EXHIBIT 4.13
THE SCHWABPLAN-REGISTERED TRADEMARK-
DIRECTED EMPLOYEE BENEFIT TRUST AGREEMENT
This TRUST AGREEMENT ("Trust Agreement" or "Agreement"), entered into
this 23rd day of July, 2001, by and between FOREST OIL CORPORATION (the
"Company") and THE XXXXXXX XXXXXX TRUST COMPANY (the "Trustee").
PURPOSE
The Company has adopted a plan called the RETIREMENT SAVINGS PLAN OF
FOREST OIL CORPORATION (the "Plan") for the exclusive purpose of providing
benefits to certain of its employees and their beneficiaries and defraying
reasonable expenses of administering the Plan. The Plan provides that, from time
to time, cash and other assets may be paid to the Trustee by the Company to be
held and administered as a trust (the "Trust Fund" or "Trust") for the uses and
purposes of the Plan. The Company intends that the Plan shall qualify under
section 401 of the Internal Revenue Code of 1986, as amended (the "Code"), and
that the Trust shall constitute a part of the Plan, as a tax-exempt entity
within the meaning of Code section 501(a).
Subject to specific conditions set forth in this Agreement, the Trustee
agrees that it will hold in the Trust and invest cash and other acceptable
property received pursuant to this Agreement and received as contributions from
the Company or transfers from another plan qualified under section 401(a) of the
Code upon the terms and conditions stated below.
ARTICLE 1
TRUST FUND
1.1 The Company's President or other duly authorized official
shall certify in writing to the Trustee the names and specimen signatures of
all those persons who are authorized to act as or on behalf of the Plan's
named fiduciary, which term shall include the administrator of the Plan (the
"Administrator") and these names and specimen signatures shall be updated as
necessary by the President or other duly authorized official.
1.2 All contributions or transfers shall be received by the
Trustee in cash or in any other property acceptable to the Trustee as
determined by the Trustee under its Investment Guidelines, which are
incorporated herein and made part of the Agreement as amended from time to
time. The Trust Fund shall consist of the contributions and transfers received
by the Trustee, together with the income and earnings from them and any
increments to them. The Trustee shall manage and administer the Trust Fund
without distinction between principal and income. The Trustee shall have no
duty to (i) compute any amount required to be transferred or paid to it by the
Company, (ii) collect any contributions or transfers to the Trust Fund, or
(iii) determine whether any contribution or transfer complies with the terms
of the Plan.
If the Company creates or maintains one or more employee benefit plans
qualified under Code section 401(a) in addition to the Plan, the Company may
request the Trustee to hold the assets of the additional plan or plans in the
Trust Fund. The Administrator shall keep records showing the interest of the
Plan and each additional plan in the Trust Fund unless the Trustee enters into
an agreement with the Company to keep separate accounts for each such plan. The
Company and the Administrator shall not permit or cause the assets of one plan
to be used to pay benefits or the administrative expenses of any other plan with
the assets in the Trust Fund.
1.3 The Trustee shall accept a contribution of cash or other
property otherwise acceptable to the Trustee that has been distributed to a
participant (or an eligible employee who is about to become a participant)
from another employee benefit plan qualified under Code section 401(a), or
from an
individual retirement account or annuity described in Code section 408, at the
direction of the Administrator. The Administrator shall be solely responsible
for determining that such assets represent an eligible rollover contribution
within the meaning of Code section 402(c)(4) or 408(d)(3). The Trustee shall
accept a transfer of cash or other property acceptable to the Trustee on
behalf of a participant (or an employee who is about to become a participant)
directly from the trustee of an employee benefit plan qualified under Code
section 401(a) at the direction of the Administrator.
ARTICLE 2
INVESTMENTS AND DISTRIBUTIONS
2.1 (a) Except as provided below, the Administrator shall have
all power over and responsibility for the management, disposition, and
investment of the Trust assets, and the Trustee shall comply with proper
written directions of the Administrator concerning those assets. The
Administrator shall not issue directions in violation of the terms of the Plan
and Trust or prohibited by the fiduciary responsibility rules of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). Except to the
extent required by ERISA or otherwise provided in this Agreement, the Trustee
shall have no duty or responsibility to review, initiate action, or make
recommendations regarding Trust assets and shall retain assets until directed
in writing by the Administrator to dispose of them.
The Administrator may delegate to any other person or persons any of
the Administrator's rights, powers or responsibilities with respect to the
operation and administration of the Trust Fund. Any such delegation shall be
made in writing and communicated to the Trustee. The Administrator shall not be
liable for any breach of fiduciary responsibility of a delegatee that is not
proximately caused by the Administrator's failure to properly select or
supervise such delegatee and in which the Administrator does not participate.
