VOYAGER GROUP, INC : Master Trust Agreement.
TABLE OF CONTENTS
ARTICLE 1 Name, Intentions, Irrevocability, Deposit and Definitions............
1.1 Name.................................................................
1.2 Intentions...........................................................
1.3 Irrevocability; Creditor Claims......................................
1.4 Initial Deposit......................................................
1.5 Additional Definitions................................................
1.6 Grantor Trust.......................................................
ARTICLE 2 General Administration...............................................
2.1 Committee Directions.................................................
2.2 Administration upon Change in Control.................................
2.3 Contributions.......................................................
2.4 Trust Fund...........................................................
2.5 Distribution of Excess Trust Fund to Employer........................
ARTICLE 3 Powers and Duties of Trustee.........................................
3.1 Investment Directions................................................
3.2 Investment upon Change in Control....................................
3.3 Management of Investments............................................
3.4 Securities...........................................................
3.5 Substitution.........................................................
3.6 Distributions........................................................
3.7 Trustee Responsibility Regarding Payments on Insolvency..............
3.8 Costs of Administration..............................................
3.9 Trustee Compensation and Expenses....................................
3.10 Professional Advice..................................................
3.11 Payment on Court Order...............................................
3.12 Protective Provision.................................................
3.13 Indemnifications.....................................................
ARTICLE 4 Insurance Contracts..................................................
4.1 Types of Contracts....................................................
4.2 Ownership............................................................
4.3 Restrictions on Trustee's Rights.....................................
ARTICLE 5 Trustee's Accounts...................................................
5.1 Records..............................................................
5.2 Annual Accounting: Final Accounting..................................
5.3 Valuation............................................................
5.4 Delegation of Duties.................................................
ARTICLE 6 Resignation or Removal of Trustee....................................
6.1 Resignation Removal..................................................
6.2 Successor Trustee....................................................
6.3 Settlement of Accounts...............................................
ARTICLE 7 Controversies, Legal Actions and Counsel.............................
7.1 Controversy..........................................................
7.2 Joinder of Parties...................................................
7.3 Employment of Counsel................................................
ARTICLE 8 Insurers.............................................................
8.1 Insurer Not a Party..................................................
8.2 Authority of Trustee.................................................
8.3 Contract Ownership...................................................
8.4 Limitation of Liability..............................................
8.5 Change of Trustee....................................................
ARTICLE 9 Amendment and Termination............................................
9.1 Amendment............................................................
9.2 Final Termination....................................................
ARTICLE 10 Miscellaneous.......................................................
10.1 Directions Following Change in Control...............................
10.2 Taxes................................................................
10.3 Third Persons........................................................
10.4 Nonassignability: Nonalienation......................................
10.5 The Plans............................................................
10.6 Applicable Law.......................................................
10.7 Notices and Directions...............................................
10.8 Successors and Assigns................................................
10.9 Gender and Number.....................................................
10.10 Headings............................................................
10.11 Counterparts........................................................
10.12 Third Party Beneficiaries...........................................
VOYAGER
MASTER TRUST AGREEMENT
FOR
DEFERRED COMPENSATION PLANS
THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") is made and entered into
as of April 18,2001, between VOYAGER GROUP, INC, a California corporation (the
"Company"), and Voting Trust Company Inc, a Delaware corporation (the
"Trustee"), to evidence the master trust (the "Trust") to be established,
pursuant to any nonqualified deferred compensation plan or plans of the Company
now or hereafter existing (each, a "Plan," together, the "Plans") that require
or authorize the establishment of a trust, for the benefit of a select group of
management, highly compensated employees and/or Directors who contribute
materially to the continued growth development and business success of the
Company and those subsidiaries of the Company, if any, that participate in the
Plans (collectively, "Subsidiaries," or singularly, "Subsidiary").
ARTICLE I
NAME, INTENTIONS, IRREVOCABILITY,
DEPOSIT AND DEFINITIONS
1.1 NAME. The name of the Trust created by this Agreement (the "Trust") shall be
the Voyager Group Deferred Compensation Trust.
1.2 INTENTIONS. The Company wishes to establish the Trust and to contribute to
the Trust assets that shall be held therein, subject to the claims of the
Company's and the Subsidiaries' creditors in the event of their Insolvency, as
herein defined, until paid to Participants and their Beneficiaries in such
manner and at such times as specified in the Plans. It is the intention of the
parties that this Trust shall not affect the status of the Plans as unfounded
plans maintained for providing supplemental compensation for a select group of
management, highly compensated employees and/or Directors for purposes of Title
I of ERISA (as defined below). In addition, it is the intention of the Company
and the Subsidiaries to make contributions to the Trust to provide themselves
with a source of funds to assist them in the meeting of their liabilities under
the Plans.
1.3 IRREVOCABILITY; CREDIT CLAIMS. The Trust hereby established shall be
irrevocable. Except as otherwise provided in Section 2.5 and 9.2, the principal
of the Trust, and any earnings thereon, shall be held separate and apart from
other funds of the Company and the Subsidiaries and shall be used exclusively
for the uses and purposes of the Participants and general creditors of the
Company and the Subsidiaries as herein set forth. The Participants and their
Beneficiaries shall have no preferred claim on, or any beneficial ownership
interest in, any assets of the Trust. Any rights created under the Plans and
this Master Trust Agreement shall be mere unsecured contractual rights of the
Participants and their Beneficiaries against the Company and the Subsidiaries.
Any assets held by the Trust will be subject to the claims of the Company and
the Subsidiaries' general creditors under federal and state law in the event of
Insolvency (as defined below).
1.4 INITIAL DEPOSIT. The Company hereby deposits with the Trustee in trust XXXX,
which shall become the principal of the Trust to be held, administered and
disposed of by the Trustee as provided in this Master Trust Agreement.
1.5 ADDITIONAL DEFINITIONS. In addition to the definitions set forth above, for
purposes hereof, unless otherwise clearly apparent from the context, the
following terms have the following indicated meanings:
(a) "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with a Plan, that are entitled to
receive benefits under a Plan upon the death of a Participant.
