Exhibit 10.5 Xxxx-Xxxxx Corporation Future Investment Plan
XXXX-XXXXX CORPORATION FUTURE INVESTMENT PLAN
TRUST
Dated as of December 1, 1998
TRUST AGREEMENT, dated as of the first day of December,
1998, between XXXX-XXXXX CORPORATION an Arizona corporation,
having an office at 0000 X. Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxx
00000 (the "Sponsor"), and FIDELITY MANAGEMENT TRUST COMPANY, a
Massachusetts trust company, having an office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Xxxx-Xxxxx
Corporation Future Investment Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish a trust to hold
and invest Plan assets under the Plan for the exclusive benefit
of participants in the Plan and their beneficiaries; and
WHEREAS, the Xxxx-Xxxxx Corporation (the "Named
Fiduciary") is the named fiduciary of the Plan (within the
meaning of section 402(a) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the
aforesaid Plan assets in trust among several investment options
selected by the Named Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform
certain ministerial recordkeeping and administrative functions
under the Plan; and
WHEREAS, the Xxxx-Xxxxx Corporation (the "Administrator")
is the administrator of the Plan (within the meaning of section
3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping
and administrative services for the Plan if the services are
purely ministerial in nature and are provided within a
framework of plan provisions, guidelines and interpretations
conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements set forth below, the
Sponsor and the Trustee agree as follows:
Section 1. TRUST. The Sponsor hereby establishes the Xxxx-
Xxxxx Corporation Future Investment Plan Trust (the "Trust"),
with the Trustee. The Trust shall consist of an initial
contribution of money or other property acceptable to the
Trustee in its sole discretion, made by the Sponsor or
transferred from a previous trustee under the Plan, such
additional sums of money and Sponsor Stock (hereinafter
defined) as shall from time to time be delivered to the Trustee
under the Plan, all investments made therewith and proceeds
thereof, and all earnings and profits thereon, less the
payments that are made by the Trustee as provided herein. The
Trustee hereby accepts the Trust on the terms and conditions
set forth in this Agreement. In accepting this Trust, the
Trustee shall be accountable for the assets received by it,
subject to the terms and conditions of this Agreement.
Section 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR
CONTRIBUTIONS. Except as provided under applicable law, no
part of the Trust may be used for, or diverted to, purposes
other than the exclusive benefit of the participants in the
Plan or their beneficiaries or the reasonable expenses of Plan
administration.
Section 3. DISBURSEMENTS.
(a) ADMINISTRATOR-DIRECTED DISBURSEMENTS. The Trustee
shall make disbursements in the amounts and in the manner that
the Administrator directs from time to time in writing. The
Trustee shall have no responsibility to ascertain such
direction's compliance with the terms of the Plan or of any
applicable law or the direction's effect for tax purposes or
otherwise; nor shall the Trustee have any responsibility to see
to the application of any disbursement.
(b) PARTICIPANT WITHDRAWAL REQUESTS. The Sponsor hereby
directs that, pursuant to the Plan, a participant withdrawal
request (in-service or full withdrawal) may be made by the
participant by telephone, or in such other manner as may be
agreed to from time to time by the Sponsor and Trustee, and
the Trustee shall process such request only after the identity
of the participant is verified by use of a personal
identification number ("PIN") and social security number. The
Trustee shall process such withdrawal in accordance with
written guidelines provided by the Sponsor and documented in
the Plan Administrative Manual.
(c) LIMITATIONS. The Trustee shall not be required to
make any disbursement in excess of the net realizable value of
the assets of the Trust at the time of the disbursement. The
Trustee shall make cash disbursements in accordance with the
applicable source and fund withdrawal hierarchy as documented
in the Plan Administrative Manual, unless the Administrator has
provided a written direction to the contrary.
Section 4. INVESTMENT OF TRUST.
(a) SELECTION OF INVESTMENT OPTIONS. The Trustee shall
have no responsibility for the selection of investment options
under the Trust and shall not render investment advice to any
person in connection with the selection of such options.
(b) AVAILABLE INVESTMENT OPTIONS. The Named Fiduciary
shall direct the Trustee as to the investment options in which
the Trust shall be invested during the period beginning on the
date of the initial transfer of assets to the Trust and ending
on the date of the completion of the reconciliation of
participant records ("Recordkeeping Reconciliation Period"),
and the investment options which Plan participants may invest
following the Recordkeeping Reconciliation Period, subject to
the following limitations. The Named Fiduciary may determine
to offer as investment options only: (i) securities issued by
the investment companies advised by Fidelity Management &
Research Company ("Fidelity Mutual Funds") and certain
securities issued by investment companies not advised by
Fidelity Management & Research Company ("Non-Fidelity Mutual
Funds") (collectively, "Mutual Funds"), (ii) equity securities
issued by the Sponsor or an affiliate which are publicly-traded
and which are "qualifying employer securities" within the
meaning of section 407(d)(5) of ERISA ("Sponsor Stock"), (iii)
notes evidencing loans to Plan participants in accordance with
the terms of the Plan, (iv) collective investment funds
maintained by the Trustee for qualified plans.
The Trustee shall be considered a fiduciary with
investment discretion only with respect to Plan assets
(including the proceeds from any Existing Investment Contracts)
that are invested in Investment Contracts chosen by the Trustee
or in collective investment funds maintained by the Trustee for
qualified plans.
The investment options initially selected by the Named
Fiduciary are identified on Schedules "A" and "C" attached
hereto. The Named Fiduciary may add additional investment
options with the consent of the Trustee and upon mutual
amendment of this Trust Agreement and the Schedules thereto to
reflect such additions.
(c) PARTICIPANT DIRECTION. As authorized under the Plan,
each Plan participant shall direct the Trustee in which
investment option(s) to invest the assets in the participant's
individual accounts. Such directions may be made by Plan
participants by use of the telephone exchange system maintained
for such purposes by the Trustee or its agent, in accordance
with written Exchange Guidelines attached hereto as Schedule
"G". In the event that the Trustee fails to receive a proper
direction, the assets shall be invested in the investment
option set forth for such purpose on Schedule "C", until the
Trustee receives a proper direction.
(d) MUTUAL FUNDS. The Named Fiduciary hereby
acknowledges that it has received from the Trustee a copy of
the prospectus for each Fidelity Mutual Fund selected by the
Named Fiduciary as a Plan investment option or short-term
investment fund. All transactions involving Non-Fidelity
Mutual Funds shall be done in accordance with the Operational
Guidelines attached hereto as Schedule "G". Trust investments
in Mutual Funds shall be subject to the following limitations:
(i) EXECUTION OF PURCHASES AND SALES. Purchases and
sales of Mutual Funds (other than for exchanges) shall be made
on the date on which the Trustee receives from the
Administrator in good order all information, documentation and
wire transfer of funds (if applicable) necessary to accurately
effect such transactions. Exchanges of Mutual Funds shall be
made in accordance with the Exchange Guidelines attached
hereto as Schedule "G".
(ii) VOTING. At the time of mailing of notice of each
annual or special stockholders' meeting of any Mutual Fund, the
Trustee shall send a copy of the notice and all proxy
solicitation materials to each Plan participant who has shares
of the Mutual Fund credited to the participant's accounts,
together with a voting direction form for return to the Trustee
or its designee. The participant shall have the right to
direct the Trustee as to the manner in which the Trustee is to
vote the shares credited to the participant's accounts (both
vested and unvested). The Trustee shall vote the shares as
directed by the participant. The Trustee shall not vote shares
for which it has received no directions from the participant.
