EXHIBIT 4.4
TRUST AGREEMENT
under the
Xxxxxxxx Group Individual Retirement Plan 401(k)
This TRUST AGREEMENT is between Xxxxxxxx Group Inc., a Connecticut
corporation with its principal office at Xxx Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX
00000 (the "Company") and THE CHASE MANHATTAN BANK, N.A., a national banking
association with its principal office at Xxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000,
as Trustee, to establish or amend the Trust maintained under the Xxxxxxxx Group
Individual Retirement Plan 401(k) (the "Plan"), effective as of 12/1/93. This
Trust is intended to be a qualified trust exempt from tax under Section 501(a)
of the Internal Revenue Code.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
GENERAL DUTIES OF THE PARTIES
SECTION l.l. General Duties of Company. The Company shall provide the
Trustee with a copy of the Plan and with copies of all amendments promptly upon
their adoption and shall certify to the Trustee the names and specimen
signatures of the members of the Administrative Committee (the "Committee") then
acting who have authority to control and manage the operation and administration
of the Plan. The Company shall make its contributions as the same may be
appropriated by due corporate action. Contributions may be in cash or in other
property acceptable to the Trustee. The Company shall keep accurate books and
records with respect to its employees and their compensation.
SECTION l.2. Funding Policy. From time to time the Committee shall
communicate in writing to the Trustee, and to any Investment Manager who may
have been appointed, the current funding policy and method that have been
established to carry out the objectives of the Plan.
SECTION l.3. General Duties of Trustee. The Trustee shall hold all
property received by it under this Agreement, which, together with any income,
gains and additions, shall constitute the Trust Fund. The Trustee shall manage,
invest and reinvest the Trust Fund (except as otherwise provided in this
Agreement), collect the income, and make payments as provided in this Agreement.
The Trustee shall be responsible only for the property actually received by it
under this Agreement. It shall have no duty or authority to compute any amount
to be paid to it by the Company or to bring any action or proceeding to enforce
the collection from the Company of any contribution to the Trust Fund.
ARTICLE II
INVESTMENT, ADMINISTRATION AND DISBURSEMENT
OF THE TRUST FUND
SECTION 2.l. Eligible Investments for the Trust Fund. The Trust Fund
may be invested in any real, personal, or mixed property, regardless of where it
is situated and whether or not it is productive of income or consists of wasting
assets. Eligible investments include, without limitation, common and preferred
stocks, bonds, notes, debentures, financial futures and options, convertible
securities, mortgages (including, without limitation, any collective or part
interest in any bond and mortgage or note and mortgage), certificates of
deposit, demand or time deposits (including any deposit with the Trustee or an
affiliate of the Trustee), shares of investment companies and mutual funds,
interests in partnerships and trusts, insurance policies and contracts, and oil,
mineral or gas properties, royalties, interests or rights (including related
equipment). Investments shall not be limited to the classes of property in which
trustees are authorized to invest trust funds by any law or rule of any court or
state. Nevertheless, the Trust Fund shall not be invested in any stock or
securities of the Trustee or, except as permitted by law, the Company.
Investments may be made without regard to the proportion any property may bear
to the entire amount of the Trust Fund, provided, however, that, except as
otherwise provided in this Agreement, investments shall be so diversified as to
minimize the risk of large losses unless it is clearly prudent not to do so
under the circumstances in the sole judgment of the Trustee or Investment
Manager, as the case may be. Any property received at any time by the Trustee
may be retained in the Trust Fund.
SECTION 2.2. Investment Management Responsibilities of the Trustee. (a) The
Trustee shall manage, invest, and reinvest the Trust Fund in its discretion,
except to the extent otherwise provided in Sections 2.3 or 2.4.
(b) The Trustee may invest and reinvest any assets under its management
collectively with funds of other pension and profit-sharing trusts exempt from
tax under Section 501(a) of the Internal Revenue Code of 1986 (the "Code") by
reason of qualifying under Section 401(a) of the Code either in short term
obligations selected by the Trustee or by investment collectively with other
funds through the medium of one or more, collective investment funds which have
been or may be established and maintained by it or any bank affiliated with it.
