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EXHIBIT 10.32
TRUST AGREEMENT
BETWEEN
-----------------------
SYBASE, INC. 401(K) PLAN
AND
FIDELITY MANAGEMENT TRUST COMPANY
-----------------------
SYBASE, INC. 401(K) PLAN
TRUST
DATED AS OF MAY 1, 2000
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TABLE OF CONTENTS
SECTION PAGE
------- ----
1 TRUST..................................................................................... 2
2 EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS.................................. 2
3 DISBURSEMENTS............................................................................. 2
(a) Administrator-Directed Disbursements
(b) Participant Withdrawal Requests
(c) Limitations
4 INVESTMENT OF TRUST ...................................................................... 3
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) Participant Loans
(f) Reliance of Trustee on Directions
(g) Trustee Powers
5 RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED................................. 7
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 COMPENSATION AND EXPENSES................................................................. 9
7 DIRECTIONS AND INDEMNIFICATION ........................................................... 9
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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8 RESIGNATION OR REMOVAL OF TRUSTEE ........................................................ 11
(a) Resignation
(b) Removal
9 SUCCESSOR TRUSTEE ........................................................................ 11
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 TERMINATION .............................................................................. 12
11 RESIGNATION, REMOVAL, AND TERMINATION NOTICES ............................................ 12
12 DURATION.................................................................................. 12
13 AMENDMENT OR MODIFICATION ................................................................ 12
14 ELECTRONIC SERVICES ...................................................................... 12
15 GENERAL................................................................................... 14
(a) Performance by Trustee, its Agents or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
(g) Force Majeure
16 GOVERNING LAW ............................................................................ 15
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
SCHEDULES
"A" Recordkeeping Services
"A-l" Signature Ready 5500
"B" Fee Schedule
"C " Investment Options
"D" Administrator's Authorization Letter
"E" Named Fiduciary's Authorization Letter
"F" IRS Determination Letter or Opinion of Counsel
"G" Exchange Guidelines
"H" Operational Guidelines for Non-Fidelity Mutual Funds
"I" Performance Standards
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TRUST AGREEMENT, dated as of the first day of May, 2000, between SYBASE,
INC. a California corporation, having an office at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 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 Sybase, Inc. 401(k) 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 Administrative Committee is the named fiduciary (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 is the
administrator (the "Administrator") of the Plan (within the meaning of section
3(16)(A) of 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 Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are 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:
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SECTION 1. TRUST. The Sponsor hereby establishes the Sybase, Inc. 401(k) 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 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 (except to the
extent the terms of the plan have been communicated to the Trustee in writing)
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 Administrator hereby directs
that, a participant withdrawal request (in-service or full withdrawal) may be
made by the participant by telephone, or such other electronic means 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. When
spousal consent is required, the Trustee shall forward the documentation to the
participant and shall process such withdrawal upon receipt and acceptance of
spousal consent. In all cases, the Trustee shall process such withdrawal in
accordance with the written guidelines provided by the Administrator and
documented in the Plan Administrative Manual. In the case of a hardship
withdrawal request, the Trustee shall forward the withdrawal document to the
participant for
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execution and submission for approval to the Administrator. The Administrator
shall have the responsibility for approving the withdrawal and instructing the
Trustee to send the proceeds to the Administrator or to the participant if so
directed by the Administrator.
(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"), and (ii) notes evidencing loans to Plan
participants in accordance with the terms of the Plan.
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.
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(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, the internet or in
such other manner as may be agreed upon from time to time by the Sponsor and the
Trustee, 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
"H". 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
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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) Participant Loans. The Administrator shall act as the Trustee's agent
for participant loan notes and as such shall (i) separately account for
repayments of such 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 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. When spousal consent is necessary, the Trustee shall forward
the loan documentation to the participant for spousal consent. Upon receipt of
any required consent, and acceptance thereof based upon guidelines provided by
the Sponsor, 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.
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(f) Reliance of Trustee on Directions.
(i) The Trustee shall not be liable for any loss or expense, 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 reasonably 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 inconsistent with
the terms of the Plan as communicated in writing to the Trustee.
(g) 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) 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.
(iii) 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.
(iv) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein granted.