During the Recordkeeping Reconciliation Period, the Named
Fiduciary shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote the shares of the Mutual
Funds in the Trust. Following the Recordkeeping
Reconciliation Period the Named Fiduciary shall continue to
have the right to direct the Trustee as to the manner in which
the Trustee is to vote the Mutual Fund shares held in a short-
term liquidity reserve for a unitized investment option.
With respect to all rights other than the right to vote,
the Trustee shall follow the directions of the participant and
if no such directions are received, the directions of the Named
Fiduciary. The Trustee shall have no further duty to solicit
directions from participants or the Named Fiduciary.
(e) SPONSOR STOCK. Trust investments in Sponsor Stock
shall be subject to the following limitations:
(i) ACQUISITION LIMIT. Pursuant to the Plan, the
Trust may be invested in Sponsor Stock to the extent necessary
to comply with investment directions under this Agreement.
(ii) FIDUCIARY DUTY OF NAMED FIDUCIARY. The Named
Fiduciary shall continually monitor the suitability under the
fiduciary duty rules of section 404(a)(1) of ERISA (as modified
by section 404(a)(2) of ERISA) of acquiring and holding Sponsor
Stock. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the directions of the
Named Fiduciary with respect to the acquisition and holding of
Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited
by the foregoing fiduciary duty rules or would be contrary to
the terms of this Agreement.
(iii) EXECUTION OF PURCHASES AND SALES.
(A) Purchases and sales of Sponsor Stock (other
than for exchanges) shall be made on the open market on the
date on which the Trustee receives from the Administrator in
good order all information, documentation, and wire transfer
of funds (if applicable), necessary to accurately effect such
transactions. Exchanges of Sponsor Stock shall be made in
accordance with the Exchange Guidelines attached hereto as
Schedule "G". Such general rules shall not apply in the
following circumstances:
(1) If the Trustee is unable to purchase
or sell the total number of shares required to be purchased or
sold on such day as a result of market conditions; or
(2) If the Trustee is prohibited by the
Securities and Exchange Commission, the New York Stock
Exchange, or any other regulatory body from purchasing or
selling any or all of the shares required to be purchased or
sold on such day.
In the event of the occurrence of the circumstances described
in (1) or (2) above, the Trustee shall purchase or sell such
shares as soon as possible thereafter and shall determine the
price of such purchases or sales to be the average purchase or
sales price of all such shares purchased or sold, respectively.
The Trustee may follow directions from the Named Fiduciary to
deviate from the above purchase and sale procedures provided
that such direction is made in writing by the Named Fiduciary.
(B) PURCHASES AND SALES FROM OR TO SPONSOR. If
directed by the Sponsor in writing prior to the trading date,
the Trustee may purchase or sell Sponsor Stock from or to the
Sponsor if the purchase or sale is for adequate consideration
(within the meaning of section 3(18) of ERISA) and no
commission is charged. If Sponsor contributions (employer) or
contributions made by the Sponsor on behalf of the participants
(employee) under the Plan are to be invested in Sponsor Stock,
the Sponsor may transfer Sponsor Stock in lieu of cash to the
Trust. In either case, the number of shares to be transferred
will be determined by dividing the total amount of Sponsor
Stock to be purchased or sold by dividing the total amount of
Sponsor Stock to be purchased or sold by the 4:00 p.m. NYSE
closing price of the Sponsor Stock on the trading date.
(C) USE OF AN AFFILIATED BROKER. The Named
Fiduciary hereby directs the Trustee to use Fidelity Capital
Markets and its affiliates ("Capital Markets") to provide
brokerage services in connection with any purchase or sale of
Sponsor Stock in accordance with directions from Plan
participants. Capital Markets shall execute such directions
directly or through its affiliate, National Financial Services
Company ("NFSC"). The provision of brokerage services shall be
subject to the following:
(1) As consideration for such brokerage
services, the Named Fiduciary agrees that Capital Markets shall
be entitled to remuneration under this direction provision in
the amount of five cents ($.05) commission on each share of
Sponsor Stock up to 10,000 shares in a singular transaction,
four cents ($.04) commission on each share of Sponsor Stock
from 10,001 to 20,000 shares in a singular transaction, and
three and one-half cents ($.035) commission on each share of
Sponsor Stock in excess of 20,000 shares in a singular
transaction. Any change in such remuneration may be made only
by a signed agreement between Sponsor and Trustee.
(2) The Trustee will provide the Sponsor
with a description of Capital Markets' brokerage placement
practices and a form by which the Sponsor may terminate this
direction to use a broker affiliated with the Trustee. The
Trustee will provide the Sponsor with this termination form
annually, as well as quarterly and annual reports which
summarize all securities transaction-related charges incurred
by the Plan.
(3) Any successor organization of Capital
Markets, through reorganization, consolidation, merger or
similar transactions, shall, upon consummation of such
transaction, become the successor broker in accordance with the
terms of this direction provision.
(4) The Trustee and Capital Markets shall
continue to rely on this direction provision until notified to
the contrary. The Sponsor reserves the right to terminate this
direction upon written notice to Capital Markets (or its
successor) and the Trustee, in accordance with Section 11 of
this Agreement.
(iv) SECURITIES LAW REPORTS. The Administrator
shall be responsible for filing all reports required under
Federal or state securities laws with respect to the Trust's
ownership of Sponsor Stock, including, without limitation, any
reports required under section 13 or 16 of the Securities
Exchange Act of 1934, and shall immediately notify the Trustee
in writing of any requirement to stop purchases or sales of
Sponsor Stock pending the filing of any report. The Trustee
shall provide to the Administrator such information on the
Trust's ownership of Sponsor Stock as the Administrator may
reasonably request in order to comply with Federal or state
securities laws.
(v) VOTING AND TENDER OFFERS. Notwithstanding any
other provision of this Agreement the provisions of this
Section shall govern the voting and tendering of Sponsor Stock.
The Sponsor, after consultation with the Trustee, shall pay for
all printing, mailing, tabulation and other costs associated
with the voting and tendering of Sponsor Stock.
(A) VOTING.
(1) When the issuer of Sponsor Stock
prepares for any annual or special meeting, the Sponsor shall
notify the Trustee at least thirty (30) days in advance of the
intended record date and shall cause a copy of all proxy
solicitation materials to be sent to the Trustee. If requested
by the Trustee the Sponsor shall certify to the Trustee that
the aforementioned materials represents the same information
distributed to shareholders of Sponsor Stock. Based on these
materials the Trustee shall prepare a voting instruction form
and shall provide a copy of all proxy solicitation materials
to be sent to each Plan participant, together with the
foregoing voting instruction form to be returned to the Trustee
or its designee. The form shall show the number of full and
fractional shares of Sponsor Stock credited to the
participant's accounts.
(2) Each participant shall have the right
to direct the Trustee as to the manner in which the Trustee is
to vote that number of shares of Sponsor Stock credited to the
participant's accounts (both vested and unvested). Directions
from a participant to the Trustee concerning the voting of
Sponsor Stock shall be communicated in writing, or by mailgram
or similar means as agreed upon by the Trustee and the Sponsor.
These directions shall be held in confidence by the Trustee and
shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person except to the extent that
the consequences of such directions are reflected in reports
regularly communicated to any such person in the ordinary
course of the performance of the Trustee's services hereunder.
