Exhibit 4.2
Agreement and Declaration of Trust made as of this 1st day of January,
1989, by and between Omnicom Group Inc., a New York corporation, and BANKERS
TRUST COMPANY, a New York banking corporation.
W I T N E S S E T H:
WHEREAS, Omnicom Group Inc., wishes to establish a master trust to serve
as a funding medium for eligible employee benefit plans of Omnicom and its
subsidiaries and affiliates; and
WHEREAS, Bankers Trust Company is willing to act as trustee of such trust
upon all of the terms and conditions hereinafter set forth.
NOW, THEREFORE, Omnicom and Bankers Trust Company declare and agree that
Bankers Trust Company will receive, hold and administer all sums of money and
such other property acceptable to Bankers Trust Company as shall from time to
time be 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 master trust established hereunder shall be known as the
Omnicom Group Inc. Master Trust and is sometimes hereinafter referred to as the
"Trust".
1.2. Definitions. Where used in this Agreement and Declaration of Trust,
unless the context otherwise requires or unless otherwise expressly provided:
(a) "Account Party" shall mean the Person designated by the Company to
represent the Company 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 8.2 or Section 8.3, 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 the
Company.
(b) "Accounting Period" shall mean either the twelve consecutive month
period coincident with the calendar year or, if different, the common fiscal
year of the Participating Plans or the shorter period in any year in which the
Trustee accepts appointment as Trustee hereunder or, with respect to any
Participating Plan or Plans, ceases to act as Trustee for any reason.
(c) "Administrative Committee" shall mean, with respect to each
Participating Plan, the Committee or other Person responsible for benefit
administration under such Participating Plan, including any representative
(designated in writing as such) or designee thereof authorized to act on behalf
of such Committee.
(d) "Agreement" shall mean all of the provisions of this instrument and of
all other written instruments amendatory hereof.
(e) "Asset Manager" shall mean the Trustee (other than for purposes of
Article VI), Named Fiduciary or Investment Manager, 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.
(f) "Bank business day" shall mean a day on which the Trustee is open for
business.
(g) "Bankers" shall mean Bankers Trust Company.
(h) "Board of Directors" shall mean the board of directors of the Company.
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and Regulations issued thereunder.
(j) "Common Stock Fund" shall mean an Investment Fund consisting of common
stock of the Company.
(k) "Company" shall mean Omnicom Group Inc. or any successor thereto.
Page 2
(l) "Company Stock" shall mean the common stock of the Company and
securities convertible into common stock of the Company.
(m) "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, other than the Trustee.
(n) "Discretionary Fund" shall mean any Investment Fund, or part thereof,
subject to the discretionary management and control of the Trustee.
(o) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
(p) "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.
(q) "Insurance Contract" shall mean any contract or policy (including any
annuity contract) 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.
(r) "Investment Fund" shall mean each pool of assets established for
investment purposes pursuant to Section 5.1 in the Trust in which one or more
Participating Plans has an interest during an Accounting Period. The term shall
also include for all 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.
(s) "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38) of ERISA.
(t) "Investment Vehicle" shall mean any common, collective or commingled
trust (other than the General Trust or an Investment Fund), investment company,
corporation
Page 3
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).
(u) "Master 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 Master Fund shall include each Investment
Fund and all evidences of ownership, interest or participation in an Investment
Vehicle, but shall not, solely by reason of the Master Fund's investment
therein, be deemed to include any assets of such Investment Vehicle.
(v) "Named Fiduciary" shall mean the Person or its designee with respect
to a Participating Plan, who, within the meaning of Section 402(a)(2), 402(c)(3)
or 403(a)(1) of ERISA, has the authority to 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
Administrative Committee appointed pursuant to the Participating Plans.
(w) "Participating Plan" shall mean any employee benefit plan which meets
the requirements for eligibility specified in Section 2.1. [All Participating
Plans are listed on Appendix A attached hereto.]
(x) "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.
(y) "Section" shall mean any Section of this Agreement.
Page 4
(z) "Share" shall mean the interest of any Participating Plan in the
Master Fund, and where appropriate any Investment Fund, the accounting for which
will be maintained by the Trustee in a manner agreed upon between the Company
and the Trustee and may be expressed in "units".
(aa) "Trustee" shall mean Bankers Trust Company, as Trustee of the Trust.