(b) "Board" shall mean the board of directors of the Company.
(c) "Change in Control" shall mean the first to occur of any of the
following events:
(1) Any "person" (as that term is used in Section 13 and 14(d)(2)
of the Securities Exchange Act of 1934 ("Exchange Act")), after the date
hereof becomes the beneficial owner (as that term is used in Section 13(d)
of the Exchange Act), directly or indirectly, of 50 percent or more of the
Company's capital stock entitled to vote in the election of directors;
(2) During any period of two consecutive years, individuals who at
the beginning of such period constitute the Board cease for any reason to
constitute at least a majority thereof, under the election or nomination
for election by the Company's shareholders of each new director was
approved by a vote of at least three-quarters of the directors then still
in office who either were directors at the beginning of the period;
(3) Any consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the holders of the common
stock of the Company immediately prior to the consolidation or merger hold
more than 50 percent of the common stock of the surviving corporation
immediately after the consolidation or merger;
(4) The shareholders of the Company approve any plan or proposal
for the liquidation or dissolution of the Company; or
(5) Substantially all of the assets of the Company are sold or
otherwise transferred to parties that are not within a "controlled group of
corporations" (as defined in Section 1563 of the Internal Revenue Code of
1986, as amended) in which the Company is a member.
(d) "Committee" shall mean the Deferred Compensation Committee appointed by
the Board of Directors of the Company to administer the Plans.
(e) "Director" shall mean any member of the board of directors of the
Company or any Subsidiary.
(f) "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as may be amended from time to time.
(g) "Insolvent" shall have the meaning set forth in Section 3.7(a) below.
(h) "Insolvent Entity" shall have the meaning set forth in Section 3.7(a)
below.
(i) "IRS" shall mean the Internal Revenue Service.
(j) "Participant" shall mean a person who is a participant in one or more
of the Plans in accordance with their terms and conditions.
(k) "Payment Schedule" shall have the meaning set forth in Section 3.6(b)
below.
(1) "Plan(s)" shall mean one or more of the executive deferral plans
established now or in the future by the Company that require or authorize
the establishment of a trust.
(m) "Trust Fund" shall mean the assets held by the Trustee pursuant to the
terms of this Master Trust Agreement and for the purposes of the Plans.
1.6 GRANTOR TRUST. The Trust is intended to be a "grantors trust," of which the
Company, and the Subsidiaries are the grantors, within the meaning of subpart E,
part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended. and the Trust shall be construed accordingly.
ARTICLE 2
GENERAL ADMINISTRATION
2.1 COMMITTEE DIRECTIONS. Until a Change in Control has occurred, this Section
2.1 shall be effective and the Committee shall direct the Trustee as to the
administration of the Trust in accordance with the following provisions:
(a) The Committee shall be identified to the Trustee by a written
certification of the Board. Persons authorized to give directions to the
Trustee on behalf of the Committee shall be identified to the Trustee by
written notice from the Committee, and such notice shall contain specimens
of the authorized signatures. The Trustee shall be entitled to rely on such
written notice as evidence of the identity and authority of the persons
appointed until a written cancellation of the appointment, or the written
appointment of a successor, is received by the Trustee.
(b) Directions by the Committee, or its delegate, to the Trustee shall be
in writing and signed by the Committee or persons authorized by the
Committee, or may be made by such other method as is acceptable to the
Trustee.
(c) The Trustee may conclusively rely upon directions from the Committee in
taking any action with respect to this Master Trust Agreement, including
the making of payments from the Trust Fund and the investment of the Trust
Fund pursuant to this Master Trust Agreement. The Trustee shall have no
liability for actions taken, or for failure to act, on the direction of the
Committee. The Trustee shall have no liability for failure to act in the
absence of proper written directions.
(d) The Trustee may request instructions from the Committee and shall have
no duty to act or liability for failure to act if such instructions are not
forthcoming from the Committee. If requested instructions are not received
within a reasonable time, the Trustee may, but is under no duty to, act on
its own discretion to carry out the provisions of this Master Trust
Agreement in accordance with this Master Trust Agreement and the Plans.
2.2 ADMINISTRATION UPON CHANGE IN CONTROL. In the event of a Change in Control,
the authority of the Committee to administer the Trust and direct the Trustee,
as set forth in Section 2.1 above, shall cease, and the Trustee shall have
complete authority to administer the Trust.
2.3 CONTRIBUTIONS. The Company and the Subsidiaries, in their sole discretion,
may at any time, or from time to time, makes additional deposits of cash or
other property in trust with the Trustee to augment the principal to be held,
administered and disposed of by the Trustee as provided in this Master Trust
Agreement. Neither the Trustee nor any Participant or Beneficiary shall have any
right to compel such additional deposits. The Trustee shall have no duty to
collect or enforce payment to it of any contributions or to require that any
contributions be made, and shall have no duty to compute any amount neither to
be paid to it nor to determine whether amounts paid comply with the terms of the
Plans.
2.4 TRUST FUND. The contributions received by the Trustee from the Company and
the Subsidiaries shall be held and administered pursuant to the terms of this
Master Trust Agreement as a single fund without distinction between income and
principal and without liability for the payment of interest thereon except as
expressly provided in this Master Trust Agreement. During the term of this
Trust, all income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
2.5 DISTRIBUTION OF EXCESS TRUST FUND TO EMPLOYER. In the event that the
Committee, prior to a Change in Control, or the Trustee in its sole and absolute
discretion, after a Change in Control, determines that the Trust Fund assets
consisting solely of cash or cash equivalents exceed 120 percent of the
anticipated benefit obligations and administrative expenses that are to be paid
under the Plans, the Trustee, but only at the direction of the Committee and
only prior to a Change in Control, shall distribute to the Company and the
Subsidiaries such excess portion of the Trust Fund. After a Change in Control,
assets may be distributed to the Company or Subsidiary only as provided in
Section 9.2 hereof.