Upon its receipt of the directions, the Trustee shall vote the
shares of Sponsor Stock as directed by the participant. Except
as otherwise required by law, the Trustee shall not vote shares
of Sponsor Stock credited to a participant's account for which
it has received no directions from the participant.
(3) Except as otherwise required by law,
the Trustee shall vote that number of shares of Sponsor Stock
not credited to participants' accounts in the same proportion
on each issue as it votes those shares credited to
participants' accounts for which it received voting directions
from participants.
(B) TENDER OFFERS.
(1) Upon commencement of a tender offer
for any securities held in the Trust that are Sponsor Stock,
the Sponsor shall timely notify the Trustee in advance of the
intended tender date and shall cause a copy of all materials to
be sent to the Trustee. The Sponsor shall certify to the
Trustee that the aforementioned materials represent the same
information distributed to shareholders of Sponsor Stock.
Based on these materials and after consultation with the
Sponsor, the Trustee shall prepare a tender instruction form
and shall provide a copy of all tender materials to be sent to
each plan participant, together with the foregoing tender
instruction form, to be returned to the Trustee or its
designee. The tender instruction form shall show the number of
full and fractional shares of Sponsor Stock credited to the
participants account (both vested and unvested).
(2) Each participant shall have the right
to direct the Trustee to tender or not to tender some or all of
the shares of Sponsor Stock credited to the participant's
accounts (both vested and unvested). Directions from a
participant to the Trustee concerning the tender of Sponsor
Stock shall be communicated in writing, or by mailgram or such
similar means as is agreed upon by the Trustee and the Sponsor.
These directions shall be held in confidence by the Trustee and
shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person except to the extent that
the consequences of such directions are reflected in reports
regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's services hereunder.
The Trustee shall tender or not tender shares of Sponsor Stock
as directed by the participant. Except as otherwise required
by law, the Trustee shall not tender shares of Sponsor Stock
credited to a participant's accounts for which it has received
no directions from the participant.
(3) Except as otherwise required by law,
the Trustee shall tender that number of shares of Sponsor Stock
not credited to participants' accounts in the same proportion
as the total number of shares of Sponsor Stock credited to
participants' accounts for which it received instructions from
Participants.
(4) A participant who has directed the
Trustee to tender some or all of the shares of Sponsor Stock
credited to the participant's accounts may, at any time prior
to the tender offer withdrawal date, direct the Trustee to
withdraw some or all of the tendered shares, and the Trustee
shall withdraw the directed number of shares from the tender
offer prior to the tender offer withdrawal deadline. Prior to
the withdrawal deadline, if any shares of Sponsor Stock not
credited to participants' accounts have been tendered, the
Trustee shall redetermine the number of shares of Sponsor Stock
that would be tendered under Section 4(e)(v)(B)(3) if the date
of the foregoing withdrawal were the date of determination, and
withdraw from the tender offer the number of shares of Sponsor
Stock not credited to participants' accounts necessary to
reduce the amount of tendered Sponsor Stock not credited to
participants' accounts to the amount so redetermined. A
participant shall not be limited as to the number of directions
to tender or withdraw that the participant may give to the
Trustee.
(5) A direction by a participant to the
Trustee to tender shares of Sponsor Stock credited to the
participant's accounts shall not be considered a written
election under the Plan by the participant to withdraw, or have
distributed, any or all of his withdrawable shares. The
Trustee shall credit to each account of the participant from
which the tendered shares were taken the proceeds received by
the Trustee in exchange for the shares of Sponsor Stock
tendered from that account. Pending receipt of directions
(through the Administrator) from the participant or the Named
Fiduciary, as provided in the Plan, as to which of the
remaining investment options the proceeds should be invested
in, the Trustee shall invest the proceeds in the investment
option described in Schedule "C".
(vi) GENERAL. With respect to all rights other
than the right to vote, the right to tender, and the right to
withdraw shares previously tendered, in the case of Sponsor
Stock credited to a participant's accounts, the Trustee shall
follow the directions of the participant and if no such
directions are received, the directions of the Named Fiduciary.
The Trustee shall have no duty to solicit directions from
participants. With respect to all rights other than the right
to vote and the right to tender, in the case of Sponsor Stock
not credited to participants' accounts, the Trustee shall
follow the directions of the Named Fiduciary.
(vii) CONVERSION. All provisions in this
Section 4(e) shall also apply to any securities received as a
result of a conversion of Sponsor Stock.
(f) PARTICIPANT LOANS. (i) GENERAL PURPOSE LOANS The
Administrator shall act as the Trustee's agent for participant
general purpose loan notes and as such shall (i) separately
account for repayments of such general purpose loans and
clearly identify such assets as Plan assets and (ii) collect
and remit all principal and interest payments to the Trustee.
To originate a participant general purpose loan, the Plan
participant shall direct the Trustee as to the term and amount
of the loan to be made from the participant's individual
account. Such directions shall be made by Plan participants by
use of the telephone exchange system maintained for such
purpose by the Trustee or its agent. The Trustee shall
determine, based on the current value of the participant's
account on the date of the request and any guidelines provided
by the Sponsor, the amount available for the loan. Based on
the interest rate supplied by the Sponsor in accordance with
the terms of the Plan, the Trustee shall advise the participant
of such interest rate, as well as the installment payment
amounts. The Trustee shall distribute the Participant loan
agreement and truth-in-lending disclosure with the proceeds
check to the participant. To facilitate recordkeeping, the
Trustee may destroy the original of any promissory note made in
connection with a loan to a participant under the Plan,
provided that the Trustee first creates a duplicate by a
photographic or optical scanning or other process yielding a
reasonable facsimile of the promissory note and the Plan
participant's signature thereon, which duplicate may be reduced
or enlarged in size from the actual size of the original
promissory note.
(ii) LOANS FOR PURCHASE OF A PRIMARY RESIDENCE. The
Administrator shall act as the Trustee's agent for the purpose
of holding all trust investments in participant loan notes for
the purchase of a primary residence and related documentation
and as such shall (i) hold physical custody of and keep safe
the notes and other loan documents, (ii) separately account for
repayments of such loans and clearly identify such assets as
Plan assets, (iii) collect and remit all principal and interest
payments to the Trustee, and (iv) cancel and surrender the
notes and other loan documentation when a loan has been paid in
full. To originate a participant loan for the purchase of a
primary residence, the Plan participant shall direct the
Trustee as to the type of loan to be made from the
participant's individual account. Such directions shall be
made by Plan participants by use of the telephone exchange
system maintained for such purpose by the Trustee or its agent.
The Trustee shall determine, based on the current value of the
participant's account, the amount available for the loan.
Based on the interest rate supplied by the Sponsor in
accordance with the terms of the Plan, the Trustee shall advise
the participant of such interest rate, as well as the
installment payment amounts. The Trustee shall forward the
loan document to the participant for execution and submission
for approval to the Administrator. The Administrator shall
have the responsibility for approving the loan and instructing
the Trustee to send the loan proceeds to the Administrator or
to the participant if so directed by the Administrator. In all
cases, approval or disapproval by the Administrator shall be
made within thirty (30) days of the participant's initial
request (the origination date).
(g) INVESTMENT CONTRACTS. Trust investments in
Investment Contracts shall be subject to the following
limitations:
(i) COLLECTIVE INVESTMENT FUNDS. To the extent that
the Named Fiduciary selects as an investment option the Managed
Income Portfolio of the Fidelity Group Trust for Employee
Benefit Plans (the "Group Trust"), the Sponsor hereby (A)
agrees to the terms of the Group Trust and adopts said terms as
a part of this Agreement and (B) acknowledges that it has
received from the Trustee a copy of the Group Trust, the
Declaration of Separate Fund for the Managed Income Portfolio
of the Group Trust, and the Circular for the Managed Income
Portfolio.