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(v) 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.
(vi) 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.
(vii) 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.
(viii) To invest all or any part of the assets of the Trust 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 any collective investment trust or group trust, including
any collective investment trust or group trust maintained by the Trustee, 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.
(ix) 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
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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, the
Trustee shall have no liability or further accountability 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 a written objection shall have been
filed with the Trustee within such six (6) month period.
(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
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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. Except as set forth on Schedule
"A," 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. Sponsor shall pay to Trustee the fees for
services in accordance with Schedule "B". Fees for services are specifically
outlined in Schedule "B" and are based on all of the assumptions identified
therein. The Trustee shall maintain its fees for two (2) years; provided,
however, in the event that the Plan characteristics referenced in the
assumptions outlined in Schedule "B" change significantly by either falling
below or exceeding current or projected levels, such fees shall be subject to
revision. To reflect increased operating costs, Trustee may once each calendar
year, but not prior to May 1, 2002, amend Schedule "B" without the Sponsor's
consent upon ninety (90) days prior notice to the Sponsor.
All reasonable expenses of plan administration as shown on Schedule "B"
attached hereto, as amended from time to time, shall be a charge against and
paid from the appropriate plan participants' accounts, except to the extent such
amounts are paid by the Plan Sponsor in a timely manner.
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 Participants' accounts.
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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
expense 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 reasonably 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 inconsistent with
the terms of this Agreement. For purposes of this Section, such direction may
also be made via electronic data transfer ("EDT") or other electronic means in
accordance with procedures agreed to by the Administrator and the Trustee;
provided, however, that the Trustee shall be fully protected in reasonably
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 expense 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 reasonably 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 inconsistent with
the terms of this Agreement. Such direction may also be made via EDT or other
electronic means in accordance with procedures agreed to by the Named Fiduciary
and the Trustee; provided, however, that the Trustee shall be fully protected in
reasonably relying on such direction as if it were a direction made in writing
by the Named Fiduciary.
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(d) Co-Fiduciary Liability. In any other case, the Trustee shall not be
liable for any loss or expense 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, bad faith or willful misconduct.
The Trustee shall indemnify the Sponsor against and hold the Sponsor
harmless from any and all such loss, damage, penalty, liability, cost, and
expense, including without limitation, reasonable attorney's fees and
disbursements, that may be incurred by, imposed upon, or asserted against the
Sponsor solely as a result of a) any defects in the investment methodology
embodied in the target asset allocation or model portfolio provided through
Fidelity PortfolioPlanner(SM) except to the extent that any such loss, damage,
penalty, liability, cost or expense arises from information provided by the
participant, the Sponsor or third parties; or b) any prohibited transactions
resulting from the provision by the Trustee of Fidelity PortfolioPlanner(SM).
(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.
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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 Legal Department,
Sybase, Inc. 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx
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94608, and to the Trustee c/o ERISA Group, Legal Department, 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.
SECTION 14. ELECTRONIC SERVICES.
(a) The Trustee may provide communications and services ("Electronic
Services") and/or software products ("Electronic Products") via electronic
media, including, but not limited to Fidelity Plan Sponsor WebStation. The
Sponsor and its agents agree to use such Electronic Services and Electronic
Products only in the course of reasonable administration of or participation in
the Plan and to keep confidential and not publish, copy, broadcast, retransmit,
reproduce, commercially exploit or otherwise redisseminate the Electronic
Products or Electronic Services or any portion thereof without the Trustee's
written consent, except, in cases where Trustee has specifically notified the
Sponsor that the Electronic Products or Services are suitable for delivery to
Sponsor's plan participants, for non-commercial personal use by participants or
beneficiaries with respect to their participation in the plan or for their other
retirement planning purposes.
(b) The Sponsor shall be responsible for installing and maintaining all
Electronic Products, (including any programming required to accomplish the
installation) and for displaying any and all content associated with Electronic
Services on its computer network and/or Intranet so that such content will
appear exactly as it appears when delivered to Sponsor. All Electronic Products
and Services shall be clearly identified as originating from the Trustee or its
affiliate. The Sponsor shall promptly remove Electronic Products or Services
from its computer network and/or Intranet, or replace the Electronic Products or
Services with updated products or services
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provided by the Trustee, upon written notification (including written
notification via facsimile) by the Trustee.