ARTICLE 3
POWERS AND DUTIES OF TRUSTEE
3.1 INVESTMENT DIRECTIONS. Except as provided in Section 3.2, the Committee
shall provide the Trustee with all investment instructions. The Trustee shall
neither affect nor change investments of the Trust Fund, except as directed in
writing by the Committee, and shall have no right, duty or responsibility to
recommend investments or investment changes; provided, that the Trustee may (i)
deposit cash on hand from time to time in any bank savings account, certificate
of deposit, or other instrument creating a deposit liability for a bank,
including the Trustee's own banking department if the Trustee is a bank, without
such prior direction, or (ii) invest in government securities, bonds with
specific ratings, or stock of "Fortune 500" companies, all within broad
investment guidelines established by the Committee from time to time.
3.2 INVESTMENT UPON CHANGE IN CONTROL. In the event of a Change in Control, the
authority of the Committee to direct investments of the Trust Fund shall cease
and the Trustee shall have complete authority to direct investments of the Trust
Fund; provided that, except to the extent it is clearly prudent not to do so,
the Trustee shall retain any investments in life insurance policies and do all
that is necessary to maintain such policies. The president of the Company shall
notify the Trustee in writing when a Change in Control has occurred. The Trustee
has no duty to inquire whether a Change in Control has occurred and may rely on
notification by the president of the Company of a Change in Control; provided,
however, that if any officer, former officer, director or former director of the
Company or any Subsidiary (other than the president of the Company), or any
Participant notifies the Trustee that there has been or there may be a Change in
Control, the Trustee shall have the duty to satisfy itself as to whether a
Change in Control has in fact occurred. The Company and the Subsidiaries shall
indemnify and hold harmless the Trustee for any damages or costs (including
attorneys' fees) that may be incurred because of reliance on the president's
notice or lack thereof.
3.3 MANAGEMENT OF INVESTMENTS. Subject to Section 3.1 above, the Trustee shall
have, without exclusion, all powers conferred on the Trustee by applicable law,
unless expressly provided otherwise herein, and all rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with
Participants. The Trustee shall have full power and authority to invest and
reinvest the Trust Fund in any investment permitted by law, exercising the
judgment and care that persons of prudence, discretion and intelligence would
exercise under the circumstances then prevailing, considering the probable
income and safety of their capital, including, without limiting the generality
of the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the income there
from, in common stock, preferred stock, convertible preferred stock, mutual
funds, bonds, debentures, convertible debentures and bonds, mortgages,
notes, time certificates of deposit, commercial paper and other evidences
of indebtedness (including those issued by the Trustee or any of its
affiliates), other securities, policies of life insurance, annuity
contracts, options to buy or sell securities or other assets, and other
property of any kind (personal, real, or mixed, and tangible or
intangible); provided, however, that in no event may the Trustee invest in
securities (including stock or rights to acquire stock) or obligations
issued by the Company or the Subsidiaries, other than a de minimis amount
held in common investment vehicles in which the Trustee invests;
(b) To deposit or invest all or any part of the assets of the Trust Fund in
savings accounts or certificates of deposit or other deposits which bear a
reasonable interest rate in a bank, including the commercial department of
the Trustee, if such bank is supervised by the United States or any State;
(c) To hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust Fund and to sell, convey, transfer,
exchange, partition, lease for any term, even extending beyond the duration
of this Trust, and otherwise dispose of the same from time to time in such
manner, for such consideration, and upon such terms and conditions as the
Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and privileges of
an owner, including the power to give proxies, pay assessments and other
sums deemed by the Trustee to be necessary for the protection of the Trust
Fund, to vote any corporate stock either in person or by proxy, with or
without power of substitution, for any purpose; to participate in voting
trusts, pooling agreements, foreclosures, reorganizations, consolidations,
mergers and liquidations, and in connection therewith to deposit securities
with and transfer title to any protective or other committee under such
terms as the Trustee may deem advisable; to exercise or sell stock
subscriptions or conversion rights; and, regardless of any limitation
elsewhere in this instrument relative to
investment by the Trustee, to accept and retain as an investment any
securities or other property received through the exercise of any of the
foregoing powers;
(e) To hold in cash, without liability for interest, such portion of the
Trust Fund which, in its discretion, shall be reasonable under the
circumstances, pending investments, or payment of expenses, or the
distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the
Trust Fund from loss due to the default on mortgages held in the Trust,
including the appointment of agents or trustees in such other jurisdictions
as may seem desirable, to transfer property to such agents or trustees, to
grant such powers as are necessary or desirable to protect the Trust or its
assets, to direct such agents or trustees, or to delegate such power to
direct, and to remove such agents or trustees;
(g) To employ such agents including custodians and counsel as may be
reasonably necessary and to pay them reasonable compensation; to settle,
compromise or abandon all claims and demands in favor of or against the
Trust assets;
(h) To cause title to property of the Trust to be issued, held or
registered in the individual name of the Trustee, or in the name of its
nominee(s) or agents, or in such form that title will pass by delivery;
(i) To exercise all of the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under the laws of
the State of California, so that the powers conferred upon the Trustee
herein shall not be in limitation of any authority conferred by law, but
shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to execute
promissory notes, mortgages or other obligations and to pledge or mortgage
any Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other securities
to any brokerage or other firm selected by the Trustee;
(l) To institute, compromise and defend actions and proceedings; to pay or
contest any claim; to settle a claim by or against the Trustee by
compromise, arbitration, or otherwise; to release, in whole or in part, any
claim belonging to the Trust to the extent that the claim is uncollectible;
(m) To use securities depositories or custodians and to allow such
securities as may be held by a depository or custodian to be registered in
the name of such depository or its nominee or in the name of such custodian
or its nominee;
(n) To invest the Trust Fund from time to time in one or more investment
funds, which funds shall be registered under the Investment Company Act of
1940; and
(o) To do all other acts necessary or desirable for the proper
administration of the Trust Fund, as if the Trustee were the absolute owner
thereof However, nothing in this section shall be construed to mean the
Trustee assumes any responsibility for the performance of any investment
made by the Trustee in its capacity as trustee under the operations of this
Master Trust Agreement.
Notwithstanding any powers granted to the Trustee pursuant to this Master Trust
Agreement or to applicable law, the Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
there from, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code of
1986, as amended.