(ii) PARTICIPATION IN COLLECTIVE INVESTMENT FUNDS.
The Named Fiduciary hereby (i) agrees to the Plan's
participation in the Fidelity Group Trust for Employee Benefit
Plans (the "Group Trust"), a group trust maintained by the
Trustee for qualified plans and adopts said terms as a part of
this Agreement and (ii) acknowledges that it has received from
the Trustee a copy of the terms of the Group Trust and the
terms of the Declaration of Separate Fund for each separate
fund of the Group Trust selected by the Named Fiduciary.
(h) RELIANCE OF TRUSTEE ON DIRECTIONS.
(i) The Trustee shall not be liable for any loss, or
by reason of any breach, which arises from any participant's
exercise or non-exercise of rights under this Section 4 over
the assets in the participant's accounts.
(ii) The Trustee shall not be liable for any loss, or
by reason of any breach, which arises from the Named
Fiduciary's exercise or non-exercise of rights under this
Section 4, unless it was clear on their face that the actions
to be taken under the Named Fiduciary's directions were
prohibited by the fiduciary duty rules of section 404(a) of
ERISA or were contrary to the terms of the Plan or this
Agreement.
(i) TRUSTEE POWERS. The Trustee shall have the following
powers and authority:
(i) Subject to paragraphs (b) and (c) of this
Section 4, to sell, exchange, convey, transfer, or otherwise
dispose of any property held in the Trust, by private contract
or at public auction. No person dealing with the Trustee shall
be bound to see to the application of the purchase money or
other property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other
disposition.
(ii) Subject to paragraphs (b) and (c) of this
Section 4, to invest in Investment Contracts and short term
investments (including interest bearing accounts with the
Trustee or money market mutual funds advised by affiliates of
the Trustee) and in collective investment funds maintained by
the Trustee for qualified plans, in which case the provisions
of each collective investment fund in which the Trust is
invested shall be deemed adopted by the Sponsor and the
provisions thereof incorporated as a part of this Trust as long
as the fund remains exempt from taxation under Sections 401(a)
and 501(a) of the Internal Revenue Code of 1986 (the "Code"),
as amended.
(iii) To cause any securities or other property
held as part of the Trust to be registered in the Trustee's own
name, in the name of one or more of its nominees, or in the
Trustee's account with the Depository Trust Company of New York
and to hold any investments in bearer form, but the books and
records of the Trustee shall at all times show that all such
investments are part of the Trust.
(iv) To keep that portion of the Trust in cash or
cash balances as the Named Fiduciary or Administrator may, from
time to time, deem to be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any
and all documents of transfer or conveyance and to carry out
the powers herein granted.
(vi) To borrow funds from a bank not affiliated with
the Trustee in order to provide sufficient liquidity to process
Plan transactions in a timely fashion; provided that the cost
of such borrowing shall be allocated in a reasonable fashion to
the investment fund(s) in need of liquidity.
(vii) To settle, compromise, or submit to
arbitration any claims, debts, or damages due to or arising
from the Trust; to commence or defend suits or legal or
administrative proceedings; to represent the Trust in all suits
and legal and administrative hearings; and to pay all
reasonable expenses arising from any such action, from the
Trust if not paid by the Sponsor.
(viii) To employ legal, accounting, clerical, and
other assistance as may be required in carrying out the
provisions of this Agreement and to pay their reasonable
expenses and compensation from the Trust if not paid by the
Sponsor.
(ix) To invest all of any part of the assets of the
Trust in any collective investment trust or group trust which
then provides for the pooling of the assets of plans described
in Section 401(a) and exempt from tax under Section 501(a) of
the Code, or any comparable provisions of any future
legislation that amends, supplements, or supersedes those
sections, provided that such collective investment trust or
group trust is exempt from tax under the Code or regulations or
rulings issued by the Internal Revenue Service; the provisions
of the document governing such collective investment trusts or
group trusts, as it may be amended from time to time, shall
govern any investment therein and are hereby made a part of
this Trust Agreement.
(x) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry
out any of the foregoing powers and the purposes of the Trust.
Section 5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE
PERFORMED.
(a) GENERAL. The Trustee shall perform those
recordkeeping and administrative functions described in
Schedule "A" attached hereto. These recordkeeping and
administrative functions shall be performed within the
framework of the Administrator's written directions regarding
the Plan's provisions, guidelines and interpretations.
(b) ACCOUNTS. The Trustee shall keep accurate accounts
of all investments, receipts, disbursements, and other
transactions hereunder, and shall report the value of the
assets held in the Trust as of the last day of each fiscal
quarter of the Plan and, if not on the last day of a fiscal
quarter, the date on which the Trustee resigns or is removed as
provided in Section 8 of this Agreement or is terminated as
provided in Section 10 (the "Reporting Date"). Within thirty
(30) days following each Reporting Date or within sixty (60)
days in the case of a Reporting Date caused by the resignation
or removal of the Trustee, or the termination of this
Agreement, the Trustee shall file with the Administrator a
written account setting forth all investments, receipts,
disbursements, and other transactions effected by the Trustee
between the Reporting Date and the prior Reporting Date, and
setting forth the value of the Trust as of the Reporting Date.
Except as otherwise required under ERISA, upon the expiration
of six (6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or further
accountability to anyone with respect to the propriety of its
acts or transactions shown in such account, except with respect
to such acts or transactions as to which the Sponsor shall
within such six (6) month period file with the Trustee written
objections.
(c) INSPECTION AND AUDIT. All records generated by the
Trustee in accordance with paragraphs (a) and (b) shall be open
to inspection and audit, during the Trustee's regular business
hours prior to the termination of this Agreement, by the
Administrator or any person designated by the Administrator.
Upon the resignation or removal of the Trustee or the
termination of this Agreement, the Trustee shall provide to the
Administrator, at no expense to the Sponsor, in the format
regularly provided to the Administrator, a statement of each
participant's accounts as of the resignation, removal, or
termination, and the Trustee shall provide to the Administrator
or the Plan's new recordkeeper such further records as are
reasonable, at the Sponsor's expense.
(d) EFFECT OF PLAN AMENDMENT. A confirmation of the
current qualified status of the Plan is attached hereto as
Schedule "F". The Trustee's provision of the recordkeeping and
administrative services set forth in this Section 5 shall be
conditioned on the Sponsor delivering to the Trustee a copy of
any amendment to the Plan as soon as administratively feasible
following the amendment's adoption, with, if requested, an IRS
determination letter or an opinion of counsel substantially in
the form of Schedule "F" covering such amendment, and on the
Administrator providing the Trustee on a timely basis with all
the information the Administrator deems necessary for the
Trustee to perform the recordkeeping and administrative
services and such other information as the Trustee may
reasonably request.
(e) RETURNS, REPORTS AND INFORMATION. The Administrator
shall be responsible for the preparation and filing of all
returns, reports, and information required of the Trust or Plan
by law. The Trustee shall provide the Administrator with such
information as the Administrator may reasonably request to make
these filings. The Administrator shall also be responsible for
making any disclosures to Participants required by law, except
such disclosure as may be required under federal or state truth-
in-lending laws with regard to Participant loans, which shall
be provided by the Trustee.
