TRUST AGREEMENT
TRUST AGREEMENT, dated as of the thirty-first day of
December, 1996, between INTERNATIONAL RECTIFIER CORPORATION,
a California corporation, having an office at 000 X. Xxxxxxxxx
Xxxx., Xx Xxxxxxx, Xxxxxxxxxx 00000-0000 (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 International
Rectifier Corporation Retirement Savings 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 Administration Committee (the "Named
Fiduciary") is the named fiduciary of the Plan (within the
meaning of section 402(a) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the
aforesaid plan assets in trust among several investment options
selected by the Named Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform
certain ministerial recordkeeping and administrative functions
under the Plan; and
WHEREAS, the Administrative Committee (the "Administrator")
is the administrator of the Plan (within the meaning of section
3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping
and administrative services for the Plan if the services are
purely ministerial in nature and are provided within a framework
of plan provisions, guidelines and interpretations conveyed in
writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements set forth below, the
Sponsor and the Trustee agree as follows:
Section 1. Trust. The Sponsor hereby establishes the
International Rectifier Corporation Retirement Savings Plan
Trust (the "Trust"), with the Trustee. The Trust shall consist
of an initial contribution of money or other property
acceptable to the Trustee in its sole discretion, made by the
Sponsor or transferred from a previous trustee under the Plan,
such additional sums of money and Sponsor Stock (hereinafter
defined) as shall from time to time be delivered to the Trustee
under the Plan, all investments made therewith and proceeds
thereof, and all earnings and profits thereon, less the payments
that are made by the Trustee as provided herein, without
distinction between principal and income. 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 prior to the satisfaction of all liabilities
with respect to the participants and their beneficiaries.
Section 3. Disbursements.
(a) Administrator Directed Disbursements. The Trustee shall
make disbursements in the amounts and in the manner that the
Administrator directs from time to time in writing. The
Trustee shall have no responsibility to ascertain such
direction's compliance with the terms of the Plan or of any
applicable law or the direction's effect for tax purposes or
otherwise; nor shall the Trustee have any responsibility to see
to the application of any disbursement.
(b) Participant Withdrawal Requests. The Administrator
hereby directs that, pursuant to the Plan, a participant
withdrawal request (full withdrawal) may be made by the
participant by telephone, and the Trustee shall process such
request only after the identity of the participant is verified
by use of a personal identification number ("PIN") and social
security number. The Trustee shall forward the withdrawal
document to the participant for 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 be required to make all disbursements in cash in
accordance with the hierarchy of investments to be converted
to cash as detailed in the Plan Administrative Manual unless
the Administrator has provided written directions 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 what investment options: (i) the Trust
shall be invested in 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 ("participant recordkeeping reconciliation period"),
and (ii) the investment options in which Plan participants may
invest, 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 ("Mutual
Funds"), (ii) equity securities issued by the Sponsor or
an affiliate which are publicly traded and which are
"qualifying employer securities" within the meaning of
section 407(d)(5) of ERISA ("Sponsor Stock"), (iii) notes
evidencing loans to Plan participants in accordance with
the terms of the Plan, and (iv) collective investment funds
maintained by the Trustee for qualified plans; provided,
however, that the Trustee shall be considered a fiduciary
with investment discretion only with respect to Plan assets
that are invested in collective investment funds maintained by
the Trustee for qualified plans. The investment options
initially selected by the Named Fiduciary are identified on
Schedules "A" and "C" attached hereto. The Named Fiduciary
may add additional investment options with the consent of the
Trustee and upon mutual amendment of this Trust Agreement and
the Schedules thereto to reflect such additions.
(c) Participant Direction. Each Plan participant shall direct
the Trustee in which investment option(s) to invest the assets
in the participant's individual accounts. Such directions may
be made by Plan participants by use of the telephone exchange
system maintained for such purposes by the Trustee or its agent,
in accordance with written Telephone 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 Sponsor hereby acknowledges that it
has received from the Trustee a copy of the prospectus for
each Mutual Fund selected by the Named Fiduciary as a Plan
investment option or short-term investment fund. 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
Sponsor in good order all information and documentation
necessary to accurately effect such purchases and sales (or
in the case of a purchase, the subsequent date on which the
Trustee has received a wire transfer of funds necessary to
make such purchase). Exchanges of Mutual Funds shall be made
in accordance with the Telephone 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 Sponsor shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the
Mutual Fund shares held in any short-term investment fund or
liquidity reserve. 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 participant recordkeeping reconciliation period, the
Sponsor shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote the shares of the
Mutual Funds in the Trust including Mutual Fund shares held
in any short-term investment fund for liquidity reserve.