(bb) "Valuation Date" shall mean the last day of the Accounting Period,
calendar quarter, or calendar month for reporting and/or investment purposes as
may be required by the terms of any of the Participating Plans.
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 each Participating Plan.
1.4. Exclusive Benefit. Except as may otherwise be permitted by law and
the terms of the Participating Plan, at no time prior to the satisfaction of all
liabilities with respect to participants and their beneficiaries under any
Participating Plan shall any part of the Share of such Participating Plan 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. No provision herein designed to provide for
the pooling of assets of Participating Plans for investment purposes shall be
deemed or construed to authorize the utilization of the assets of any
Participating Plan to discharge the obligations and liabilities of any other
Plan.
1.5. Effect. All Persons at any time interested in any Participating Plan
shall be bound by the provisions of this Agreement, notwithstanding the
existence of any contrary provisions of a Participating Plan or any instrument
or agreement forming part of such Plan other than this Agreement.
Page 5
1.6. Domestic Trust. The Trust shall at all times be maintained as a
domestic trust in the United States.
1.7. Trustee Not Responsible for Enforcing Contributions or for
Sufficiency. The Trustee shall have no responsibility for enforcing payment of
any contribution to any Participating Plan, for the timing or amount thereof, or
for the adequacy of the Master Fund or the funding standards adopted for any
Participating Plan to meet or discharge any pension or other liabilities of such
Plan.
ARTICLE II
Participation
2.1. Eligibility. Any employee benefit plan established by the Company, or
a subsidiary or an affiliate or business organization of the Company, may be
funded, in whole or in part, through the Trust if (i) the plan is qualified
under Section 401(a) of the Code, (ii) the Trust is exempt from taxation under
Section 501(a) of the Code, and (iii) this Agreement has been duly adopted as
the trust under the Plan by the Board of Directors or by the board of directors
of a subsidiary or affiliate of the Company or by the managers of a business
organization of the Company and, in the case of such subsidiary or affiliate or
business organization, the Company has consented thereto.
2.2. Effect on Adopting Company. When the Master Trust has been adopted by
any subsidiary or affiliate of the Company, such subsidiary or affiliate shall
be bound by the decisions, instructions, actions and directions of the Company,
the Administrative Committee or the Named Fiduciary under or affecting this
Agreement, and the Trustee shall be fully protected by the Company and such
subsidiary or affiliate in relying upon the decisions, instructions, actions and
directions of the Company, the Administrative Committee or the Named Fiduciary.
Except as may be hereafter specifically provided, the Trustee shall not be
required to give notice to or to obtain the consent of any subsidiary or
affiliate with respect to any action to be taken by
Page 6
the Trustee pursuant to this Agreement, and the Company shall have the sole
authority to enforce this Agreement on behalf of any subsidiary or affiliate.
2.3. Shares. The Trustee shall maintain a separate account and such
sub-accounts as it and the Company shall deem advisable to reflect the Share of
each Participating Plan, or part thereof. The Named Fiduciary shall provide the
Trustee with current information in order that the Trustee may determine such
Shares. An Investment Fund may be divided into such one or more sub-funds or
accounts or described in a different manner on any books kept or reports
rendered by the Trustee without in any way affecting the duties or
responsibilities of the Trustee under the provisions of this Agreement;
provided, however, the books and records of the Trustee shall at all times be
maintained so that the interest of each Participating Plan may be determined.
2.4. Valuations. The Trustee shall determine the value of the assets of
the Master Fund and each Investment Fund as of each Valuation Date. 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, 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.
2.5. Participant Records and Accounts. The Trustee shall maintain separate
accounts for each Participant to which shall be credited units of participation
in the Master Fund in accordance with the provisions of the Participating Plan.
The Trustee shall render a statement to each Participant at least annually, or
more often if requested by the Administrative Committee, with respect to such
accounts in accordance with the Plan. The Administrative Committee shall
Page 7
certify to the Trustee the names of Participants, the respective contributions
to be credited to the account of each, the directions of Participants,
beneficiaries or legal representatives, and other data required by the Trustee
to maintain a record of the accounts of Participants, to determine the amounts
to be invested in the respective Investment Fund, and to make distributions
therefrom. The Trustee may rely absolutely on all certifications by the
Administrative Committee and shall not be obligated to act on any information or
direction unless certified by the Administrative Committee. The Trustee shall be
under no duty or obligation to question such certification or to verify the
accuracy of such certification by reference to the records of the Company or
Administrative Committee.