(c) All Electronic Products shall be provided to the Sponsor without any
express or implied legal warranties or acceptance of legal liability by the
Trustee, and all Electronic Services shall be provided to the Sponsor without
acceptance of legal liability related to or arising out of the electronic nature
of the delivery or provision of such Services. Except as otherwise stated in
this Agreement, and except with respect to data specific to Sponsor's plan
participants embedded in the Products or Services, which data is the property of
Sponsor and/or Sponsor's plan participants no rights are conveyed to any
property, intellectual or tangible, associated with the contents of the
Electronic Products or Services and related material. The Trustee hereby grants
to the Sponsor a non-exclusive, non-transferable revocable right and license to
use the Electronic Products and Services in accordance with the terms and
conditions of this Agreement.
(d) To the extent that any Electronic Products or Services utilize
Internet services to transport data or communications, the Trustee will take,
and Sponsor agrees to follow, reasonable security precautions, however, the
Trustee disclaims any liability for interception of any such data or
communications. The Trustee reserves the right not to accept data or
communications transmitted via electronic media by the Sponsor or a third party
if it determines that the media does not provide adequate data security, or if
it is not administratively feasible for the Trustee to use the data security
provided. The Trustee shall not be responsible for, and makes no warranties
regarding access, speed or availability of Internet or network services, or any
other service required for electronic communication. The Trustee shall not be
responsible for any loss or damage related to or resulting from any changes or
modifications to the Electronic Products or Services after delivering it to the
Sponsor.
SECTION 15. 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.
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18
(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.
(g) Force Majeure. Notwithstanding anything to the contrary contained in
this Agreement or in any Schedule hereto, the Sponsor and the Trustee shall be
excused from performing hereunder in the event of any force majeure event
including, but to limited to, natural disasters, acts of God, fire or other
casualty, power outages, system failures and civil commotion. This clause shall
not excuse either party from liability which results from failure to have in
place reasonable disaster recovery and safeguarding plans adequate for
protecting all data that the respective party is responsible for maintaining in
order to provide services under this Agreement.
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SECTION 16. 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.
SYBASE, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
FIDELITY MANAGEMENT TRUST COMPANY
Attest: By:
--------------------------- -------------------------------------
Assistant Clerk
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
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SCHEDULE "A"
RECORDKEEPING SERVICES
ADMINISTRATION
* Establishment and maintenance of participant account and election
percentages.
* Maintenance of the following Plan investment options:
- Fidelity Retirement Money Market Portfolio
- Fidelity Equity-Income Fund
- Fidelity Fund
- Spartan(R) U.S. Equity Index Fund
- PIMCO Total Return Fund - Administrative Class
- PAX World Fund
- MFS Mass Investors Trust - Class A
- Undiscovered Behavioral Growth Fund - Investors Class
- Xxxxxxxxx Foreign Fund A
- Xxxxxx International Growth Fund - Class A
* Maintenance of the following money classifications:
- Salary Deferral Account
- Employer Match
- Rollover Account
- Discretionary Contribution
- Prior Employer Match
* The Trustee will provide the recordkeeping and administrative services
set forth on this Schedule "A" or as otherwise agreed to in writing
between the Sponsor and the Trustee.
A) PARTICIPANT TELEPHONE SERVICES
1. Participant service representatives are available each business
day from 8:30 a.m. ET - 8:00 p.m. in the participant's time zone
in the continental United States to provide toll-free telephone
service for participant inquiries and transactions.
2. Through the automated voice response system and on-line account
access via the World Wide Web, participants also have virtually
24-hour account inquiry and transaction capabilities.
3. 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.
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4. The following telephone services are available:
- Enroll new participants via telephone; provide confirmation
of enrollment within five (5) calendar days of the request.
- Provide Plan investment option information.
- Provide and maintain information and explanations about
Plan provisions.
- Respond to requests for literature.
- Allow participants to change their deferral and after-tax
percentages and provide updates via EDT for the Sponsor to
apply to its payrolls accordingly.
- Maintain and process changes to participants' contribution
allocations for all money sources.