(b) If permissible under the Plan, each participant and/or
beneficiary may have investment power over the account maintained for him or
her, and may direct the investment and reinvestment of assets of the account
among the options authorized by the Administrator. Such direction shall be
furnished to the Trustee in writing under procedures agreed to by the Trustee
and the Administrator. To the extent provided under ERISA section 404(c), the
Trustee shall not be liable for any loss, or by reason of any breach, which
results from such participant's or beneficiary's exercise of control. If a
participant who has investment authority under the terms of the Plan fails to
provide such directions, the Administrator shall direct the investment of the
participant's accounts. The Administrator shall maintain records showing the
interest of each participant and/or beneficiary in the Trust Fund unless the
Trustee enters into an agreement with the Company to keep separate accounts for
each such participant and/or beneficiary. The Trustee shall have no duty or
responsibility to review or make recommendations regarding investments made at
the direction of the Administrator or participant and shall be required to act
only upon receipt of proper written directions. A participant or beneficiary
shall not have authority to direct the investment of assets in his or her
account in a loan to any participant, including himself or herself, or
"collectibles" within the meaning of Code section 408(m)(2).
(c) The Administrator may appoint an investment manager or
managers within the meaning of section 3(38) of ERISA to direct, control or
manage the investment of all or a portion of the Trust assets, as provided in
sections 3(38) and 403(a)(2) of ERISA. The Administrator shall notify the
Trustee in writing of the appointment of each investment manager, and the assets
over which each manager shall exercise control and cause the investment manager
to acknowledge to the Trustee in writing that the investment manager is a
fiduciary with respect to the Plan. If the foregoing conditions are met, the
investment manager shall have the power to manage, acquire, or dispose of any
Trust assets identified as under such manager's control, and the Trustee shall
not be liable for acts or omissions of the investment manager, or be under an
obligation to invest or otherwise manage any asset of the Trust that is subject
to the management of such investment manager. The Trustee shall act only upon
receipt of proper written directions from a duly appointed investment manager,
and shall have no liability to review or question any such directions.
(d) If the Plan authorizes loans to Plan participants, the
duties of the Trustee and Administrator may be covered by a separate agreement
to be incorporated as part of this Agreement.
2.2 (a) Subject to the Investment Guidelines of the Trustee, any
general or specific investment guidelines formulated by the Company or the
Administrator and the provisions of Section 2.1 above, the person with
investment responsibility ("Authorized Person") may cause the Trust Fund to be
invested and reinvested in every kind of investment including, without
limitation, publicly traded equity and debt interests of all kinds issued by
domestic or foreign governments, business organizations, limited partnerships,
investment companies and trusts or other entities, convertible securities of
all kinds, interest-bearing deposits in any depository institution (including
the Trustee or any affiliate of the Trustee), money market securities of all
kinds, collective investments as described in subsection (b) below and
insurance contracts as described in subsection (c) below. Notwithstanding
anything in the Trust Agreement to the contrary, the Trustee may hold
uninvested and without liability for interest such part of the Trust Fund as
may be reasonably necessary for the orderly administration of the Trust Fund.
(b) Subject to the following provisions, the assets of the
Trust Fund may be invested and reinvested, in whole or in part, in any common or
collective investment fund (referred to as the "fund") maintained by the Trustee
or an investment manager in which the Trust Fund is eligible to participate.
Notwithstanding any other provision of this Agreement, to the extent Trust Fund
assets are invested in any such fund, the terms of the fund's governing
instrument shall govern the investment responsibilities and powers of the entity
responsible for management of the fund (referred to as "fund manager"), and the
terms of such governing instrument shall be incorporated into the Trust
Agreement. The value of any interest in a fund held by the Trust Fund shall be
the fair market value of the interest as determined by the fund manager in
accordance with the fund's governing instrument. For purposes of valuation of
the Trust Fund assets, the Trustee shall be entitled to rely conclusively on the
value reported by the fund manager.
The Trust Fund may be invested in a pooled investment vehicle funded by
contracts issued by an insurance company qualified to do business in a state
(within the meaning of ERISA section 3(10)) including, without limitation, group
annuity and guaranteed investment contracts. Any such contract may provide for
the allocation of amounts received by the insurance company to its general
account, one or more of its separate accounts (including pooled separate
accounts), or both. To the extent Trust Fund assets are allocated to a separate
account of an insurance company, the Administrator shall appoint the insurance
company as an investment manager as provided above. Notwithstanding any other
provision of the Trust Agreement, the terms of the contract(s) governing the
separate account(s) in which the Trust Fund is invested shall govern the
investment responsibilities and powers of the insurance company and, to the
extent required by law, the terms of such contract(s) shall be incorporated into
the Trust Agreement.
(c) To the extent permitted by the Plan, the Authorized Person
may direct the Trustee to apply for and purchase life insurance or annuity
contracts (referred to as "contracts") from an insurance company, subject to the
following provisions:
(i) The Authorized Person shall be
responsible for ensuring that the purchases conform with the requirements of the
Plan and any rules and policies established by the Administrator regarding the
form, value, optional settlement methods and other provisions of the contracts.