Section 6. COMPENSATION AND EXPENSES. Within thirty (30) days
of receipt of the Trustee's xxxx, which shall be computed and
billed in accordance with Schedule "B" attached hereto and made
a part hereof, as amended from time to time, the Sponsor shall
send to the Trustee a payment in such amount or the Sponsor may
direct the Trustee to deduct such amount from participants'
accounts. All expenses of the Trustee relating directly to the
acquisition and disposition of investments constituting part of
the Trust, and all taxes of any kind whatsoever that may be
levied or assessed under existing or future laws upon or in
respect of the Trust or the income thereof, shall be a charge
against and paid from the appropriate Plan participants'
accounts.
Section 7. DIRECTIONS AND INDEMNIFICATION.
(a) IDENTITY OF ADMINISTRATOR AND NAMED FIDUCIARY. The
Trustee shall be fully protected in relying on the fact that
the Named Fiduciary and the Administrator under the Plan are
the individuals or persons named as such above or such other
individuals or persons as the Sponsor may notify the Trustee in
writing.
(b) DIRECTIONS FROM ADMINISTRATOR. Whenever the
Administrator provides a direction to the Trustee, the Trustee
shall not be liable for any loss, or by reason of any breach,
arising from the direction (i) if the direction is contained in
a writing (or is oral and immediately confirmed in a writing)
signed by any individual whose name and signature have been
submitted (and not withdrawn) in writing to the Trustee by the
Administrator in the form attached hereto as Schedule "D", and
(ii) if the Trustee reasonably believes the signature of the
individual to be genuine, unless it is clear on the direction's
face that the actions to be taken under the direction would be
prohibited by the fiduciary duty rules of Section 404(a) of
ERISA or would be contrary to the terms of this Agreement. For
purposes of this Section, such direction may also be made via
electronic data transfer ("EDT") in accordance with procedures
agreed to by the Administrator and the Trustee; provided,
however, that the Trustee shall be fully protected in relying
on such direction as if it were a direction made in writing by
the Administrator.
(c) DIRECTIONS FROM NAMED FIDUCIARY. Whenever the Named
Fiduciary or Sponsor provides a direction to the Trustee, the
Trustee shall not be liable for any loss, or by reason of any
breach, arising from the direction (i) if the direction is
contained in a writing (or is oral and immediately confirmed in
a writing) signed by any individual whose name and signature
have been submitted (and not withdrawn) in writing to the
Trustee by the Named Fiduciary in the form attached hereto as
Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear
on the direction's face that the actions to be taken under the
direction would be prohibited by the fiduciary duty rules of
Section 404(a) of ERISA or would be contrary to the terms of
this Agreement. Such direction may also be made via EDT in
accordance with procedures agreed to by the Named Fiduciary and
the Trustee; provided, however, that the Trustee shall be fully
protected in relying on such direction as if it were a
direction made in writing by the Named Fiduciary.
(d) CO-FIDUCIARY LIABILITY. In any other case, the
Trustee shall not be liable for any loss, or by reason of any
breach, arising from any act or omission of another fiduciary
under the Plan except as provided in section 405(a) of ERISA.
(e) INDEMNIFICATION. The Sponsor shall indemnify the
Trustee against, and hold the Trustee harmless from, any and
all loss, damage, penalty, liability, cost, and expense,
including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or
asserted against the Trustee by reason of any claim, regulatory
proceeding, or litigation arising from any act done or omitted
to be done by any individual or person with respect to the Plan
or Trust, excepting only any and all loss, etc., arising solely
from the Trustee's negligence or bad faith.
(f) SURVIVAL. The provisions of this Section 7 shall
survive the termination of this Agreement.
Section 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) RESIGNATION. The Trustee may resign at any time upon
sixty (60) days' notice in writing to the Sponsor, unless a
shorter period of notice is agreed upon by the Sponsor.
(b) REMOVAL. The Sponsor may remove the Trustee at any
time upon sixty (60) days' notice in writing to the Trustee,
unless a shorter period of notice is agreed upon by the
Trustee.
Section 9. SUCCESSOR TRUSTEE.
(a) APPOINTMENT. If the office of Trustee becomes vacant
for any reason, the Sponsor may in writing appoint a successor
trustee under this Agreement. The successor trustee shall have
all of the rights, powers, privileges, obligations, duties,
liabilities, and immunities granted to the Trustee under this
Agreement. The successor trustee and predecessor trustee shall
not be liable for the acts or omissions of the other with
respect to the Trust.
(b) ACCEPTANCE. When the successor trustee accepts its
appointment under this Agreement, title to and possession of
the Trust assets shall immediately vest in the successor
trustee without any further action on the part of the
predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or
reasonably may be requested in writing by the Sponsor or the
successor trustee to vest title to all Trust assets in the
successor trustee or to deliver all Trust assets to the
successor trustee.
(c) CORPORATE ACTION. Any successor of the Trustee or
successor trustee, through sale or transfer of the business or
trust department of the Trustee or successor trustee, or
through reorganization, consolidation, or merger, or any
similar transaction, shall, upon consummation of the
transaction, become the successor trustee under this Agreement.
Section 10. TERMINATION.
This Agreement may be terminated at any time by the Sponsor
upon sixty (60) days' notice in writing to the Trustee. On the
date of the termination of this Agreement, the Trustee shall
forthwith transfer and deliver to such individual or entity as
the Sponsor shall designate, all cash and assets then
constituting the Trust. If, by the termination date, the
Sponsor has not notified the Trustee in writing as to whom the
assets and cash are to be transferred and delivered, the
Trustee may bring an appropriate action or proceeding for leave
to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by the Sponsor
for all costs and expenses of the action or proceeding
including, without limitation, reasonable attorneys' fees and
disbursements.
Section 11. RESIGNATION, REMOVAL, AND TERMINATION NOTICES.
All notices of resignation, removal, or termination under this
Agreement must be in writing and mailed to the party to which
the notice is being given by certified or registered mail,
return receipt requested, to the Sponsor c/o Chief Fiduciary
Officer, 0000 X. Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000, and
to the Trustee c/o Xxxx X. Xxxxxx, Fidelity Investments, 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such
other addresses as the parties have notified each other of in
the foregoing manner.
Section 12. DURATION.
This Trust shall continue in effect without limit as to time,
subject, however, to the provisions of this Agreement relating
to amendment, modification, and termination thereof.
Section 13. AMENDMENT OR MODIFICATION.
This Agreement may be amended or modified at any time and from
time to time only by an instrument executed by both the Sponsor
and the Trustee. Notwithstanding the foregoing, to reflect
increased operating costs the Trustee may once each calendar
year amend Schedule "B" without the Sponsor's consent upon
seventy-five (75) days written notice to the Sponsor.
Section 14. GENERAL.
(a) PERFORMANCE BY TRUSTEE, ITS AGENTS OR AFFILIATES.
The Sponsor acknowledges and authorizes that the services to be
provided under this Agreement shall be provided by the Trustee,
its agents or affiliates, including Fidelity Investments
Institutional Operations Company, Inc. or its successor, and
that certain of such services may be provided pursuant to one
or more other contractual agreements or relationships.
(b) ENTIRE AGREEMENT. This Agreement together with the
schedules attached hereto, which are hereby incorporated
herein, contains all of the terms agreed upon between the
parties with respect to the subject matter hereof.
(c) WAIVER. No waiver by either party of any failure or
refusal to comply with an obligation hereunder shall be deemed
a waiver of any other or subsequent failure or refusal to so
comply.