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 Sponsor.
(e) Sponsor Stock. Trust investments in Sponsor Stock
shall be made via the IR Stock Fund (the "Stock Fund") which
shall consist of shares of Sponsor Stock and short-term liquid
investments, including Fidelity Institutional Cash Portfolios:
Money Market Portfolio: Class A or such other Mutual Fund or
commingled money market pool as agreed to by the Sponsor and
Trustee, necessary to satisfy the Fund's cash needs for
transfers and payments. A cash target range shall be
maintained in the Stock Fund. Such target range may be changed
as agreed to in writing by the Sponsor and the Trustee. The
Trustee is responsible for ensuring that the actual cash held
in the Stock Fund falls within the agreed upon range over time.
Each participant's proportional interest in the Stock Fund shall
be measured in units of participation, rather than shares of
Sponsor Stock. Such units shall represent a proportionate
interest in all of the assets of the Stock Fund, which includes
shares of Sponsor Stock, short-term investments and at times,
receivables for dividends and/or Sponsor Stock sold and
payables for Sponsor Stock purchased. A Net Asset Value
("NAV") per unit will be determined daily for each unit
outstanding of the Stock Fund. The return earned by the Stock
Fund will represent a combination of the dividends paid on
the shares of Sponsor Stock held by the Stock Fund, gains
or losses realized on sales of Sponsor Stock, appreciation
or depreciation in the market price of those shares owned,
and interest on the short-term investments held by the
Stock Fund. Dividends received by the Stock Fund are
reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shall be subject to the
following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the
Trust may be invested in Sponsor Stock to the extent necessary
to comply with investment directions under Section 4(c) of
this Agreement.
(ii) Fiduciary Duty of Named Fiduciary. The Named
Fiduciary shall continually monitor the suitability under the
fiduciary duty rules of section 404(a)(1) of ERISA (as modified
by section 404(a)(2) of ERISA) of acquiring and holding Sponsor
Stock. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the directions of
the Named Fiduciary with respect to the acquisition and holding
of Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited
by the foregoing fiduciary duty rules or would be contrary to
the terms of the Plan or this Agreement.
(iii) Execution of Purchases and Sales. (A) Purchases
and sales of Sponsor Stock (other than for exchanges) shall be
made on the open market on the date on which the Trustee
receives from the Sponsor in good order all information and
documentation necessary to accurately effect such purchases and
sales (or, in the case of purchases, the subsequent date on
which the Trustee has received a wire transfer of the funds
necessary to make such purchases). Exchanges of Sponsor Stock
shall be made in accordance with the Telephone Exchange
Guidelines attached hereto as Schedule "G". Such general
rules shall not apply in the following circumstances:
(1) If the Trustee is unable to purchase or sell
the total number of shares required to be purchased or sold on
such day as a result of market conditions; or
(2) If the Trustee is prohibited by the Securities
and Exchange Commission, the New York Stock Exchange, or any
other regulatory body from purchasing or selling any or all of
the shares required to be purchased or sold on such day.
In the event of the occurrence of the circumstances
described in (1) or (2) above, the Trustee shall purchase or
sell such shares as soon as possible thereafter and shall
determine the price of such purchases or sales to be the
average purchase or sales price of all such shares purchased
or sold, respectively. The Trustee may follow directions from
the Named Fiduciary to deviate from the above purchase and
sale procedures provided that such direction is made in writing
by the Named Fiduciary.
(B) Purchases and Sales from or to Sponsor. If
directed by the Sponsor in writing prior to the trading date,
the Trustee may purchase or sell Sponsor Stock from or to the
Sponsor if the purchase or sale is for adequate consideration
(within the meaning of section 3(18) of ERISA) and no
commission is charged. If Sponsor contributions or
contributions made by the Sponsor on behalf of the participants
under the Plan are to be invested in Sponsor Stock, the
Sponsor may transfer Sponsor Stock in lieu of cash to the
Trust. In either case, the number of shares to be
transferred will be determined by dividing the total amount
of Sponsor Stock to be purchased or sold by the 4:00 p.m.
closing price of the Sponsor Stock on the New York Stock
Exchange on the trading date.
(C) Use of an Affiliated Broker. The Sponsor hereby
directs the Trustee to use Fidelity Brokerage Services, Inc.