The Trustee shall not be responsible for the validity or proper execution of any
contract delivered to it, or any act of any persons which renders the contract
void or voidable. The Trustee shall not be responsible if the contract held in
the Trust Fund fails to meet the requirements of the Plan, and shall have no
duty to inform participants of the terms and conditions of any such contract.
(ii) The Administrator shall instruct the
Insurer to notify the Administrator of all premiums becoming due under the
contracts. The Administrator shall deliver all premium notices to the Trustee,
together with a direction to the Trustee to pay the premiums out of the Trust
Fund. The Trustee shall have no responsibility for paying the premium unless the
Administrator or
the Participant provides written instructions directing the Trustee to pay the
premium and sufficient assets of the Trust Fund are available for that purpose.
(iii) The Administrator shall cause the
Trustee to be designated as the sole owner of any such contract, with sole
power to exercise all rights, privileges, options and other incidents of
ownership at the Administrator's direction. The Administrator from time to
time shall direct the Trustee regarding the designation of a beneficiary of
the death benefit payable under any such contract in accordance with the
applicable provisions of the Plan.
(d) To the extent permitted by the Plan and ERISA and subject
to the applicable federal and state securities laws, the Authorized Person may
direct the Trustee to invest in qualifying employer securities within the
meaning of ERISA section 407(d)(5) ("Employer Securities"). The Administrator
shall have full responsibility for determining that any such investment, and the
voting rights attributable to such investment, complies with applicable law.
Notwithstanding any other provision of the Plan or Trust Agreement, the
Administrator shall have responsibility for voting any shares or directing that
such shares shall be sold, exchanged, or otherwise disposed of except to the
extent provided in Sections 2.3 (q) and (r) herein, or to the extent that such
duties are made the responsibility of another person or persons under the terms
of the Plan or other governing document, and such person performs according to
such terms.
2.3 In its administration of the Trust Fund, the Trustee shall
have and exercise whatever powers are necessary to discharge its obligations
and exercise its rights under the Trust Agreement. Subject to the direction of
the Administrator, participants, or an investment manager as provided in
Section 2.1, the Trustee shall have full power and authority with respect to
property held in the Trust Fund to do all such acts, take all proceedings, and
exercise all such rights and privileges, whether specifically referred to or
not in this document, as could be done, taken, or exercised by the absolute
owner, including, without limitation, the following:
(a) To collect income generated by the Trust Fund investments
and proceeds realized on the sale or disposition of assets and to hold the same
pending reinvestment or distribution in accordance with this Agreement;
(b) To register Trust Fund property in the Trustee's own name,
in the name of a nominee or in bearer form, provided the Trustee's records and
accounts show that such property is an asset of the Trust Fund;
(c) To deposit securities in a security depository and permit
the securities so deposited to be held in the name of the depository's nominee,
and to deposit securities issued or guaranteed by the U.S. Government or any
agency or instrumentality thereof, including securities evidenced by book entry
rather than by certificate, with the U.S. Department of the Treasury, a Federal
Reserve Bank or other appropriate custodial entity, in the same account as the
Trustee's own property, provided the Trustee's records and accounts show that
such securities are assets of the Trust Fund;
(d) To retain the property in the Trust;
(e) To sell Trust assets, at either public or private sale, at
such time or times and on such terms and conditions as it may deem appropriate;
(f) To consent to or participate in any plan for the
reorganization, consolidation, or merger of any business unit, any security of
which is held in the Trust Fund, to pay calls and assessments imposed upon the
owners of such securities as condition of their participating therein, and to
consent to any contract, lease, mortgage, purchase or sale of property, by or
between such business unit and any other party;
(g) To exercise or dispose of any right it may have as the
holder of any security, to convert the same into another security, to acquire
any additional security or securities, to make any payments, to exchange any
security, or to do any other act with reference thereto;
(h) To renew or extend the time of payment of any obligation
due or becoming due;
(i) To grant options to purchase property held in the Trust;
(j) To compromise, arbitrate, or otherwise adjust or settle
claims in favor of or against the Trust and to deliver or accept consideration
in either total or partial satisfaction of any indebtedness or other obligation,
and to continue to hold property so received for the period of time that the
Trustee deems appropriate;
(k) To exchange any property for other property upon such
terms and conditions as the Trustee may deem proper, and to give or receive
money to effect equality in price;
(l) To foreclose any obligation by judicial proceeding or
otherwise;
(m) To xxx or defend in connection with any and all securities
or property at any time received or held in the Trust Fund and to charge against
the Trust Fund all reasonable expenses and attorney's fees in connection
therewith;
(n) To manage any real property in the same manner as if the
Trustee were the absolute owner thereof, including the power to lease the same
for such term or terms, and upon such conditions including, but without
limitation, agreements for the purchase or disposal of buildings on the property
or options to the tenant to renew such lease from time to time or to purchase
such property as the Trustee deems proper; to make ordinary and extraordinary