3.4 SECURITIES. Voting or other rights in securities shall be exercised by the
person or entity responsible for directing such investments, and the Trustee
shall have no duty to exercise voting or proxy or other rights relating to any
investment managed or directed by the Committee. If any foreign securities are
purchased pursuant to the direction of the Committee, it shall be the
responsibility of the person or entity responsible for directing such
investments to advise the Trustee in writing of any laws or regulations, either
foreign or domestic, those apply to such foreign securities or to the receipt of
dividends or interest on such securities.
3.5 SUBSTITUTION. Notwithstanding any provision of any Plan or the Trust to the
contrary, the Company and/or any Subsidiary shall at all times have the power to
reacquire the Trust Fund by substituting readily marketable securities (other
than stock, an obligation or other security issued by the Company or any
Subsidiary) and/or cash of an equivalent value and such other property shall,
following such substitution, constitute the Trust Fund.
3.6 DISTRIBUTIONS.
(a) The establishment of the Trust and the payment or deliver, to the
Trustee of money or other property shall not vest in any Participant or
Beneficiary any right, title, or interest in and to any assets of the Trust.
To the extent that any Participant or Beneficiary acquires the right to
receive payments under any of the Plans, such right shall be no greater than
the right of an unsecured general creditor of the Company and the
Subsidiaries and such Participant or Beneficiary shall have only the
unsecured promise of the Company and the Subsidiaries that such payments
shall be made.
(b) Concurrent with the establishment of this Trust, the Company shall
deliver to the Trustee a schedule (the "Payment Schedule") that indicates
the amounts payable in respect of each Participant (and his or her
Beneficiaries) on a Plan by Plan basis, that provides a formula or formulas
or other instructions acceptable to the Trustee for determining the amounts
so payable, the form in which such amount is to be paid (as provided for or
available under the applicable Plans), and the time of commencement for
payment of such amounts. The Payment Schedule shall be updated from time to
time as is necessary. Except as otherwise provided herein, prior to a
Change in Control the Trustee shall make payments to the Participants and
their Beneficiaries in accordance with such Payment Schedule. Despite the
foregoing, after a Change in Control, the Trustee shall make payments in
accordance with the terms and provisions of each of the Plans and related
plan agreements. The Trustee, at the direction of the Committee or, after a
Change in Control, on its own volition, may make any distribution required
to be made by it hereunder by delivering:
(i) Its check payable to the person to whom such distribution is to be
made, to the person, or, if prior to a Change in Control, to the
Company for redelivery to such person; provided that before a Change
in Control, the Committee may direct the Trustee to deliver one or
more lump sum checks payable to the Company, and the Company shall
prepare and deliver individual checks for each Participant or
Beneficiary; or
(ii) Its check payable to an insurer for the benefit of such person,
to the insurer or, if prior to a Change in Control, to the Company for
redelivery to the insurer; or
(iii) Contracts held on the life of the Participant to whom or with
respect to whom the distribution is being made, to the Participant or
Beneficiary, or, if before a Change in Control, to the Company for
redelivery to the person to whom such distribution is to be made; or
(iv) If a distribution is being made, in whole or in part, of other
assets, assignments or other appropriate documents or certificates
necessary to effect a transfer of title, to the Participant or
Beneficiary, or, if before a Change in Control, to the Company for
redelivery to such person.
(c) If the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the terms of the
Plans, the Company and the Subsidiaries shall make the balance of each such
payment as it falls due. The Trustee shall notify the Company and the
Subsidiaries when principal and earnings are not sufficient.
(d) The Company and the Subsidiaries may make payment of benefits directly
to Participants or their Beneficiaries as they become due under the terms
of the Plans. The Company and the Subsidiaries shall notify the Trustee of
their decisions to make payment of benefits directly prior to the time
amounts are payable to Participants or their Beneficiaries.
(e) Notwithstanding anything contained in this Master Trust Agreement to
the contrary, if at any time the Trust is finally determined by the IRS not
to be a "grantor trust" with the result that the income of the Trust Fund
is not treated as income of the Company or the Subsidiaries pursuant to
Sections 671 through 679 of the Internal Revenue Code of 1986, as amended
or if a tax is finally determined by the IRS to be payable by one or more
Participants or Beneficiaries with respect to any interest in the Plans or
the Trust Fund before payment of such interest to such Participant or
Beneficiary, then the Trust shall immediately terminate, the Trustee shall
immediately determine each Participant's share of the Trust Fund in
accordance with the Plans, and the Trustee shall immediately distribute
such share in a lump sum to each Participant or Beneficiary entitled
thereto, regardless of whether such Participant's employment has terminated
and regardless of form and time of payments specified in or pursuant to the
Plans. Any remaining assets (less any expenses or costs due under Sections
3.8 and 3.9 of this Master Trust Agreement) shall then be paid by the
Trustee to the Company and the Subsidiaries in such amounts, and in the
manner instructed by the Committee. Prior to a Change in Control, the
Trustee shall rely solely on the directions of the Committee with respect
to the occurrence of the foregoing events and the resulting distributions
to be made, and the Trustee shall not be responsible for any failure to act
in the absence of such direction.
(f) The Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the Plans and
shall pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid by the
Company and the Subsidiaries.
(g) Prior to a Change in Control, payments by the Trustee shall be
delivered or mailed to addresses supplied by the Committee and the
Trustee's obligation to make such payments shall be satisfied upon such
delivery or mailing. Prior to a Change in Control, the Trustee shall have
no obligation to determine the identity of persons entitled to benefits or
their mailing addresses. After a Change in Control, the Trustee shall have
such obligations.
(h) Prior to a Change in Control, the entitlement of a Participant or his
or her Beneficiaries to benefits under the Plans shall be determined by the
Company and the Subsidiaries or such party as they shall designate under
the Plans, and any claim for such benefits shall be considered and reviewed
under the procedures set out in the Plans.
3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.