("FBSI") to provide brokerage services in connection with any
purchase or sale of Sponsor Stock in accordance with directions
from Plan participants. FBSI shall execute such directions
directly or through its affiliate, National Financial Services
Company ("NFSC"). The provision of brokerage services shall be
subject to the following:
(1) As consideration for such brokerage services,
the Sponsor agrees that FBSI shall be entitled to remuneration
under this authorization provision in the amount of three and
one-half cents ($.035) commission on each share of Sponsor Stock.
Any change in such remuneration may be made only by a signed
agreement between Sponsor and Trustee.
(2) Following the procedures set forth in
Department of Labor Prohibited Transaction Class Exemption
86-128, the Trustee will provide the Sponsor with the following
documents: (1) a description of FBSI's brokerage placement
practices; (2) a copy of PTCE 86-128; and (3) a form by which
the Sponsor may terminate this authorization to use a broker
affiliated with the Trustee. The Trustee will provide the
Sponsor with this termination form annually, as well as
quarterly and annual reports which summarize all securities
transaction-related charges incurred by the Plan, and the
Plan's annualized turnover rate.
(3) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions,
shall, upon consummation of such transaction, become the
successor broker in accordance with the terms of this
authorization provision.
(4) The Trustee and FBSI shall continue to rely
on this authorization provision until notified to the contrary.
The Sponsor reserves the right to terminate this authorization
upon sixty (60) days' written notice to FBSI (or its successor)
and the Trustee, in accordance with Section 11 of this Agreement.
(iv) Securities Law Reports. The Named Fiduciary shall
be responsible for filing all reports required under Federal or
state securities laws with respect to the Trust's ownership of
Sponsor Stock, including, without limitation, any reports
required under section 13 or 16 of the Securities Exchange Act
of 1934, and shall immediately notify the Trustee in writing
of any requirement to stop purchases or sales of Sponsor Stock
pending the filing of any report. The Trustee shall provide to
the Named Fiduciary such information on the Trust's ownership
of Sponsor Stock as the Named Fiduciary may reasonably request
in order to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement, the provisions of this Section
shall govern the voting and tendering of Sponsor Stock. The
Sponsor, after consultation with the Trustee, shall provide
and pay for all printing, mailing, tabulation and other costs
associated with the voting and tendering of Sponsor Stock.
(A) Voting. (1) When the issuer of the Sponsor Stock
prepares for any annual or special meeting, the Sponsor shall
notify the Trustee thirty (30) days in advance of the intended
record date and shall cause a copy of all materials to be
sent to the Trustee. Based on these materials, the Trustee
shall prepare a voting instruction form. At the time of
mailing of notice of each annual or special stockholders'
meeting of the issuer of the Sponsor Stock, the Sponsor
shall cause a copy of the notice and all proxy solicitation
materials to be sent to each Plan participant with an
interest in Sponsor Stock held in the Trust, together with
the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the
proportional interest in the number of full and fractional
shares of Sponsor Stock credited to the participant's accounts
held in the Stock Fund. The Sponsor shall provide the Trustee
with a copy of any materials provided to the participants and
shall certify to the Trustee that the materials have been
mailed or otherwise sent to participants.
(2) Each participant with an interest in the Stock
Fund shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote (including not to vote)
that number of shares of Sponsor Stock reflecting such
participant's proportional interest in the Stock Fund (both
vested and unvested). Directions from a participant to the
Trustee concerning the voting of Sponsor Stock shall be
communicated in writing, or by mailgram or similar means.
These directions shall be held in confidence by the Trustee
and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person. Upon its receipt of
the directions, the Trustee shall vote the shares of Sponsor
Stock reflecting the participant's proportional interest in
the Stock Fund as directed by the participant. The Trustee
shall not vote shares of Sponsor Stock reflecting a
participant's proportional interest in the Stock Fund for
which it has received no direction from the participant.
(B) Tender Offers. (1) Upon commencement of a
tender offer for any securities held in the Trust that are
Sponsor Stock, the Sponsor shall notify each Plan participant
with an interest in such Sponsor Stock of the tender offer
and utilize its best efforts to timely distribute or cause
to be distributed to the participant the same information
that is distributed to shareholders of the issuer of Sponsor
Stock in connection with the tender offer, and, after
consulting with the Trustee, shall provide and pay for a
means by which the participant may direct the Trustee whether
or not to tender the Sponsor Stock reflecting such
participant's proportional interest in the Stock Fund
(both vested and unvested). The Sponsor shall provide the
Trustee with a copy of any material provided to the
participants and shall certify to the Trustee that the
materials have been mailed or otherwise sent to participants.