repairs and alterations to any property that the Trustee deems proper; to make
ordinary and extraordinary repairs and alterations to any building, to raze old
buildings, to erect new buildings, to insure against loss by fire or other
casualties, and to employ agents and confer upon them authority with respect to
the management of such real property as the Trustee deems appropriate;
(o) To borrow money from any person other than a party in
interest of the Plan with or without giving security;
(p) To deposit any security with any protective or
reorganization committee, and to delegate to that committee such power and
authority as the Trustee may deem proper, and to agree to pay out of the Trust
Fund that portion of the expenses and compensation of that committee as the
Trustee may deem proper;
(q) To deliver to the Administrator, or the person or persons
identified by the Administrator, proxies and powers of attorney and related
informational material, for any shares or other property held including Employer
Securities in the Trust. Subject to the provisions of Section 2.3(r), the
Administrator shall have responsibility for instructing the Trustee as to voting
such shares and the tendering of such shares, by proxy or in person, except to
the extent such responsibility is delegated to another person, under the terms
of the Plan or Trust Agreement or under an agreement between the named fiduciary
of the Plan and an investment manager, in which case such persons shall have
such responsibility. The Trustee may use agents to effect such delivery to the
Administrator or the person or persons identified by the Administrator. In no
event shall the Trustee be responsible for the voting or tendering of shares of
securities held in the Trust or for ascertaining or monitoring whether, or how,
proxies are voted or whether the proper number of proxies is received;
(r) If Company Stock is a permissible investment option under
the Plan, all voting rights with respect to shares of Company Stock held in the
Trust Fund and allocated to Participants' Accounts
shall be exercised by the Trustee in such manner as may be directed by the
respective Participant (which term, for purposes of this subsection (r), shall
include the beneficiary of a deceased Participant and any alternate payee for
whom an account has been established with an interest in Company Stock). Any
shares of Company Stock in the Trust Fund that are allocated to Participants
who fail to give directions to the Trustee shall be voted by the Trustee in
the same proportion as the Shares for which voting instructions have been
received, subject to the power of the Administrator to direct the Trustee to
vote such shares in a different manner, if the Administrator determines that
such action is consistent with its fiduciary obligations under ERISA. The
Administrator may establish such rules and guidelines as it deems necessary to
properly effect the provision of this section;
(s) To appoint agents as necessary or desirable, including
legal counsel who may be counsel for the Company;
(t) To hold that portion of the Trust Fund as the Trustee may
deem necessary for ordinary administration and for the disbursement of funds in
cash, without liability for interest, by depositing the same in any bank
(including deposits which bear a reasonable rate of interest in a bank or
similar financial institution supervised by the United States or a State, even
where a bank or financial institution is the Trustee, or otherwise is a
fiduciary of the Plan, including The Xxxxxxx Xxxxxx Trust Company), subject to
the rules and regulations governing such deposits, and without regard to the
amount of any such deposit;
(u) To retain group or individual insurance contracts of all
kinds authorized under the Plan;
(v) If directed by the Administrator, participant or
investment manager, to acquire, hold, and administer limited partnership
interests, or interests in other specialized investment vehicles, provided that
such Authorized Person signs any agreement or other necessary documents
requested by the Trustee prior to entering into the transaction;
(w) To write covered call options on securities where
appropriate for the Trust; provided that any such transaction is in conformity
with the Plan and all applicable rules, regulations and laws governing the
Trustee, the Plan, and this Trust;
(x) To the extent permitted under applicable laws, to invest
in deposits, long and short term debt instruments, stocks, and other securities,
including those of the Trustee, The Xxxxxxx Xxxxxx Corporation (the "Public
Company"), Xxxxxxx Xxxxxx & Co., Inc. (the "Broker/Dealer"), their affiliates
and subsidiaries; and
(y) To lend securities from the Trust on a secured basis in
accordance with a separate written agreement between the Administrator and the
Trustee.
2.4 The Trustee is authorized to contract or make other
arrangements with The Public Company, the Broker/Dealer, their affiliates and
subsidiaries, successors and assigns and any other organizations affiliated
with or subsidiaries of the Trustee or related entities, for the provision of
services to the Trust or Plan, except where such arrangements are prohibited
by law or regulation.
2.5 The Trustee is authorized to place securities orders, settle
securities trades, hold securities in custody, and other related activities on
behalf of the Trust through or by the Broker/Dealer whenever possible, unless
the Authorized Person specifically instructs the use of another broker/dealer.
Trades (and related activities) conducted through the Broker/Dealer shall be
subject to fees and commissions established by the Broker/Dealer, which may be
paid from the Trust or netted from the proceeds of trades.
Trades shall not be executed through the Broker/Dealer unless the
Administrator and the Authorized Person have received disclosure concerning the
relationship of the Broker/Dealer to the
Trustee, and fees and commissions which may be paid to the Public Company,
Broker/Dealer, the Trustee and/or their affiliates or subsidiaries as a result
of using the Broker/Dealer's execution or other services.