Any investment in a collective investment fund shall be subject to the terms of
the instrument or instruments governing the fund.
(c) Any Investment Manager appointed under Section 2.3 may delegate to
the Trustee authority by written authorization to invest any specified portion
of the assets managed by the Investment Manager, in the Trustee's sole
discretion, in short term obligations or in one or more mutual funds which
invests primarily in short-term obligations. The Trustee may make these
investments collectively with other funds, including without limitation through
the medium of one or more collective investment funds. Any such collective
investment fund shall be managed by the Trustee or any bank affiliated with it
in its sole discretion.
(d) The Trustee shall have all the investment powers given to trustees
by applicable law. Without limiting this grant of authority, the Trustee shall
have the power:
(i) To sell or exchange any property at public or private sale
for cash or on credit and to grant options for the purchase or exchange of that
property;
(ii) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan relating
to any property held in the Trust Fund, and to consent to or oppose such a plan
or any action under such a plan, or any contract, lease, mortgage, purchase,
sale or other action by any person or corporation;
(iii) To exercise conversion and subscription rights
pertaining to any property held in the Trust Fund;
(iv) To extend the time of payment of any obligation held in
the Trust Fund;
(v) To enter into stand-by agreements for future investment,
either with or without a stand-by fee; and
(vi) To hold uninvested, without liability for interest
thereon, any moneys received by the Trustee until the same shall be reinvested
or disbursed; and
(vii) For the purpose of the Trust, to borrow money from
others, to issue its promissory note or notes, and to secure repayment by
pledging any property in its possession. Nevertheless, no loan or advance shall
be made by the Trustee other than temporary advances to the Trust Fund, on a
cash or overdraft basis, on which no interest is payable.
Nevertheless, the Trustee shall exercise these powers only with respect
to assets of the Trust Fund which are under its management or, with respect to
assets which are not under its management, in accordance with the direction of
an Investment Manager, the Committee, or a Participant, as the case may be.
(e) THE TRUSTEE IS AUTHORIZED TO INVEST ASSETS UNDER ITS MANAGEMENT
FROM TIME TO TIME IN REGISTERED INVESTMENT COMPANIES TO WHICH IT OR AN AFFILIATE
ACTS AS INVESTMENT ADVISER OR PROVIDES OTHER SERVICES. FROM TIME TO TIME THE
TRUSTEE SHALL DETERMINE THE TRUST'S PRO RATA SHARE OF ANY FEES RECEIVED BY THE
TRUSTEE OR ITS AFFILIATES FROM THE INVESTMENT COMPANY FOR SERVICES RENDERED
(WHETHER OR NOT FOR INVESTMENT ADVISORY SERVICES). THE TRUSTEE THEN SHALL REDUCE
THE NEXT COMPENSATION PAYMENT TO IT UNDER THIS AGREEMENT, MAKE A REIMBURSEMENT
PAYMENT TO THE TRUST, OR BOTH (IN THE TRUSTEE'S SOLE DISCRETION) BY OR IN AN
AGGREGATE AMOUNT EQUAL TO THE TRUST'S PRO RATA SHARE OF THESE FEES.
ALTERNATIVELY, IF THE TRUSTEE AND THE COMMITTEE SO AGREE, THE TRUSTEE SHALL
WAIVE ITS COMPENSATION UNDER THIS AGREEMENT FOR THAT PORTION OF THE TRUST FUND
WHICH IS INVESTED IN ANY SUCH INVESTMENT COMPANY FOR THE DURATION OF THE
INVESTMENT. NEVERTHELESS, NOTHING IN THIS SUBSECTION SHALL REQUIRE ANY OFFSET OF
THE TRUSTEE'S COMPENSATION OR REIMBURSEMENT FOR ANY FEE WHICH THE TRUSTEE
RECEIVES FROM AN INVESTMENT COMPANY WITH RESPECT TO AN INVESTMENT MADE BY AN
INVESTMENT MANAGER UNDER SECTION 2.3 OR AT THE DIRECTION OF A PARTICIPANT UNDER
SECTION 2.4.