- Process exchanges between investment options on a daily
basis.
- Process in-service withdrawals due to certain circumstances
previously approved by the Sponsor.
- Process hardship withdrawals as directed and approved by
the Sponsor.
- Consult with participants on various loan scenarios and
generate all documentation
- Process loan requests according to written direction
provided by the Sponsor.
B) PLAN ACCOUNTING
1. Process consolidated payroll contributions according to the
Sponsor's payroll frequency via EDT, consolidated magnetic tape or
diskette. The data format will be provided by Trustee.
2. Maintain and update employee data necessary to support plan
administration. The data will be submitted according to payroll
frequency.
3. Provide daily Plan and participant level accounting for all Plan
investment options.
4. Provide daily Plan and participant level accounting for all money
classifications for the Plan.
5. Audit and reconcile the Plan and participant accounts daily.
6. Reconcile and process participant withdrawal requests and
distributions 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.
7. 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.
8. Maintain and process changes to participants' deferral percentage
and prospective and existing investment mix elections.
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C) PARTICIPANT REPORTING
1. Mail confirmation to participants of all participant initiated
transactions within three to five 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 not later than twenty
(20) calendar days after the end of each quarter in the absence of
unusual circumstances.
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) calendar 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) calendar
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
preparation of Form 5500 in accordance with the procedures set
forth in Schedule "A-1" attached hereto.
F) COMMUNICATION & EDUCATION SERVICES
1. Design, produce and distribute a customized comprehensive
communications program for employees. The program may include
multimedia informational materials, investment education and
planning materials, access to the Trustee's homepage on the
Internet and STAGES magazine. Additional fees for such services
apply as mutually agreed upon between the Sponsor and the Trustee.
2. Provide Fidelity PortfolioPlanner(SM), an internet-based
educational service for participants that generates target asset
allocations and model portfolios customized to investment options
in the Plan(s) based upon methodology provided by Strategic
Advisers, Inc., an affiliate of the Trustee. The Sponsor
acknowledges that it has received the ADV Part II for Strategic
Advisers, Inc. more than 48 hours prior to executing this
Agreement.
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G) OTHER
1. Perform non-discrimination limitation testing upon request. In
order to obtain this service, the Sponsor shall be required to
provide the information identified in the Fidelity Discrimination
Testing Package Guidelines. Any fees and restrictions associated
with this testing service shall be addressed in such 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 the distribution. If the MRD
participant does not respond to the Trustee's notification, the
Sponsor directs the Trustee to automatically begin the required
distribution for the participant.
3. The Fidelity Participant Recordkeeping System is available on-line
to the Sponsor via the Plan Sponsor Webstation ("PSW"). PSW is a
graphical, Windows-based application that provides current plan
and participant-level information, including indicative data,
account balances, activity and history.
4. De Minimus Distributions: After a participant terminates
employment and is eligible for a distribution. Fidelity will
determine whether the vested account balance exceeds $5,000,
exceeded $5,000 at any prior distribution or in-service withdrawal
date in the account history at Fidelity, or exceeds $5,000 at the
end of the warning period (at least 30 days, but not more than 70
days, from the determination date). If not, Fidelity will process
a mandatory and immediate cashout, subject only to the requirement
to offer a rollover opportunity. The $5,000 threshold will
increase or decrease as the IRS may from time to time amend this
threshold in Internal Revenue Code Section 411(a)(11).
5. Roll-In Processing. The Trustee shall process the qualification of
rollover contributions to the Trust. The procedures for qualifying
a rollover are directed by the Sponsor and the Trustee shall
accept or deny each rollover based upon the Plan's written
criteria and any written guidelines provided by the Administrator
and documented in the Plan Administrative Manual, or, if none, as
set forth below:
To process a rollover request the participant must obtain the
signature from the distributing plan, trustee or custodian, on the
designated form, certifying that the monies distributed originally
came from a qualified plan and have not been commingled with any
non-eligible money. If a signature cannot be obtained a signed
letter from the distributing plan, trustee or custodian on its
Company letterhead will also be acceptable.