The Trustee is authorized to disclose such information as is necessary
to the operation and administration of the Trust to the Public Company or any of
its affiliates, and to such other persons or organizations that the Trustee
determines have a legitimate business purpose for obtaining such information.
2.6 At the direction of the Authorized Person, the Trustee may
purchase shares of regulated investment companies (or other investment
vehicles) advised by the Public Company, Broker/Dealer or the Trustee or any
affiliate of them ("SchwabFunds-Registered Trademark-") except to the extent
prohibited by law or regulation.
Uninvested cash of the Trust will be invested in Schwab Funds
designated by the Authorized Person for that purpose, unless the Authorized
Person specifically instructs the use of another fund or account, except to the
extent prohibited by law or regulation.
Schwab Fund shares may not be purchased or held by the Trust unless the
Authorized Person has received disclosure concerning the Public Company's,
Broker/Dealer's, the Trustee's and/or their affiliate's or subsidiary's
relationship to the Funds, and any fees which may be paid to the Public Company,
Broker/Dealer, Trustee and/or their affiliates or subsidiaries.
2.7 The Administrator shall have responsibility for establishing
and carrying out a funding policy and method, as specified in section
402(b)(1) of ERISA, consistent with the objectives of the Plan and the
requirements of ERISA, taking into consideration the Plan's short-term and
long-term financial needs.
The Trustee shall not be responsible for proper diversification of the
assets of the Trust Fund. The Administrator or the person to whom such
responsibility has been properly delegated under the requirements of ERISA shall
be responsible for the funding policy, for diversification of assets held in
trust for the Plan, and for compliance of the Trust Fund with statutory
limitations on the amount of investment in securities or other property of the
Company or its affiliated companies.
2.8 No assets of the Trust Fund shall be invested in the
securities of the Company or its affiliates unless the Administrator
determines that the securities are exempt from registration under the federal
Securities Act of 1933, as amended, and are exempt from registration or
qualification under the applicable state law, and of any other applicable blue
sky law, or in the alternative, that the securities have been so registered
and/or qualified. The Administrator shall also specify what restrictive legend
on transfer, if any, is required to be set forth on the certificates for the
securities and the procedure to be followed by the Trustee to effectuate a
resale of such securities. The Administrator shall not direct the investment
in "employer securities" or "employer real property", within the meaning of
section 407 of ERISA, if such investment would be prohibited by ERISA. The
Administrator shall only direct the investment of Trust funds into securities
of the Company or an affiliate (i) if those securities are traded on an
exchange permitting a readily ascertainable fair market value, or (ii) if the
Administrator shall have obtained a current valuation by a qualified
independent appraiser.
2.9 The Company represents and warrants that it will take all
responsibility (and hereby assumes all liability for the failure) to notify
Participants of any limitations on investment directions necessary or
appropriate to comply with federal securities laws (including the Exchange Act
and the 1933 Act), including but not limited to the frequency of investment
changes by certain officers and shareholder-employees pursuant to Section 16
and, to the extent applicable, the volume of trading in Company Stock pursuant
to Regulation M. Consequently the Trustee shall have no liability to a
Participant, and beneficiary, or the Company for carrying out instructions
relating to the acquisition or
disposition of Company Stock regardless of whether those instructions subject
such person or the Company to any liability.
The Company represents and warrants that either the percentage of the
issued and outstanding class of equity security registered under section 12 of
the Exchange Act which is Company Stock owned by the Plan (the "Plan
Percentage") is less than 4.5% or that the Plan and its prior trust have
complied with all notice and filing requirements imposed by federal securities
laws with regard to Company Stock. The Company covenants that it will (a) notify
the Trustee in writing within 5 business days following any date as of which the
Plan Percentage equals or exceeds 4.5%, (b) monitor the Plan Percentage on a
daily basis so long as the Plan Percentage is at least 4.5%, (c) notify the
Trustee in writing within 5 business days following any date as of which the
Plan Percentage equals or exceeds 5% and, if applicable, 10%, and (d) provide
monthly written reports to the Trustee disclosing the Plan Percentage. The
foregoing monitoring and notification requirements shall cease during any month
when the Plan Percentage is below 4.5% for each day of the month. The provisions
of this Section 2.9 shall survive the termination of this Trust Agreement.
The Administrator further represents and warrants that the Company will
file all statements and reports required by the Securities and Exchange
Commission that are required on account of the purchase, sale or ownership of
Company Stock by the Trust Fund, including without limitation Forms 11-K, 13-D,
13-G, and Forms 4 and 5, and that the Trustee shall have no responsibility for
any such filings.