(a) As provided in Section 3.7(b), the Trustee shall cease payment of
benefits to Participants and their Beneficiaries if the Company or any
Subsidiary is Insolvent (the "Insolvent Entity"). The Insolvent Entity
shall be considered "Insolvent" for purposes of this Master Trust Agreement
if:
(i) the Insolvent Entity is unable to pay its debts as the, become
due, or
(ii) the Insolvent Entity is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
For purposes of this Section 3.7, if an entity is determined to be Insolvent,
each Subsidiary in which such entity has an equity interest shall also be deemed
to be an Insolvent Entity. However, the insolvency of a Subsidiary will not
cause a parent corporation to be deemed Insolvent.
(b) At all times during the continuance of this Trust, as provided in Section
1.3 above, the principal and income of the Trust shall be subject to claims of
the general creditors of the Company and its Subsidiaries under federal and
state law as set forth below:
(i) The Board and the president of the Company shall have the duty to
inform the Trustee in writing of the Company's or any Subsidiary's
Insolvency. If a person claiming to be a creditor of the Company or any
Subsidiary alleges in writing to the Trustee that the Company or any
Subsidiary has become Insolvent, the Trustee shall determine whether the
Company or any Subsidiary is Insolvent and, pending such determination, the
Trustee shall discontinue payment of benefits to the Insolvent Entity's
Participants or their Beneficiaries. Prior to a Change in Control, the
Trustee may conclusively rely on any determination it receives from the
Board or the president of the Company with respect to the Insolvency of the
Company or any Subsidiary.
(ii) Unless the Trustee has actual knowledge of the Company's or a
Subsidiary's Insolvency, or has received notice from the Company, a
Subsidiary, or a person claiming to be a creditor alleging that the Company
or a Subsidiary is Insolvent, the Trustee shall have no duty to inquire
whether the Company or any Subsidiary is Insolvent. The Trustee may in all
events rely on such evidence concerning the Company's or any Subsidiary's
solvency as may be furnished to the Trustee and that provides the Trustee
with a reasonable basis for making a determination concerning the Company's
or any Subsidiary's solvency. In this regard, the Trustee may rely upon a
letter from the Company's or a Subsidiary's auditors as to the Company's or
any Subsidiary's financial status.
(iii) If at any time the Trustee has determined that the Company or any
Subsidiary is Insolvent, the Trustee shall discontinue payments to the
Insolvent Entity's Participants or their Beneficiaries, and shall hold the
portion of the assets of the Trust allocable to the Insolvent Entity for
the benefit of the Insolvent Entity's general creditors. Nothing in this
Master Trust Agreement shall in any way diminish any rights of Participants
or their Beneficiaries to pursue their rights as general creditors of the
Insolvent Entity with respect to benefits due under the Plans or otherwise.
(iv) The Trustee shall resume the payment of benefits to Participants or
their Beneficiaries in accordance with this Article 3 of this Master Trust
Agreement only after the Trustee has determined that the alleged Insolvent
Entity is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3.7(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to
Participants or their Beneficiaries by the Company or any Subsidiary in lieu of
the payments provided for hereunder during any such period of discontinuance.
Prior to a Change in Control, the Committee shall instruct the Trustee as to
such amounts, and after a Change in Control, the Trustee shall determine such
amounts in accordance with the terms and provisions of the Plans.
3.8 COSTS OF ADMINISTRATION. The Trustee is authorized to incur reasonable
obligations in connection with the administration of the Trust, including
attorneys' fees, administrative fees and appraisal fees. Such obligations shall
be paid by the Company and the Subsidiaries. The Trustee is authorized to pay
such amounts from the Trust Fund if the Company or the Subsidiaries fail to pay
them within 60 days of presentation of a statement of the amounts due.
3.9 TRUSTEE COMPENSATION AND EXPENSES. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed upon
between the Trustee and the Company. If the Trustee and the Company fail to
agree upon a compensation, or following a Change in Control, the Trustee shall
be entitled to compensation at a rate equal to the rate charged by the Trustee
for similar services rendered by it during the current fiscal year for other
trusts similar to this Trust. The Trustee shall be entitled to reimbursement for
expenses incurred by it in the performance of its duties as the Trustee,
including reasonable fees for legal counsel. The Trustee's compensation and
expenses shall be paid by the Company and the Subsidiaries. The Trustee is
authorized to withdraw such amounts from the Trust Fund if the Company or the
Subsidiaries fail to pay them within 60 days of presentation of a statement of
the amounts due.
3.10 PROFESSIONAL ADVICE. The Company and the Subsidiaries specifically
acknowledge that the Trustee may find it desirable or expedient to retain legal
counsel (who may also be legal counsel for the Company generally) or other
professional advisors to advise it in connection with the exercise of any duty
under this Master Trust Agreement including, but not limited to, any matter
relating to or following a Change in Control or the Insolvency of the Company or
any Subsidiary. The Trustee shall be fully protected in acting upon the advice
of such legal counsel or advisors.
3.11 PAYMENT ON COURT ORDER. To the extent permitted by law, the Trustee is
authorized to make any payments directed by court order in any action in which
the Trustee has been named as a party. The Trustee is not obligated to defend
actions in which the Trustee is named, but shall notify the Company or Committee
of any such action and may tender defense of the action to the Company,
Committee or Participant or Beneficiary whose interest is affected. The Trustee
may in its discretion defend any action in which the Trustee is named, and any
expenses incurred by the Trustee shall be paid by the Company and the
Subsidiaries. The Trustee is authorized to pay such amounts from the Trust Fund
if the Company or the Subsidiaries fail to pay them within sixty (60) days of
presentation of a statement of the amounts due.
3.12 PROTECTIVE PROVISION. Notwithstanding any other provision contained in this
Master Trust Agreement to the contrary, the Trustee shall have no obligation to
(i) determine the existence of any conversion, redemption, exchange,
subscription or other right relating to any securities purchased of which notice
was given prior to the purchase of such securities and shall have no obligation
to exercise any such right unless the Trustee is advised in writing by the
Committee both of the existence of the right and the desired exercise thereof
within a reasonable time prior to the expiration of the right to exercise, or
(ii) advance any funds to the Trust. Furthermore, the Trustee is not a party to
the Plans.
