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ON ASSIGNMENT, INC.
Deferred Compensation Plan
Master Trust Agreement
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MASTER TRUST AGREEMENT
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
ARTICLE 1 NAME, INTENTIONS, IRREVOCABILITY, DEPOSIT AND DEFINITIONS......................1
1.1 NAME...........................................................................1
1.2 INTENTIONS.....................................................................1
1.3 IRREVOCABILITY; CREDITOR CLAIMS................................................1
1.4 INITIAL DEPOSIT................................................................2
1.5 ADDITIONAL DEFINITIONS.........................................................2
1.6 GRANTOR TRUST..................................................................4
ARTICLE 2 GENERAL ADMINISTRATION.........................................................4
2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION BEFORE CHANGE IN CONTROL...............4
2.2 ADMINISTRATION UPON CHANGE IN CONTROL..........................................5
2.3 CONTRIBUTIONS..................................................................5
2.4 TRUST FUND.....................................................................5
2.5 DISTRIBUTION OF EXCESS TRUST FUND TO EMPLOYERS.................................5
ARTICLE 3 POWERS AND DUTIES OF TRUSTEE...................................................6
3.1 INVESTMENT DIRECTIONS..........................................................6
3.2 INVESTMENT UPON CHANGE IN CONTROL..............................................6
3.3 MANAGEMENT OF INVESTMENTS......................................................6
3.4 SECURITIES.....................................................................9
3.5 SUBSTITUTION...................................................................9
3.6 DISTRIBUTIONS..................................................................9
3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.......................12
3.8 COSTS OF ADMINISTRATION.......................................................14
3.9 TRUSTEE COMPENSATION AND EXPENSES.............................................14
3.10 PROFESSIONAL ADVICE...........................................................14
3.11 PAYMENT ON COURT ORDER........................................................14
3.12 PROTECTIVE PROVISIONS.........................................................14
3.13 INDEMNIFICATIONS..............................................................15
ARTICLE 4 INSURANCE CONTRACTS...........................................................15
4.1 TYPES OF CONTRACTS............................................................15
4.2 OWNERSHIP.....................................................................15
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4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS..............................................16
ARTICLE 5 TRUSTEE'S ACCOUNTS............................................................16
5.1 RECORDS.......................................................................16
5.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING...........................................16
5.3 VALUATION.....................................................................17
5.4 DELEGATION OF DUTIES..........................................................17
ARTICLE 6 RESIGNATION OR REMOVAL OF TRUSTEE.............................................17
6.1 RESIGNATION; REMOVAL..........................................................17
6.2 SUCCESSOR TRUSTEE.............................................................18
6.3 SETTLEMENT OF ACCOUNTS........................................................18
ARTICLE 7 CONTROVERSIES, LEGAL ACTIONS AND COUNSEL......................................18
7.1 CONTROVERSY...................................................................18
7.2 JOINDER OF PARTIES............................................................19
7.3 EMPLOYMENT OF COUNSEL.........................................................19
ARTICLE 8 INSURERS......................................................................20
8.1 INSURER NOT A PARTY...........................................................20
8.2 AUTHORITY OF TRUSTEE..........................................................20
8.3 CONTRACT OWNERSHIP............................................................20
8.4 LIMITATION OF LIABILITY.......................................................20
8.5 CHANGE OF TRUSTEE.............................................................20
ARTICLE 9 AMENDMENT AND TERMINATION.....................................................20
9.1 AMENDMENT.....................................................................20
9.2 FINAL TERMINATION.............................................................22
ARTICLE 10 MISCELLANEOUS.................................................................22
10.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL........................................22
10.2 TAXES.........................................................................22
10.3 THIRD PERSONS.................................................................23
10.4 NONASSIGNABILITY; NONALIENATION...............................................23
10.5 THE PLANS.....................................................................23
10.6 APPLICABLE LAW................................................................23
10.7 NOTICES AND DIRECTIONS........................................................23
10.8 SUCCESSORS AND ASSIGNS........................................................24
10.9 GENDER AND NUMBER.............................................................24
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Deferred Compensation Plan
Master Trust Agreement
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10.10 HEADINGS......................................................................24
10.11 COUNTERPARTS..................................................................24
10.12 BENEFICIAL INTEREST...........................................................24
10.13 THE TRUST AND PLANS...........................................................24
10.14 EFFECTIVE DATE................................................................24
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ON ASSIGNMENT, INC.
Deferred Compensation Plan
Master Trust Agreement
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MASTER TRUST AGREEMENT
FOR
ON ASSIGNMENT, INC.
DEFERRED COMPENSATION PLAN
THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") is made
and entered into as of __________, 199__, between On Assignment, Inc., a
Delaware corporation (the "Company"), and Wachovia Bank, N.A., a national
banking association (the "Trustee"), to evidence the master trust (the "Trust")
to be established, pursuant to those executive deferral plans of the Company now
or hereafter existing that require the establishment of a trust, for the benefit
of a select group of management, highly compensated employees and/or Directors
who contribute materially to the continued growth, development and business
success of the Company and those subsidiaries of the Company, if any, that
participate in the Plans (collectively, "Subsidiaries," or singularly,
"Subsidiary").
ARTICLE 1
NAME, INTENTIONS, IRREVOCABILITY,
DEPOSIT AND DEFINITIONS
1.1 NAME. The name of the Trust created by this Agreement (the "Trust")
shall be:
MASTER TRUST AGREEMENT FOR
ON ASSIGNMENT, INC. DEFERRED COMPENSATION PLAN
1.2 INTENTIONS. The Company wishes to establish the Trust and to contribute
to the Trust assets that shall be held therein, subject to the claims of
the Company's and the Subsidiaries' creditors in the event of their
Insolvency (as defined below) until paid to Participants and their
Beneficiaries in such manner and at such times as specified in the
Plans. It is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plans as unfunded plans maintained for the purpose of providing
supplemental compensation for a select group of management, highly
compensated employees and/or Directors for purposes of Title I of ERISA
(as defined below). In addition, it is the intention of the Company and
the Subsidiaries to make contributions to the Trust to provide
themselves with a source of funds to assist them in the meeting of their
liabilities under the Plans.
1.3 IRREVOCABILITY; CREDITOR CLAIMS. The Trust hereby established shall be
irrevocable. Except as otherwise provided in Sections 2.5 and 9.2, the
principal of the Trust, and any
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Master Trust Agreement
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earnings thereon, shall be held separate and apart from other funds of
the Company and the Subsidiaries and shall be used exclusively for the
uses and purposes of the Participants and the general creditors of the
Company and the Subsidiaries as herein set forth. The Participants and
their Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under
the Plans and this Master Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against
the Company and the Subsidiaries. Any assets held by the Trust will be
subject to the claims of the Company's and the Subsidiaries' general
creditors under federal and state law in the event of Insolvency.