2.10 The Trustee shall make distributions or transfers from the
Trust as specified in proper written directions from the Administrator. The
Trustee is authorized, to the extent required under applicable law, to
withhold from distributions to any payee an amount that the Trustee determines
is necessary to cover federal and state taxes, and the Trustee is required to
withhold such amounts if so directed by the Administrator. The Trustee shall
have no liability for making any distribution or transfer pursuant to the
direction of the Administrator (including amounts withheld pursuant to the
previous sentence) and shall be under no duty to make inquiry whether any
distribution or transfer directed by the Administrator is made pursuant to the
provisions of the Plan. The Administrator shall furnish to the Trustee all
information necessary to carry out such withholding, or, if such information
is not provided to the Trustee, the Administrator and the Company shall hold
the Trustee harmless from and indemnify it for any liability and related
expenses that arise in connection with improper withholding.
The Trustee shall not be liable for the proper application of any part
of the Plan or Trust if distributions or transfers are made in accordance with
the written directions of the Administrator including any distribution made
pursuant to a domestic relations order which the Administrator has determined to
be qualified within the meaning of section 414(p) of the Code, nor shall the
Trustee be responsible for the adequacy of the Trust Fund to discharge any and
all payments and liabilities under the Plan.
2.11 The Trustee may make any payment required of it under this
Agreement by mailing its check for the amount specified to the recipient at
such address last furnished to the Trustee by the Administrator, or if the
Trustee has never received an address, to the recipient in care of the
Administrator.
2.12 All persons dealing with the Trustee are released from
inquiring into the decision or authority of the Trustee and from seeing to the
proper application of any monies paid or securities or other property
delivered to the Trustee.
2.13 The Trustee shall bear no liability for acting upon any
instruction or document believed by it to be genuine and to be presented or
signed by a party duly authorized to do so, and the Trustee shall be under no
duty to make any investigation or inquiry about the correctness of such
instruction or document.
2.14 The Trustee may consult with legal counsel of its choice,
including counsel for the Company, upon any question or matter arising
hereunder and the opinion of such counsel, when relied upon by the Trustee
shall be evidence the Trustee was acting in good faith.
2.15 If as provided in the Plan, other trustees of separate
trusts under the Plan may be appointed, the Trustee under this Agreement shall
have no duties or responsibilities for Plan assets not held in the Trust by
the Trustee, except as required by applicable law.
ARTICLE 3
SETTLEMENT OF ACCOUNTS
3.1 (a) The Trustee shall maintain accurate records and detailed
accounts of all investments, receipts, disbursements, and other transactions
related to the Trust, and those records shall be available at all reasonable
times to the Administrator, the Company, or their authorized representatives.
(b) The Trustee, at the direction of the Administrator, shall
submit to the Administrator and any other person that the Administrator
designates those valuations, reports, or other information as the Administrator
may request. In any case, the Trust Fund shall be valued by the Trustee at the
frequency agreed to by the Trustee and the Company, but in any event not less
than annually at the fair market value as of the close of business at the end of
the last business day of the fiscal year of the Plan. Except as specified below,
in the absence of fraud or bad faith, the Trustee's valuation of the Trust Fund
shall be conclusive.
3.2 (a) Within sixty days following the close of each fiscal
year of the Plan or the close of any other period as may be agreed upon by the
Trustee and the Administrator, the Trustee shall file with the Administrator a
written account setting forth a description of all securities and other
property purchased and sold, all receipts, disbursements, and other
transactions effected by it during that fiscal year or other designated
period, and listing the securities and other property held by the Trustee at
the end of such fiscal year or other designated period, together with their
then fair market values.
(b) The Administrator may approve an account by written notice
of approval delivered to the Trustee or by failure to deliver to the Trustee
express objections to the account in writing within sixty days from the date
upon which the account was mailed or otherwise delivered to the Administrator.
(c) The account shall be deemed approved upon receipt by the
Trustee of the Administrator's written approval of the account or upon the
passage of the sixty day period of time, except for any matters covered by
written objections that have been delivered to the Trustee by the Administrator
and for which the Trustee has not given an explanation or made an adjustment
satisfactory to the Administrator.
(d) If the account is not settled as provided above, the
Trustee, the Company or the Administrator shall have the right to apply to a
court of competent jurisdiction at the expense of the Trust Fund for a judicial
settlement of the accounting. Any judgment or decree entered in such proceedings
shall be conclusive on all persons interested in the Trust Fund.
3.3 Notwithstanding any other provision of this Article 3, if
the Trustee shall determine that the Trust Fund consists in whole or in part
of property not traded freely on a recognized market, or that information
necessary to ascertain the fair market value is not readily available, the
Trustee may request instructions from the Administrator concerning the value
of such property for all purposes under the Plan and this Trust Agreement, and
the Administrator shall comply with that request. The Trustee shall be
entitled to rely upon the value placed upon such property by the
Administrator. At the Trustee's option, it may request that the Administrator
hire an independent appraiser that meets the requirements of Code section
401(a)(28)(C) to value the property. Alternatively, if the Trustee chooses, or
if the Administrator shall fail or refuse to instruct the Trustee on the value
of such property within a reasonable time after
receipt of the Trustee's request, the Trustee at its sole discretion may
engage an independent appraiser to determine the fair market value of such
property. Any expenses with respect to such appraisal shall be paid by the
Trustee out of the Trust Fund or, at the option of the Company, by the Company.