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Requests that do not meet the specified criteria will be returned
to the participant with further an explanation as to why the
request cannot be processed. If the Sponsor or the Trustee
determine that a request is not a valid rollover, the fall amount
of the requested rollover will be distributed to the participant.
SYBASE, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: By:
----------------------------------- ------------------------------------
Date Vice President Date
21
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FORM 5500 SERVICE
Effective for Form 5500, applicable schedules and Summary Annual Report ("SAR")
prepared for plan year ending month, date, 200_ and thereafter, Fidelity
Management Trust Company/ FIIOC ("Fidelity") agrees to provide its Signature
Ready Form 5500 Service ("Service"), in accordance with the following:
1. The Sponsor hereby agrees to:
a. If Fidelity's Non-Discrimination Testing ("NDT") services are
used, submit NDT data by one and one half (1 1/2) months following
the plan's year end, which will be performed pursuant to a
separate Non Discrimination Testing Services Agreement;
b. If Fidelity did not prepare the plan's prior year Form 5500,
submit a copy of the most recent Form 5500 filed with the Internal
Revenue Service ("IRS");
c. If the plan's assets were transferred to Fidelity at any time
during the plan year, submit a draft or final copy of the audited
financial statements from the prior recordkeeper;
d. Provide Fidelity with complete and accurate plan data in the
required format, including a completed plan questionnaire
("Questionnaire") as soon as possible after the plan's year end
but which may be no later than the last day of the 8th month
following the plan's year-end (assuming a filing extension has
been requested);
e. In the event that Fidelity has not received all data required to
complete a Form 5500 within five and one half (5 1/2) months after
the plan year end, the Sponsor hereby authorizes Fidelity to
prepare and execute IRS Form 5558 (Application for Extension) on
behalf of the Plan Administrator and file Form 5558 with the IRS
in order to obtain an extension of the filing deadline;
f. Review, sign and mail the Form 5500 prepared by Fidelity to the
IRS in a timely manner;
g. Distribute the SAR to participants and beneficiaries in a timely
manner;
h. Elect the Service prior to the last day of the plan year for which
the Form 5500 would be required; and
i. Respond to and provide any other information, requested by
Fidelity, related to the Form 5500.
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26
2. Fidelity hereby agrees to:
a. Provide the Sponsor with the Questionnaire within one and one-half
(1 1/2) months after the plan's year-end. Fidelity shall have no
responsibility for verifying the authenticity or accuracy of the
data submitted by the Sponsor on the Questionnaire;
b. File Form 5558 to request an extension of time to file Form 5500
if all required data is not received from the Sponsor within five
and one half (5 1/2) months after the plan's year end, as
specified above;
c. If all requested information is received later than 8 months after
the plan's year-end (assuming a filing extension has been filed),
Fidelity will not prepare your company's Form 5500. The Plan
Sponsor shall be responsible for completing the Form 5500 for
filing with the IRS. Fidelity shall not be held responsible for
any late fees or penalties for incomplete filings caused by the
Sponsor's delay, in the event that Fidelity does not receive the
required information within 8 month's after the plan's year end;
d. Provide the Sponsor with Form 5500 at least ten (10) days prior to
the required filing date and SAR at least ten (10) days prior to
the required mailing date assuming the plan sponsor has submitted
the required documents and has met the filing deadlines as
outlined in this agreement, which may be no later than the 8 month
following the plan's year end;
e. Respond to inquiries from the IRS received by the Sponsor, related
to any Form 5500 prepared by Fidelity.
3. Fees related to this service are set out on Schedule "B" to the Agreement
to which this schedule is attached and as follows: $1,000 per plan that
submit all required information within 5 1/2 months following the plan's
year end. $2,000 if all required information is received after 5 1/2
months following the plan's year-end. $100 per hour for any revisions
requested by the plan sponsor after Fidelity has initially prepared and
submitted the Form 5500 to the Sponsor.
SYBASE, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: By:
--------------------------------- -----------------------------------
Date Vice President Date
23
27
SCHEDULE "B"
FEE SCHEDULE
Annual Participant Fee: $0 per participant* per year.
Enrollments by Phone: Waived
Loan Fee: Establishment fee and annual fee waived for
all outstanding loan accounts on April 30,
2000 and on the first 200 loan accounts
established per year. All loan accounts in
addition to the first 200 per year shall be
charged a one-time establishment fee of
$75.00 per loan account.