1.4 INITIAL DEPOSIT. The Company hereby deposits with the Trustee in trust
$100, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Master
Trust Agreement.
1.5 ADDITIONAL DEFINITIONS. In addition to the definitions set forth above,
for purposes hereof, unless otherwise clearly apparent from the context,
the following terms have the following indicated meanings:
(a) "Beneficiary" shall mean one or more persons, trusts, estates or
other entities, designated in accordance with a Plan, that are
entitled to receive benefits under a Plan upon the death of a
Participant.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change in Control" shall mean the first to occur of any of the
following events:
(i) Any "person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934
("Exchange Act")) becomes the beneficial owner (as that
term is used in Section 13(d) of the Exchange Act),
directly or indirectly, of 50% or more of the Company's
capital stock entitled to vote in the election of
directors;
(ii) During any period of not more than two consecutive
years, not including any period prior to the adoption of
this Trust, individuals who, at the beginning of such
period constitute the board of directors of the Company,
and any new director (other than a director designated
by a person who has entered into an agreement with the
Company to effect a transaction described in clause (i),
(iii), (iv) or (v) of this Section 1.5(c)) whose
election by the board of directors or nomination for
election by the Company's stockholders was approved by a
vote of at least three-fourths (3/4ths) of the directors
then still in office, either were directors at the
beginning of the
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Deferred Compensation Plan
Master Trust Agreement
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period or whose election or nomination for election was
previously so approved, cease for any reason to
constitute at least a majority thereof;
(iii) The shareholders of the Company approve any
consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the
holders of the common stock of the Company immediately
prior to the consolidation or merger hold more than 50%
of the common stock of the surviving corporation
immediately after the consolidation or merger;
(iv) The shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the
Company; or
(v) The shareholders of the Company approve the sale or
transfer of substantially all of the Company's assets to
parties that are not within a "controlled group of
corporations" (as defined in Code Section 1563) in which
the Company is a member.
(d) "Committee" shall mean the administrative committee appointed by
the Board to administer this Trust.
(e) "Director" shall mean any member of the board of directors of
the Company or any Subsidiary.
(f) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as it may be amended from time to time.
(g) "Insolvent" shall have the meaning set forth in Section 3.7(a)
below.
(h) "Insolvent Entity" shall have the meaning set forth in Section
3.7(a) below.
(i) "IRS" shall mean the Internal Revenue Service.
(j) "Participant" shall mean a person who is a participant in one or
more of the Plans in accordance with their terms and conditions.
(k) "Payment Schedule" shall have the meaning set forth in Section
3.6(b) below.
(l) "Plan(s)" shall mean one or more of the executive deferral plans
established now or in the future by the Company that require the
establishment of a trust.
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Deferred Compensation Plan
Master Trust Agreement
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(m) "Plan Year" shall mean the Plan Year chosen for this Master
Trust Agreement by the Board.
(n) "Trust Fund" shall mean the assets held by the Trustee pursuant
to the terms of this Master Trust Agreement and for the purposes
of the Plans.
1.6 GRANTOR TRUST. The Trust is intended to be a "grantor trust," of which
the Company and the Subsidiaries are the grantors, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal
Revenue Code of 1986, as amended, and the Trust shall be construed
accordingly.
ARTICLE 2
GENERAL ADMINISTRATION
2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION BEFORE CHANGE IN CONTROL. Until
a Change in Control has occurred, this Section 2.1 shall be effective
and the Committee shall direct the Trustee as to the administration of
the Trust in accordance with the following provisions:
(a) The Committee shall be identified to the Trustee by a copy of
the resolution of the Board appointing the Committee. In the
absence thereof, the Board shall be the Committee. Persons
authorized to give directions to the Trustee on behalf of the
Committee shall be identified to the Trustee by written notice
from the Committee, and such notice shall contain specimens of
the authorized signatures. The Trustee shall be entitled to rely
on such written notice as evidence of the identity and authority
of the persons appointed until a written cancellation of the
appointment, or the written appointment of a successor, is
received by the Trustee.
(b) Directions by the Committee, or its delegate, to the Trustee
shall be in writing and signed by the Committee or persons
authorized by the Committee, or may be made by such other method
as is acceptable to the Trustee.
(c) The Trustee may conclusively rely upon directions from the
Committee in taking any action with respect to this Master Trust
Agreement, including the making of payments from the Trust Fund
and the investment of the Trust Fund pursuant to this Master
Trust Agreement. The Trustee shall have no liability for actions
taken, or for failure to act, on the direction of the Committee.
The Trustee shall have no liability for failure to act in the
absence of proper written directions.
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ON ASSIGNMENT, INC.
Deferred Compensation Plan
Master Trust Agreement
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(d) The Trustee may request instructions from the Committee and
shall have no duty to act or liability for failure to act if
such instructions are not forthcoming from the Committee. If
requested instructions are not received within a reasonable
time, the Trustee may, but is under no duty to, act on its own
discretion to carry out the provisions of this Master Trust
Agreement in accordance with this Master Trust Agreement and the
Plans.
2.2 ADMINISTRATION UPON CHANGE IN CONTROL. In the event of a Change in
Control, the authority of the Committee to administer the Trust and
direct the Trustee, as set forth in Section 2.1 above, shall cease, and
the Trustee shall have complete authority to administer the Trust.
2.3 CONTRIBUTIONS. Except as provided in any Plan, the Company and the
Subsidiaries, in their sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with
the Trustee to augment the principal to be held, administered and
disposed of by the Trustee as provided in this Master Trust Agreement.
Neither the Trustee nor any Participant or Beneficiary shall have any
right to compel such additional deposits. The Trustee shall have no duty
to collect or enforce payment to it of any contributions or to require
that any contributions be made, and shall have no duty to compute any
amount to be paid to it nor to determine whether amounts paid comply
with the terms of the Plans; provided, however, that following a Change
in Control, the Trustee shall have the right, in its sole and absolute
discretion, to compel a contribution to the Trust from the Company to
make-up for any shortfall between (i) the anticipated obligations of the
Plans and Trust and (ii) the Trust Fund.