The Trustee shall establish and maintain, through an affiliate of the
Trustee (the Trustee's Affiliate"), a telephone line which will permit each
Participant to access his or her account by means of a confidential personal
identification number. Participants shall be allowed to make inquiries
concerning Participating Plan provisions and to effect certain Participating
Plan transactions as may be agreed to in writing by the Company and the Trustee.
The Trustee's Affiliate will answer questions concerning Participating Plan
provisions, including Participant statements, advices, 1099R forms and advice on
information necessary to compute the taxability of distributions, provided
however, that the Trustee's Affiliate shall not provide investment or tax
advice.
The undertaking of the foregoing administrative functions by the Trustee
is neither intended to nor shall be inferred to confer any other power or
responsibility, discretionary or otherwise, upon the Trustee, individually or as
Trustee, or upon any employee of the Trustee with respect to the administration
of the Participating Plan by the Administrative Committee, the determination of
any Participant's rights thereunder, or the investment of any Participant's
account by an Investment Manager.
Page 8
ARTICLE III
Administration of Participating Plans
3.1. Payment of Benefits. On the direction of the Administrative
Committee, the Trustee shall pay moneys out of the share of a Participating 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 Administrative Committee). Any assets disbursed or paid
over by the Trustee pursuant to this Section 3.1 shall no longer be part of the
Master Fund.
3.2. Reliance on Administrative Committee. Any directions pursuant to
Section 3.1 may, but need not, specify the application to be made of moneys so
ordered. The Trustee shall charge such transfer against the Share of such one or
more of the Participating Plans as the Administrative Committee shall direct.
Each direction to the Trustee under Section 3.1 shall constitute a certification
by the Administrative Committee that such direction is in accordance with
applicable law, the terms of any relevant Participating 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 over.
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 which it is
directed to purchase to provide for the payment of benefits under any
Participating Plan, for performing any functions under any such Insurance
Contract which 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), or for any other matter affecting the
administration of a Participating Plan, by the Company or the Administrative
Committee or any other Person to whom such responsibility is allocated or
delegated pursuant to the terms of the Participating Plan.
Page 9
ARTICLE IV
Investment of Trust Assets
4.1. Asset Managers. Discretionary authority for the management and
control of assets of a Participating Plan from time to time held in the Master
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
Participating Plan and that any Asset Manager (other than the Trustee or the
Named Fiduciary) is an Investment Manager.
4.2. Investment Discretion. Subject to Section 5.1, 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. In addition to the limitations
imposed by Section 5.1, 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
by Section 5.1 or Section 7.3 or the guidelines described above.
4.4. Responsibility for Diversification. The Named Fiduciary shall be
responsible for determining the diversification policy (if required) of the
Master Fund, for monitoring adherence
Page 10
by the Asset Managers to such policy, and for advising the Asset Managers with
respect to limitations on employer or other securities or property contained in
any Participating Plan or imposed on such Plan by applicable law or by the Named
Fiduciary.
ARTICLE V
Investment Funds Within the Master Fund
5.1. Participating Investment Funds. At the direction of the Named
Fiduciary, the interest of a Participating Plan in the Master Fund may be
allocated and held and invested in one or more Investment Funds established
hereunder by the Named Fiduciary as required or permitted by the terms of each
Participating Plan. As of the date hereof, the Master Fund shall be held and
invested in the Investment Funds listed and described in [Appendix B] attached
hereto. The Named Fiduciary, to the extent permitted by a Participating Plan,
may establish additional Investment Funds, or freeze, terminate or modify the
description of any Investment Fund. The determination of the Named Fiduciary of
investments eligible for inclusion in any Investment Fund shall be conclusive
and binding on all Persons interested in the Participating Plans. Such
Investment Funds shall include, where applicable, a Common Stock Fund which
shall consist of Company Stock. The income of each Investment Fund shall be
accumulated and invested in such Fund. To the extent that any cash shall be
allocated to the Common Stock Fund, the Trustee shall regularly purchase the
Company Stock in the open market pursuant to a non-discriminatory purchasing
program, provided, however, that the Trustee may, in its discretion, match
purchases and sales being made at the discretion of the Administrative
Committee, acting under instructions of Participants or as otherwise required
under a Participating Plan, at prices determined by the Trustee to be as near as
practicable to prices in the open market.