(f) Except as otherwise provided in the next sentence, the Trustee
shall have power in its discretion to exercise all voting rights with respect to
any investment held in the Trust Fund and to grant proxies, discretionary or
otherwise. The Trustee shall not exercise its discretion, however, with respect
to voting any securities which are under the management of an Investment
Manager. In that case, the Trustee shall send the Investment Manager all proxies
and proxy materials relating to the applicable securities, signed by the Trustee
without indication of voting preference, and the Investment Manager shall
exercise all voting rights with respect to them. Additionally, except as
otherwise required by law, the Trustee shall not exercise its discretion with
respect to the voting of securities issued by the Company or any of its
affiliates which are held subject to the direction of Participants (the "Company
Securities"). The Trustee shall send all proxies and proxy materials relating to
the Company Securities to the appropriate Participants. Moreover, unless the
Plan provides otherwise, the Trustee shall allocate the votes for any Company
Securities for which a Participant fails to complete a proxy in proportion to
the Participants' vote of the remaining Company Securities.
SECTION 2.3. Management by Investment Managers or the Committee. (a)
From time to time the Committee shall specify by written notice to the Trustee
whether the investment of the Trust Fund shall be managed by the Trustee, or
shall be directed by one or more investment managers ("Investment Managers")
appointed by the Board of Directors, which may include the Committee, or whether
both the Trustee and one or more Investment Managers are to participate in
Investment Management. If the investment management of the Trust Fund is to be
shared, the notice shall specify how the investment responsibility is to be
divided with respect to assets, classes of assets or separate investment funds.
Each Investment Manager (other than the Committee) shall either (i) be
registered as an investment adviser under the Investment Advisers Act of 1940,
(ii) be a bank, as defined in that Act, or (iii) be an insurance company
qualified to perform investment management services under the laws of more than
one state.
(b) If investment of the Trust Fund is to be managed in whole or in
part by an Investment Manager, the Trustee shall be given copies of the
instruments appointing the Investment Manager, evidencing his acceptance of the
appointment and acknowledging that he is a fiduciary of the Plan, and a
certificate evidencing the Investment Manager's registration under the
Investment Advisers Act. The Trustee may continue to rely upon these instruments
and that certificate until otherwise notified in writing by the Committee.
(c) The Trustee shall follow the directions of the Investment Manager
regarding the investment and reinvestment of the Trust Fund, or that portion of
the Trust Fund as shall be under management by the Investment Manager. The
Trustee shall be under no duty or obligation to review any investment to be
acquired, held or disposed of in accordance with those directions or to make any
recommendations with respect to the disposition or continued retention of any
investment under the Investment Manager's management. The Trustee shall have no
liability or responsibility for acting without question on the direction of, or
failing to act in the absence of any direction from, the Investment Manager,
unless the Trustee knows that, as a result, it will be participating in a breach
of fiduciary duty by the Investment Manager. In any event, the Company hereby
agrees to indemnify the Trustee and hold it harmless from and against any claim
or liability which may be asserted against the Trustee by reason of its acting
on any direction from the Investment Manager or failing to act in the absence of
any direction.
(d) The Investment Manager at any time and from time to time may issue
orders directly to a broker for the purchase or sale of securities. In order to
facilitate those transactions, the Trustee shall execute and deliver appropriate
trading authorizations upon request. Written or electronic notification of the
issuance of each order given directly to a broker shall be given promptly to the
Trustee by the Investment Manager. The execution of each order shall be
confirmed to the Trustee by the broker. The notification shall be authority for
the Trustee to pay for securities purchased against receipt and to deliver
securities sold against payment, as the case may be.
(e) In the event that an Investment Manager should resign or be removed
by the Company, the Company shall give the Trustee written notice of the
resignation or removal. Upon receipt of the notice, the Trustee shall manage the
investment of the Trust Fund unless and until it shall be notified of the
appointment of another Investment Manager.