2.4 TRUST FUND. The contributions received by the Trustee from the Company
and the Subsidiaries shall be held and administered pursuant to the
terms of this Master Trust Agreement as a single fund without
distinction between income and principal and without liability for the
payment of interest thereon except as expressly provided in this Master
Trust Agreement. During the term of this Trust, all income received by
the Trust, net of expenses and taxes, shall be accumulated and
reinvested.
2.5 DISTRIBUTION OF EXCESS TRUST FUND TO EMPLOYERS. In the event that the
Committee, prior to a Change in Control, or the Trustee in its sole and
absolute discretion, after a Change in Control, determines that the
Trust Fund exceeds 125 percent of the anticipated benefit obligations
and administrative expenses that are to be paid under the Plans and
Trust, the Trustee, at the direction of the Committee prior to a Change
in Control, or in its sole and absolute discretion after a Change in
Control, shall distribute to the Company and the Subsidiaries such
excess portion of the Trust Fund.
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ON ASSIGNMENT, INC.
Deferred Compensation Plan
Master Trust Agreement
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ARTICLE 3
POWERS AND DUTIES OF TRUSTEE
3.1 INVESTMENT DIRECTIONS. Except as provided in this Section and Section
3.2 below, the Committee shall provide the Trustee with all investment
instructions. The Trustee shall neither affect nor change investments of
the Trust Fund, except as directed in writing by the Committee, and
shall have no right, duty or responsibility to recommend investments or
investment changes; provided, that the Trustee may (i) deposit cash on
hand from time to time in any bank savings account, certificate of
deposit, or other instrument creating a deposit liability for a bank,
including the Trustee's own banking department, if the Trustee is a
bank, without such prior direction, or (ii) invest in government
securities, bonds with specific ratings, equities, or mutual funds
composed of such investments, all within broad investment guidelines
established by the Committee from time to time.
3.2 INVESTMENT UPON CHANGE IN CONTROL. In the event of a Change in Control,
the authority of the Committee to direct investments of the Trust Fund
shall cease and the Trustee shall have complete authority to direct
investments of the Trust Fund. The president of the Company shall notify
the Trustee in writing when a Change in Control has occurred. The
Trustee has no duty to inquire whether a Change in Control has occurred
and may rely on notification by the president of the Company of a Change
in Control; provided, however, that if any officer, former officer,
director or former director of the Company or any Subsidiary (other than
the president of the Company), or any Participant notifies the Trustee
that there has been or there may be a Change in Control, the Trustee
shall have the duty to satisfy itself as to whether a Change in Control
has in fact occurred. The Company and the Subsidiaries shall indemnify
and hold harmless the Trustee for any damages or costs (including
attorneys' fees) that may be incurred because of reliance on the
president's notice or lack thereof.
3.3 MANAGEMENT OF INVESTMENTS. Subject to Section 3.1 above, the Trustee
shall have, without exclusion, all powers conferred on the Trustee by
applicable law, unless expressly provided otherwise herein, and all
rights associated with assets of the Trust shall be exercised by the
Trustee or the person designated by the Trustee, and shall in no event
be exercisable by or rest with Participants or their Beneficiaries. The
Trustee shall have full power and authority to invest and reinvest the
Trust Fund in any investment permitted by law, exercising the judgment
and care that persons of prudence, discretion and intelligence would
exercise under the circumstances then prevailing, considering the
probable income and safety of their capital, including, without limiting
the generality of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible
preferred stock, mutual funds, bonds,
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Master Trust Agreement
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debentures, convertible debentures and bonds, mortgages, notes,
time certificates of deposit, commercial paper and other
evidences of indebtedness (including those issued by the Trustee
or any of its affiliates), other securities, policies of life
insurance, annuity contracts, options to buy or sell securities
or other assets, and other property of any kind (personal, real,
or mixed, and tangible or intangible); provided, however, that
in no event may the Trustee invest in securities (including
stock or rights to acquire stock) or obligations issued by the
Company or the Subsidiaries, other than a de minimis amount held
in common investment vehicles in which the Trustee invests;
(b) To deposit or invest all or any part of the assets of the Trust
Fund in savings accounts or certificates of deposit or other
deposits which bear a reasonable interest rate in a bank,
including the commercial department of the Trustee, if such bank
is supervised by the United States or any State;
(c) To hold, manage, improve, repair and control all property, real
or personal, forming part of the Trust Fund and to sell, convey,
transfer, exchange, partition, lease for any term, even
extending beyond the duration of this Trust, and otherwise
dispose of the same from time to time in such manner, for such
consideration, and upon such terms and conditions as the Trustee
shall determine;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay
assessments and other sums deemed by the Trustee to be necessary
for the protection of the Trust Fund, to vote any corporate
stock either in person or by proxy, with or without power of
substitution, for any purpose; to participate in voting trusts,
pooling agreements, foreclosures, reorganizations,
consolidations, mergers and liquidations, and in connection
therewith to deposit securities with and transfer title to any
protective or other committee under such terms as the Trustee
may deem advisable; to exercise or sell stock subscriptions or
conversion rights; and, regardless of any limitation elsewhere
in this instrument relative to investment by the Trustee, to
accept and retain as an investment any securities or other
property received through the exercise of any of the foregoing
powers;
(e) To hold in cash, without liability for interest, such portion of
the Trust Fund which, in its discretion, shall be reasonable
under the circumstances, pending investments, or payment of
expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect
the Trust Fund from loss due to the default on mortgages held in
the Trust including the appointment of agents or trustees in
such other jurisdictions as may seem desirable, to
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Master Trust Agreement
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transfer property to such agents or trustees, to grant such
powers as are necessary or desirable to protect the Trust or its
assets, to direct such agents or trustees, or to delegate such
power to direct, and to remove such agents or trustees;
(g) To employ and rely on advice given by such agents including
custodians and counsel as may be reasonably necessary and to pay
them reasonable compensation; to settle, compromise or abandon
all claims and demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or
registered in the individual name of the Trustee, or in the name
of its nominee(s) or agents, or in such form that title will
pass by delivery;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees
generally under the laws of the State whose laws are applicable
to this Master Trust Agreement, as provided in Section 10.6
below, so that the powers conferred upon the Trustee herein
shall not be in limitation of any authority conferred by law,
but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to
execute promissory notes, mortgages or other obligations and to
pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other
securities to any brokerage or other firm selected by the
Trustee;
(l) To institute, compromise and defend actions and proceedings; to
pay or contest any claim; to settle a claim by or against the
Trustee by compromise, arbitration, or otherwise; to release, in
whole or in part, any claim belonging to the Trust to the extent
that the claim is uncollectible;
(m) To use securities depositories or custodians and to allow such
securities as may be held by a depository or custodian to be
registered in the name of such depository or its nominee or in
the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more
investment funds, which funds shall be registered under the
Investment Company Act of 1940; and
(o) To do all other acts necessary or desirable for the proper
administration of the Trust Fund, as if the Trustee were the
absolute owner thereof.
