TRUST AGREEMENT
Between
FMC CORPORATION
And
Bankers Trust Company
FMC Corporation Defined Benefit
Retirement Trust
TRUST Agreement made as of the 31st day of August, 1999, by and between FMC
Corporation, a Delaware corporation, ("FMC") and BANKERS TRUST COMPANY, a New
York banking corporation ("Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, FMC maintains a master retirement trust known as the FMC
Corporation Master Retirement Trust with the Trustee ("Master Trust"); and
WHEREAS, the Master Trust serves as the funding medium for several
qualified defined benefit retirement plans sponsored by FMC and its subsidiaries
and affiliates ("Prior Plans"); and
WHEREAS, effective December 31, 1998, all of the Prior Plans have been
merged into the defined benefit plan formerly known as the FMC Corporation
Salaried Employees' Retirement Plan, but which name has been changed to the FMC
Corporation Employees' Retirement Program ("Plan") by appropriate action taken
by the FMC Corporation Employee Welfare Benefits Plan Committee ("Committee");
and
WHEREAS, as a result of such merger of the Prior Plans into the Plan there
is no longer a need to maintain a master retirement trust; and
WHEREAS, FMC and the Trustee desire to restate the Master Trust to reflect
the merger of the Prior Plans into the Plan and to make such other changes as
are incorporated herein; and
WHEREAS, the Trustee is willing to continue to act as trustee of such
restated trust upon all of the terms and conditions hereinafter set forth.
NOW, THEREFORE, FMC and the Trustee declare and agree that the Trustee will
receive, hold and administer all sums of money and such other property
acceptable to the Trustee as shall from time to time be
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contributed, paid or delivered to it hereunder, IN TRUST, upon all of the
following terms and conditions:
ARTICLE I
Title-Purpose-Policy-Effect
---------------------------
1.1. Name. The qualified defined benefit retirement trust established
hereunder shall be known as the FMC Corporation Defined Benefit Retirement Trust
and is sometimes hereinafter referred to as the "Trust".
1.2. Definitions. Where used in this Trust Agreement, unless the context
otherwise requires or unless otherwise expressly provided, the terms as defined
in the recitals and as defined below shall have the meanings as set forth
therein:
(a) "Account Party" shall mean the Person designated by FMC to
represent FMC for this purpose, the Named Fiduciary and any Person to whom
the Trustee shall be instructed by the Named Fiduciary to deliver its
annual or other periodic account under Section 7.2, except, that with
respect to any filings, notices, reports or accountings required to be
given under the General Trust, "Account Party" shall be limited to that
officer designated herein to represent FMC.
(b) "Accounting Period" shall mean either the twelve (12) consecutive
month period coincident with the calendar year or the shorter period in any
year in which the Trustee accepts appointment as Trustee hereunder or
ceases to act as Trustee for any reason.
(c) "Agreement" shall mean all of the provisions of this instrument
and of all other written instruments amendatory hereof.
(d) "Asset Manager" shall mean the Trustee (other than for purposes of
Article V), Named Fiduciary or Investment Manager,
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individually or collectively as the context shall require, with respect to
those assets held in any Investment Fund established hereunder over which
it exercises, or to the extent it is authorized to exercise, discretionary
investment authority or control.
(e) "Bank Business Day" shall mean a day on which the Trustee is open
for business.
(f) "Bankers" shall mean Bankers Trust Company.
(g) "Board of Directors" shall mean the Board of Directors of
FMC.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(I) "Committee" shall mean the FMC Corporation Employee Welfare
Benefits Plan Committee or other Person responsible for benefit
administration under the Plan, including any representative (designated in
writing as such) or designee thereof authorized to act on behalf of such
Committee.
(j) "Directed Fund" shall mean any Investment Fund, or part thereof,
subject to the discretionary management and control of the Named Fiduciary
or any Investment Manager.
(k) "Discretionary Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of the
Trustee.
(l) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time and Regulations issued thereunder.
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(m) "General Trust" shall mean the BT Pyramid Trust created by Bankers
Trust Company under Declaration of Trust effective June 30, 1991, as
heretofore or hereafter amended.
(n) "Insurance Contract" shall mean any contract or policy of any kind
issued by an insurance company, whether or not providing for the allocation
of amounts received by the insurance company thereunder solely to the
general account or solely to one or more separate accounts (including
separate accounts maintained for the collective investment of qualified
retirement plans), or a combination thereof, and whether or not any such
allocation may be made in the discretion of the insurance company.
(o) "Investment Fund" shall mean each pool of assets in the Trust in
which the Plan has an interest during an Accounting Period. The term shall
also include for purposes hereof any sub-fund or account into which an
Investment Fund shall be divided from time to time at the direction of the
Named Fiduciary.
(p) "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38) of ERISA.
(q) "Investment Vehicle" shall mean any common, collective or
commingled trust (other than the General Trust or an Investment Fund),
investment company, corporation functioning as an investment intermediary,
Insurance Contract, partnership, joint venture or other entity or
arrangement to which, or pursuant to which, assets of an Investment Fund
within the Trust may be transferred or in which the Trust has an interest,
beneficial or otherwise (whether or not the underlying assets thereof are
deemed to constitute "plan assets" for any purpose under ERISA).
(r) "Named Fiduciary" shall mean the Person or its designee with
respect to the Plan, who, within the meaning of Section 402(a)(2),
402(c)(3) or 403(a)(1) of ERISA, has the authority to
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perform the separate functions allocated to that "Named Fiduciary" under
this Agreement. Unless otherwise specifically provided to the contrary, the
Named Fiduciary shall mean the Committee appointed pursuant to the Plan.
(s) "Plan" shall mean the FMC Corporation Employees' Retirement
Program which is one plan that consists of two parts - - Part I Salaried
and Nonunion Hourly Employees' Retirement Plan and Part II Union Hourly
Employees Retirement Plan.
(t) "Person" shall mean a natural person, trust, estate, corporation
of any kind or purpose, mutual company, joint-stock company, unincorporated
organization, association, partnership, joint venture, employee
organization, committee, board, participant, beneficiary, trustee, partner,
or venturer acting in an individual, fiduciary or representative capacity,
as the context may require.