(d) SUCCESSORS AND ASSIGNS. The stipulations in this
Agreement shall inure to the benefit of, and shall bind, the
successors and assigns of the respective parties.
(e) PARTIAL INVALIDITY. If any term or provision of this
Agreement or the application thereof to any person or
circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or
circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
(f) SECTION HEADINGS. The headings of the various
sections and subsections of this Agreement have been inserted
only for the purposes of convenience and are not part of this
Agreement and shall not be deemed in any manner to modify,
explain, expand or restrict any of the provisions of this
Agreement.
Section 15. GOVERNING LAW.
(a) MASSACHUSETTS LAW CONTROLS. This Agreement is being
made in the Commonwealth of Massachusetts, and the Trust shall
be administered as a Massachusetts trust. The validity,
construction, effect, and administration of this Agreement
shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts, except to the extent
those laws are superseded under Section 514 of ERISA.
(b) TRUST AGREEMENT CONTROLS. The Trustee is not a party to
the Plan, and in the event of any conflict between the
provisions of the Plan and the provisions of this Agreement,
the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their duly authorized
officers as of the day and year first above written.
XXXX-XXXXX CORPORATION
Attest: \s\ Xxxx Xxxx By: \s\ X. X. Xxxxxx
------------- ----------------
Secretary Name: Xxxxx X. Xxxxxx
-----------------
Title: President, CEO
& Chairman of
the Board
---------------
Date: November 20, 1998
-----------------
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: \s\ Xxxxxxx X. Xxxx By: \s\ Xxxxxxx Xxxxxx
------------------- ------------------
Assistant Clerk Name: Xxxxxxx Xxxxxx
----------------
Title: Vice President
---------------
Date: December 3, 1998
----------------
SCHEDULE "A"
ADMINISTRATIVE SERVICES
ADMINISTRATION
* Establishment and maintenance of participant account and
election percentages.
* Maintenance of the following Plan investment options:
CORE INVESTMENT OPTIONS:
- Managed Income Portfolio
- Fidelity Blue Chip Growth Fund
- Fidelity Dividend Growth Fund
- Puritan Fund
- Fidelity Equity-Income Fund
- Spartan U.S. Equity Index Fund
- Fidelity Freedom Income Fund
- Fidelity Freedom 2000 Fund
- Fidelity Freedom 2010 Fund
- Fidelity Freedom 2020 Fund
- Fidelity Freedom 2030 Fund
- Fidelity Intermediate Bond Fund
- Xxxx-Xxxxx Corporation Stock
WINDOW INVESTMENT OPTIONS:
- Founders Growth Fund
- PIMCO Mid-Cap Growth Fund - Administrative Class
- Fidelity Fund
- Baron Asset Fund
- INVESCO Total Return Fund
- MAS Mid Cap Value Portfolio - Institutional Class
- UAM/FMA Small Company Portfolio
- Janus Worldwide
- Fidelity Diversified International
- PIMCO Total Return - Administrative Class
- PIMCO High Yield - Administrative Class
- Fidelity Short-Intermediate Government Fund
* Maintenance of the following money classifications:
- Pre-Tax 401(k)
- Employer Match
- Profit Sharing
- 1986 Profit Sharing
- Rollover
- Stock Bonus Rollover
- Stock Bonus Undiversified
The Trustee will provide the recordkeeping and
administrative services set forth on this Schedule "A" and
as detailed in the Plan Administrative Manual and no others.
A) PROVIDE PARTICIPANT TELEPHONE SERVICES
1. Fidelity registered representatives are available
from 8:30 a.m. - 8:00 p.m. ET each business day to
provide toll free telephone service for participant
inquiries and transactions. Additionally, participants
have 24 hour account balance and transaction inquiry
access utilizing our automated voice response system and
the internet.
2. For security purposes, all calls are recorded. In
addition, several levels of security are available
including the verification of a Personal Identification
Number (PIN) and/or any other indicative data resident on
the system.
3. Through our telephone services, Fidelity provides the
following services:
- Provide Plan investment option information.
- Maintain Plan specific provisions.
- Process exchanges (transfers) between investment options
on a daily basis.
- Maintain and process changes to participants' contribution
allocations for all money sources.
- Allow participants to change their deferral and after-tax
percentages and provide updates via EDT for customer to apply
to its payrolls accordingly.
- Consult with participants in various loan scenarios and
generate all documentation.
- Process all participant loan and withdrawal requests via
Fidelity's toll-free telephone service according to Plan
provisions on a daily basis.
- Process in-service withdrawals via telephone due to
certain circumstances previously approved by the Sponsor.
- Process hardship withdrawals via telephone as directed and
approved by the Sponsor.
- Enroll new participants via telephone; provide
confirmation of enrollment within five (5) days of the request.
B) PLAN ACCOUNTING
1. Process payroll contributions according to payroll
frequency via electronic data transfer (EDT), consolidated
magnetic tape or diskette. The data format will be
provided by Fidelity.
2. Provide Plan and participant level accounting for the
money classifications for the Plan.
3. Audit and reconcile the Plan and participant accounts
daily.
4. Provide daily Plan and participant level accounting
for the Plan investment options.
5. Reconcile and process participant withdrawal requests
as approved and directed by the Sponsor. All requests are
paid based on the current market values of participants'
accounts, not advanced or estimated values. A
distribution report will accompany each check.
6. Track individual participant loans; process loan
withdrawals; re-invest loan repayments; and prepare and
deliver comprehensive reports to the Sponsor to assist in
the administration of participant loans.
7. Fidelity's Guaranteed Investments Daily Equity System
(GUIDE) is an automatic Investment Contract daily
portfolio accounting system. GUIDE provides the Sponsor
with daily valuation of its Plan assets whether
individually managed or in our Managed Income Portfolio I.
8. Maintain and process changes to participants'
prospective and existing investment mix elections via
Fidelity's toll-free telephone service.
C) PARTICIPANT REPORTING
1. Mail confirmation to participants of all transactions
initiated via Fidelity Telephone Services within three (3)
calendar days of the transaction.
2. Prepare and mail via first class to each Plan
participant a quarterly detailed participant statement
reflecting all activity for the period. Statements will
be mailed no later than twenty (20) calendar days after
each quarter end.
3. Mail required 402(f) notification for distribution
from the Plan. This notice advises participants of the
tax consequences of their Plan distributions.
D) PLAN REPORTING
1. Prepare, reconcile and deliver a monthly Trial
Balance Report presenting all money classes and
investments. This report is based on the market value as
of the last business day of the month. The report will be
delivered not later than twenty (20) days after the end of
each month in the absence of unusual circumstances.
2. Prepare, reconcile and deliver a Quarterly
Administrative Report presenting both on a participant and
a total Plan basis all money classes, investment positions
and a summary of all activity of the participant and Plan
as of the last business day of the quarter. The report
will be delivered not later than twenty (20) days after
the end of each quarter in the absence of unusual
circumstances.
E) GOVERNMENT REPORTING
1. Process year-end tax reports for participants -
1099R, as well as financial reporting to assist in the
preparation of Form 5500.
F) COMMUNICATION SERVICES
1. Employee communications describing available
investment options, including multimedia informational
materials and group presentations.
G) OTHER
1. Performance of non-discrimination limitation testing
upon request. In order to obtain this service, the client
shall be required to provide the information identified in
the Fidelity Discrimination Testing Package Guidelines.