(2) Each participant shall have the right to direct
the Trustee to tender or not to tender some or all of the
shares of Sponsor Stock reflecting such participant's
proportional interest in the Stock Fund (both vested and
unvested). Directions from a participant to the Trustee
concerning the tender of Sponsor Stock shall be communicated
in writing, or by mailgram or such similar means as is agreed
upon by the Trustee and the Sponsor under the preceding
paragraph. These directions shall be held in confidence by
the Trustee and shall not be divulged to the Sponsor, or any
officer or employee thereof, or any other person except to the
extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services
hereunder. The Trustee shall tender or not tender shares of
Sponsor Stock as directed by the participant. The Trustee
shall not tender shares of Sponsor Stock reflecting a
participant's proportional interest in the Stock Fund for which
it has received no direction from the participant.
(3) A participant who has directed the Trustee to
tender some or all of the shares of Sponsor Stock reflecting
the participant's proportional interest in the Stock Fund may,
at any time prior to the tender offer withdrawal date, direct
the Trustee to withdraw some or all of the tendered shares
reflecting the participant's proportional interest, and the
Trustee shall withdraw the directed number of shares from the
tender offer prior to the tender offer withdrawal deadline.
Prior to the withdrawal deadline, if any shares of Sponsor
Stock not credited to participants' accounts have been
tendered, the Trustee shall redetermine the number of
shares of Sponsor Stock that would be tendered under Section
4(e)(v)(B)(3) if the date of the foregoing withdrawal were
the date of determination, and withdraw from the tender
offer the number of shares of Sponsor Stock not credited to
participants' accounts necessary to reduce the amount of
tendered Sponsor Stock not credited to participants' accounts
to the amount so redetermined. A participant shall not be
limited as to the number of directions to tender or withdraw
that the participant may give to the Trustee.
(4) A direction by a participant to the Trustee
to tender shares of Sponsor Stock reflecting the participant's
proportional interest in the Stock Fund shall not be considered
a written election under the Plan by the participant to
withdraw, or have distributed, any or all of his withdrawable
shares. The Trustee shall credit to each proportional interest
of the participant from which the tendered shares were taken
the proceeds received by the Trustee in exchange for the
shares of Sponsor Stock tendered from that interest. Pending
receipt of directions (through the Administrator) from the
participant or the Named Fiduciary, as provided in the Plan,
as to which of the remaining investment options the proceeds
should be invested in, the Trustee shall invest the proceeds
in the Mutual Fund described in Schedule "C".
(vi) Shares Credited. For all purposes of this Section,
the number of shares of Sponsor Stock deemed "credited" or
"reflected" to a participant's proportional interest shall
be determined as of the last preceding valuation date. The
trade date is the date the transaction is valued.
(vii) General. With respect to all rights other than
the right to vote, the right to tender, and the right to
withdraw shares previously tendered, in the case of Sponsor
Stock credited to a participant's proportional interest in the
Stock Fund, the Trustee shall follow the directions of the
participant and if no such directions are received, the
directions of the Named Fiduciary. The Trustee shall have no
duty to solicit directions from participants. With respect to
all rights other than the right to vote and the right to
tender, in the case of Sponsor Stock not credited to
participants' accounts, the Trustee shall follow the
directions of the Named Fiduciary.
(viii) Conversion. All provisions in this Section 4(e)
shall also apply to any securities received as a result of a
conversion of Sponsor Stock.
(f) Notes. The Administrator shall act as the Trustee's
agent for participant loan notes and as such shall (i) collect
and remit all principal and interest payments to the Trustee
and (ii) keep the proceeds of such loans separate from the
other assets of the Administrator and clearly identify such
assets as Plan assets. 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. The Trustee shall distribute the loan note with the
proceeds check to the participant. The Trustee also shall
distribute truth-in-lending disclosure 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.
(g) Participation in Commingled Pools. To the extent that
the Named Fiduciary selects as an investment option the Managed
Income Portfolio of the Fidelity Group Trust for Employee
Benefit Plans (the "Group Trust"), the Sponsor hereby
(i) agrees to the terms of the Group Trust and adopts said
terms as a part of this Agreement and (ii) acknowledges that
it has received from the Trustee a copy of the Group Trust,
the Declaration of Separate Fund for the Managed Income
Portfolio of the Group Trust, and the Circular for the
Managed Income Portfolio.