The Trustee shall have no authority or obligation to invest or reinvest
cash balances of any Directed Fund in the General Trust or otherwise pursuant to
this Agreement unless and until it receives appropriate directions from the
Asset Manager. Cash balances (including interim investment thereof) in the
Common Stock Fund shall be limited to the administrative needs of
Page 11
such Investment Fund. For the purpose of this Section 5.1 and Section 5.2.,
"administrative needs" shall mean needs consistent with the Trustee's
implementation of the regular purchasing program described herein, anticipated
distributions and withdrawals from such Investment Fund, and transfers among the
Investment Funds at the election of participants. Any investment limitation
affecting Company securities shall not be applicable to the extent any
Investment Fund is invested in units of the General Trust.
5.2. The Company Stock Fund. Notwithstanding the unrestricted powers
conferred on the Trustee in this Agreement, the Trustee shall purchase and
retain the Company Stock in the Common Stock Fund regardless of market
fluctuations and, subject to Article XVI, the Trustee shall sell such stock only
to meet administrative needs of the Participating Plan. The Company shall
undertake the responsibility to inform Participating Plan participants of the
unique nature of the Common Stock Fund.
ARTICLE VI
Responsibility for Directed Funds
6.1. 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.
6.2. 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
Page 12
this Agreement or the terms of a Participating Plan, any agreement entered into
between the Company or the Named Fiduciary and the Asset Manager or imposed by
applicable law, or to make any suggestions or recommendation to the Company, 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.
6.3. 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 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.
6.4. 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 (i) that the transaction will not constitute a
prohibited transaction under ERISA or the Code, (ii) 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, (iii)
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, (iv) that such instrument or document is in proper form for execution
by the Trustee, (v) 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 (vi) 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.
Page 13
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.
6.5. 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 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 Master 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 5.1, or for any other
violation of the terms of this Agreement, the Participating Plans or applicable
law as a result of the addition of Directed Fund assets to the Discretionary
Fund.
6.6. 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 Participating Plans to remedy
such breach.
6.7. Definition of Knowledge. The parties hereto acknowledge that while
the Trustee will perform certain duties (such as custodial, reporting,
recording, valuation and bookkeeping
Page 14
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 the Company of its undertakings
under Section 16.2, 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 receipt
and processing of information in the course of performing such duties.
6.8. 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.
6.9. 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
7.1.
ARTICLE VII
Powers of Asset Managers
7.1. 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
Page 15
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 sell, exchange, convey, transfer or otherwise 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 validity, expediency or propriety of any such sale or
other disposition;
(b) to enter into contracts or to make commitments either alone or in
company with others to sell or acquire property;
(c) 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 Master Fund;
(d) to purchase part interests in real property or in mortgages on real
property, wherever such real property may be situated;
(e) to lease to others for any term without regard to the duration of the
Trust any real property or part interest in real property;
(f) 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);
(g) to vote upon any stocks, bonds or other securities (but subject to the
suspension of any voting rights as a result of any broker loan or similar
agreement and subject further, with respect to the voting of Company Stock, to
the provisions of any Participating Plan); 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
Page 16
payments incidental thereto; to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities and to delegate
discretionary powers and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an owner with respect
to stocks, bonds, securities or other property;
(h) 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);
(i) 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;
(j) to enter into any partnership, as a general or limited partner, or
joint venture;
(k) to purchase units or certificates issued by an investment company or
pooled trust or comparable entity;
(l) to transfer money or other property to an insurance company issuing an
Insurance Contract;
(m) 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 Participating Plans 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
Page 17
(n) to be reimbursed for the expenses incurred in exercising any of the
foregoing powers or to pay the reasonable expenses incurred by any agent,
manager or trustee appointed pursuant hereto.