2. Monitor and process required minimum distribution
amounts (MRD) as follows: the Trustee will notify the MRD
participant and, upon notification from the MRD
participant, will use the MRD participant's information to
process their distributions. If the MRD participant does
not respond to the Trustee's notification, the Sponsor
directs the Trustee to automatically begin the required
distributions for the participant.
XXXX-XXXXX CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: \s\ X. X. Xxxxxx By: \s\ Xxxxxxx Xxxxxx December 31,1998
---------------- ---------------------------------
Vice President Date
SCHEDULE "B"
FEE SCHEDULE
Enrollments by Phone: $5.00 per year per non-
active employee residing on
Fidelity's participant
recordkeeping system.
Loan Fee: Establishment fee of $50.00
per loan account.
Minimum Required Distribution: $25.00 per participant per
MRD withdrawal.
In-Service Withdrawals by Phone: $20.00 per withdrawal.
Plan Sponsor Webstation (PSW): Two (2) user IDs provided
free of charge, each
additional user ID, $500 per
year.
Return of Excess Contribution Fee: $25.00 per participant, one-
time charge per calculation
and check generation.
Non-Fidelity Mutual Funds: .35% annual administration
fee on the following Non-
Fidelity Mutual Fund assets
which are equity/balanced
funds: Founders Growth
Fund; PIMCO Mid-Cap Growth
Fund; Baron Asset Fund; and
UAM/FMA Small Company
Portfolio (to be paid by the
Non-Fidelity Mutual Fund
vendor.).
.25% annual administration
fee on the following Non-
Fidelity Mutual Fund assets:
Invesco Total Return Fund;
Janus Worldwide Fund; PIMCO
Total Return Fund -
Administrative Shares; PIMCO
High Yield Fund -
Administrative Shares (to be
paid by the Non-Fidelity
Mutual Fund vendor.).
Other Fees: separate charges for optional non-discrimination
testing, extraordinary expenses resulting from large numbers
of simultaneous manual transactions or from errors not
caused by Fidelity, or for reports not contemplated in this
Agreement. The Administrator may withdraw reasonable
administrative fees from the Trust by written direction to
the Trustee.
TRUSTEE FEE
To the extent that assets are invested in Sponsor Xxxxx, .00
% of such assets in the Trust payable pro rata quarterly on
the basis of such assets as of the calendar quarter's last
valuation date, but no less than $10,000 nor more than
$35,000 per year.
NOTE: These fees have been negotiated and accepted based on
the following Plan characteristics: 1 plan in the
relationship, current plan assets of $ 57.5 million, current
participation of 800 participants, current GIC assets of $ 7.6
million, current stock assets of $17.8 million, total Fidelity
actively managed Mutual Fund assets of $ 30.5 million, total
Fidelity non-actively managed Mutual Fund assets of $0.0
million, total FundsNet/Outside Fund assets of $0.0 million and
projected net cash flows of $.7 million per year. Fees will be
subject to revision if these Plan characteristics change
significantly by either falling below or exceeding current or
projected levels.
XXXX-XXXXX CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: \s\ X. X. Xxxxxx By:\s\ Xxxxxxx Xxxxxx December 31,1998
---------------- ----------------------------------
Vice President Date
SCHEDULE "C"
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary
hereby directs the Trustee that participants' individual
accounts may be invested in the following investment options:
CORE INVESTMENT OPTIONS:
- Managed Income Portfolio
- Fidelity Blue Chip Growth Fund
- Fidelity Dividend Growth Fund
- Puritan Fund
- Fidelity Equity-Income Fund
- Spartan U.S. Equity Index Fund
- Fidelity Freedom Income Fund
- Fidelity Freedom 2000 Fund
- Fidelity Freedom 2010 Fund
- Fidelity Freedom 2020 Fund
- Fidelity Freedom 2030 Fund
- Fidelity Intermediate Bond Fund
- Xxxx-Xxxxx Corporation Stock
WINDOW INVESTMENT OPTIONS:
- Founders Growth Fund
- PIMCO Mid-Cap Growth Fund - Administrative Class
- Fidelity Fund
- Baron Asset Fund
- INVESCO Total Return Fund
- MAS Mid Cap Value Portfolio - Institutional Class
- UAM/FMA Small Company Portfolio
- Janus Worldwide
- Fidelity Diversified International
- PIMCO Total Return - Administrative Class
- PIMCO High Yield - Administrative Class
- Fidelity Short-Intermediate Government Fund
The investment option referred to in Section 4(c) and
Section 4(e)(v)(B)(5)shall be the Managed Income Portfolio.
XXXX-XXXXX CORPORATION
By: \s\ X. X. Xxxxxx
----------------
SCHEDULE "D"
November 20, 1998
Xx. Xxxxxxxx XxXxxxxxxx
Fidelity Investments Institutional Operations Company, Inc.
00 Xxxxxxxxxx Xxxxxx- XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXX-XXXXX CORPORATION FUTURE INVESTMENT TRUST PLAN
Dear Xx. XxXxxxxxxx:
This letter is sent to you in accordance with Section 7(b)
of the Trust Agreement, dated as of November 20, 1998, between
Xxxx-Xxxxx Corporation and Fidelity Management Trust Company.
We hereby designate Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, and
Xxxxxxx Xxxxxxx as the individuals who may provide directions,
on behalf of the Administrator, upon which Fidelity Management
Trust Company shall be fully protected in relying. Only one
such individual need provide any direction. The signature of
each designated individual is set forth below and certified to
be such.
You may rely upon each designation and certification set
forth in this letter until we deliver to you written notice of
the termination of authority of a designated individual.
Very truly yours,
XXXX-XXXXX CORPOATON
By: \s\ X. X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, President, CEO
and Chairman of the Board
\s\ Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx
\s\ Xxxxxx X. Xxxxx
------------------
Xxxxxx X. Xxxxx
\s\ Xxxxxxx Xxxxxxx
------------------
Xxxxxxx Xxxxxxx
SCHEDULE "E"
November 20, 1998
Xx. Xxxxxxxx XxXxxxxxxx
Fidelity Investments Institutional Operations Company, Inc.
00 Xxxxxxxxxx Xxxxxx - XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXX-XXXXX CORPORATION FUTURE INVESTMENT TRUST PLAN
Dear Xx. XxXxxxxxxx:
This letter is sent to you in accordance with Section 7(c)
of the Trust Agreement, dated as of November 20, 1998, between
Xxxx-Xxxxx Corporation and Fidelity Management Trust Company.
We hereby designate Xxxxx X. Xxxxxx, J. Xxxxx Xxxxxx, and G.
Xxxxx Xxxxx as the individuals who may provide directions, on
behalf of the Named Fiduciary, upon which Fidelity Management
Trust Company shall be fully protected in relying. Only one
such individual need provide any direction. The signature of
each designated individual is set forth below and certified to
be such.
You may rely upon each designation and certification set
forth in this letter until we deliver to you written notice of
the termination of authority of a designated individual.
Very truly yours,
XXXX-XXXXX CORPOATON
By: \s\ X. X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx, President, CEO
and Chairman of the Board
\s\ X. X. Xxxxxx
---------------
Xxxxx X. Xxxxxx
\s\ J. Xxxxx Xxxxxx
------------------
Xxxxx Xxxxxx
SCHEDULE "F"
IRS DETERMINATION LETTER
SCHEDULE "G"
EXCHANGE GUIDELINES
The following exchange guidelines are currently employed by
Fidelity Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours via a Fidelity Representative are 8:30
a.m. (ET) to 8:00 p.m. (ET) on each business day. A "business
day" is any day on which the New York Stock Exchange ("NYSE")
is open. Exchanges via the Internet and Fidelity's voice
response system are intended to be available virtually 24 hours
a day.