(u) "Retirement Fund" shall mean all cash and other property
contributed, paid or delivered to the Trustee hereunder, all investments
made therewith and proceeds thereof and all earnings and profits thereon,
less payments, transfers or other distributions which, at the time of
reference, shall have been made by the Trustee, as authorized herein. The
Retirement Fund shall include all evidences of ownership, interest or
participation in an Investment Vehicle, but shall not, solely by reason of
the Retirement Fund's investment therein, be deemed to include any assets
of such Investment Vehicle.
(v) "Section" shall mean any Section of this Agreement.
(w) "Trustee" shall mean Bankers Trust Company, as Trustee of the
Retirement Trust.
(x) "Valuation Date" shall mean the last day of the Accounting Period,
calendar quarter or any more frequent date for reporting and/or investment
purposes agreed to by the Trustee.
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The plural of any term shall have a meaning corresponding to the singular
thereof as so defined and any neuter pronoun used herein shall include the
masculine or feminine, as the context may require.
1.3. Purpose. The Trust is established to fund the benefits payable to
participants and their beneficiaries under the Plan and to permit the collective
investment of the Plan's assets as hereinabove provided. The Trust is intended
to constitute a qualified trust as defined under Section 401(a) of the Code and
is entitled to tax exemption under Section 501(a) of the Code.
1.4. Exclusive Benefit. Except as may otherwise be permitted by law and
the terms of the Plan, at no time prior to the satisfaction of all liabilities
with respect to participants and their beneficiaries under the Plan shall any
part of the Plan in the Retirement Fund be used for, or diverted to, any
purposes other than for the exclusive benefit of such participants and their
beneficiaries, and for defraying the reasonable expenses of administering such
Plan. Notwithstanding the above, contributions (or portions thereof) may be
returned to the Company (or Participating Employers, as defined in the Plan)
upon written request of the Company (or Participating Employer) within one year
if a contribution:
(a) is conditioned upon deductibility under Section 404 of the Code,
to the extent the deduction is disallowed; or
(b) any portion thereof is made by the Company (or Participating
Employers) by a mistake of fact.
1.5. Effect. All Persons at any time interested in the Plan shall be
bound by the provisions of this Agreement and, in the event of any conflict
between this Agreement and the provisions of the Plan or any instrument or
agreement forming part of such Plan other than this Agreement, the provisions of
this Agreement shall control.
1.6. Domestic Trust. The Trust shall at all times be maintained as a
domestic trust in the United States.
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1.7. Contributions. FMC and its subsidiaries and affiliates shall, from
time to time, make contributions to the Retirement Fund as provided in the Plan.
The Trustee shall be accountable for all contributions so received. The Named
Fiduciary shall be solely responsible for enforcing payment of all contributions
to the Plan, for the timing and amount thereof, for the adequacy of the
Retirement Fund and the funding standards adopted for the Plan to meet or
discharge any pension or other liabilities of such Plan, and the Trustee shall
have no responsibility therefor.
ARTICLE II
Valuation
---------
2.1. Valuations. The Trustee shall determine the value of the assets of
the Retirement Fund and each Investment Fund as of each Valuation Date. In
addition, for the convenience of FMC and without imposing any obligation on the
Trustee, the Named Fiduciary may request the Trustee to include in its periodic
reports under this Section 2.1 or its annual account under Section 7.2, assets
that do not constitute part of the Retirement Fund. Except in the case of an
Investment Fund in which amortized cost is the valuation method designated,
assets will be valued at their market values at the close of business on the
Valuation Date, or, in the absence of readily ascertainable market values, at
such values as the Trustee shall determine in accordance with methods
consistently followed and uniformly applied. Anything in this Agreement to the
contrary notwithstanding, with respect to assets constituting part of a Directed
Fund or assets included at the request of the Named Fiduciary as hereinabove
provided, the Trustee may rely for all purposes of this Agreement on the latest
valuation and transaction information submitted to it by the Person responsible
for the investment of such assets even if such information predates the
Valuation Date. The Named Fiduciary will cause such Person to provide the
Trustee with all information needed by the Trustee to discharge its obligations
to value such assets and to account under this Agreement.
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2.2. Participant Records. Except as the parties may otherwise agree in
writing, the Trustee shall not be required to maintain any separate records or
accounts with respect to any participant of the Plan, and any records or
accounts required to be maintained pursuant to the terms of the Plan or to
comply with ERISA or the Code shall be the responsibility of FMC or the
Committee.
ARTICLE III
Administration of the Plan
--------------------------
3.1. Payment of Benefits. On the direction of the Committee or its
authorized agent, the Trustee shall pay moneys out of the Plan directly to or
for the benefit of participants in such Plan and their beneficiaries, or to an
insurance company to provide for the payment of such benefits by the purchase of
an Insurance Contract, or to a paying or disbursing agent (which may be the
Committee). On the direction of the Committee or its authorized agent, the
Trustee shall pay moneys out of the Plan for the reasonable expenses of
administering the Plan. Any assets disbursed or paid over by the Trustee
pursuant to this Section 3.1 shall no longer be part of the Retirement Fund.
FMC has opened a commercial banking account in the name of the Trust in a
federally insured banking institution for the exclusive purpose of making
benefit payments in accordance with the Plan. FMC has authorized one or more of
its officers, or their designees, to sign, manually or by facsimile signature,
all checks, drafts and orders, including orders of direction in informal or
letter form, against any funds in such checking account. FMC shall keep
accurate and detailed records covering all receipts and disbursements made from
the account and shall prepare an appropriate account and reconciliation with
respect thereto. FMC shall pay, prepare, file and furnish all local, state and
federal tax deposits, returns, and reports required by any government agency or
authority with respect to distributions from qualified plans. The Trustee shall
make deposits from the Retirement Fund to the checking account as directed from
time to time by the Committee or its authorized agent in writing. The Trustee
shall have no
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duty to question the propriety of any direction by the Committee or its
authorized agent.