(f) The Committee may direct the Trustee to apply and obtain from a
specified insurance company a group annuity contract or other form of contract
containing the terms and conditions which shall be included in the Committee's
direction. The Trustee shall possess no discretion as to the selection or
retention of such a contract but shall act in accordance with whatever duties as
it may have under the contract. The Committee shall direct the Trustee as to the
amounts, which are to be invested in the contract from time to time, and by
letter agreement between the Committee and the Trustee, the Committee shall be
able to transmit the necessary funds directly to the insurance company under the
contract.
(g) The Committee also may direct the Trustee to invest specified
amounts in investment companies, collective pension and profit-sharing trusts
sponsored by financial institutions not affiliated with the Trustee which hold
assets of plans that are qualified under Section 401(a) of the Internal Revenue
Code (the "Code"), real estate investment trusts and other similar investment
vehicles selected by the Committee (subject to the investment being acceptable
to the Trustee from an administration and operations standpoint). The Trustee
shall have no discretion or responsibility as to the selection or retention of
any such investment. By letter agreement between the Committee and the Trustee,
the committee shall be able to transmit the necessary funds directly to the
investment company or an appropriate distributor or dealer.
(h) NOTWITHSTANDING SECTION 2.2(e), THE TRUSTEE MAY RETAIN, WITHOUT
OFFSET AGAINST ANY FEE OWED TO IT UNDER THIS AGREEMENT, ANY REASONABLE FEES PAID
TO IT, OR TO ANY OF ITS AFFILIATES, BY ANY PERSON FOR THE PROVISION OF
INVESTMENT ADVISORY, SHAREHOLDER SERVICING, ADMINISTRATIVE, CUSTODIAL,
SPONSORSHIP, DISTRIBUTION, OR SIMILAR SERVICES TO ANY REGISTERED INVESTMENT
COMPANY, OR TO ANY COLLECTIVE PENSION AND PROFIT-SHARING TRUST WHICH IS EXEMPT
FROM TAX BY REASON OF SECTION 501(a) OF THE CODE, IN WHICH ANY INVESTMENT
MANAGER (INCLUDING THE COMMITTEE) MAY INVEST ASSETS OF THE TRUST FUND.
SECTION 2.4. Direction of Investments by Participants. (a) If the Plan
so provides, participants may direct the investment of assets held in their
respective individual account or accounts in investment alternatives selected by
the Committee or set forth in the Plan document or Plan adoption agreement, as
the case may be (each an "Investment Alternative"). The Committee may select as
Investment Alternatives collective investment funds managed by the Trustee,
portfolios of assets managed by the Trustee or an Investment Manager, as the
case may be, or other Investment Alternatives (including registered investment
companies) acceptable to the Trustee from an administration and operations
standpoint.
(b) The Trustee may establish rules and procedures from time to time
for the direction of investments by participants. Instructions provided to the
Trustee in accordance with this subsection 2.4(b) for the direction of
investments shall be deemed a certification by the Committee and the Company
that the investment is (i) in accordance with the terms of the Plan, (ii) in
accordance with the investment instructions of the participant if provided by
the Committee or some other person designated by the Committee on the
participant's behalf, and (iii) complies with applicable law and is otherwise
proper. The Trustee shall be fully protected in relying on the truth of any
instruction or representation which purports to be given in accordance with this
subsection and shall have no duty to investigate the accuracy or authenticity of
such an instruction or representation. The Company shall indemnify the Trustee
and hold it harmless from any liability or expense (including reasonable
attorneys fees) resulting from acts or omissions taken in reliance on such an
instruction or representation.
(c) Participants directing their investments shall be solely
responsible for the designation of investments for their individual accounts,
and neither the Trustee nor any Investment Manager shall be responsible or have
any authority with respect to any such designation except for complying with
ERISA and with investment directions provided by the participants in accordance
with this Agreement and any procedures established by the Trustee. Further, as
may be required by ERISA, neither the Trustee nor any Investment Manager shall
be obligated to review investments held in any of these participants' accounts
or be responsible for the failure of any of them to diversify investments.