7.2. Additional Powers of Trustee. In addition, the Trustee is hereby
authorized:
(a) to register any securities held in the Master Fund in its own name or
in the name of a nominee and to hold any securities in 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 Master Fund;
(b) to employ suitable agents, depositories and counsel, domestic or
foreign, and to charge their reasonable expenses and compensation against the
Master Fund, and to confer upon any such depository the powers conferred upon
the Trustee by paragraph (a) of this Section 7.2 as well as the power to appoint
subagents and depositories, wherever situated, in connection with the retention
of securities or other property;
(c) 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;
(d) to deposit funds in interest bearing account deposits maintained by or
savings certificates issued by Bankers, in its separate corporate capacity, or
in any other banking institution affiliated with Bankers;
(e) 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 Master Fund other than
Page 18
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;
(f) to make any distribution or transfer of assets as of a Valuation Date
authorized under Article X or XI 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;
(g) 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;
(h) with the consent of the Named Fiduciary, to loan securities held in
the Master Fund to brokers or dealers or other borrowers under such terms and
conditions as the Trustee, in its absolute discretion, deems advisable, 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 7.2 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 authorized under this Agreement, and to receive
compensation therefor out of any amounts paid by or charged to the account of
the borrower;
(i) to enroll the Master Fund in a program maintained by Bankers to permit
customer's accounts to participate in dividend reinvestment plans offered by
issuers of securities held in accounts, such as the Master Fund, in order to
realize upon the discount from market value offered shareholders without impact
on the managed assets in the Master Fund, and to
Page 19
receive compensation therefor (including reimbursement for certain of its
out-of-pocket costs associated therewith) out of the income received by the
Master Fund from participation in such program;
(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.
7.3. Limitation of Powers. The foregoing provisions of this Article VII
shall not be deemed to expand the permissible investments for any Investment
Fund under Section 5.1 or to limit the Named Fiduciary's power to restrict the
exercise of such powers by an Asset Manager as provided in Section 4.3. In
addition, any powers conferred on the Trustee or any other Asset Manager
thereunder may be suspended or revoked at any time by the Named Fiduciary upon
notice to the Asset Manager or the Trustee, as the case may be. Any oral notice
hereunder shall be promptly confirmed in writing to the Trustee and the Asset
Manager, but the Trustee shall have no responsibility hereunder unless and until
it has received notice in accordance with Section 15.6.
ARTICLE VIII
Records and Accounts of Trustee
8.1. Records. The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions in the Master 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.
8.2. 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 15.6, a written
Page 20
account setting forth the receipts and disbursements of the Master Fund and the
investments and other transactions effected by it upon its own authority or
pursuant to the directions of any Person as herein provided during the
Accounting Period.
8.3. Periodic Account. If so required by the terms of any Participating
Plan and agreed to by the Trustee, within thirty (30) days following the close
of each calendar month, calendar quarter or other time period (but not more
frequently than monthly) the Trustee shall provide the Account Party with, in
accordance with Section 15.6, a written account for any such Participating Plan,
setting forth the receipts and disbursements of the Master Fund and the
investments and other transactions effected by it upon its own authority or
pursuant to the directions of any Person as herein provided during such period;
provided, however, that such written account shall be limited to an accounting
of investments and transactions in the Master Fund and shall not affect the
responsibilities of the parties, if any, under Section 2.5 herein.
8.4. Account Stated. Upon the expiration of ninety (90) days from the date
of filing its annual account with the Account Party, the Trustee shall be
forever released and discharged from all liability and further accountability to
the Company, the Account Party or any other Person with respect to the accuracy
of such accounting and the propriety of all acts and failures to act of the
Trustee reflected in such account, except with respect to any such acts or
transactions as to which the Account Party shall, within such 90-day period,
file with the Trustee specific written objections.
8.5. 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.
8.6. Necessary Parties. Except to the extent that Sections 502 and 504 of
ERISA may provide otherwise, in order to protect the Master Fund from the
expense of litigation, no Person other than the Company shall be a necessary
party in any proceeding under Section 8.5 or may require the Trustee to account
or may institute any other action or proceeding against the Trustee or the
Trust.
Page 21
ARTICLE IX
Compensation, Taxes and Expenses
9.1. Compensation and Expenses. Any expenses incurred by the Trustee in
connection with its administration of the Master 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), such
compensation to the Trustee as shall be agreed upon from time to time between
the Trustee and the Company, and all other proper charges and disbursements of
the Trustee, shall be paid from the Master Fund, unless paid by the Company.