3.2. Reliance on Committee. Any directions pursuant to Section 3.1 may,
but need not, specify the application to be made of moneys so ordered. Each
direction to the Trustee under Section 3.1 shall constitute a certification by
the Committee that such direction is in accordance with applicable law, the
terms of the Plan and the terms of this Agreement, and the Trustee shall have no
duty to make any independent inquiry or investigation as to any of the foregoing
before acting upon such direction, or to see to the application of any moneys
paid.
3.3. Trustee Not Responsible for Plan Administration. The Trustee shall
not be responsible under this Agreement, or otherwise, in any way respecting the
determination, computation, payment or application of any benefit, for the form,
terms, payment provisions or issuer of any Insurance Contract that it is
directed to purchase to provide for the payment of benefits under the Plan, for
performing any functions under any such Insurance Contract that it may be
directed to purchase and/or hold as contract holder thereunder (other than the
execution of any documents incidental thereto and transfer or receipt of funds
thereunder on the directions of the Committee), or for any other matter
affecting the administration of the Plan, by FMC or the Committee or any other
Person to whom such responsibility is allocated or delegated pursuant to the
terms of the Plan.
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ARTICLE IV
Investment of Trust Assets
--------------------------
4.1. Asset Managers. Discretionary authority for the management and
control of assets of the Plan from time to time held in the Retirement Fund may
be retained, allocated or delegated, as the case may be, for one or more
purposes, to and among the Asset Managers by the Named Fiduciary, in its
absolute discretion. The terms and conditions of appointment, authority and
retention of any Asset Manager shall be the sole responsibility of the Named
Fiduciary. The Named Fiduciary shall promptly notify the Trustee in writing of
the appointment or removal of an Asset Manager. Any notice of appointment
pursuant to this Section 4.1 shall constitute a representation and warranty that
the Asset Manager has been appointed in accordance with the provisions of the
Plan and that any Asset Manager (other than the Trustee or the Named Fiduciary)
is an Investment Manager.
4.2. Investment Discretion. The assets of the Trust shall be invested
and reinvested, without distinction between principal and income, at such time
or times in such investments and pursuant to such investment strategies or
courses of action and in such shares and proportions, as the Asset Managers, in
their sole discretion, shall deem advisable.
4.3. Limitations on Investment Discretion. The Named Fiduciary may
limit, restrict or impose guidelines affecting the exercise of the discretion
hereinabove conferred on any Asset Manager. Any limitations, restrictions or
guidelines applicable to the Trustee, as Asset Manager, shall be communicated in
writing to the Trustee. The Trustee shall have no responsibility with respect
to the formulation of any funding policy or any investment or diversification
policies embodied therein. The Named Fiduciary shall be responsible for
communicating, and monitoring adherence to, any limitations or guidelines
imposed on any other Asset Manager.
4.4. Responsibility for Diversification. The Named Fiduciary shall be
responsible for determining the diversification policy of the Retirement Fund,
for monitoring adherence by the Asset Managers to such policy, and
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for advising the Asset Managers with respect to limitations on employer or other
securities or property contained in the Plan or imposed on such Plan by
applicable law or by the Named Fiduciary.
ARTICLE V
Responsibility for Directed Funds
---------------------------------
5.1. Responsibility for Selection of Agents. All transactions of any kind
or nature in or from a Directed Fund shall be made upon such terms and
conditions and from or through such brokers, dealers and principals and other
agents as the Asset Manager shall direct. No such transactions shall be executed
through the facilities of the Trustee except where the Trustee shall make
available its facilities solely for the purpose of temporary investment of cash
reserves of a Directed Fund. However, nothing in the preceding sentence shall
confer any authority upon the Trustee to invest the cash balances of any
Directed Fund unless and until it receives directions from the Asset Manager.
5.2. Trustee Not Responsible for Investments in Directed Funds. The
Trustee shall be under no duty or obligation to review or to question any
direction of any Asset Manager, or to review securities or any other property
held in any Directed Fund with respect to prudence or proper diversification or
compliance with any limitation on the Asset Manager's authority under this
Agreement or the terms of the Plan, any agreement entered into between FMC or
the Named Fiduciary and the Asset Manager or imposed by applicable law, or to
make any suggestions or recommendation to FMC, the Named Fiduciary or the Asset
Manager with respect to the retention or investment of any assets of any
Directed Fund, and shall have no authority to take any action or to refrain from
taking any action with respect to any asset of a Directed Fund unless and until
it is directed to do so by the Asset Manager.
5.3. Investment Vehicles. Any Investment Vehicle, or interest therein,
acquired by or transferred to the Trustee upon the directions of the Asset
Manager shall be allocated to a designated Directed Fund, and the
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Trustee's duties and responsibilities under this Agreement shall not be
increased or otherwise affected thereby. The Trustee shall be responsible solely
for the safekeeping of the physical evidence, if any, of the Trust's ownership
of or interest or participation in such Investment Vehicle.
5.4. Reliance on Asset Manager. The Trustee shall be required under this
Agreement to execute documents, to settle transactions, to take action on behalf
of or in the name of the Trust and to make and receive payments on the direction
of the Asset Manager. Any direction of the Asset Manager shall constitute a
certification to the Trustee (a) that the transaction will not constitute a
prohibited transaction under ERISA or the Code, (b) that the investment is
authorized under the terms of this Agreement and any other agreement or law
affecting the Asset Manager's authority to deal with the Directed Fund, (c) that
any contract, agency, joinder, adoption, participation or partnership agreement,
deed, assignment or other document of any kind which the Trustee is requested or
required to execute to effectuate the transaction has been reviewed by the Asset
Manager and, to the extent it deems advisable and prudent, its counsel, (d) that
such instrument or document is in proper form for execution by the Trustee, (e)
that, where appropriate, insurance protecting the Trust against loss or
liability has been or will be maintained in the name of or for the benefit of
the Trustee, and (f) that all other acts to perfect and protect the Trust's
rights have been taken, and the Trustee shall have no duty to make any
independent inquiry or investigation as to any of the foregoing before acting
upon such direction. In addition, the Trustee shall not be liable for the
default of any Person with respect to any Investment Vehicle or any investment
in a Directed Fund or for the form, genuineness, validity, sufficiency or effect
of any document executed by, delivered to or held by it for any Directed Fund on
account of such investment, or if, for any reason (other than the negligence or
willful misconduct of the Trustee) any rights of the Trust therein shall lapse
or shall become unenforceable or worthless.