Nevertheless, the Trustee or an Investment Manager, as the case may be, shall
remain responsible under this Agreement for the management of any collective
investment fund or other portfolio of assets selected as an Investment
Alternative (other than a registered investment company) which it manages.
(d) NOTWITHSTANDING SECTION 2.2(e), THE TRUSTEE MAY RETAIN, WITHOUT
OFFSET AGAINST ANY FEE OWED TO IT UNDER THIS AGREEMENT, ANY REASONABLE FEES PAID
TO IT, OR TO ANY OF ITS AFFILIATES, BY ANY PERSON FOR THE PROVISION OF
INVESTMENT ADVISORY, SHAREHOLDER SERVICING, ADMINISTRATIVE, CUSTODIAL,
SPONSORSHIP, DISTRIBUTION, OR SIMILAR SERVICES TO ANY REGISTERED INVESTMENT
COMPANY OR TO ANY COLLECTIVE PENSION AND PROFIT-SHARING TRUST WHICH IS EXEMPT
FROM TAX BY REASON OF SECTION 501(a) OF THE CODE, WHICH THE COMMITTEE SELECTS AS
AN INVESTMENT ALTERNATIVE.
(e) If the Committee selects one or more investments managed by the
Trustee as Investment Alternatives, the Trustee shall invest in its discretion
in accordance with Section 2.2 of this Agreement, those Trust Fund assets which
participants may direct from time to time to the alternatives managed by the
Trustee. Nevertheless, the Trustee's investments shall be in accordance with
investment objectives selected by the Committee and shall be made without regard
to the Trust Fund's other investments on behalf of those participants. Further,
the Trustee's investments may be made without regard to the proportion any
property may bear to the entire amount of the Trust Fund, provided, however,
that investments within an Investment Alternative managed by the Trustee shall
be so diversified as to minimize the risk of large losses within that Investment
Alternative unless it is clearly prudent not to do so under the circumstances in
the sole judgment of the Trustee.
(f) Investment Alternatives consisting of registered investment
companies for which the Trustee or any of its affiliates acts as investment
adviser shall not be considered to be Investment Alternatives managed by the
Trustee for purposes of this Agreement. Neither the Trustee nor any of its
affiliates assumes any fiduciary responsibility to the Trust or the participants
with respect to the management of such a registered investment company except as
may otherwise be provided in the investment advisory agreement with the
investment company or the Investment Company Act of 1940.
SECTION 2.5. Administrative Powers of Trustee. The Trustee shall have the
power in its discretion --
(a) To cause any investment to be registered and held in the
name of one or more of its nominees, or one or more nominees of any
system for the central handling of securities, without increase or
decrease of liability;
(b) To collect and receive any and all money and other
property due to the Trust Fund and to give full discharge for the money
or property;
(c) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust; to commence or
defend suits or legal proceedings to protect any interest of the Trust;
and to represent the Trust in all suits or legal proceedings in any
court or before any other body or tribunal;
(d) To organize under the laws of any state a corporation for
the purpose of acquiring and holding title to any property which it is
authorized to acquire under this Agreement and to exercise with respect
to that corporation any or all of the powers set forth in this
Agreement;
(e) To manage, operate, repair, improve, develop, preserve,
mortgage or lease for any period any real property or any oil, mineral
or gas properties, royalties, interests or rights held by it directly
or through any corporation, either alone or by joining with others,
using other Trust assets for any of such purposes; to modify, extend,
renew, waive or otherwise adjust any or all of the provisions of any
such mortgage or lease; and to make provision for amortization of the
investment in or depreciation of the value of such property; and
(f) Generally, to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
protection of the Trust Fund.
SECTION 2.6. Trustee's Authority. Persons dealing with the Trustee
shall be under no obligation to see to the proper application of any money paid
or property delivered to the Trustee or to inquire into the Trustee's authority
as to any transaction.