Minimum Required Distribution: Withdrawal fee waived for the first ten (10)
MRD withdrawals per year. Withdrawals in
addition to the first ten (10) per year shall
be charged $25.00 per participant per MRD
withdrawal.#
In-Service Withdrawals by Phone: Withdrawal fee waived for the first 100
in-service withdrawals per year. All
in-service withdrawals in addition to the
first 100 per year shall be charged $20.00
per withdrawal.#
Plan Sponsor Webstation (PSW): Two User I.D.'s provided free of charge.
Each additional I.D., $500.00 per year.
Return of Excess Contribution Fee: $25.00 per participant, one-time charge per
calculation and check generation.#
Non-Fidelity Mutual Funds: Non-Fidelity Mutual Fund vendors shall pay
service fees directly to Fidelity
Institutional Retirement Services Company
equal to a percentage (generally 25 or 35
basis points) of plan assets invested in such
Non-Fidelity Mutual Funds.
Signature Ready 5500: Waived.
# SEE SCHEDULE "I" FOR PERFORMANCE STANDARDS.
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* Other Fees: separate charges for optional non-discrimination testing,
extraordinary expenses resulting from large numbers of simultaneous
manual transactions, from errors not caused by the Trustee, reports not
contemplated in this Agreement, corporate actions, or the provision of
communications materials in hard copy which are also accessible to
participants via electronic services in the event that the provision of
such material in hard copy would result in an additional expense deemed
to be material. The Administrator may direct the Trustee to withdraw
reasonable administrative fees from the Trust by written direction to the
Trustee.
Note: These fees have been negotiated and accepted based on the following Plan
characteristics: current plan assets of $153.9 million, current participation of
3,200 participants, total Fidelity actively managed Mutual Fund assets of $52.2
million, total Non-Fidelity Mutual Fund assets of $74.6 million, and projected
net cash flows of $5.0 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.
SYBASE, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: By:
------------------------------- ------------------------------------
Date Vice President Date
25
29
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:
- Fidelity Retirement Money Market Portfolio
- Fidelity Equity-Income Fund
- Fidelity Fund
- Spartan(R) U.S. Equity Index Fund
- PIMCO Total Return Fund - Administrative Class
- PAX World Fund
- MFS Mass Investors Trust - Class A
- Undiscovered Behavioral Growth Fund - Investors Class
- Xxxxxxxxx Foreign Fund A
- Xxxxxx International Growth Fund - Class A
The Named Fiduciary hereby directs that the investment option referred to
in Section 4(c) shall be Fidelity Retirement Money Market Portfolio.
SYBASE, INC.
By:
-----------------------------
Date
26
30
SCHEDULE "D"
April 14, 2000
Xx. Xxx XxXxxxxxxx
Fidelity Investments Institutional Operations Company, Inc.
00 Xxxxxxxxxx Xxxxxx-XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
SYBASE, INC. 401(k) PLAN
Dear Xx. XxXxxxxxxx:
This letter is sent to you in accordance with Section 7(b) of the Trust
Agreement, dated as of May 1, 2000, between Sybase, Inc. and Fidelity Management
Trust Company. I hereby designate Xxxxx Xxxxxxx, Xxxxxx Xxxxx-Xxxxxxx, and Xxxxx
Xxxx, 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 I deliver to you written notice of the termination of authority of
a designated individual.
Very truly yours,
Xxx Xxxx
--------------------------
Xxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxx-Xxxxxxx
--------------------------
Xxxxx Xxxx
31
SCHEDULE "E"
April 14, 2000
Xx. Xxx XxXxxxxxxx
Fidelity Investments Institutional Operations Company, Inc.
00 Xxxxxxxxxx Xxxxxx - XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
SYBASE, INC. 401(k) PLAN
Dear Xx. XxXxxxxxxx:
This letter is sent to you in accordance with Section 7(c) of the Trust
Agreement, dated as of May 1, 2000, between Sybase, Inc. and Fidelity Management
Trust Company. I hereby designate Xxxx Xxxxx-Xxx, Xxx Xxxx, and Xxxxx Xxxx 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 I deliver to you written notice of the termination authority of a
designated individual.