5.5. Merger of Funds. The Trustee shall not have any discretionary
responsibility or authority to manage or control any asset held in a Directed
Fund upon the resignation or removal of an Asset Manager unless and until it has
been notified in writing by the Named Fiduciary that the Asset
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Manager's authority has terminated and that such Directed Fund's assets are to
be integrated with the Discretionary Fund. Such notice shall not be deemed
effective until two Bank Business Days after it has been received by the
Trustee. The Trustee shall not be liable for any losses to the Retirement Fund
resulting from the disposition of any investment made by the Asset Manager or
for the retention of any illiquid or unmarketable investment or any investment
which is not widely publicly traded or for the holding of any other investment
acquired by the Asset Manager if the Trustee is unable to dispose of such
investment because of any restrictions imposed by the Securities Act of 1933 or
other Federal or state law, or if an orderly liquidation of such investment is
impractical under prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 4.3, or for any other
violation of the terms of this Agreement, the Plan or applicable law as a result
of the addition of Directed Fund assets to the Discretionary Fund.
5.6. Notification of Named Fiduciary in Event of Breach. If the Trustee
has knowledge of a breach committed by an Asset Manager, it shall notify the
Named Fiduciary thereof, and the Named Fiduciary shall thereafter assume full
responsibility to all Persons interested in the Plan to remedy such breach.
5.7. Definition of Knowledge. The parties hereto acknowledge that while
the Trustee will perform certain duties (such as custodial, reporting,
recording, valuation and bookkeeping functions) with respect to Directed Funds,
such duties will not involve the exercise of any discretionary authority to
manage or control the assets of the Directed Funds and will be the
responsibility of officers or other employees of the Trustee who are unfamiliar
with and have no responsibility for investment management. Therefore, in the
event that knowledge of the Trustee shall be a prerequisite to imposing a duty
upon or to determining liability of the Trustee under this Agreement or any
statute regulating the conduct of the Trustee with respect to such Directed
Funds or relieving FMC of its undertakings under Section 13.2, the Trustee will
not be deemed to have knowledge of, or to have participated in, any act or
omission of an Asset Manager involving the investment of assets allocated to the
Directed Funds as a result of the
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receipt and processing of information in the course of performing such duties.
5.8. Duty to Enforce Claims. The Trustee shall have no duty to commence
or maintain any action, suit or legal proceeding on behalf of the Trust on
account of or growing out of any investment made in or for a Directed Fund
unless the Trustee has been directed to do so by the Asset Manager or the Named
Fiduciary and unless the Trustee is either in possession of funds sufficient for
such purpose or has been indemnified to its satisfaction for counsel fees, costs
and other expenses and liabilities to which it, in its sole judgment, may be
subjected by beginning or maintaining such action, suit or legal proceeding.
5.9. Restrictions on Transfer. Nothing herein shall be deemed to empower
any Asset Manager to direct the Trustee to transfer any asset of a Directed Fund
to itself except for purposes enumerated in paragraph (j), (l) or (m) of Section
6.1.
ARTICLE VI
Powers of Asset Managers
------------------------
6.1. General Powers. Without in any way limiting the powers and
discretions conferred upon any Asset Manager by the other provisions of this
Agreement or by law, each Asset Manager shall be vested with the following
powers and discretions with respect to the assets of the Trust subject to its
management and control, and, upon the directions of the Asset Manager of a
Directed Fund, the Trustee shall make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all other instruments that
may be necessary or appropriate to enable such Asset Manager to carry out such
powers and discretions:
(a) to purchase, sell, exchange, convey, transfer or otherwise
acquire or dispose of any property by private contract or at public auction,
and no person dealing with the Asset Manager shall be bound to see to the
application of the purchase money or to inquire into the
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validity, expediency or propriety of any such purchase, sale or other
acquisition or disposition;
(b) to acquire and hold qualifying employer securities and qualifying
employer real property, as such investments are defined in Section 407(d)
of ERISA;
(c) to enter into contracts or to make commitments either alone or in
company with others to sell or acquire property;
(d) to purchase or sell, write or issue, puts, calls or other
options, covered or uncovered, to enter into financial futures contracts,
forward placement contracts and standby contracts, and in connection
therewith, to deposit, hold (or direct Bankers, as Trustee or in its
individual capacity, to deposit or hold) or pledge assets of the Retirement
Fund;
(e) to purchase part interests in real property or in mortgages on
real property, wherever such real property may be situated;
(f) to lease to others for any term without regard to the duration of
the Trust any real property or part interest in real property;
(g) to delegate to a manager or the holder or holders of a majority
interest in any real property or mortgage on real property or in any oil,
mineral or gas properties, the management and operation of any part
interest in such property or properties (including the authority to sell
such part interests or otherwise carry out the decisions of such manager or
the holder or holders of such majority interest);
(h) other than with respect to FMC stock, to vote upon any stocks,
bonds or other securities (but subject to the suspension of any voting
rights as a result of any broker loan or similar agreement); to give
general or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription rights or
other options and to make any payments incidental thereto; to
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consent to or otherwise participate in corporate reorganizations or other
changes affecting corporate securities and to delegate discretionary powers
and to pay any assessments or charges in connection therewith; and
generally to exercise any of the powers of an owner with respect to stocks,
bonds, securities or other property;
(i) with respect to FMC stock, to vote upon any such stock; to give
general or special proxies or powers of attorney with or without the power
of substitution, to exercise any conversion privileges, subscription rights
or other options and to make any payments incidental thereto; to consent or
otherwise participate in corporate reorganizations or other changes
affecting corporate securities and to delegate discretionary powers and to
pay any assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to such FMC stock each
in a manner that is consistent with the written direction of the Committee,
or to the extent the Trustee has not received the written direction of the