Anything in the preceding sentence to the contrary notwithstanding, the Company
shall reimburse the Trustee for any such fees and expenses if for any reason
such expenses are not paid out of the Master Fund. 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. The Named Fiduciary may direct
the Trustee to pay from the Master Fund any other administration expenses of a
Participating Plan. Each direction to the Trustee under this Section and Section
9.3 shall constitute a certification by the Named Fiduciary that such direction
is in accordance with applicable law, the terms of any relevant Participating
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
over.
9.2. Taxes. All taxes of any and all kinds whatsoever that may be levied
or assessed under existing or future laws, domestic or foreign, upon the Master
Fund or the income thereof shall be paid from the Master 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 at the expense of
the Trust, or may itself, contest such assessment.
9.3. Allocation. Any tax or expense paid from the Master Fund hereunder
which is determined by the Named Fiduciary to be specifically allocable to one
or more Investment Funds or Participating Plans, as the case may be, shall be
charged against such Investment Funds or the
Page 22
Share of such Participating Plan or Plans, in such proportions as the Named
Fiduciary shall direct the Trustee. Any expense which is allocable to all of the
Investment Funds or all of the Participating Plans shall be charged against the
Master Fund as a whole.
ARTICLE X
Resignation or Removal of Trustee
10.1. Resignation or Removal. The Trustee may be removed by the Company at
any time upon sixty (60) days' notice in writing to the Trustee. The Trustee may
resign at any time upon sixty (60) days' notice in writing to the Company.
10.2. Designation of a Successor. Upon the removal or resignation of the
Trustee, the Company 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 Master Fund to such successor trustee, or the
Company shall direct the Trustee to assign, transfer and payover the Master Fund
to one or more insurance companies pursuant to insurance contracts issued to the
Participating Plans. If, for any reason, the Company 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 Master Fund as an expense of administration.
10.3. Reserve for Expenses. The Trustee is authorized to reserve such
amount as to it may deem advisable for payments of its fees and expenses in
connection with the settlement of its account or otherwise, and any balance of
such reserve remaining after the payment of such fees and expenses shall be paid
over in accordance with the directions of the Company under 10.2. The Trustee is
authorized to invest such reserves in any investment authorized under the terms
of this Agreement appropriate for the temporary investment of cash reserves of
trusts.
Page 23
ARTICLE XI
Withdrawal of Participating Plans
11.1. Event of Withdrawal. Upon receipt of notice from the Company of the
termination (including any partial termination) and distribution of the assets
of a Participating Plan or of the withdrawal of any Participating Plan, or part
thereof, from the Trust, the Trustee shall segregate the share of the assets of
the Master Fund allocable to such Participating Plan, or part thereof, and shall
dispose of such assets in accordance with the directions of the Company.
11.2. Disqualification. The Company shall promptly notify the Trustee if
any Participating Plan has been or is likely to be disqualified under Section
401 of the Code. In that event, the Share of such Participating Plan shall be
treated as a Plan withdrawn pursuant to Section 11.1.
11.3. Approval of Appropriate Agencies. The Trustee may, in its absolute
discretion, condition delivery, transfer or distribution of any assets withdrawn
from the Master Fund under this Article XI upon the Trustee's receiving
assurances satisfactory to it that any notice which may be required to be given
under ERISA or the Code to any Person, the Department of Labor or the Internal
Revenue Service has been given, or that any filing which is required to be made
to determine that a termination has not affected the qualification of a
Participating Plan has been made, 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 any Participating Plan to give 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 the
Company.
11.4. Reversion to Company. Under no circumstances shall any contributions
made to the Master Trust Fund be used other than for the benefit of
Participants. Further, except as otherwise provided specifically in one or more
of the Participating Plans with respect to the return of contributions made by a
mistake of fact, or with respect to the return of contributions expressly
conditioned upon the deductibility of the contribution and such deduction is
Page 24
disallowed, the Master Fund shall not revert to the Company or to any subsidiary
or affiliate thereof.
ARTICLE XII
Amendment or Termination
12.1. Amendment. Subject to Section 1.4, the Company 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 which affects the rights, duties or
responsibilities of the Trustee may be made without its prior written consent.
12.2. Termination. Subject to Section 1.4, the Company 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 Master
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 Company. In the event that termination results
from the removal of the Trustee or the withdrawal of all of the Participating
Plans, then such disposition shall be implemented in accordance with the
provisions of Article X or Article XI as the case may be.
12.3. Trustee's Authority to Survive Termination. Until the final
distribution of the Master Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this Agreement.