3.13 INDEMNIFICATIONS.
(a) The Company and the Subsidiaries shall indemnify and hold the Trustee
harmless from and against all loss or liability (including expenses and
reasonable attorneys' fees) to which it may be subject by reason of its
execution of its duties under this Trust, or by reason of any acts taken in
good faith in accordance with any directions, or acts omitted in good faith
due to absence of directions, from the Company, the Committee or a
Participant, unless such loss or liability is due to the Trustee's
negligence or willful misconduct. The indemnity described herein shall be
provided by the Company and the Subsidiaries.
(b) In the event that the Trustee is named as a defendant in a lawsuit or
proceeding involving one or more of the Plans or the Trust Fund, the
Trustee shall be entitled to receive on a current basis the indemnity
payments provided for in this Section, provided however that if the final
judgement entered in the lawsuit or proceeding holds that the Trustee is
guilty of gross negligence or willful misconduct with respect to the Trust
Fund, the Trustee shall be required to refund the indemnity payments that
it has received.
(c) All releases and indemnities provided in this Master Trust Agreement
shall survive the termination of this Master Trust Agreement.
ARTICLE 4
INSURANCE CONTRACTS
4.1 TYPES OF CONTRACTS. To the extent that the Trustee is directed by the
Committee prior to a Change in Control to invest part or all of the Trust Fund
in insurance contracts, the type and amount thereof shall be specified by the
Committee. The Trustee shall be under no duty to make inquiry as to the
propriety of the type or amount so specified.
4.2 OWNERSHIP. Each insurance contract issued shall provide that the Trustee
shall, subject to Section 3.7 hereof, be the owner thereof with the power to
exercise all rights, privileges, options and elections granted by or permitted
under such contract or under the rules of the insurer. The exercise by the
Trustee of any incidents of ownership under any contract shall, prior to a
Change in Control, be subject to the direction of the Committee.
4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS. The Trustee shall have no power to name a
beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than to a
successor Trustee, or to loan to any person the proceeds of any borrowing
against such policy. Except as the Committee may direct prior to a Change in
Control, the Trustee may not (i) loan to the Company or any Subsidiary the
proceeds of any borrowing against an insurance policy held in the Trust Fund or
(ii) except as provided in Section 9.2 hereof, assign all, or any portion, of a
policy to the Company or any Subsidiary.
ARTICLE 5
TRUSTEE'S ACCOUNTS
5.1 RECORDS. The Trustee shall maintain accurate records and detailed accounts
of all investments, receipts, disbursements and other transactions hereunder.
Such records shall be available at all reasonable times for inspection by the
Company and Subsidiaries or their authorized representative. The Trustee, at the
direction of the Committee shall submit to the Committee and to any insurer such
valuations, reports or other information as the Committee may reasonably require
and, in the absence of fraud or bad faith, the valuation of the Trust Fund by
the Trustee shall be conclusive.
5.2 ANNUAL ACCOUNTING: FINAL ACCOUNTING.
(a) Within 60 days following the end of each Plan Year and within 60 days
after the removal or resignation of the Trustee or the termination of the
Trust, the Trustee shall file with the Committee a written account setting
forth a description of all properties purchased and sold, all receipts,
disbursements and other transactions effected by it during the Plan Year
or, in the case of removal, resignation or termination, since the close of
the previous Plan Year, and listing the properties held in the Trust Fund
as of the last day of the Plan Year or other period and indicating their
values. Such values shall be either cost or market as directed by the
Committee in accordance with the terms of the Plans.
(b) The Committee may approve such account either by written notice of
approval delivered to the Trustee or by its failure to express written
objection to such account delivered to the Trustee within 60 days after the
date of which such account was delivered to the Committee.
(e) The approval by the Committee of an accounting shall be binding as to
all matters embraced in such accounting on all parties to this Master Trust
Agreement and on all Participants and Beneficiaries, to the same extent as
if such accounting had been settled by a judgment or decree of a court of
competent jurisdiction in which the Trustee, the Committee, the Company,
the Subsidiaries and all persons having or claiming any interest in any
Plan or Trust Fund were made parties.
(d) Despite the foregoing, nothing, contained in this Master Trust
Agreement shall deprive the Trustee of the right to have an accounting
judicially settled, if the Trustee, in the Trustee's sole discretion,
desires such a settlement.
5.3 VALUATION. The assets of the Trust Fund shall be valued at their respective
fair market values on the date of valuation, as determined by the Trustee based
upon such sources of information as it may deem reliable, including, but not
limited to, stock market quotations, statistical evaluation services, newspapers
of general circulation, financial publications, advice from investment
counselors, brokerage firms or insurance companies, or any combination of
sources. Prior to a Change in Control, the Committee shall instruct the Trustee
as to the value of assets for which market values are not readily obtainable by
the Trustee. If the Committee fails to provide such values, the Trustee may take
whatever action it deems reasonable, including employment of attorneys,
appraisers, life insurance companies or other professionals, the expense of
which shall be an expense of administration of the Trust Fund and payable by the
Company and the Subsidiaries. The Trustee may rely upon information from the
Company and the Subsidiaries, the Committee, appraisers or other sources and
shall not incur any liability for an inaccurate valuation based in good faith
upon such information.
5.4 DELEGATION OF DUTIES. The Company or the Committee, or both, may at any time
employ the Trustee as their agent to perform any act, keep any records or
accounts and make any computations that are required of the Company, any
Subsidiary or the Committee by this Master Trust Agreement or the Plans. The
Trustee may be compensated for such employment and such employment shall not be
deemed to be contrary to the Trust. Nothing done by the Trustee as such agent
shall change or increase its responsibility or liability as Trustee hereunder.
ARTICLE 6
RESIGNATION OR REMOVAL OF TRUSTEE
6.1 RESIGNATION REMOVAL. The Trustee may resign at any time by written notice to
the Company, which shall be effective 60 days after receipt of such notice
unless the Company and the Trustee agree otherwise. Prior to a Change in
Control, the Trustee may be removed by the Company on 60 days notice or upon
shorter notice accepted by the Trustee. After a Change in Control, the Trustee
may be removed by a majority vote of the Participants, and if a Participant is
dead, his or her Beneficiaries (who collectively shall have one vote among them
and shall vote in place of such deceased Participant), on 60 days notice or upon
shorter notice accepted by the Trustee.