FIRSCO reserves the right to change these exchange guidelines
at its discretion.
Note: The NYSE's normal closing time is 4:00 p.m. (ET); in the
event the NYSE alters its closing time, all references below to
4:00 p.m. shall mean the NYSE closing time as altered.
MUTUAL FUNDS
EXCHANGES BETWEEN MUTUAL FUNDS
Participants may call on any business day to exchange
between the Mutual Funds. If the request is received
before 4:00 p.m. (ET), it will receive that day's trade
date. Calls received after 4:00 p.m. (ET) will be
processed on a next business day basis.
SPONSOR STOCK
I. EXCHANGES FROM MUTUAL FUNDS INTO SPONSOR STOCK
Company Stock exchanges are processed on a daily cycle.
Participants who wish to exchange out of a Mutual Fund
into Company Stock may call on any business day. Calls
received after 4:00 p.m. (ET) will be processed as if
received on the following business day.
Mutual Fund shares are sold and Company Stock is purchased
on the following business day.
II. EXCHANGES FROM SPONSOR STOCK INTO MUTUAL FUNDS
Participants who wish to exchange out of Sponsor Stock
into Mutual Funds may call on any business day. Calls
received after 4:00 p.m. (ET) will be processed as if
received on the following business day. The Company Stock
is sold on the business day following the call and the
subsequent purchase into mutual funds will take place
three (3) business days later. This allows for settlement
of the stock trade at the custodian and the corresponding
transfer of assets to Fidelity.
MANAGED INCOME PORTFOLIO
I. EXCHANGES BETWEEN MUTUAL FUNDS AND MANAGED INCOME
PORTFOLIO
Participants who wish to exchange between a Mutual Fund
and the Managed Income Portfolio may call on any business
day. If the request is received before 4:00 p.m. (ET), it
will receive that day's trade date. Calls received after
4:00 p.m. (ET) will be processed on a next business day
basis.
II. EXCHANGES FROM MANAGED INCOME PORTFOLIO INTO SPONSOR STOCK
Sponsor Stock exchanges are processed on a daily cycle.
Participants who wish to exchange out of the Managed
Income Portfolio into Sponsor Stock may call on any
business day. Calls received after 4:00 p.m. (ET) will be
processed as if received on the following business day.
Managed Income Portfolio shares are sold and Company Stock
is purchased on the following business day.
III. EXCHANGES FROM SPONSOR STOCK INTO MANAGED INCOME PORTFOLIO
Participants who wish to exchange out of Sponsor Stock
into Mutual Funds may call on any business day. Calls
received after 4:00 p.m. (ET) will be processed as if
received on the following business day. The Sponsor Stock
is sold on the business day following the call and the
subsequent purchase into the Managed Income Portfolio will
take place three (3) business days later. This allows for
settlement of the stock trade at the custodian and the
corresponding transfer of assets to Fidelity.
IV. Exchange Restrictions
Participants will not be permitted to make direct
transfers from the Managed Income Portfolio into a
competing fund. Participants who wish to exchange from
the Managed Income Portfolio into a competing fund, must
first exchange into a non-competing fund for a period of
90 days.
XXXX-XXXXX CORPORATION
By: \s\ X. X. Xxxxxx
----------------
SCHEDULE "H"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
PRICING
By 7:00 p.m. Eastern Time ("ET") each Business Day, the Non-
Fidelity Mutual Fund Vendor (Fund Vendor) will input the
following information ("Price Information") into the Fidelity
Participant Recordkeeping System ("FPRS") via the remote
access price screen that Fidelity Investments Institutional
Operations Company, Inc. ("FIIOC"), an affiliate of the
Trustee, has provided to the Fund Vendor: (1) the net asset
value for each Fund at the Close of Trading, (2) the change
in each Fund's net asset value from the Close of Trading on
the prior Business Day, and (3) in the case of an income fund
or funds, the daily accrual for interest rate factor ("mil
rate"). FIIOC must receive Price Information each Business
Day (a "Business Day" is any day the New York Stock Exchange
is open). If on any Business Day the Fund Vendor does not
provide such Price Information to FIIOC, FIIOC shall pend all
associated transaction activity in the Fidelity Participant
Recordkeeping System ("FPRS") until the relevant Price
Information is made available by Fund Vendor.
TRADE ACTIVITY AND WIRE TRANSFERS
By 7:00 a.m. ET each Business Day following Trade Date
("Trade Date plus One"), FIIOC will provide, via facsimile,
to the Fund Vendor a consolidated report of net purchase or
net redemption activity that occurred in each of the Funds up
to 4:00 p.m. ET on the prior Business Day. The report will
reflect the dollar amount of assets and shares to be invested
or withdrawn for each Fund. FIIOC will transmit this report
to the Fund Vendor each Business Day, regardless of
processing activity. In the event that data contained in the
7:00 a.m. ET facsimile transmission represents estimated
trade activity, FIIOC shall provide a final facsimile to the
Fund Vendor by no later than 9:00 a.m. ET. Any resulting
adjustments shall be processed by the Fund Vendor at the net
asset value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC
transaction confirms for all daily activity in each of the
Funds. The Fund Vendor shall also send via regular mail to
FIIOC, by no later than the fifth Business Day following
calendar month close, a monthly statement for each Fund.
FIIOC agrees to notify the Fund Vendor of any balance
discrepancies within twenty (20) Business Days of receipt of
the monthly statement.
For purposes of wire transfers, FIIOC shall transmit a daily
wire for aggregate purchase activity and the Fund Vendor
shall transmit a daily wire for aggregate redemption
activity, in each case including all activity across all
Funds occurring on the same day.
PROSPECTUS DELIVERY
FIIOC shall be responsible for the timely delivery of Fund
prospectuses and periodic Fund reports ("Required Materials")
to Plan participants, and shall retain the services of a
third-party vendor to handle such mailings. The Fund Vendor
shall be responsible for all materials and production costs,
and hereby agrees to provide the Required Materials to the
third-party vendor selected by FIIOC. The Fund Vendor shall
bear the costs of mailing annual Fund reports to Plan
participants. FIIOC shall bear the costs of mailing
prospectuses to Plan participants.
PROXIES
The Fund Vendor shall be responsible for all costs associated
with the production of proxy materials. FIIOC shall retain
the services of a third-party vendor to handle proxy
solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly to the
Fund Vendor by the third-party vendor.
PARTICIPANT COMMUNICATIONS
The Fund Vendor shall provide internally-prepared fund
descriptive information approved by the Funds' legal counsel
for use by FIIOC in its written participant communication
materials. FIIOC shall utilize historical performance data
obtained from third-party vendors (currently Morningstar,
Inc., FACTSET Research Systems and Lipper Analytical
Services) in telephone conversations with plan participants
and in quarterly participant statements. The Sponsor hereby
consents to FIIOC's use of such materials and acknowledges
that FIIOC is not responsible for the accuracy of such third-
party information. FIIOC shall seek the approval of the Fund
Vendor prior to retaining any other third-party vendor to
render such data or materials under this Agreement.
COMPENSATION
FIIOC shall be entitled to fees as set forth in a separate
agreement with the Fund Vendor.