(h) Reliance of Trustee on Directions. (i) The Trustee
shall not be liable for any loss, or by reason of any breach,
which arises from any participant's exercise or non-exercise of
rights under this Section 4 over the assets in the
participant's accounts.
(ii) The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the Named Fiduciary's
exercise or non-exercise of rights under this Section 4, unless
it was clear on their face that the actions to be taken under
the Named Fiduciary's directions were prohibited by the
fiduciary duty rules of section 404(a) of ERISA or were
contrary to the terms of the Plan or this Agreement.
(i) Trustee Powers. The Trustee shall have the following
powers and authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of this
Section 4, to sell, exchange, convey, transfer, or otherwise
dispose of any property held in the Trust, by private contract
or at public auction. No person dealing with the Trustee shall
be bound to see to the application of the purchase money or
other property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other
disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4,
to invest in guaranteed investment contracts and short term
investments (including interest bearing accounts with the
Trustee or money market mutual funds advised by affiliates of
the Trustee) and in collective investment funds maintained by
the Trustee for qualified plans, in which case the provisions
of each collective investment fund in which the Trust is
invested shall be deemed adopted by the Sponsor and the
provisions thereof incorporated as a part of this Trust as
long as the fund remains exempt from taxation under Sections
401(a) and 501(a) of the Internal Revenue Code of 1986, as amended.
(iii) To cause any securities or other property held as
part of the Trust to be registered in the Trustee's own name, in
the name of one or more of its nominees, or in the Trustee's
account with the Depository Trust Company of New York and to
hold any investments in bearer form, but the books and records
of the Trustee shall at all times show that all such investments
are part of the Trust.
(iv) To keep that portion of the Trust in cash or cash
balances as the Named Fiduciary or Administrator may, from time
to time, deem to be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and
all documents of transfer or conveyance and to carry out the
powers herein granted.
(vi) To borrow funds from a bank not affiliated with the
Trustee in order to provide sufficient liquidity to process
Plan transactions in a timely fashion; provided that the cost
of such borrowing shall be allocated in a reasonable fashion
to the investment fund(s) in need of liquidity.
(vii) To settle, compromise, or submit to arbitration any
claims, debts, or damages due to or arising from the Trust; to
commence or defend suits or legal or administrative proceedings;
to represent the Trust in all suits and legal and administrative
hearings; and to pay all reasonable expenses arising from any
such action, from the Trust if not paid by the Sponsor.
(viii) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of
this Agreement and to pay their reasonable expenses and
compensation from the Trust if not paid by the Sponsor.
(ix) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry
out any of the foregoing powers and the purposes of the Trust.
Section 5. Recordkeeping and Administrative Services to Be
Performed.
(a) General. The Trustee shall perform those recordkeeping
and administrative functions described in Schedule "A" attached
hereto. These recordkeeping and administrative functions shall
be performed within the framework of the Administrator's written
directions regarding the Plan's provisions, guidelines and
interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of
all investments, receipts, disbursements, and other
transactions hereunder, and shall report the value of the assets
held in the Trust as of the last day of each fiscal quarter of
the Plan and, if not on the last day of a fiscal quarter, the
date on which the Trustee resigns or is removed as provided in
Section 8 of this Agreement or is terminated as provided in
Section 10 (the "Reporting Date"). Within thirty (30) days
following each Reporting Date or within sixty (60) days in the
case of a Reporting Date caused by the resignation or removal
of the Trustee, or the termination of this Agreement, the
Trustee shall file with the Administrator a written account
setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the
Reporting Date and the prior Reporting Date, and setting
forth the value of the Trust as of the Reporting Date. Except
as otherwise required under ERISA, upon the expiration of six
(6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or
further accountability to anyone with respect to the propriety
of its acts or transactions shown in such account, except with
respect to such acts or transactions as to which the Sponsor
shall within such six (6) month period file with the Trustee
written objections.