ARTICLE 4
INDEMNIFICATION
4.1 To the extent permitted under ERISA, the Company shall
indemnify and hold harmless the Trustee, its officers, employees, and agents
from and against all liabilities, losses, expenses, and claims (including
reasonable attorney's fees and costs of defense) arising out of (1) the acts
or omissions to act with respect to the Plan or Trust by persons unrelated to
the Trustee ("unrelated persons"), (2) the Trustee's action or inaction with
respect to the Plan or Trust resulting from reliance on the action or inaction
of unrelated persons, including directions to invest or otherwise deal with
Plan assets, or (3) any violation by any unrelated person of the provisions of
ERISA or the regulations thereunder, unless the Trustee commits a breach of
its duties by reason of its negligence or willful misconduct. Expenses
incurred by the Trustee which it believes to be subject to indemnification
under this Agreement shall be paid by the Company upon the Trustee's request,
provided that the Company may delay payment of any amount in dispute until
such dispute is resolved according to the provisions of Sec. 8.5 of the
Agreement. Such resolution may include the award of interest on unpaid amounts
determined to be payable to the Trustee under this Section.
ARTICLE 5
TAXES, EXPENSES AND COMPENSATION OF TRUSTEE
5.1 The Trustee shall notify the Plan Administrator of any tax
levied upon or assessed against the Trust Fund of which the Trustee has
knowledge. If the Trustee receives no instructions from the Administrator, the
Trustee may pay the tax from the Trust Fund. If the Plan Administrator wishes
to contest the tax assessment, it shall give appropriate written instructions
to the Trustee. The Trustee shall not be required to bring any legal actions
or proceedings to contest the validity of any tax assessments unless the
Trustee has been indemnified to its satisfaction against loss or expense
related to such actions or proceedings, including reasonable attorney's fees.
5.2 The Company shall quarterly pay the Trustee its expenses in
administering the Trust Fund and reasonable compensation for its services as
Trustee as described in the SchwabPlan-Registered Trademark- Services
Agreement, which may be amended from time to time. Trustee reserves the right
to alter this rate of compensation at any time by providing the Company with
written notice of such change at least sixty days prior to its effective date.
Reasonable compensation shall include compensation for any extraordinary
services or computations required, such as determination of the value of
assets when current market values are not published, and the covering of
overdrafts. The Trustee shall have a lien on the Trust Fund for compensation
and for any reasonable expenses including counsel, appraisal, or accounting
fees, and such amounts may be withdrawn from the Trust Fund unless paid by the
Company within thirty days after mailing of the written billing by the Trustee.
ARTICLE 6
RESIGNATION OR REMOVAL OF TRUSTEE
6.1 The Trustee may resign as Trustee hereunder or may be
removed by the Company. This resignation or removal may be accomplished at any
time upon the giving of sixty days written notice to the Trustee or Company,
as applicable (or less if the other party agrees to waive notice). Upon
resignation or removal, the Company shall appoint a successor trustee who
shall then succeed to all the powers and duties given to the Trustee by this
Agreement. The terminating Trustee shall transfer all property of the Trust
Fund then held by it to such successor Trustee. The terminating Trustee may
require as a condition of making such transfer that the successor Trustee
present evidence that any bonding requirement under ERISA section 412 has been
met and/or may require that the Company provide a
writing indemnifying the Trustee against any losses arising from the
replacement of the Trustee. If either party has given notice of termination as
provided under this Agreement, and upon the expiration of the advance notice
period no other successor Trustee has been appointed and has accepted such
appointment, this provision shall serve as (i) notice of appointment of the
Chief Executive Officer of the Company as Trustee and (ii) as acceptance by
that person of that appointment. The Trustee is authorized to reserve such sum
of money as it may deem advisable for payment of its fees and expenses in
connection with the settlement of its accounts or other proper Trust expenses,
and any balance of such reserve remaining after the payment of such fees and
expenses shall be paid to the successor Trustee.
6.2 Within sixty days of the transfer to the successor Trustee,
the terminating Trustee shall provide the Company with an account in the form
and manner prescribed for the annual account by Article 3. Unless the Company
files with the Trustee written objections within sixty days after such account
has been mailed or otherwise delivered, the account shall be deemed to have
been approved by the Company.