SECTION 2.7. Payments and Distributions from Trust Fund. (a) The
Trustee shall make payments, transfers, and distributions from the Trust Fund in
accordance with any written directions of the Committee. The Trustee shall not
be responsible for the application of any payment, transfer, or distribution
made to a paying agent at such time or times and to such person or persons,
including, for example, a paying agent or agents designated by the Committee or
the Committee as paying agent. (Any cash or property so paid or delivered to any
paying agent shall be held in trust by the payee until it is disbursed in
accordance with the Plan.) The Trustee shall comply with directions to transfer
and deliver any part of the Trust Fund to any other trust established for the
purpose of funding benefits under the Plan or under any other plan qualifying
under Section 401 of the Internal Revenue Code of 1986 established for the
benefit of participants in the Plan or their beneficiaries by the Company or any
successor or transferee of the Company, but only if the transfer conforms with
the requirements of Federal law. Neither during the existence nor upon the
discontinuance of the Plan shall any part of the Trust Fund be used for or
diverted to purposes other than for the exclusive benefit of the employees of
the Company or their beneficiaries, except as provided by law or in Section 7.2.
Any written direction of the Committee shall constitute a certification that the
distribution or payment so directed is one which the Committee is authorized to
direct.
(b) The Trustee may make any distribution or payment required to be
made by it by mailing its check for the specified amount, or delivering the
specified property, to the person to whom such distribution or payment is to be
made, at the address which may have been last furnished to the Trustee. If no
such address shall have been so furnished, the Trustee may make the distribution
or payment to that person in care of the Company or the Committee, or (if so
directed by the Committee) by crediting the account of that person or by
transferring funds to such person's account by bank wire or transfer.
ARTICLE III
FOR THE PROTECTION OF THE TRUSTEE
SECTION 3.l. Composition of Committee. (a) The Trustee may continue to
rely on the authority of any Committee member until notified in accordance with
Section l.l hereof that the member has ceased to act. If at any time the full
number of Committee members provided for in the Plan has not been designated by
the Company, the member or members acting at such time shall be deemed to be the
Committee, or if at any time there is no member of the Committee, the Board of
Directors of the Company (or, if the Company is a partnership, its management
committee) shall be deemed to be the Committee.
SECTION 3.2. Evidence of Action by Company or Committee. (a) The
Committee shall certify to the Trustee the name or names of any person or
persons authorized to act for the Committee. The Trustee may continue to rely on
the authority of a person to act for the Committee until the committee notifies
the Trustee that that person is no longer authorized to act for the Committee.
The Trustee may rely upon any certificate, notice or direction purporting to
have been signed on behalf of the committee which the Trustee believes to have
been signed by the Committee or the person or persons authorized to act for the
Committee. The Trustee also may rely upon any certificate, notice, or direction
of the Company which the Trustee believes to have been signed by a duly
authorized officer or agent of the Company.
(b) Communications to the Trustee shall be sent to the Trustee's office
or to any such other address as the Trustee may specify. No communication shall
be binding upon the Trust Fund or the Trustee until it is received by the
Trustee. Communications to the Committee or to the Company shall be sent to the
Company's principal office or to any other address as the Company may specify.
SECTION 3.3. Advice of Counsel or Committee. The Trustee may consult
with any legal counsel, including counsel to the Company or the Committee, with
respect to the construction of this Agreement, its duties, or any act which it
proposes to take or omit.
SECTION 3.4. Responsibility of the Trustee. (a) The Trustee shall
discharge its duties under this Agreement with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent man acting in a
like capacity and familiar with similar matters would use in the conduct of an
enterprise of a like character and with like aims. The Trustee shall not be
liable for any loss sustained by the Trust Fund by reason of the purchase,
retention, sale or exchange of any investment in good faith and in accordance
with the provisions of this Agreement and of any applicable Federal law.
(b) The Trustee's duties and obligations shall be limited to those
expressly imposed upon it by this Agreement, notwithstanding any reference to
the Plan.