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Master Trust Agreement
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However, nothing in this section shall be construed to mean the Trustee
assumes any responsibility for the performance of any investment made by
the Trustee in its capacity as trustee under the operations of this
Master Trust Agreement. Notwithstanding any powers granted to the
Trustee pursuant to this Master Trust Agreement or to applicable law,
the Trustee shall not have any power that could give this Trust the
objective of carrying on a business and dividing the gains therefrom,
within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue
Code of 1986, as amended.
3.4 SECURITIES. Voting or other rights in securities shall be exercised by
the person or entity responsible for directing such investments, and the
Trustee shall have no duty to exercise voting or proxy or other rights
relating to any investment managed or directed by the Committee. If any
foreign securities are purchased pursuant to the direction of the
Committee, it shall be the responsibility of the person or entity
responsible for directing such investments to advise the Trustee in
writing of any laws or regulations, either foreign or domestic, that
apply to such foreign securities or to the receipt of dividends or
interest on such securities.
3.5 SUBSTITUTION. Notwithstanding any provision of any Plan or the Trust to
the contrary, the Company and/or any Subsidiary shall at all times have
the power to reacquire the Trust Fund by substituting readily marketable
securities (other than stock, a debt obligation or other security issued
by the Company or any Subsidiary) and/or cash of an equivalent value and
such other property shall, following such substitution, constitute the
Trust Fund. Notwithstanding the foregoing, any such substitution shall
be subject to the approval of the Trustee, which approval may be
unreasonably withheld.
3.6 DISTRIBUTIONS.
(a) The establishment of the Trust and the payment or delivery to
the Trustee of money or other property shall not vest in any
Participant or Beneficiary any right, title, or interest in and
to any assets of the Trust. To the extent that any Participant
or Beneficiary acquires the right to receive payments under any
of the Plans, such right shall be no greater than the right of
an unsecured general creditor of the Company and the
Subsidiaries and such Participant or Beneficiary shall have only
the unsecured promise of the Company and the Subsidiaries that
such payments shall be made.
(b) Concurrent with the establishment of this Trust, the Company
shall deliver to the Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of each
Participant (and his or her Beneficiaries) on a Plan by Plan
basis, provides a formula or formulas or other instructions
acceptable to the Trustee for
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determining the amounts so payable, specifies the form in which
such amount is to be paid (as provided for or available under
the applicable Plans), and the time of commencement for payment
of such amounts. The Payment Schedule shall be updated annually
and upon a Change in Control and from time to time thereafter as
is necessary. Except as otherwise provided herein, prior to a
Change in Control, the Trustee shall make payments to the
Participants and their Beneficiaries in accordance with such
Payment Schedule. Despite the foregoing, after a Change in
Control, the Trustee shall make payments in accordance with the
terms and provisions of each of the Plans and related plan
agreements. The Trustee, at the direction of the Committee or,
after a Change in Control, on its own volition, may make any
distribution required to be made by it hereunder by delivering:
(i) Its check payable to the person to whom such
distribution is to be made, to the person, or, if prior
to a Change in Control, to the Company for redelivery to
such person; provided that before a Change in Control,
the Committee may direct the Trustee to deliver one or
more lump sum checks payable to the Company, and the
Company shall prepare and deliver individual checks for
each Participant or Beneficiary; or
(ii) Its check payable to an insurer for the benefit of such
person, to the insurer, or, if prior to a Change in
Control, to the Company for redelivery to the insurer;
or
(iii) Contracts held on the life of the Participant to whom or
with respect to whom the distribution is being made, to
the Participant or Beneficiary, or, if prior to a Change
in Control, to the Company for redelivery to the person
to whom such distribution is to be made; or
(iv) If a distribution is being made, in whole or in part, of
other assets, assignments or other appropriate documents
or certificates necessary to effect a transfer of title,
to the Participant or Beneficiary, or, if prior to a
Change in Control, to the Company for redelivery to such
person.
(c) If the principal of the Trust, and any earnings thereon, are not
sufficient, determined on a Plan by Plan basis, to make payments
of benefits in accordance with the terms of the Plans, the
Company and the Subsidiaries shall make the balance of each such
payment as it falls due. The Trustee shall notify the Company
and the Subsidiaries when principal and earnings are not
sufficient.
(d) The Company and the Subsidiaries may make payment of benefits
directly to Participants or their Beneficiaries as they become
due under the terms of the Plans.
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The Company and the Subsidiaries shall notify the Trustee of
their decisions to make payment of benefits directly prior to
the time amounts are payable to Participants or their
Beneficiaries.
(e) Notwithstanding anything contained in this Master Trust
Agreement to the contrary, if at any time the Trust is finally
determined by the IRS not to be a "grantor trust" with the
result that the income of the Trust Fund is not treated as
income of the Company or the Subsidiaries pursuant to Sections
671 through 679 of the Internal Revenue Code of 1986, as
amended, or if a tax is finally determined by the IRS to be
payable by one or more Participants or Beneficiaries with
respect to any interest in the Plans or the Trust Fund prior to
payment of such interest to any such Participant or Beneficiary,
the Trustee shall immediately determine each Participant's share
of the Trust Fund in accordance with the Plans, and the Trustee
shall immediately distribute such share in a lump sum to each
Participant or Beneficiary entitled thereto, regardless of
whether such Participant's employment has terminated (provided
such Participant has a vested interest in his or her accrued
benefits under the Plans) and regardless of form and time of
payments specified in or pursuant to the Plans. Any remaining
assets (less any expenses or costs due under Sections 3.8 and
3.9 of this Master Trust Agreement) shall then be paid by the
Trustee to the Company and the Subsidiaries in such amounts, and
in the manner instructed by the Committee. If the value of the
Trust Fund is less than the benefit obligations under the Plans,
the foregoing described distributions will be limited to a
Participant's share of the Trust Fund, determined by allocating
assets to the Participant based on the ratio of the
Participant's benefit obligations under the Plans to the total
benefit obligations under the Plans. Prior to a Change in
Control, the Trustee shall rely solely on the directions of the
Committee with respect to the occurrence of the foregoing events
and the resulting distributions to be made, and the Trustee
shall not be responsible for any failure to act in the absence
of such direction.