Committee as to how the Trustee is to act (or not act) with respect to such
FMC stock, to the extent required by law in the Trustee's uncontrolled
discretion;
(j) to organize corporations under the laws of any state for the
purpose of acquiring or holding title to property (or, in the case of a
Directed Fund, to direct the Trustee to organize such corporations or to
appoint an ancillary trustee acceptable to the Trustee for such purpose);
(k) to invest in a fund consisting of securities issued by
corporations and selected and retained solely because of their inclusion
in, and in accordance with, one or more commonly used indices of such
securities, with the objective of providing investment results for the fund
which approximate the overall performance of such designated index;
(l) to enter into any partnership, as a general or limited partner,
or joint venture;
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(m) to purchase units or certificates issued by an investment company
or pooled trust or comparable entity;
(n) to transfer money or other property to an insurance company
issuing an Insurance Contract;
(o) to engage in notional principal contracts, including, without
limitation, any SWAP or exchange agreement with respect to interest rates,
commodities or securities, or any financial contract or derivative products
relating thereto; and from time to time, to deliver payments to and receive
payments from the counterparties to such contracts;
(p) to transfer assets of a Discretionary or Directed Fund to a
common, collective or commingled trust fund exempt from tax under the Code
maintained by an Asset Manager or an affiliate of an Asset Manager or by
another trustee who is designated by the Named Fiduciary, to be held and
invested subject to all of the terms and conditions thereof, and such trust
shall be deemed adopted as part of the Trust and the Plan to the extent
that assets of the Trust are invested therein; provided, however, that any
transfer from a Directed Fund to the General Trust may be made only with
the prior approval of the Trustee and shall be invested only in one or more
short term investment funds or other special purpose funds established from
time to time thereunder; and
(q) to be reimbursed for the reasonable expenses incurred in
exercising any of the foregoing powers or to pay the reasonable expenses
incurred by any agent, manager or trustee appointed pursuant hereto.
6.2. Additional Powers of Trustee. In addition, the Trustee is
hereby authorized:
(a) to register any securities held in the Retirement Fund in its own
name or in the name of a nominee and to hold any securities in
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bearer form, and to combine certificates representing such securities with
certificates of the same issue held by the Trustee in other fiduciary or
representative capacities or as agent for customers, or to deposit or to
arrange for the deposit of such securities in any qualified central
depository even though, when so deposited, such securities may be merged
and held in bulk in the name of the nominee of such depository with other
securities deposited therein by other depositors, or to deposit or arrange
for the deposit of any securities issued by the United States Government,
or any agency or instrumentality thereof, with a Federal Reserve Bank, but
the books and records of the Trustee shall at all times show that all such
investments are part of the Retirement Fund;
(b) to deposit any funds of the Trust in accounts or savings
certificates, which bear a reasonable rate of interest issued or maintained
by Bankers, in its separate corporate capacity, or in any other institution
affiliated with Bankers and to deposit funds in foreign currency, if any,
in accordance with the Cash Management Addendum attached hereto;
(c) to employ suitable agents, depositories and counsel, domestic or
foreign, and to the extent authorized under Section 8.1, to charge their
reasonable expenses and compensation against the Retirement Fund, and to
confer upon any such depository the powers conferred upon the Trustee by
paragraph (a) of this Section 6.2 as well as the power to appoint subagents
and depositories, wherever situated, in connection with the retention of
securities or other property;
(d) to borrow money from any source as may be necessary or advisable
to effectuate the purposes of the Trust on such terms and conditions as the
Trustee, in its absolute discretion, may deem advisable;
(e) to deposit any funds of the Trust in accounts or savings
certificates, which bear a reasonable rate of interest, issued or
maintained by Bankers Trust Company, in its separate corporate capacity, or
in any other institution affiliated with Bankers Trust Company and to
deposit funds
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in foreign currency, if any in accordance with the Cash Management Addendum
attached hereto;
(f) to compromise, compound, submit to arbitration or settle any debt
or obligation owing to or from or otherwise adjust all claims in favor of
or against the Retirement Fund other than claims solely affecting the right
of any Person to benefits under a Participating Plan; to reduce or increase
the rate of interest or extend, or otherwise modify, foreclose upon
default, or enforce any such debt or obligation; to xxx or defend suits or
legal proceedings to protect any interest in the Trust and to represent the
Trust in all suits or legal proceedings in any court or before any other
administrative agency, body or tribunal;
(g) to make any distribution or transfer of assets as of a Valuation
Date authorized under Article IX or X or to effectuate participants' rights
under a Participating Plan in cash or in kind, or partly in cash or kind,
and, in furtherance thereof, to value such assets, which valuation shall be
conclusive and binding on all Persons;
(h) upon the direction of the Named Fiduciary, to maintain and
operate one or more market inventory funds as a vehicle to exchange
securities among Discretionary and Directed Funds without alienating the
property from the Trust;
(i) pursuant to the terms of a separate agreement, to loan securities
held in the Retirement Fund to brokers or dealers or other borrowers, to
secure the same in any manner permitted by law and the provisions of this
Agreement, and during the term of any such loan, to permit the loaned
securities to be transferred into the name of and voted by the borrowers or
others, and, in connection with the exercise of the powers hereinabove
granted, to hold any property deposited as collateral by the borrower
pursuant to any master loan agreement in bulk, either as provided in
paragraph (a) of this Section 6.2 or otherwise, together with the
unallocated interests of other lenders, and to retain any such property
upon the default of the borrower, whether or not investment in such
property is
Page 20
authorized under this Agreement, and to receive compensation therefor out
of any amounts paid by or charged to the account of the borrower;
(j) to hold uninvested cash awaiting investment and such additional
cash balances as it shall deem reasonable or necessary, without incurring
any liability for the payment of interest thereon; and
(k) generally, consistent with the provisions of this Agreement to
perform all acts (whether or not expressly authorized herein) which it may
deem necessary and prudent for the protection of the assets of the Trust.