(c) Inspection and Audit. All records generated by the
Trustee in accordance with paragraphs (a) and (b) shall be
open to inspection and audit, during the Trustee's regular
business hours prior to the termination of this Agreement,
by the Administrator or any person designated by the
Administrator. Upon the resignation or removal of the Trustee
or the termination of this Agreement, the Trustee shall provide
to the Administrator, at no expense to the Sponsor, in the
format regularly provided to the Administrator, a statement
of each participant's accounts as of the resignation, removal,
or termination, and the Trustee shall provide to the
Administrator or the Plan's new recordkeeper such further
records as are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. A confirmation of the
current qualified status of the Plan is attached hereto
as Schedule "F". The Trustee's provision of the
recordkeeping and administrative services set forth in this
Section 5 shall be conditioned on the Sponsor delivering to
the Trustee a copy of any amendment to the Plan as soon as
administratively feasible following the amendment's adoption,
with, if requested, an IRS determination letter or an opinion
of counsel substantially in the form of Schedule "F" covering
such amendment, and on the Administrator providing the Trustee
on a timely basis with all the information the Administrator
deems necessary for the Trustee to perform the recordkeeping
and administrative services and such other information as
the Trustee may reasonably request.
(e) Returns, Reports and Information. The Administrator
shall be responsible for the preparation and filing of all
returns, reports, and information required of the Trust or
Plan by law. The Trustee shall provide the Administrator
with such information as the Administrator may reasonably
request to make these filings. The Administrator shall also
be responsible for making any disclosures to Participants
required by law, except such disclosure as may be required
under federal or state truth-in-lending laws with regard to
Participant loans, which shall be provided by the Trustee.
Section 6. Compensation and Expenses. Within thirty (30) days
of receipt of the Trustee's xxxx, which shall be computed and
billed in accordance with Schedule "B" attached hereto and
made a part hereof, as amended from time to time, the Sponsor
shall send to the Trustee a payment in such amount or the
Sponsor may direct the Trustee to deduct such amount from
participants' accounts. All expenses of the Trustee relating
directly to the acquisition and disposition of investments
constituting part of the Trust, and all taxes of any kind
whatsoever that may be levied or assessed under existing or
future laws upon or in respect of the Trust or the income
thereof, shall be a charge against and paid from the
appropriate Plan participants' accounts.
Section 7. Directions and Indemnification.
(a) Identity of Administrator and Named Fiduciary. The
Trustee shall be fully protected in relying on the fact that
the Named Fiduciary and the Administrator under the Plan are
the individuals or persons named as such above or such other
individuals or persons as the Sponsor may notify the Trustee in writing.
(b) Directions from Administrator. Whenever the
Administrator provides a direction to the Trustee, the Trustee
shall not be liable for any loss, or by reason of any breach,
arising from the direction 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",
provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may also be made via
electronic data transfer (EDT) in accordance with procedures
agreed to by the Administrator and the Trustee; provided,
however, that the Trustee shall be fully protected in relying
on such direction as if it were a direction made in writing by
the Administrator. The Trustee shall have no responsibility
to ascertain any direction's (i) accuracy, (ii) compliance
with the terms of the Plan or any applicable law, or (iii)
effect for tax purposes or otherwise.
(c) Directions from Named Fiduciary. Whenever the Named
Fiduciary or Sponsor provides a direction to the Trustee, the
Trustee shall not be liable for any loss, or by reason of any
breach, arising from the direction (i) if the direction is
contained in a writing (or is oral and immediately confirmed
in a writing) signed by any individual whose name and signature
have been submitted (and not withdrawn) in writing to the
Trustee by the Named Fiduciary in the form attached hereto
as Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear
on the direction's face that the actions to be taken under the
direction would be prohibited by the fiduciary duty rules of
section 404(a) of ERISA or would be contrary to the terms of
the Plan or this Agreement.
(d) Co-Fiduciary Liability. In any other case, the Trustee
shall not be liable for any loss, or by reason of any breach,
arising from any act or omission of another fiduciary under the
Plan except as provided in section 405(a) of ERISA.
(e) Indemnification. The Sponsor shall indemnify the Trustee
against, and hold the Trustee harmless from, any and all loss,
damage, penalty, liability, cost, and expense, including without
limitation, reasonable attorneys' fees and disbursements, that
may be incurred by, imposed upon, or asserted against the
Trustee by reason of any claim, regulatory proceeding, or
litigation arising from any act done or omitted to be done by
any individual or person with respect to the Plan or Trust,
excepting only any and all loss, etc., arising solely from the
Trustee's negligence or bad faith.
(f) Survival. The provisions of this Section 7 shall
survive the termination of this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon
sixty (60) days' notice in writing to the Sponsor, unless a
shorter period of notice is agreed upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any
time upon sixty (60) days' notice in writing to the Trustee,
unless a shorter period of notice is agreed upon by the Trustee.