Very truly yours,
Xxx Xxxx
--------------------------
Xxxx Xxxxx-Xxx
--------------------------
Xxx Xxxx
--------------------------
Xxxxx Xxxx
32
XXXXXX, XXXXXXXXXX
& SUTCLIFFE LLP
May 24, 2000
Internet Direct Dial
xxx@xxxxxx.xxx (000) 000-0000
VIA FEDERAL EXPRESS
Administrative Committee under the
Sybase, Inc. 401(k) Plan
c/o Ms. Xxxxxx Xxxxxxx
Human Resources Department
Sybase, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: QUALIFIED STATUS OF THE SYBASE, INC. 401(k) PLAN (THE "PLAN")
Ladies/Gentlemen:
Pursuant to the trust agreement for the Plan, and which is to be executed
by Sybase, Inc. ("Sybase"), as sponsor of the Plan, and Fidelity Management
Trust Company, as trustee ("Fidelity"), you have asked for our opinion regarding
the qualified status of the Plan.
The qualified status of a profit sharing or other retirement plan
(including a profit sharing plan which includes a cash or deferred arrangement),
such as the Plan, can be confirmed in advance by applying for a determination
letter from the Internal Revenue Service (the "IRS"). Such a determination
letter relates only to a plan's status as a qualified plan under the Internal
Revenue Code of 1986, as amended (the "Code"), and further relates to the
provisions of the Plan document and its related trust agreement and not to its
operation. Therefore, this opinion is similarly limited.
You have advised us that Sybase has not yet applied for a determination
letter regarding the qualified status of the Plan under legislation subsequent
to the Tax Reform Act of 1986. We understand the Plan was adopted effective as
of January 1, 1998. We further understand that Sybase will apply for a
determination letter regarding the Plan within the remedial amendment period
applicable to the Plan. You have advised us (and we assume for present purposes)
that Sybase intends to adopt all such amendments to the Plan (or its related
trust agreement) as may be necessary or appropriate in order to assure that it
will obtain the favorable determination letter described above, or (in the
alternative) to seek a favorable determination from the United States Tax Court
and to appeal any adverse judicial decision, or (lastly) to discontinue the
Plan.
33
Administrative Committee under
the Sybase, Inc. 401(k) Plan
May 24, 2000
Page Two
You have asked that our opinion confirm that the provisions of the
written document constituting the Plan comply with the pertinent qualification
requirements of section 401(a) and related provisions of the Code. We have
reviewed the provisions of the Plan document. The compliance of the Plan with
the qualification requirements of section 401(a) and related provisions of the
Code is determinable as to form (but not as to operation) on the basis of the
formal plan and trust documents. Moreover, determinations as to the Plan's
compliance with such requirements are made in the first instance by the IRS and
ultimately by the courts.
Subject to the foregoing and based on Sybase's assurances (described
above) regarding the determination letter application to be filed with respect
to the Plan, it is our opinion that the provisions of the Plan document comply
in all material respects, or will so comply if retroactively amended as
described above, with the qualification requirements of section 401(a) and
related provisions of the Code. We hereby consent to your release, of a copy of
this opinion to Fidelity or Fidelity Investments Institutional Operations
Company, Inc. (as applicable) and its counsel (but to no other person without
our consent).
Very truly yours,
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
By:
-------------------------------------
Xxxxxxx X. Xxxxxxx
cc: Xxxxx Xxxxxxxxxxx
34
SCHEDULE "G"
EXCHANGE GUIDELINES
The following exchange guidelines are currently employed by Fidelity Investments
Institutional Operations Company, Inc. ("FIIOC").
Exchange hours, via a participant service representative, are 8:30 a.m. ET to
8:00 p.m. in the participant's time zone in the continental United States on
each business day. A "business day" is any day on which the New York Stock
Exchange ("NYSE") is open.
Exchanges via VRS and the internet may be made virtually 24 hours a day.
FIIOC 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. ET shall mean the
NYSE closing time as altered.