(f) The Trustee shall make provision for the reporting and
withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall pay amounts
withheld to the appropriate taxing authorities or determine that
such amounts have been reported, withheld and paid by the
Company and the Subsidiaries.
(g) Prior to a Change in Control, payments by the Trustee shall be
delivered or mailed to addresses supplied by the Committee and
the Trustee's obligation to make such payments shall be
satisfied upon such delivery or mailing. Prior to a Change in
Control, the Trustee shall have no obligation to determine the
identity of persons
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entitled to benefits or their mailing addresses. After a Change
in Control, the Trustee shall have such obligations.
(h) Prior to a Change in Control, the entitlement of a Participant
or his or her Beneficiaries to benefits under the Plans shall be
determined by the Company and the Subsidiaries or such party as
they shall designate under the Plans, and any claim for such
benefits shall be considered and reviewed under the procedures
set out in the Plans. After a Change in Control, the Trustee or
its agents shall have such obligations.
3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.
(a) The Trustee shall cease payment of benefits to Participants and
their Beneficiaries if the Company, or any Subsidiary, is
Insolvent (the "Insolvent Entity"). The Insolvent Entity shall
be considered "Insolvent" for purposes of this Master Trust
Agreement if:
(i) the Insolvent Entity is unable to pay its debts as they
become due, or
(ii) the Insolvent Entity is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
For purposes of this Section 3.7, if an entity is determined to be
Insolvent, each Subsidiary in which such entity has an equity interest
shall also be deemed to be an Insolvent Entity. However, the insolvency
of a Subsidiary will not cause a parent corporation to be deemed
Insolvent.
(b) At all times during the continuance of this Trust, as provided
in Section 1.3 above, the principal and income of the Trust
shall be subject to claims of the general creditors of the
Company and its Subsidiaries under federal and state law as set
forth below:
(i) The Board and the president of the Company shall have
the duty to inform the Trustee in writing of the
Company's or any Subsidiary's Insolvency. If a person
claiming to be a creditor of the Company or any
Subsidiary alleges in writing to the Trustee that the
Company or any Subsidiary has become Insolvent, the
Trustee shall determine whether the Company or any
Subsidiary is Insolvent and, pending such determination,
the Trustee shall discontinue payment of benefits to the
Insolvent Entity's Participants or their Beneficiaries.
Prior to a Change in Control, the Trustee may
conclusively rely on any determination it receives from
the Board or the
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president of the Company with respect to the Insolvency
of the Company or any Subsidiary.
(ii) Unless the Trustee has actual knowledge of the Company's
or a Subsidiary's Insolvency, or has received notice
from the Company, a Subsidiary, or a person claiming to
be a creditor alleging that the Company or a Subsidiary
is Insolvent, the Trustee shall have no duty to inquire
whether the Company or any Subsidiary is Insolvent. The
Trustee may in all events rely on such evidence
concerning the Company's or any Subsidiary's solvency as
may be furnished to the Trustee and that provides the
Trustee with a reasonable basis for making a
determination concerning the Company's or any
Subsidiary's solvency. In this regard, the Trustee may
rely upon a letter from the Company's or a Subsidiary's
auditors as to the Company's or any Subsidiary's
financial status.
(iii) If at any time the Trustee has determined that the
Company or any Subsidiary is Insolvent, the Trustee
shall discontinue payments to the Insolvent Entity's
Participants or their Beneficiaries, and shall hold the
portion of the assets of the Trust allocable to the
Insolvent Entity for the benefit of the Insolvent
Entity's general creditors. Nothing in this Master Trust
Agreement shall in any way diminish any rights of
Participants or their Beneficiaries to pursue their
rights as general creditors of the Insolvent Entity with
respect to benefits due under the Plans or otherwise.
(iv) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance with
this Article 3 of this Master Trust Agreement only after
the Trustee has determined that the alleged Insolvent
Entity is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 3.7(b) hereof and subsequently resumes such payments,
the first payment following such discontinuance shall include
the aggregate amount of all payments due to Participants or
their Beneficiaries under the terms of the Plans for the period
of such discontinuance, plus earnings on such amount based on
the average interest rate in effect for 30-day Treasury Bills
over such period of discontinuance, less the aggregate amount of
any payments made to Participants or their Beneficiaries by the
Company or any Subsidiary in lieu of the payments provided for
hereunder during any such period of discontinuance. Prior to a
Change in Control, the Committee shall instruct the Trustee as
to such amounts, and after a Change in Control, the Trustee
shall determine such amounts in accordance with the terms and
provisions of the Plans.
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3.8 COSTS OF ADMINISTRATION. The Trustee is authorized to incur reasonable
obligations in connection with the administration of the Trust,
including attorneys' fees, administrative fees and appraisal fees. Such
obligations shall be paid by the Company and the Subsidiaries. The
Trustee is authorized to pay such amounts from the Trust Fund if the
Company or the Subsidiaries fail to pay them within 60 days of
presentation of a statement of the amounts due.
3.9 TRUSTEE COMPENSATION AND EXPENSES. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed
upon between the Trustee and the Company. If the Trustee and the Company
fail to agree upon a compensation, or following a Change in Control, the
Trustee shall be entitled to compensation at a rate equal to the rate
charged by the Trustee for similar services rendered by it during the
current fiscal year for other trusts similar to this Trust. The Trustee
shall be entitled to reimbursement for expenses incurred by it in the
performance of its duties as the Trustee, including reasonable fees for
legal counsel. The Trustee's compensation and expenses shall be paid by
the Company and the Subsidiaries. The Trustee is authorized to withdraw
such amounts from the Trust Fund if the Company or the Subsidiaries fail
to pay them within 60 days of presentation of a statement of the amounts
due.
3.10 PROFESSIONAL ADVICE. The Company and the Subsidiaries specifically
acknowledge that the Trustee may find it desirable or expedient to
retain legal counsel (who may also be legal counsel for the Company
generally) or other professional advisors to advise it in connection
with the exercise of any duty under this Master Trust Agreement,
including, but not limited to, any matter relating to or following a
Change in Control or the Insolvency of the Company or any Subsidiary.
The Trustee shall be fully protected in acting upon the advice of such
legal counsel or advisors.