SECTION 3.5. Retention of the Trustee as Agent. The Company, the
Committee or both at any time may employ the Trustee as agent to perform any
act, keep any records or accounts, or make any computations required of the
Company or the Committee by this Agreement or the Plan. Nothing done by the
Trustee as agent shall affect its responsibility or liability as Trustee.
ARTICLE IV
TAXES, EXPENSES AND COMPENSATION OF THE TRUSTEE
SECTION 4.1. Taxes. The Trustee shall deduct from and charge against
the Trust Fund any taxes on the Trust Fund or its income and any taxes which the
Trustee is required to pay with respect to the interest of any person in the
Trust Fund.
SECTION 4.2. Expenses and Compensation. The Trustee shall pay from the
Trust Fund its reasonable expenses of management and administration of the
Trust, including, for example, reasonable compensation of counsel and of any
agents engaged by the Trustee to assist it in the management and administration
of the Trust Fund, to the extent they are not paid by the Company. When directed
by the Committee to do so, the Trustee shall also pay from the Trust Fund any
specified expenses of administration of the Plan. The Trustee shall be entitled
to reasonable compensation for its services as Trustee, to be paid from the
Trust Fund from time to time unless first paid by the Company.
ARTICLE V
SETTLEMENT OF ACCOUNTS--ENFORCEMENT OF THE TRUST--
LEGAL PROCEEDINGS
SECTION 5.1. Settlement of Accounts of Trustee and Committee. (a) The
Trustee shall keep full accounts of all its receipts and disbursements.
Financial statements, books and records with respect to the Trust Fund shall be
open to inspection by the Company or the Committee or their representatives at
all reasonable times during business hours of the Trustee and may be audited not
more frequently than once in each fiscal year by an independent certified public
accountant engaged by the Committee.
(b) Within 90 days after the close of each year, or any termination of
the duties of the Trustee, the Trustee shall prepare, sign and mail to the
Company an account of its acts and transactions as Trustee. If the Company finds
the account to be correct, the Company shall so inform the Trustee in writing,
and the account shall then become an account stated as between the Trustee and
the Company. If within 90 days after receipt of the account or any amended
account the Company has neither indicated its acceptance in writing to the
Trustee, nor given the Trustee written notice of any objection to any act or
transaction of the Trustee, the account or amended account shall then become an
account stated as between the Trustee and the Company. If any written notice of
objection has been sent to the Trustee, and if the Company is satisfied that it
should be withdrawn or if the account is adjusted to its satisfaction, the
Company shall so inform the Trustee and it shall become an account stated as
between the Trustee and the Company.
(c) When an account becomes an account stated, it shall be considered
to be finally settled, and the Trustee shall be completely discharged and
released, as if such account had been settled and allowed by a judgment or
decree of a court of competent jurisdiction in an action or proceeding in which
the Trustee and the Company were parties.
(d) The Trustee, the Committee or the Company shall have the right to
apply at any time to a court of competent jurisdiction for judicial settlement
of any account of the Trustee which has not become an account stated. It shall
be necessary to join as parties only the Trustee, the Committee and the Company
(although the Trustee may also join such other parties as it may deem
appropriate). Any judgment or decree entered in such an action or proceeding
shall be conclusive.
(e) Insofar as any account reflects anything done or omitted by the
Committee, that account may be adopted by the Committee by being signed by two
of its members. The Committee may also render supplementary or separate accounts
of its proceedings to the Company. All provisions of this Section respecting
settlement of the accounts of the Trustee shall prevail with respect to accounts
of the Committee with the same force and effect as if the Committee were named
wherever the Trustee is named in this Section.
SECTION 5.2. Determination of Interests under Plan or in Trust Fund -
Enforcement of Trust - Legal Proceedings. The Committee shall have authority to
determine the interests of all persons in the Trust Fund or under the Plan, and
the Trustee shall have no duty to question any direction given by the Committee
to the Trustee. The Company and the Committee shall have authority, either
jointly or severally, to enforce this Agreement on behalf of all persons
claiming any interest in the Trust Fund or under the Plan.