ARTICLE XIII
Tender Offers
13.1. In General. In the event that any person (other than the Company or
any affiliate thereof) shall make a public offer for Company Stock held in the
Common Stock Fund, the Company undertakes to provide promptly a copy of the
offer, and any other material information concerning such offer, to each
Participating Plan participant (including, for the purposes of this
Page 25
Article XIII, any beneficiary of a deceased participant) who has an interest in
the Common Stock Fund with a form for furnishing to the Trustee timely
instructions as to whether the Company Stock allocated to participants' accounts
for purposes of this Article XIII should be tendered. Each participant may elect
that all, but not less than all, of the Company Stock allocated to his account
be tendered by the Trustee on his behalf. Upon timely receipt of instructions
from a participant to so tender, the Trustee shall tender all such Company Stock
allocated to such participant's account. Any Company Stock held by the Trustee
as to which it receives either no instruction or incomplete instructions from a
participant to whose account such stock is allocated shall not be tendered. In
the event that participants' instructions cannot otherwise be returned to the
Trustee in a timely fashion, the Company agrees to collect and tabulate such
instructions in a manner that will assure a confidential and accurate tabulation
and timely tender by the Trustee. Any securities or other property received by
the Trustee as a result of having tendered Company Stock, as hereinabove
provided, shall be held, and any cash so received shall be invested in short
term investments, pending any further action which the Trustee may be required
or directed to take pursuant to the Plan. Notwithstanding anything in this
Agreement to the contrary, during the period of any public offer for Company
Stock, the Trustee shall refrain from making purchases of Company Stock under
this Agreement. In addition to any compensation or expenses provided under
Section 9.1, the Trustee shall be entitled to reasonable compensation and
reimbursement for its out-of-pocket expenses for any services attributable to
the duties and responsibilities described in this Section 13.1.
13.2. Trustee's Indemnification. In addition to any other claims the
Trustee may have under this Agreement or by law, the Company hereby agrees to
hold the Trustee harmless and to indemnify the Trustee from and against any and
all losses, claims, damages, liabilities or expenses whatsoever (including, but
not limited to, any and all expenses reasonably incurred in investigating,
preparing or defending against any litigation or proceeding, commenced or
threatened, or any claim whatsoever), (a) arising out of, relating to or in
connection with any public offer of the kind referred to above, whether in
respect of the solicitation of directions from
Page 26
Participating Plan participants, or tabulating, reporting or acting upon such
directions or otherwise, or (b) arising out of or based upon any untrue
statement or alleged untrue statement contained in any instrument, document or
other material furnished by or through the Company to Participating Plan
participants, or otherwise used by the Company or authorized by it for use in
respect of, any such public offer or arising out of or based upon an omission or
alleged omission to state a material fact required to be stated or necessary to
make other statements made in any such material not misleading, except, solely
in the case of indemnification pursuant to clause (a), for a loss, claim,
damage, liability or expense primarily attributable to the bad faith or gross
negligence of the Trustee.
ARTICLE XIV
Authorities
14.1. Company. Whenever the provisions of this Agreement specifically
require or permit any action to be taken by "the Company", such action must be
authorized by the Board of Directors. 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 the Company under
corporate seal, 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.
14.2. Subsidiary or Affiliate. Any action required or permitted to be
taken under this Agreement by a subsidiary or affiliate of the Company shall be
given by the Board of Directors thereof in the manner described in Section 14.1.
14.3. Named Fiduciary and Committee. The Company shall furnish the Trustee
from time to time with a list of the names and signatures of all Persons (other
than the Company) authorized hereunder: (i) to receive accountings under Section
1.2(a); (ii) to act as a Named Fiduciary; (iii) as members of the Administrative
Committee; or (iv) in any manner authorized to issue orders, notices, requests,
instructions and objections to the Trustee pursuant to the
Page 27
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
the Company (or by the Secretary or an Assistant Secretary of any subsidiary or
affiliate of the Company which, in the opinion of counsel to the Company, has
not delegated that authority to the Company) 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.
14.4. 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.
14.5. Form of Communications. Any agreement or understanding between the
Company 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.
14.6. 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 Administrative Committee or terminating the authority of any
Person, including any Investment Manager, has occurred.
14.7. 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, the
Company, the Named Fiduciary, the
Page 28
Administrative 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 XIV.