3.11 PAYMENT ON COURT ORDER. To the extent permitted by law, the Trustee is
authorized to make any payments directed by court order in any action in
which the Trustee has been named as a party. The Trustee is not
obligated to defend actions in which the Trustee is named, but shall
notify the Company or Committee of any such action and may tender
defense of the action to the Company, Committee, Participant or
Beneficiary whose interest is affected. The Trustee may in its
discretion defend any action in which the Trustee is named, and any
expenses incurred by the Trustee shall be paid by the Company and the
Subsidiaries. The Trustee is authorized to pay such amounts from the
Trust Fund if the Company or the Subsidiaries fail to pay them within
sixty (60) days of presentation of a statement of the amounts due.
3.12 PROTECTIVE PROVISIONS. Notwithstanding any other provision contained in
this Master Trust Agreement to the contrary, the Trustee shall have no
obligation to (i) determine the
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existence of any conversion, redemption, exchange, subscription or other
right relating to any securities purchased of which notice was given
prior to the purchase of such securities and shall have no obligation to
exercise any such right unless the Trustee is advised in writing by the
Committee both of the existence of the right and the desired exercise
thereof within a reasonable time prior to the expiration of the right to
exercise, or (ii) advance any funds to the Trust. Furthermore, the
Trustee is not a party to the Plans.
3.13 INDEMNIFICATIONS.
(a) The Company and the Subsidiaries shall indemnify and hold the
Trustee harmless from and against all loss or liability
(including expenses and reasonable attorneys' fees) to which it
may be subject by reason of its execution of its duties under
this Trust, or by reason of any acts taken in good faith in
accordance with any directions, or acts omitted in good faith
due to absence of directions, from the Company, the Committee or
a Participant, unless such loss or liability is due to the
Trustee's gross negligence or willful misconduct. The indemnity
described herein shall be provided by the Company and the
Subsidiaries.
(b) In the event that the Trustee is named as a defendant in a
lawsuit or proceeding involving one or more of the Plans or the
Trust Fund, the Trustee shall be entitled to receive on a
current basis the indemnity payments provided for in this
Section, provided however that if the final judgment entered in
the lawsuit or proceeding holds that the Trustee is guilty of
gross negligence or willful misconduct with respect to the Trust
Fund, the Trustee shall be required to refund the indemnity
payments that it has received.
(c) All releases and indemnities provided in this Master Trust
Agreement shall survive the termination of this Master Trust
Agreement.
ARTICLE 4
INSURANCE CONTRACTS
4.1 TYPES OF CONTRACTS. To the extent that the Trustee is directed by the
Committee prior to a Change in Control to invest part or all of the
Trust Fund in insurance contracts, the type and amount thereof shall be
specified by the Committee. The Trustee shall be under no duty to make
inquiry as to the propriety of the type or amount so specified.
4.2 OWNERSHIP. Each insurance contract issued shall provide that the Trustee
shall be the owner thereof with the power to exercise all rights,
privileges, options and elections granted by or permitted under such
contract or under the rules of the insurer. The exercise
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by the Trustee of any incidents of ownership under any contract shall,
prior to a Change in Control, be subject to the direction of the
Committee.
4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS. The Trustee shall have no power to
name a beneficiary of the policy other than the Trust, to assign the
policy (as distinct from conversion of the policy to a different form)
other than to a successor Trustee, or to loan to any person the proceeds
of any borrowing against such policy. Despite the foregoing, the Trustee
may (i) loan to the Company or any Subsidiary the proceeds of any
borrowing against an insurance policy held in the Trust Fund or (ii)
assign all, or any portion, of a policy to the Company or any Subsidiary
if under other provisions of this Master Trust Agreement the Company or
any Subsidiary is entitled to receive assets from the Trust.
ARTICLE 5
TRUSTEE'S ACCOUNTS
5.1 RECORDS. The Trustee shall maintain accurate records and detailed
accounts of all investments, receipts, disbursements and other
transactions hereunder. Such records shall be available at all
reasonable times for inspection by the Company and Subsidiaries or their
authorized representative. The Trustee, at the direction of the
Committee, shall submit to the Committee and to any insurer such
valuations, reports or other information as the Committee may reasonably
require and, in the absence of fraud or bad faith, the valuation of the
Trust Fund by the Trustee shall be conclusive.
5.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING.
(a) Within 60 days following the end of each Plan 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
Committee a written account setting forth a description of all
properties purchased and sold, all receipts, disbursements and
other transactions effected by it during the Plan Year or, in
the case of removal, resignation or termination, since the close
of the previous Plan Year, and listing the properties held in
the Trust Fund as of the last day of the Plan Year or other
period and indicating their values. Such values shall be either
cost or market as directed by the Committee in accordance with
the terms of the Plans.
(b) The Committee may approve such account either by written notice
of approval delivered to the Trustee or by its failure to
express written objection to such account delivered to the
Trustee within 60 days after the date of which such account was
delivered to the Committee.
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(c) The approval by the Committee of an accounting shall be binding
as to all matters embraced in such accounting on all parties to
this Master Trust Agreement and on all Participants and
Beneficiaries, to the same extent as if such accounting had been
settled by a judgment or decree of a court of competent
jurisdiction in which the Trustee, the Committee, the Company,
the Subsidiaries and all persons having or claiming any interest
in any Plan or the Trust Fund were made parties.
(d) Despite the foregoing, nothing contained in this Master Trust
Agreement shall deprive the Trustee of the right to have an
accounting judicially settled, if the Trustee, in the Trustee's
sole discretion, desires such a settlement.
5.3 VALUATION. The assets of the Trust Fund shall be valued at their
respective fair market values on the date of valuation, as determined by
the Trustee based upon such sources of information as it may deem
reliable, including, but not limited to, stock market quotations,
statistical valuation services, newspapers of general circulation,
financial publications, advice from investment counselors, brokerage
firms or insurance companies, or any combination of sources. Prior to a
Change in Control, the Committee shall instruct the Trustee as to the
value of assets for which market values are not readily obtainable by
the Trustee. If the Committee fails to provide such values, the Trustee
may take whatever action it deems reasonable, including employment of
attorneys, appraisers, life insurance companies or other professionals,
the expense of which shall be an expense of administration of the Trust
Fund and payable by the Company and the Subsidiaries. The Trustee may
rely upon information from the Company and the Subsidiaries, the
Committee, appraisers or other sources and shall not incur any liability
for an inaccurate valuation based in good faith upon such information.
5.4 DELEGATION OF DUTIES. The Company or the Committee, or both, may at any
time employ the Trustee as their agent to perform any act, keep any
records or accounts and make any computations that are required of the
Company, any Subsidiary or the Committee by this Master Trust Agreement
or the Plans. The Trustee may be compensated for such employment and
such employment shall not be deemed to be contrary to the Trust. Nothing
done by the Trustee as such agent shall change or increase its
responsibility or liability as Trustee hereunder.