ARTICLE VI
RESIGNATION AND REMOVAL OF TRUSTEE
SECTION 6.l. Resignation of Trustee. The Trustee may resign at any time
by notifying the Company in writing. The resignation shall take effect upon the
earlier of the appointment of a successor under Section 6.3 or 60 days from the
date the notice is given.
SECTION 6.2. Removal of Trustee. The Board of Directors of the Company
may remove the Trustee at any time by delivering to the Trustee a written notice
of its removal and an appointment of a successor under Section 6.3. No removal
shall take effect prior to 60 days after the delivery of the notice unless the
Trustee agrees to an earlier effective date.
SECTION 6.3. Appointment of Successor Trustee. The appointment of a
successor to the Trustee shall take effect upon delivery to the Trustee of (a)
an instrument in writing appointing the successor, executed by the Company, and
(b) an acceptance in writing, executed by such successor, both acknowledged in
the same form as this Agreement. The Company shall send notice of such
appointment to each member of the Committee.
If a successor is not appointed within 60 days after the Trustee gives
notice of its resignation pursuant to Section 6.l, the Trustee or the Committee
may apply to any court of competent jurisdiction for appointment of a successor.
All of the provisions set forth in this Agreement with respect to the
Trustee shall relate to each successor with the same force and effect as if the
successor had been originally named as Trustee.
SECTION 6.4. Transfer of Fund to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, and after the final
account of the Trustee has been settled as provided in Article V, the Trustee
shall transfer and deliver the Trust Fund to the successor.
ARTICLE VII
DURATION AND TERMINATION OF TRUST--AMENDMENT
SECTION 7.l. Duration and Termination. This Trust shall continue for as
long as may be necessary to accomplish the purpose for which it was created, but
it may be terminated at any time by the Company by action of its Board of
Directors. Notice of the termination shall be given to the Trustee by an
acknowledged instrument in writing executed by the Company, together with a
certified copy of the resolution of the Board of Directors of the Company
authorizing the termination.
SECTION 7.2. Distribution upon Termination. If this Trust is
terminated, the Trustee shall liquidate the Trust Fund to the extent required
for distribution upon the written direction of the Committee. After the
Trustee's final account has been settled as provided in Article V, the Trustee
shall distribute the net balance of the Trust Fund in accordance with the
directions of the Committee, or in the absence of the Committee direction, as
may be directed by a judgment or decree of a court of competent jurisdiction.
Upon making the distributions, the Trustee shall be relieved from all further
liability. The powers of the Trustee under this Agreement shall continue so long
as any assets of the Trust Fund remain in its hands.
SECTION 7.3. Amendment. The Company shall have the right at any time
and from time to time to amend this Agreement in whole or in part by an
acknowledged written instrument delivered to the Trustee executed in accordance
with the order of the Company's Board of Directors. No amendment shall affect
the rights and responsibilities of the Trustee without its written consent.
Further, no amendment to this Agreement shall divert any part of the Trust Fund
to purposes other than the exclusive benefit of the employees of the Company or
their beneficiaries. Any amendment shall become effective upon (i) delivery to
the Trustee of the written instrument of amendment, together with a certified
copy of the resolution of the Board of Directors authorizing the amendment, and
(ii) endorsement of receipt by the Trustee on the instrument, together with its
consent, if that consent is required.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.l. Governing Law. This Agreement and the Trust hereby created
shall be construed and regulated by the laws of the State of New York, except as
those laws are superseded by the Employee Retirement Income Security Act of 1974
or some other Federal law.
SECTION 8.2. Reorganization of Trustee. Any corporation into which the
Trustee may be merged or with which it may be consolidated, or any corporation
resulting from any merger, reorganization or consolidation to which the Trustee
may be a party, or any corporation to which all or substantially all the pension
trust business of the Trustee's may be transferred, shall be the successor of
the Trustee under this Agreement, without the execution of any instrument or the
performance of any further act.
The Trustee THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxxx
Its: Vice President
The Company
By: /s/ Xxxxx X. Xxxx
Its: Secretary
