days after the Trustee
has so engaged counsel of the name and address of such counsel.
If the Trustee shall be entitled to indemnification by the
Company pursuant to this Section 17 and the Company shall not
provide such indemnification upon demand, the Trustee may, in
accordance with Section 6.2, apply assets of the Trust Fund in
full satisfaction of the obligations for indemnification by the
Company, and any legal proceeding by the Trustee against the
Company for each indemnification shall be in behalf of the Trust.
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SECTION 18. Miscellaneous Provisions.
18.1 Binding Effect. This Trust Agreement shall be binding
upon the Company and the Trustee and their respective successors
and assigns.
18.2 Inquiry as to Authority. A third party dealing
with the Trustee shall not be required to make inquiry as to the
authority of the Trustee to take any action nor be under any
obligation to follow the proper application by the Trustee of the
proceeds of sale of any property sold by the Trustee or to
inquire into the validity or propriety of any act of the Trustee.
18.3 Responsibility for Company Action. The Trustee
assumes no obligation or responsibility with respect to any action
required by this Trust Agreement on the part of the Company. The
Trustee shall be under no duties except such duties as are
specifically set forth as such in this Trust Agreement or under
applicable law, and no implied covenant or obligation shall be
read into this Trust Agreement against the Trustee.
18.4 Successor to Trustee. Any corporation into which
the Trustee may be merged or with which it may be consolidated,
or any corporation resulting from any merger, reorganization or
consolidation to which the Trustee may be a party, or any
corporation to which all or substantially all the trust business
of the Trustee may be transferred shall be the successor of the
Trustee hereunder without the execution or filing of any
instrument or the performance of any act.
18.5 Titles Not to Control. Titles to the Sections of
this Trust Agreement are included for convenience only and shall not
control the meaning or interpretation of any provision of this
Trust Agreement.
18.6 Governing Law. The Trust is organized under, and
the duties, liabilities and rights of the Trustee shall be
governed by, the internal laws of the State of New York without
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regard to the principles of conflict of laws. With respect to
matters other than the duties, liabilities and rights of the
Trustee, prior to the Company Merger (as defined in the
Stockholders' Agreement), the Trust Agreement and the Trust shall
be governed by and construed and enforced in accordance with the
internal laws of the State of New York without regard to the
principles of conflict of laws; provided, however, that,
following the Company Merger, (a) then with respect to any
question of construction arising after such Company Merger, the
Trust Agreement and the Trust (other than with respect to matters
involving the duties, liabilities and rights of the Trustee)
shall be governed by and construed in accordance with the
internal laws of the State of Delaware without regard to
principles of conflict of laws and (b) each Participant and
Permitted Transferee, each of the HFCP Investors, the Management
Voting Trust and the Trustee agrees to submit to personal
jurisdiction and to waive any objection as to venue of the Court
of Chancery in the State of Delaware in connection with any
action arising out
of or relating to the Trust Agreement or the Trust. Service of
process on each Participant and Permitted Transferee, each of the
HFCP Investors, the Trustee, the Management Voting Trust and the
Company in any action arising out
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of or relating to the Trust Agreement or the Trust shall be
effective if served upon such Person by mail in accordance with
Section 13.
IN WITNESS WHEREOF, this Trust Agreement has been duly
executed by the parties hereto as of the day and year first above
written.
Young & Rubicam Holdings Inc.
By /s/
----------------------------
Attest
/s/
---------------------------
The Bank of New York, as TRUSTEE
By /s/
-----------------------------
Attest
/s/
---------------------------
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STATE OF )
: ss.:
COUNTY OF )
On the _______ day of ______ 1996 before me personally
came to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is ________ of
________________________________, one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation; and that he
signed his name thereto by like order.
/s/
-----------------------
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On the _______ day of ______ 1996 before me personally
came to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is ________ of
________________________________, one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation; and that he
signed his name thereto by like order.
/s/
-----------------------
Notary Public
33
STATE OF )
: ss.:
COUNTY OF )
On the _______ day of ______ 1996 before me personally
came to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is ________ of
________________________________, one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation; and that he
signed his name thereto by like order.
/s/
-----------------------
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On the _______ day of ______ 1996 before me personally
came to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is ________ of
________________________________, one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation; and that he
signed his name thereto by like order.
/s/
-----------------------
Notary Public
34
Exhibit A
Young & Rubicam Holdings Inc. Restricted Stock Plan
35
Exhibit B
Investment Guidelines
To be determined by the Committee as may be reasonably acceptable
to the Trustee.
36
Exhibit C
Schedule of Fees
37
The Bank of New York
Schedule of Fees
for
Rabbi Trust
for
Young & Rubicam Restricted Stock Trust
The following schedule of fees would apply to the subject trust.
Post-Funding Fees - Fees are rendered quarterly.
Administration Fee: $20,000 annually (Pre-Change in Control)
$25,000 annually (Post-Change in Control)
Special Asset Fee:
$3,000 per annum for the first passive, commingled investment
fund, mutual fund, insurance carrier, and company stock account
held as an asset per issuer.
$500 per annum for each additional special asset held in an account.
$7.50 per annum for an insurance policy held in an account.
$5,000 per annum for each actively managed account.
Transaction Fees:
Security Transaction $15.00 per security transaction
Lump Sum/Expense Payments $12.50 per check plus postage
Periodic Payments $2.00 per check plus postage
Wire Transfers (outgoing) $15.00 per transfer
Special Transaction Fees
Change of Control $10,000 per event
Insolvency $10,000 per event
Termination of the Trust $3,000 per event
Tax Form Preparation $150 per hour as incurred
Convert to Pay Status $100 per participant
Proxy Services As Incurred
Legal Fees/Out-of-Pocket Expenses As Incurred
Special Reporting Fees - Sub Plan Accounting
$1,500 annually per investment pool
$250 per plan within each pool
Fees as quoted above do not include any direct out-of-pocket or
legal expenses which would become payable in accordance with the
rabbi trust agreement. There are no initial set-up fees, except
legal fees, incurred with the establishment/conversion of the
trust to The Bank of New York.
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Fees outstanding more than 90 days will be automatically debited
to the Trust.