ARTICLE 6
RESIGNATION OR REMOVAL OF TRUSTEE
6.1 RESIGNATION; REMOVAL. The Trustee may resign at any time by written
notice to the Company, which shall be effective 60 days after receipt of
such notice unless the Company
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and the Trustee agree otherwise. Prior to a Change in Control, the
Trustee may be removed by the Company on 60 days notice or upon shorter
notice accepted by the Trustee. After a Change in Control, the Trustee
may be removed by a majority vote of the Participants, and if a
Participant is dead, his or her Beneficiaries (who collectively shall
have one vote among them and shall vote in place of such deceased
Participant), on 60 days notice or upon shorter notice accepted by the
Trustee.
6.2 SUCCESSOR TRUSTEE. If the Trustee resigns or is removed, a successor
shall be appointed by the Company, in accordance with this Section, by
the effective date of the resignation or removal under Section 6.1
above. The successor shall be a bank, trust company, or similar
independent third party with a market capitalization of at least $10
billion that is granted corporate trustee powers under state or federal
law. After the occurrence of a Change in Control, a successor Trustee
may not be appointed without the consent of a majority of the
Participants. If no such appointment has been made, the Trustee may
apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of the Trustee in connection
with the proceeding shall be allowed as administrative expenses of the
Trust.
6.3 SETTLEMENT OF ACCOUNTS. Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be completed
within 90 days after receipt of notice of resignation, removal or
transfer, unless the Company extends the time limit. Upon the transfer
of the assets, the successor Trustee shall succeed to all of the powers
and duties given to the Trustee in this Master Trust Agreement. The
resigning or removed Trustee shall render to the Committee an account in
the form and manner and at the time prescribed in Section 5.2. The
approval of such accounting and discharge of the Trustee shall be as
provided in such Section.
ARTICLE 7
CONTROVERSIES, LEGAL ACTIONS AND COUNSEL
7.1 CONTROVERSY. If any controversy arises with respect to the Trust, the
Trustee shall take action as directed by the Committee or, in the
absence of such direction or after a Change in Control, as it deems
advisable, whether by legal proceedings, compromise or otherwise. The
Trustee may retain the funds or property involved without liability
pending settlement of the controversy. The Trustee shall be under no
obligation to take any legal action of whatever nature unless there
shall be sufficient property in the Trust to indemnify the Trustee with
respect to any expenses or losses to which it may be subjected.
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7.2 JOINDER OF PARTIES. In any action or other judicial proceedings
affecting the Trust, it shall be necessary to join as parties the
Trustee, the Committee, the Company and the Subsidiaries. No Participant
or other person shall be entitled to any notice or service of process.
Any judgment entered in such a proceeding or action shall be binding on
all persons claiming under the Trust. Nothing in this Master Trust
Agreement shall be construed as to deprive a Participant or Beneficiary
of his or her right to seek adjudication of his or her rights by
administrative process or by a court of competent jurisdiction.
7.3 EMPLOYMENT OF COUNSEL. The Trustee may consult with legal counsel (who
may be counsel for the Company or any Subsidiary) and shall be fully
protected with respect to any action taken or omitted by it in good
faith pursuant to the advice of counsel.
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ARTICLE 8
INSURERS
8.1 INSURER NOT A PARTY. No insurer shall be deemed to be a party to the
Trust and an insurer's obligations shall be measured and determined
solely by the terms of contracts and other agreements executed by it.
8.2 AUTHORITY OF TRUSTEE. An insurer shall accept the signature of the
Trustee to any documents or papers executed in connection with such
contracts. The signature of the Trustee shall be conclusive proof to the
insurer that the person on whose life an application is being made is
eligible to have a contract issued on his or her life and is eligible
for a contract of the type and amount requested.
8.3 CONTRACT OWNERSHIP. An insurer shall deal with the Trustee as the sole
and absolute owner of any insurance contracts and shall have no
obligation to inquire whether any action or failure to act on the part
of the Trustee is in accordance with or authorized by the terms of the
Plans or this Master Trust Agreement.
8.4 LIMITATION OF LIABILITY. An insurer shall be fully discharged from any
and all liability for any action taken or any amount paid in accordance
with the direction of the Trustee and shall have no obligation to see to
the proper application of the amounts so paid. An insurer shall have no
liability for the operation of the Trust or the Plans, whether or not in
accordance with their terms and provisions.
8.5 CHANGE OF TRUSTEE. An insurer shall be fully discharged from any and all
liability for dealing with a party or parties indicated on its records
to be the Trustee until such time as it shall receive at its home office
written notice of the appointment and qualification of a successor
Trustee.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 AMENDMENT. Subject to the limitations set forth in this Section 9.1,
this Master Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Plans or shall
make the Trust revocable after it has become irrevocable in accordance
with Section 1.3 above. Any amendment, change or modification shall be
subject to the following rules:
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(a) General Rule. Subject to Sections 9.1(b), (c) and (d) below,
this Master Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however, that
if an amendment would in any way adversely affect the
rights accrued under the Plans in the Trust Fund by any
Participant or Beneficiary, each and every Participant
and Beneficiary whose rights in the Trust Fund would be
adversely affected must consent to the amendment before
this Master Trust Agreement may be so amended; and
(ii) By the Company and the Trustee as may be necessary to
comply with laws which would otherwise render the Trust
void, voidable or invalid in whole or in part.
(b) Limitation. Notwithstanding that an amendment may be permissible
under Section 9.1(a) above, this Master Trust Agreement shall
not be amended by an amendment that would:
(i) Cause any of the assets of the Trust to be used for or
diverted to purposes other than for the exclusive
benefit of Participants and Beneficiaries as set forth
in the Plans, except as is required to satisfy the
claims of the Company's or a Subsidiary's general
creditors; or
(ii) Be inconsistent with the terms of any Plan, including
the terms of any Plan regarding termination, amendment
or modification of the Plan.
(c) Writing and Consent. Any amendment to this Master Trust
Agreement shall be set forth in writing and signed by the
Company and the Trustee and, if consent of any Participant or
Beneficiary is required under Section 9.1(a), the Participant or
Beneficiary whose consent is required. Any amendment may be
current, retroactive or prospective, in each case as provided
therein.