ARTICLE XV
General Provisions
15.1. 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.
15.2. Entire Agreement. The Trustee's duties and responsibilities to any
Participating Plan or any Person interested therein shall be limited to those
specifically set forth in this Agreement. No amendment to any Participating Plan
or agreement or instrument affecting any Participating Plan or any other
document shall affect the Trustee's duties or responsibilities hereunder without
its prior written consent.
15.3. Mistake. No mistake made in good faith and in the exercise of due
care in connection with the administration of the Master 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.
15.4. Reliance on Experts. The Trustee may consult with experts (who may
be experts employed by the Company) 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, and shall be protected for any
action taken or omitted by it in good faith pursuant to or on the basis of the
opinion of any such expert.
15.5. 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
Page 29
Trustee hereunder, subject to all the terms and conditions and entitled to all
the benefits and immunities hereof.
15.6. Notices. All notices, reports, annual accounts and other
communications from the Trustee to the Company, the Named Fiduciary,
Administrative 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 XIV.
15.7. Plan Documents. The Named Fiduciary shall provide the Trustee with
complete, current copies of all Participating Plans and the most recent tax
qualification letters 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.
15.8. 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.
15.9. Descriptive Headings. The captions in this Agreement are solely for
convenience of reference and shall not define or limit the provisions hereof.
15.10. Spendthrift Provision. Except as may be required by law, no
interest or claim of interest of any kind of any participant in any
Participating 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.
Page 30
ARTICLE XVI
Undertaking by Company
16.1. Undertaking. In consideration of Bankers' agreeing to enter into
this Agreement, the Company 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 (i) as a direct or indirect result of any
act or omission of any predecessor trustee or fiduciary appointed under any
Participating Plan; (ii) as a direct or indirect result of anything done in good
faith, or alleged to have been done, by or on behalf of Bankers in reliance upon
the directions of any Investment Manager, the Administrative Committee, the
Company, or the Named Fiduciary, or anything omitted to be done in good faith,
or alleged to have been omitted, in the absence of such directions; (iii) as a
direct or indirect result of any transaction effected by Bankers in accordance
with directions received by Bankers by or in the name of a Participant, or any
information provided by Bankers in good faith at the request of a Participant,
pursuant to Section 2.5 hereof, or (iv) as a direct or indirect result of the
failure of the Company, the Administrative Committee, or the Named Fiduciary,
directly or indirectly, to adequately, carefully and diligently discharge its
fiduciary responsibilities with respect to the Participating Plans.
16.2. Limitation on Undertaking. Anything hereinabove to the contrary
notwithstanding, the Company shall have no responsibility to Bankers under
Section 16.1 (ii) or (iv) 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, or if Bankers fails to act in conformity with duly given and
authorized directions hereunder.
Page 31
16.3. Waiver of Defense. The Company expressly waives and shall be forever
estopped from asserting as a defense against Bankers, or any of its directors,
officers or employees, in any action to enforce this undertaking that any one of
them failed to discharge any obligation he, she or it may have or to be deemed
to have had under any statute governing the conduct of fiduciaries in following
the directions of the Company, the Named Fiduciary or Administrative Committee,
the Investment Manager or any Person duly authorized to act for any of them
under Article XIV.
16.4. Survival of Undertakings. The Company further agrees that the
undertakings made in this Article XVI 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 the Company and the Trustee according
to the laws of the State of New York in effect from time to time.
Page 32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and their
corporate seals to be hereunto affixed and attested to as of the day and year
first above written.
(Corporate Seal) OMNICOM GROUP INC.
Attest: By /s/ Xxxxx Xxxxxxxx
-----------------------------------
(Title)
/s/ Xxxxx X. Xxxxxx
---------------------------------
(Title)
(Corporate Seal)
BANKERS TRUST COMPANY
Attest: By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
(Title) Vice President
/s/ Xxxxxxx Xxxx
---------------------------------
(Title) Assistant Vice President
Page 33
APPENDIX A
OMNICOM GROUP PROFIT SHARING RETIREMENT PLAN
APPENDIX B
FIXED FUND
SOUTHEASTERN ASSET MANAGEMENT
BARING ASSET MANAGEMENT
BANKERS TRUST S&P 500 INDEX FUND
COMPANY STOCK FUND