6.3. Prior Consent. The discretionary powers conferred under
paragraphs (e), (f), and (g) of Section 6.1 and paragraph (d) of Section 6.2
shall be exercised only with the prior written consent of the Named Fiduciary.
In addition, any powers conferred on the Trustee or any other Asset Manager
thereunder may be suspended at any time by the Named Fiduciary upon notice to
the Asset Manager or Trustee, as the case may be. Any oral notice hereunder
shall be promptly confirmed in writing to the Trustee, but the Trustee shall
have no responsibility hereunder unless and until it has received notice in
accordance with Section 12.6.
ARTICLE VII
Records and Accounts of Trustee
-------------------------------
7.1. Records. The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other transactions in the
Retirement Fund and all accounts, books and records relating thereto shall be
open to inspection and audit at all reasonable times during normal business
hours by any Person designated by the Named Fiduciary.
7.2. Annual Account. Within ninety (90) days following the close of each
Accounting Period, the Trustee shall file with the Account Party, in accordance
with Section 13.6, a written account setting forth the receipts and
disbursements of the Retirement Fund and the investments and other transactions
effected by it upon its own authority or pursuant to the
Page 21
directions of any Person as herein provided during the Accounting Period. FMC
shall promptly review such statement and report any errors in writing to the
Trustee.
7.3. Judicial Accountings. Nothing herein shall in any way limit the
Trustee's right to bring any action or proceeding in a court of competent
jurisdiction to settle its account or for such other relief as it may deem
appropriate.
7.4. Necessary Parties. Except to the extent that Sections 502 and 504 of
ERISA may provide otherwise, in order to protect the Retirement Fund from the
expense of litigation, no Person other than FMC shall be a necessary party in
any proceeding under Section 7.4 or may require the Trustee to account or may
institute any other action or proceeding against the Trustee or the Trust.
ARTICLE VIII
Compensation, Taxes and Expenses
--------------------------------
8.1. Compensation and Expenses. (a) Any reasonable expenses and all other
proper charges and disbursements of the Trustee incurred by the Trustee in
connection with its administration of the Retirement Trust including, but not
limited to, fees for legal services rendered to the Trustee (whether or not
rendered in connection with a judicial or administrative proceeding); and (b)
such compensation to the Trustee as shall be agreed upon from time to time
between the Trustee and an officer of FMC shall be paid from the Retirement
Fund, unless paid by FMC. Anything in this sentence to the contrary
notwithstanding, FMC shall reimburse the Trustee for any such expenses if for
any reason such fees and expenses are not paid out of the Retirement Fund. In no
event shall the Trustee be entitled to charge the Retirement Fund or to
reimbursement from FMC, for the cost of retaining an agent to perform any
service for which the Trustee is compensated under the fee agreement, or for any
expenses which are which are not permitted under ERISA. The Trustee's
entitlement to reimbursement hereunder shall not be affected by the resignation
or removal of the Trustee or by the termination of the Trust. FMC agrees to
indemnify
Page 22
the Trustee from and against any and all agreed upon fees and reasonable
expenses that the Trustee is entitled to be reimbursed under this Agreement,
notwithstanding that such fees and expenses may be incurred after termination of
this Agreement. The Named Fiduciary may direct the Trustee to pay from the
Retirement Fund any other administration expenses of the Plan. Each direction to
the Trustee under this Section and Section 8.3 shall constitute a certification
by the Named Fiduciary that such direction is in accordance with applicable law,
the terms of the Plan and the terms of this Agreement, and the Trustee shall
have no duty to make any independent inquiry or investigation as to any of the
foregoing before acting upon such direction, or to see to the application of any
money paid.
8.2. Taxes. All taxes of any and all kinds what so ever that may be levied
or assessed under existing or future laws, domestic or foreign, upon the
Retirement Fund or the income thereof shall be paid from the Retirement Fund.
The Trustee shall notify the Named Fiduciary of any taxes that may be assessed.
In the event that the Named Fiduciary shall determine that the taxes are not
lawfully assessed, it may elect to direct the Trustee to contest such assessment
at the expense of the Trust, or may itself contest such assessment.
8.3. Allocation. Any tax or expense paid from the Retirement Fund
hereunder which is determined by the Named Fiduciary to be specifically
allocable to one or more Investment Funds shall be charged against such
Investment Fund. Any expense which is allocable to all of the Investment Funds
shall be charged against the Retirement Fund as a whole, in such proportions as
the Named Fiduciary shall direct the Trustee.
ARTICLE IX
Resignation or Removal of Trustee
---------------------------------
9.1. Resignation or Removal. The Trustee may be removed by FMC at any time
upon thirty (30) days' notice in writing to the Trustee. The Trustee may resign
at any time upon sixty (60) days' notice in writing to FMC.
Page 23
9.2. Designation of a Successor. Upon the removal or resignation of the
Trustee, FMC shall either appoint a successor trustee who shall have the same
powers and duties as those conferred upon the Trustee hereunder, and upon
acceptance of such appointment by the successor trustee, the Trustee shall
assign, transfer and pay over the Retirement Fund to such successor trustee, or
FMC shall direct the Trustee to assign, transfer and pay over the Retirement
Fund to one or more insurance companies pursuant to Insurance Contracts issued
to the Plan. If, for any reason, FMC cannot or does not act promptly to appoint
a successor trustee or designate an insurance company in the event of the
resignation or removal of the Trustee, the Trustee may apply to a court of
competent jurisdiction for the appointment of a successor trustee. Any expenses
incurred by the Trustee in connection therewith shall be charged to and paid
from the Retirement Fund as an expense of administration.
ARTICLE X
Amendment or Termination
------------------------
10.1. Amendment. Subject to Section 1.4, FMC reserves the right at any
time and from time to time to amend, in whole or in part, any or all of the
provisions of this Agreement by notice thereof in writing delivered to the
Trustee; provided, however, no amendment that affects the rights, duties or
responsibilities of the Trustee may be made without its prior written consent.
10.2. Termination. Subject to Section 1.4, FMC reserves the right to
terminate this Agreement by notice in writing thereof delivered to the Trustee.