INVESTMENT OPTIONS
EXCHANGES BETWEEN INVESTMENT OPTIONS
Participants may call on any business day to exchange between the
investment options. If the request is confirmed before 4:00 p.m. ET, it
will receive that day's trade date. Requests confirmed after 4:00 p.m. ET
will be processed on a next business day basis.
SYBASE, INC.
By:
---------------------------------
Date
30
35
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.
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36
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.
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SCHEDULE "I"
PERFORMANCE STANDARDS
The standards set forth in this Schedule shall apply to the performance
of certain administrative services under this Agreement. The Trustee and the
Sponsor agree that these standards shall not be in effect, for purposes of
determining any penalty, until the completion of the initial conversion of the
Plan and will not apply to any corporate actions until they have fully converted
to the Trustee.
1. PHONE SERVICES
A. Standards.
(1) Participants' calls shall be answered within no greater
than 20 seconds, 85% of the time. A penalty shall apply in
the event that participants' calls are answered within no
greater than 20 seconds, less than or equal to 80% of the
time.
(2) No greater than 3% of participants' calls shall be
abandoned. A penalty shall apply in the event that greater
than or equal to 5% of participants' calls are abandoned.
B. Exceptions.
The call abandonment rate referenced above shall not apply to
calls abandoned in the first 20 seconds of the call.
2. PARTICIPANT STATEMENTS & CHECKS
A. Standards
(1) Participant quarterly statements shall be mailed within 20
calendar days following the close of the calendar quarter.
A penalty shall apply in the event that such statements are
mailed more than 20 calendar days following the close of
the calendar quarter.
(2) Participant checks shall be mailed within 5 calendar days
of processing. A penalty shall apply in the event that such
checks are mailed more than 5 calendar days from the date
of processing.
Note: The date of processing is the day in which the transaction
is processed during a nightly update cycle on our recordkeeping
system. This time frame is not associated with the date in which
the request was made.
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B. Exceptions
Committee or third party delays which cause Trustee's delay,
including but not limited to Sybase's failure to provide
information to the Trustee within the time frames set forth in the
Plan Administrative Manual or time frames as otherwise agreed to
by the parties in writing.
3. PLAN SPONSOR REPORTS
A. Standards
(1) Trial Balance Reports shall be mailed within 20 calendar
days following the close of the month. A penalty shall
apply in the event that such Trial Balance Reports are
mailed more than 20 calendar days following the close of
the month.
(2) Administrative Reports shall be mailed within 20 calendar
days following the close of the calendar quarter. A penalty
shall apply in the event that such Administrative Reports
are mailed more than 20 calendar days following the close
of the calendar quarter.
B. Exceptions
Committee or third party delays which cause the Trustee's delay,
including but not limited to Sybase's failure to provide
information to the Trustee within the time frames set forth in the
Plan Administrative Manual or time frames as otherwise agreed to
by the parties in writing.
The performance standards set forth above will be reviewed on a semi-annual
basis by the Sponsor and the Trustee. If during any one semi-annual review
period the Trustee has failed to meet any of these performance standards, the
Trustee shall waive the fees (as set forth on Schedule "B") for the services
listed below during the subsequent six (6) month period, as follows:
RETURN OF EXCESS CONTRIBUTIONS
FEE WAIVER: This fee will be waived for all Return of Excess checks
processed during the subsequent six (6) month period, not to
exceed a total of 100 Return of Excess checks during a
calendar year period. Each check beyond 100 during a calendar
year will be assessed the $25 charge.
MINIMUM REQUIRED DISTRIBUTION
FEE WAIVER: This fee will be waived for all Minimum Required Distribution
checks processed during the subsequent six (6) month period,
not to exceed a total often (10) Minimum Required
Distribution checks during a
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calendar year period. Each check beyond ten (10) during a
calendar year will be assessed the $25 charge.
IN-SERVICE WITHDRAWALS BY PHONE
FEE WAIVER: This fee will be waived for all In-Service Withdrawal checks
processed during the subsequent six (6) month period, not to
exceed a total of 100 In-Service Withdrawal checks during a
calendar year period. Each check beyond 100 during a calendar
year will be assessed the $20 charge.
SYBASE, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: By:
------------------------------- -----------------------------------
Date Vice President Date
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