(d) The Company and Trustee. In connection with the exercise of the
rights under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall have no
responsibility to determine whether any proposed
amendment complies with the terms and conditions set
forth in Sections 9.1(a) and (b) above and may
conclusively rely on the directions of the Committee
with respect thereto, unless the Trustee has knowledge
of a proposed transaction or transactions that would
result in a Change in Control; and
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(ii) this Master Trust Agreement may not be amended or
terminated by the Company for two (2) years following a
Change in Control without the written consent of
two-thirds of the Participants; provided, however, the
Trust Agreement may be amended by the Company and the
Trustee following a Change in Control without the
written consent of the Participants to comply with legal
or regulatory requirements necessary to maintain the tax
status of the Plans or the Trust for Participants or
Beneficiaries.
(e) Taxation. This Master Trust Agreement shall not be amended,
altered, changed or modified in a manner that would cause the
Participants and/or Beneficiaries under any Plan to be taxed on
the benefits under any Plan in a year other than the year of
actual receipt of benefits.
9.2 FINAL TERMINATION. The Trust shall not terminate until the date on which
Participants and their Beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plans and all of the expenses of the Trust
have been paid, and on such date the Trust shall terminate. Upon
termination of the Trust, any assets remaining in the Trust shall be
returned to the Company and the Subsidiaries. Such remaining assets
shall be paid by the Trustee to the Company and the Subsidiaries in such
amounts and in the manner instructed by the Company, whereupon the
Trustee shall be released and discharged from all obligations hereunder.
From and after the date of termination and until final distribution of
the Trust Fund, the Trustee shall continue to have all of the powers
provided herein as are necessary or expedient for the orderly
liquidation and distribution of the Trust Fund.
ARTICLE 10
MISCELLANEOUS
10.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL. Despite any other provision of
this Master Trust Agreement that may be construed to the contrary,
following a Change in Control, all powers of the Committee, the Company
and the Board to direct the Trustee under this Master Trust Agreement
shall terminate, and the Trustee shall act on its own discretion to
carry out the terms of this Master Trust Agreement in accordance with
the Plans and this Master Trust Agreement.
10.2 TAXES. The Company and the Subsidiaries shall from time to time pay
taxes of any and all kinds whatsoever that at any time are lawfully
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. To the extent that any taxes lawfully
levied or
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assessed upon the Trust Fund are not paid by the Company and the
Subsidiaries, the Trustee shall have the power to pay such taxes out of
the Trust Fund and shall seek reimbursement from the Company and the
Subsidiaries. Prior to making any payment, the Trustee may require such
releases or other documents from any lawful taxing authority as it shall
deem necessary. The Trustee shall contest the validity of taxes in any
manner deemed appropriate by the Company or its counsel, but at the
Company's and the Subsidiaries' expense, and only if it has received an
indemnity bond or other security satisfactory to it to pay any such
expenses. Prior to a Change in Control, the Trustee (i) shall not be
liable for any nonpayment of tax when it distributes an interest
hereunder on directions from the Committee, and (ii) shall have no
obligation to prepare or file any tax return on behalf of the Trust
Fund, any such return being the sole responsibility of the Committee.
The Trustee shall cooperate with the Committee in connection with the
preparation and filing of any such return. After a Change in Control,
the Trustee shall have such duties and obligations.
10.3 THIRD PERSONS. All persons dealing with the Trustee are released from
inquiring into the decisions or authority of the Trustee and from seeing
to the application of any moneys, securities or other property paid or
delivered to the Trustee.
10.4 NONASSIGNABILITY; NONALIENATION. Benefits payable to Participants and
their Beneficiaries under this Master Trust Agreement may not be
anticipated, assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy, execution or
other legal or equitable process.
10.5 THE PLANS. The Trust and the Plans are parts of a single, integrated
employee benefit plan system and shall be construed together. In the
event of any conflict between the terms of this Master Trust Agreement
and the agreements that constitute the Plans, such conflict shall be
resolved in favor of this Master Trust Agreement.
10.6 APPLICABLE LAW. Except to the extent, if any, preempted by ERISA, this
Master Trust Agreement shall be governed by and construed in accordance
with the internal laws of the State of California. Any provision of this
Master Trust Agreement prohibited by law shall be ineffective to the
extent of any such prohibition, without invalidating the remaining
provisions hereof.
10.7 NOTICES AND DIRECTIONS. Whenever a notice or direction is given by the
Committee to the Trustee, it shall be in the form required by Section
2.1. Actions by the Company shall be by the Board or a duly authorized
officer, with such actions certified to the Trustee by an appropriately
certified copy of the action taken. The Trustee shall be protected in
acting upon any such notice, resolution, order, certificate or other
communication believed by it to be genuine and to have been signed by
the proper party or parties.
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10.8 SUCCESSORS AND ASSIGNS. This Master Trust Agreement shall be binding
upon and inure to the benefit of the Company, the Subsidiaries and the
Trustee and their respective successors and assigns.
10.9 GENDER AND NUMBER. Words used in the masculine shall apply to the
feminine where applicable, and when the context requires, the plural
shall be read as the singular and the singular as the plural.
10.10 HEADINGS. Headings in this Master Trust Agreement are inserted for
convenience of reference only and any conflict between such headings and
the text shall be resolved in favor of the text.
10.11 COUNTERPARTS. This Master Trust Agreement may be executed in an original
and any number of counterparts, each of which shall be deemed to be an
original of one and the same instrument.
10.12 BENEFICIAL INTEREST. The Company and the Subsidiaries are the true
beneficiaries hereunder in that the payment of benefits, directly or
indirectly to or for a Participant or Beneficiary by the Trustee, is in
satisfaction of the Company's and the Subsidiaries' liability therefor
under the Plans. Nothing in this Master Trust Agreement shall establish
any beneficial interest in any person other than the Company and the
Subsidiaries.
10.13 THE TRUST AND PLANS. This Trust, the Plans and each Participant's Plan
Agreement are part of and constitute a single, integrated employee
benefit plan and trust, shall be construed together as the entire
agreement between the Company, the Trustee, the Participants and the
Beneficiaries with regard to the subject matter thereof, and shall
supersede all previous negotiations, agreements and commitments with
respect thereto.
10.14 EFFECTIVE DATE. The effective date of this Master Trust Agreement shall
be _________, 199_.
IN WITNESS WHEREOF the Company and the Trustee have signed this
Master Trust Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
______________________ On Assignment, Inc.
a Delaware corporation,
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28
ON ASSIGNMENT, INC.
Deferred Compensation Plan
Master Trust Agreement
================================================================================
_____________________________ By: _________________________
Title: ___________________
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