Section 9. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant
for any reason, the Sponsor may in writing appoint a successor
trustee under this Agreement. The successor trustee shall have
all of the rights, powers, privileges, obligations, duties,
liabilities, and immunities granted to the Trustee under this
Agreement. The successor trustee and predecessor trustee shall
not be liable for the acts or omissions of the other with
respect to the Trust.
(b) Acceptance. When the successor trustee accepts its
appointment under this Agreement, title to and possession of
the Trust assets shall immediately vest in the successor
trustee without any further action on the part of the
predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or
reasonably may be requested in writing by the Sponsor or the
successor trustee to vest title to all Trust assets in the
successor trustee or to deliver all Trust assets to the
successor trustee.
(c) Corporate Action. Any successor of the Trustee or
successor trustee, through sale or transfer of the business
or trust department of the Trustee or successor trustee, or
through reorganization, consolidation, or merger, or any
similar transaction, shall, upon consummation of the
transaction, become the successor trustee under this Agreement.
Section 10. Termination. This Agreement may be terminated
at any time by the Sponsor upon sixty (60) days' notice in
writing to the Trustee. On the date of the termination of
this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall
designate, all cash and assets then constituting the Trust.
If, by the termination date, the Sponsor has not notified
the Trustee in writing as to whom the assets and cash are
to be transferred and delivered, the Trustee may bring an
appropriate action or proceeding for leave to deposit the
assets and cash in a court of competent jurisdiction. The
Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without
limitation, reasonable attorneys' fees and disbursements.
Section 11. Resignation, Removal, and Termination Notices.
All notices of resignation, removal, or termination under this
Agreement must be in writing and mailed to the party to which
the notice is being given by certified or registered mail, return
receipt requested, to the Sponsor c/o Xxxxxxx X. XxXxx,
International Rectifier Corporation, 000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xx Xxxxxxx, XX 00000-00000, and to the Trustee c/o
Xxxx X. Xxxxxx, Fidelity Investments, 00 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses as the
parties have notified each other of in the foregoing manner.
Section 12. Duration. This Trust shall continue in effect
without limit as to time, subject, however, to the provisions
of this Agreement relating to amendment, modification, and
termination thereof.
Section 13. Amendment or Modification. This Agreement may be
amended or modified at any time and from time to time only by
an instrument executed by both the Sponsor and the Trustee.
Notwithstanding the foregoing, to reflect increased operating
costs the Trustee may once each calendar year, but not prior to
January 1, 1999, amend Schedule "B" without the Sponsor's
consent upon seventy-five (75) days' written notice to the
Sponsor.
Section 14. General.
(a) Performance by Trustee, its Agents or Affiliates. The
Sponsor acknowledges and authorizes that the services to be
provided under this Agreement shall be provided by the Trustee,
its agents or affiliates, including Fidelity Investments
Institutional Operations Company or its successor, and that
certain of such services may be provided pursuant to one or
more other contractual agreements or relationships.
(b) Entire Agreement. This Agreement contains all of the
terms agreed upon between the parties with respect to the
subject matter hereof.
(c) Waiver. No waiver by either party of any failure or
refusal to comply with an obligation hereunder shall be deemed
a waiver of any other or subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement
shall inure to the benefit of, and shall bind, the successors
and assigns of the respective parties.
(e) Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
(f) Section Headings. The headings of the various sections
and subsections of this Agreement have been inserted only for
the purposes of convenience and are not part of this Agreement
and shall not be deemed in any manner to modify, explain, expand
or restrict any of the provisions of this Agreement.
Section 15. Governing Law.
(a) Massachusetts Law Controls. This Agreement is being made
in the Commonwealth of Massachusetts, and the Trust shall be
administered as a Massachusetts trust. The validity,
construction, effect, and administration of this Agreement shall
be governed by and interpreted in accordance with the laws of
the Commonwealth of Massachusetts, except to the extent those
laws are superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to
the Plan, and in the event of any conflict between the
provisions of the Plan and the provisions of this Agreement,
the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers
as of the day and year first above written.
INTERNATIONAL RECTIFIER
CORPORATION
Attest: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxxxx Xxxxx
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Secretary Chief Executive Officer
FIDELITY MANAGEMENT TRUST COMPANY
Attest: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx Xxxxxxxxxx
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Assistant Clerk Vice President