6.2 SUCCESSOR TRUSTEE. If the Trustee resigns or is removed, a successor shall
be appointed by the Company, in accordance with this Section, by the effective
date of the resignation or removal under Section 6.1 above. The successor shall
be a bank, trust company, or similar independent third party that is granted
corporate trustee powers under state law. After the occurrence of a Change in
Control, a successor Trustee may not be appointed without the consent of a
majority of the Participants. If no such appointment has been made, the Trustee
may apply to a court of competent jurisdiction for appointment of a successor or
for instructions. All expenses of the Trustee in connection with the proceeding
shall be allowed as administrative expenses of the Trust.
6.3 SETTLEMENT OF ACCOUNTS. Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within 90 days after
receipt of notice of resignation, removal or transfer, unless the Company
extends the time limit. Upon the transfer of the assets, the successor Trustee
shall succeed to all of the powers and duties given to the Trustee in this
Master Trust Agreement. The resigning or removed Trustee shall render to the
Committee an account in the form and manner and at the time prescribed in
Section 5.2. The approval of such accounting and discharge of the Trustee shall
be as provided in such Section.
ARTICLE 7
CONTROVERSIES, LEGAL ACTIONS AND COUNSEL
7.1 CONTROVERSY. If any controversy arises with respect to the Trust, the
Trustee shall take action as directed by the Committee or, in the absence of
such direction or after a Change in Control, as it deems advisable, whether by
legal proceedings, compromise or otherwise. The Trustee may retain the funds or
property involved without liability pending settlement of the controversy. The
Trustee shall be under no obligation to take any legal action of whatever nature
unless there shall be sufficient property in the Trust to indemnify the Trustee
with respect to any expenses or losses to which it may be subjected.
7.2 JOINDER OF PARTIES. In any action or other judicial proceedings affecting
the Trust, it shall be necessary to join as parties the Trustee, the Committee,
the Company and the Subsidiaries. No Participant or other person shall be
entitled to any notice or service of process. Any judgment entered in such a
proceeding or action shall be binding on all persons claiming under the Trust.
Nothing in this Master Trust Agreement shall be construed as to deprive a
Participant or Beneficiary of his or her right to seek adjudication of his or
her rights by administrative process or by a court of competent jurisdiction.
7.3 EMPLOYMENT OF COUNSEL. The Trustee may consult with legal counsel (who may
be counsel for the Company or any Subsidiary) and shall be fully protected with
respect to any action taken or omitted by it in good faith pursuant to the
advice of counsel.
ARTICLE 8
INSURERS
8.1 INSURER NOT A PARTY. No insurer shall be deemed to be a party to the Trust
and an insurer's obligations shall be measured and determined solely by the
terms of contracts and other agreements executed by it.
8.2 AUTHORITY OR TRUSTEE. An insurer shall accept the signature of the Trustee
to any documents or papers executed in connection with such contracts. The
signature of the Trustee shall be conclusive proof to the insurer that the
person on whose life an application is being made is eligible to have a contract
issued on his or her life and is eligible for a contract of the type and amount
requested.
8.3 CONTRACT OWNERSHIP. An insurer shall deal with the Trustee as the sole and
absolute owner of any insurance contracts and shall have no obligation to
inquire whether any action or failure to act on the part of the Trustee is in
accordance with or authorized by the terms of the Plans or this Master Trust
Agreement.
8.4 LIMITATION OF LIABILITY. An insurer shall be fully discharged from any and
all liability for any action taken or any amount paid in accordance with the
direction of the Trustee and shall have no obligation to see the proper
application of the amounts so paid. An insurer shall have no liability for the
operation of the Trust or the Plans, whether or not in accordance with their
terms and provisions.
8.5 CHANGE OF TRUSTEE. An insurer shall be fully discharged from any and all
liability for dealing with a party or parties indicated on its records to be the
Trustee until such time as it shall receive at its home office written notice of
the appointment and qualification of a successor Trustee.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 AMENDMENT. Subject to the limitations set forth in this Section 9.1, this
Master Trust Agreement may be amended by a written instrument executed by the
Trustee and the Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plans or shall make the Trust revocable after it
has become irrevocable in accordance with Section 1.3 above. Any amendment,
change or modification shall be subject to the following rules:
(a) GENERAL RULE. Subject to Sections 9.1(b), (c) and (d) below, this
Master Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however, that if an
amendment would in any way adversely affect the rights accrued under
the Plans in the Trust Fund by any Participant or Beneficiary, each
and every Participant and Beneficiary whose rights in the Trust Fund
would be adversely affected must consent to the amendment before this
Master Trust Agreement may be so amended; and
(ii) By the Company and the Trustee as may be necessary to comply with
laws which would otherwise render the Trust void, voidable or invalid
in whole or in part.
(b) LIMITATION. Notwithstanding that, an amendment may be permissible under
Section 9.1(a) above, this Master Trust Agreement shall not be amended by
an amendment that would:
(i) Cause any of the assets of the Trust to be used for or diverted to
purposes other than for the exclusive benefit of Participants and
Beneficiaries as set forth in the Plans, except as is required to
satisfy the claims of the Company's or a Subsidiary's general
creditors; or
(ii) Be inconsistent with the terms of any Plan, including the terms
of any plan regarding termination, amendment or modification of the
plan
(c) WRITING AND CONSENT. Any amendment to this Master Trust Agreement shall
be set forth in writing and signed by the Company and the Trustee and, if
consent of any Participant or Beneficiary is required under Section 9.1(a),
the Participant or Beneficiary whose consent is required. Any amendment may
be current, retroactive or prospective, in each case as provided therein.