In the event of termination, the Trustee shall dispose of the Retirement Fund,
after the payment of or other provision for all of its expenses (including any
compensation to which the Trustee may be entitled), all in accordance with the
written directions of the Committee. The Committee will direct the Trustee to
dispose of the Retirement Fund by allocating the same on an actuarial basis
among the participants, joint annuitants and beneficiaries of the Plan in the
manner prescribed by Section
Page 24
4044 of ERISA. Any residual assets of the Trust Fund remaining after such
allocation shall be distributed to FMC if (a) all liabilities of the Plan to
participants, joint annuitants and beneficiaries have been satisfied; and (b)
such a distribution does not contravene any provision of law. The foregoing
notwithstanding, if any remaining assets of the Plan are attributable to
employee contributions, such assets shall be equitably distributed to the
participants who made such contributions (or to their beneficiaries) in
accordance with their rate of contribution.
10.3. Trustee's Authority to Survive Termination. Until the final
distribution of the Retirement Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this Agreement.
10.4. Disqualification. FMC shall promptly notify the Trustee if the Plan
has been or is likely to be disqualified under Section 401 of the Code.
10.5. Approval of Appropriate Agencies. The Trustee may, in its absolute
discretion, condition delivery, transfer or distribution of any assets withdrawn
from the Retirement Fund upon the Trustee's receiving assurances satisfactory to
it that any notice that may be required to be given under ERISA or the Code to
any Person, the Department of Labor, the Internal Revenue Service or the Pension
Benefit Guaranty Corporation has been given, that any filings required to be
made under ERISA or the Code have been made, where required, that no notice of
noncompliance has been issued by the Pension Benefit Guaranty Corporation
pursuant to Section 4041 of ERISA and the time to issue such notice of
noncompliance has expired, that a termination has not affected the qualification
of the Plan, and that any plan to which such assets are to be transferred is a
qualified plan under Section 401(a) of the Code. The Trustee shall not be
responsible under the Plan to give or apply for any such notice or make any such
filings or maintain any records required under ERISA or the Code, all of which,
for purposes of this Agreement, shall be the responsibility of FMC.
Page 25
ARTICLE XI
Authorities
-----------
11.1. Company. Whenever the provisions of this Agreement specifically
require or permit any action to be taken by "FMC", such action must be
authorized by the Board of Directors or by any person authorized by the Board of
Directors to take such action. Any resolution adopted by the Board of Directors
or other evidence of such authorization shall be certified to the Trustee by the
Secretary or an Assistant Secretary of FMC, and the Trustee may rely upon any
authorization so certified until revoked or modified by a further action of the
Board of Directors similarly certified to the Trustee. Each subsidiary or
affiliate of the Company appoints the Company as its agent to exercise on its
behalf all of the powers and authority conferred upon the Company by this Trust,
including without limitation, the power to amend or terminate the Trust.
11.2. Named Fiduciary and Committee. FMC shall furnish the Trustee from
time to time with a list of the names and signatures of all Persons (other than
FMC) authorized hereunder: (a) to receive accountings under Section 1.2(a); (b)
to act as a Named Fiduciary; (c) as members of the Committee; or (d) in any
manner authorized to issue orders, notices, requests, instructions and
objections to the Trustee pursuant to the provisions of this Agreement. Any such
list and the form of the instructions shall be certified to the Trustee by the
Secretary or an Assistant Secretary of FMC and may be relied upon for accuracy
and completeness by the Trustee. Each such Person shall thereupon furnish the
Trustee with a list of the names and signatures of those individuals, if any,
who are authorized, jointly or severally or otherwise, to act for such Person
hereunder, and the Trustee shall be fully protected in acting upon any notices
or directions received from any of them.
11.3. Investment Manager. The Named Fiduciary shall cause each Investment
Manager to furnish the Trustee from time to time with the names and signatures
of those persons authorized to direct the Trustee on its behalf hereunder.
Page 26
11.4. Form of Communications. Any agreement or understanding between FMC
and any Person (including an Investment Manager) or any other provision of this
Agreement to the contrary notwithstanding, all notices, directions and other
communications to the Trustee shall be in writing or in such other form,
including transmission by electronic means through the facilities of third
parties or otherwise, specifically agreed to in writing by the Trustee. The
Trustee shall be fully protected in acting in accordance therewith, but shall
not thereby assume responsibility for the failure or breakdown of any such means
of communication not due to its own negligence or willful misconduct.
11.5. Continuation of Authority. The Trustee shall have the right to
assume, in the absence of written notice to the contrary, that no event
constituting a change in the composition or authority of the Named Fiduciary or
membership of the Committee or terminating the authority of any Person,
including any Investment Manager, has occurred.
11.6. No Obligation to Act on Unsatisfactory Notice. The Trustee shall
incur no liability under this Agreement for any failure to act pursuant to any
notice, direction or any other communication from any Asset Manager, FMC, the
Named Fiduciary, the Committee, or any other Person or the designee of any of
them unless and until it shall have received instructions in form specified in
this Article XI herein.
ARTICLE XII
General Provisions
------------------
12.1. Governing Law. To the extent that state law shall not have been
preempted by the provisions of ERISA or any other law of the United States
heretofore or hereafter enacted, this Agreement shall be administered, construed
and enforced according to the laws of the State of New York.
12.2. Entire Agreement. The Trustee's duties and responsibilities to the
Plan or any Person interested therein shall be limited to those
Page 27
specifically set forth in this Agreement. No amendment to the Plan or agreement
or instrument affecting the Plan or any other document shall affect the
Trustee's duties or responsibilities hereunder without its prior written
consent.
12.3. Mistake. No mistake made in good faith and in the exercise of due
care in connection with the administration of the Retirement Fund shall be
deemed to be a breach of the Trustee's duties if, promptly after discovery of
the mistake, the Trustee takes whatever action may be practicable in the
circumstances to remedy the mistake.
12.4. Reliance on Experts. The Trustee may consult with experts (who may
be experts employed by FMC) including legal counsel, appraisers, pricing
services, accountants or actuaries, selected by it with due care with respect to
the meaning and construction of this Agreement or any provision hereof, or
concerning its powers and duties hereunder.
12.5. Successor to the Trustee. Any successor, by merger or otherwise, to
substantially all of the trust business of Bankers shall automatically and
without further action become the Trustee hereunder, subject to all the terms
and conditions and entitled to all the benefits and immunities hereof.
12.6. Notices. All notices, reports, annual accounts and other
communications from the Trustee to FMC, the Named Fiduciary, Committee,
Investment Manager, or any other Person shall be deemed to have been duly given
if mailed, postage prepaid, or delivered in hand to such Person at its address
appearing on the records of the Trustee, which address shall be filed with the
Trustee at the time of the establishment of the Trust and shall be kept current
thereafter by the Named Fiduciary. All directions, notices, statements,
objections and other communications to the Trustee shall be deemed to have been
given when received by the Trustee at its offices in the form provided in
Article XI.
12.7. Plan Documents. The Named Fiduciary shall provide the Trustee with
complete, current copies of the Plan and the most recent tax
Page 28
qualification letter relative thereto. The Trustee shall be entitled to rely
upon the Named Fiduciary's attention to this obligation and shall be under no
duty to inquire of any Person as to the existence of any documents not provided
hereunder.
12.8. No Waiver; Reservation of Rights. The rights, remedies, privileges
and immunities expressed herein are cumulative and are not exclusive, and the
Trustee shall be entitled to claim all other rights, remedies, privileges and
immunities to which it may be entitled under applicable law.
12.9. Descriptive Headings. The captions in this Agreement are solely for
convenience of reference and shall not define or limit the provisions hereof.
12.10. Spendthrift Provision. Except as may be required by law, no
interest or claim of interest of any kind of any participant in the Plan under
the provisions of this Trust is assignable, nor may any such interest or claim
be subject to garnishment, attachment, execution or levy of any kind, and no
attempt to transfer, assign, pledge or otherwise encumber or dispose of such
interest by act of the Person involved or by operation of law will be
recognized.
ARTICLE XIII
Undertaking by FMC
------------------
13.1. Undertaking. In consideration of Bankers' agreeing to enter into
this Agreement, FMC hereby agrees to hold harmless Bankers, individually and as
Trustee, and Bankers' directors, officers, and employees, from and against all
amounts, including without limitation taxes, expenses (including reasonable
counsel fees), liabilities, claims, damages, actions, suits or other charges,
incurred by or assessed against Bankers, individually or as Trustee, or its
directors, officers or employees (a) as a direct or indirect result of any act
or omission of any predecessor trustee or fiduciary appointed under the Plan;
(b) as a direct or indirect result of anything done
Page 29
by or on behalf of Bankers in reliance upon the duly authorized directions of
any Investment Manager, the Committee, FMC, or the Named Fiduciary, or anything
omitted to be done in the absence of such directions, or (c) as a direct result
of the failure of FMC, the Committee, or the Named Fiduciary, directly or
indirectly or through its appointed agents, to adequately, carefully and
diligently discharge its fiduciary responsibilities with respect to the Plan.
13.2. Limitation on Undertaking. Anything hereinabove to the contrary
notwithstanding, FMC shall have no responsibility to Bankers under Section 13.1
if Bankers knowingly participated in or knowingly concealed any act or omission
of any Person described therein knowing that such act or omission constituted a
breach of such Person's fiduciary responsibilities, or if Bankers fails to
perform any of the duties specifically undertaken by it under the provisions of
this Agreement in the manner herein provided.
13.3. Survival of Undertakings. FMC further agrees that the undertakings
made in this Article XIII shall be binding on its successors or assigns and
shall survive termination, amendment or restatement of this Agreement, or the
resignation or removal of the Trustee, and that this Article shall be construed
as a contract between FMC and the Trustee according to the laws of the State of
New York in effect from time to time.
ARTICLE XIV
Undertaking by Trustee
----------------------
FMC has allocated fiduciary responsibilities to various fiduciaries under
the Plan and Trust. In carrying out its fiduciary responsibilities under the
Trust, the Trustee, any Investment Manager and any other fiduciary hereunder
shall act solely in the interest of the participants and beneficiaries with the
care, skill, prudence and diligence under the circumstances then prevailing that
a prudent man acting in a like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character with like aims. In
determining whether the requirements of prudence and diversification stated in
Sections 404(a)(1)(B) and (C), respectively of ERISA
Page 30
have been met, all the investments of the Retirement Fund shall be considered in
their entirety, provided, however that nothing in this paragraph shall impose
any duty or liability upon Bankers for any action taken or omitted by it under
the direction of an Asset Manager other than Bankers.
Page 31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and attested to
as of the day and year first above written.
FMC CORPORATION
By FMC Corporation Employee
Welfare Benefits Plan Committee
Attest /s/ Xxxx X. Xxxxxx By: /s/ J. Xxxx XxXxxxx
--------------------- ----------------------
Title Counsel Title: Member
------
STATE OF ILLINOIS )
) ss. :
COUNTY OF XXXX )
On the 31st day of August, 1999, before me personally came J. Xxxx XxXxxxx
to me known, who being by me duly sworn, did depose and say: that he resides in
Chicago, Illinois; that he is a member of the Employee Welfare Benefits
Committee of FMC Corporation, the corporation described in and which executed
the above instrument; and that he signed his name thereto by like order.
/s/ Xxxxx X. Xxxxx
---------------------------------
Notary Public
(Corporate Seal) BANKERS TRUST COMPANY
Attest /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
--------------------- -----------------------
Title Assistant Vice President Title: Vice President
STATE OF NEW YORK )
) ss. :
COUNTY OF NEW YORK )
On the 22nd day of September, 1999, before me personally came Xxxxx Xxxxxx
to me known, who being by me duly sworn, did depose and say: that he/she resides
in Stamford, CT; that he/she is a Vice President of BANKERS TRUST COMPANY, the
corporation described in and which executed the above instrument; that he/she
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/she signed his/her name thereto by like order.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Notary Public
Page 32