(d) THE COMPANY AND TRUSTEE. In connection with the exercise of the
rights under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall have no
responsibility to determine whether any proposed amendment complies
with the terms and conditions set forth in Sections 9.1(a) and (b)
above and may conclusively rely on the directions of the Committee
with respect thereto, unless the Trustee has knowledge of a proposed
transaction or transactions that would result in a Change in Control;
and
(ii) after a Change in Control, the power of the Company to amend this
Master Trust Agreement shall cease, and the power to amend that was
previously held by the Company shall, instead, be exercised by a
majority of the Participants and, if a Participant is dead, his or her
Beneficiaries (who collectively shall have one vote among them and
shall vote in place of such deceased Participant), with the consent of
the Trustee, provided that such amendment otherwise complies with the
requirements of Sections 9.1(a), (b) and (c) above.
(e) TAXATION. This Master Trust Agreement shall not be amended, altered,
changed or modified in a manner that would cause the Participants and/or
Beneficiaries under any Plan to be taxed on the benefits under any Plan in
a year other than the year of actual receipt of benefits.
9.2 FINAL TERMINATION. The Trust shall not terminate until the date on which
Participants and their Beneficiaries are no longer entitled to any benefits
pursuant to the terms of the Plans, and on such date the Trust shall terminate.
Upon termination of the Trust, any assets remaining in the Trust after the
satisfaction of all liabilities hereunder and under the Plans shall be returned
to the Company and the Subsidiaries. Such remaining assets shall be paid by the
Trustee to the Company and the Subsidiaries in such amounts and in the manner
instructed by the Company, whereupon the Trustee shall be released and
discharged from all obligations hereunder. From and after the date of
termination and until final distribution of the Trust Fund, the Trustee shall
continue to have all of the powers provided herein as are necessary or expedient
for the orderly liquidation and distribution of the Trust Fund.
ARTICLE 10
MISCELLANEOUS
10.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL. Despite any other provision of this
Master Trust Agreement that may be construed to the contrary, following a Change
in Control, all powers of the Committee, the Company and the Board to direct the
Trustee under this Master Trust Agreement shall terminate, and the Trustee shall
act on its own discretion to carry out the terms of this Master Trust Agreement
in accordance with the Plans and this Master Trust Agreement.
10.2 TAXES. The Company and the Subsidiaries shall from time to time pay taxes
of any and all kinds whatsoever that at any time are lawfully levied or assessed
upon or become payable in respect of the Trust Fund, the income or any property
forming a part thereof, or any security transaction pertaining thereto. To the
extent that any taxes lawfully levied or assessed upon the Trust Fund are not
paid by the Company and the Subsidiaries, the Trustee shall have the power to
pay such taxes out of the Trust Fund and shall seek reimbursement from the
Company and the Subsidiaries. Prior to making any payment, the Trustee may
require such releases or other documents from any lawful taxing authority as it
shall deem necessary. The Trustee shall contest the validity of taxes in any
manner deemed appropriate by the Company or its counsel, but at the Company's
and the Subsidiaries' expense, and only if it has received an indemnity bond or
other security satisfactory to it to pay any such expenses. Prior to a Change in
Control, the Trustee (i) shall not be liable for any nonpayment of tax when it
distributes an interest hereunder on directions from the Committee, and (ii)
shall have no obligation to prepare or file any tax return on behalf of the
Trust Fund, any such return being the sole responsibility of the Committee. The
Trustee shall cooperate with the Committee in connection with the preparation
and filing of any such return.
10.3 THIRD PERSONS. All persons dealing with the Trustee are released from
inquiring into the decisions or authority of the Trustee and from seeing to the
application of any moneys, securities or other property paid or delivered to the
Trustee.
10.4 NONASSIGNABILITY: NONALIENATION. Benefits payable to Participants and their
Beneficiaries under this Master Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable process.
10.5 THE PLANS. The Trust and the Plans are parts of a single, integrated
employee benefit plan system and shall be construed together, except to the
extent the rights of parties to each are determined uniquely under this Master
Trust Agreement or a Plan, as the case may be. In the event of any conflict
between the terms of this Master Trust Agreement and the agreements that
constitute the Plans, such conflict shall be resolved in favor of this Master
Trust Agreement.
10.6 APPLICABLE LAW. Except to the extent, if any, preempted by ERISA, this
Master Trust Agreement shall be governed by and construed in accordance with the
laws of the State of California. Any provision of this Master Trust Agreement
prohibited by law shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
10.7 NOTICES AND DIRECTIONS. Whenever a notice or direction is given by the
Committee to the Trustee, it shall be in the form required by Section 2.1.
Actions by the Company shall be by the Board or a duly authorized officer, with
such actions certified to the Trustee by an appropriately certified copy of the
action taken. The Trustee shall be protected in acting upon any such notice,
resolution, order, certificate or other communication believed by it to be
genuine and to have been signed by the proper party or parties.
10.8 SUCCESSORS AND ASSIGNS. This Master Trust Agreement shall be binding
upon and inure to the benefit of the Company, the Subsidiaries and the
Trustee and their respective successors and assigns.
10.9 GENDER AND NUMBER. Words used in the masculine shall also apply to the
feminine where applicable, and when the context requires, the plural shall be
read as the singular and the singular as the plural.
10.10 HEADINGS. Headings in this Master Trust Agreement are inserted for
convenience of reference only and any conflict between such headings and the
text shall be resolved in favor of the text.
10.11 COUNTERPARTS. This Master Trust Agreement may be executed in an original
and any number of counterparts, each of which shall be deemed to be an original
of one and the same instrument.
10.12 THIRD PARTY BENEFICIARIES. It is intended that wherever the rights and
obligations of the parties hereto require, or may be exercised only with, the
consent of any Participant or Beneficiary of a Plan, such third party shall be a
third party beneficiary of the parties' agreement hereunder and may initiate an
action in law or in equity in a court of competent jurisdiction to enforce any
right granted hereunder. If any action is initiated by a third party hereunder,
he or she shall be entitled to recover reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which the trust may
be entitled.
IN WITNESS WHEREOF, the Company and the Trustee have signed this Master Trust
Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
Voting Trust Company Voyager Group Inc
Inc, a Delaware corporation
a Nevada corporation
By: [sig] By: [sig]
-------------------------------- --------------------------------
Title: Chairman Title: DIRECTOR
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