ARTICLE 7
AMENDMENT AND TERMINATION OF TRUST
7.1 It is the intention of the Company that this Trust and the
Plan of which it is a part shall be permanently administered for the benefit
of the Plan's participants and their beneficiaries, and defraying reasonable
expenses of administering the Plan. This Trust is, accordingly, irrevocable
except with respect to Section 8.4; however, this Trust may be terminated at
any time by the Company, and upon such termination, the Trust Fund shall be
distributed by the Trustee as and when directed by the Administrator in
accordance with the provisions of Section 2.10 and the Plan document. From the
date of termination of the Plan and until the final distribution of the Trust
assets, the Trustee shall continue to have all the powers provided under this
Agreement that are necessary or desirable for the orderly liquidation and
distribution of the Trust Fund. In no instance upon any termination, or
discontinuance, and subsequent distribution shall the Trust Fund or any part
of it be used for, or diverted to, purposes other than providing benefits to
participating employees and their beneficiaries, and defraying the
administrative expenses of the Plan until all Plan liabilities have been
satisfied, except in the instance of the failure of the Trust initially to
qualify for tax-exempt status as set forth in Section 8.4.
7.2 This Trust Agreement, other than Section 7.1, may be amended
at any time by written agreement of the Company and the Trustee, provided,
that such amendment shall not operate:
(i) to cause any part of the Trust Fund to revert to or be
recoverable by the Company or to be used for or diverted to purposes other than
the exclusive benefit of participants and their beneficiaries, except to the
extent permitted by law and the Plan; or
(ii) to reduce the then accrued benefits or the amounts then
held for the benefit of any participant or beneficiary of the Plan.
7.3 The Trustee may condition the transfer or distribution of
any assets of the Trust Fund upon termination of the Trust on receipt of a
favorable determination letter from the Internal Revenue Service confirming
that the termination of the Plan does not adversely affect the tax-exempt
status of the Trust Fund. Alternatively, the Trustee, in its sole discretion,
may accept the indemnification of the Trustee against any liability arising
from such transfer or distribution that is provided by the Company or may
require the Company to post a bond sufficient to protect the Trustee against
such liability until such time as a favorable determination letter is received.
ARTICLE 8
MISCELLANEOUS
8.1 The Trust will be administered in the State of California,
and its validity, construction, and all rights hereunder shall be governed by
ERISA and, to the extent not preempted, by the laws of California. If any
provisions of this Agreement shall be invalid or unenforceable, the remaining
provisions shall continue to be fully effective.
8.2 The headings in this instrument have been inserted for
convenience of reference only, and are to be ignored in any construction of
the provisions of this Agreement.
8.3 No person entitled to any benefit under this Trust and the
Plan shall have any right to assign, alienate, hypothecate, or encumber his
interest in any benefits under this Agreement (except as to any loans under
the Plan) and those benefits shall not in any way be subject to claim of his
creditors or liable to attachment, execution, or other process of law except
to the extent required under a qualified domestic relations order within the
meaning of section 414(p) of the Code.
8.4 It is intended that this Trust shall be tax exempt under
section 501 of the Code and that the Plan referred to herein shall qualify
under section 401(a) of the Code. However, notwithstanding any other
provisions of the Trust, if the Internal Revenue Service is requested to issue
to the Company a favorable written determination or ruling with respect to the
initial qualification of the Plan and exemption of the Trust from tax and such
request is denied, the Trustee shall, after receiving a written direction from
the Administrator, pay to each participant that portion of the Trust Fund
applicable to said participant's voluntary contributions, if any, and provided
the Plan so states, pay to the Company any part of the Trust Fund attributable
to Company contributions then remaining in the Trustee's possession. As a
condition to such repayment, the Company must execute, acknowledge, and
deliver to the Trustee its written undertaking, in form satisfactory to the
Trustee, to indemnify, defend, and hold the Trustee harmless from all claims,
actions, demands, or liabilities arising in connection with such repayment,
and provided further that such repayment will occur within one year after the
date the request for qualification is denied.
8.5 Any dispute under this Agreement shall be resolved by
submission of the issue to a member of the American Arbitration Association
who is chosen by the Company and the Trustee. If the Company and the Trustee
cannot agree on such a choice, each shall nominate a member of the American
Arbitration Association, and the two nominees will then select an arbitrator.
Expenses of the arbitration shall be paid as decided by the arbitrator.
8.6 This Trust Agreement is incorporated into and is a part of
the Plan. Anything in any other part of the Plan that is inconsistent with
this Trust Agreement is overridden, and in the case of such conflict, the
terms of this Trust Agreement shall govern.
8.7 The duties and responsibilities of the Trustee shall be
solely those set forth in this document. The Trustee shall not be a named
fiduciary under the Plan and shall not have the authority to interpret the
Plan.
8.8 To the extent permitted by statutory or administrative
exemption, the Trustee may engage in actions that otherwise would violate
section 406 of ERISA.
8.9 Each fiduciary shall be solely responsible for the
fiduciary's own acts or omissions under the Plan or the Trust. Except to the
extent otherwise provided by ERISA, the parties specifically intend that no
fiduciary shall be liable for any breach of fiduciary responsibility of
another fiduciary.
8.10 The Trustee is authorized to tape record conversations
between the Trustee and persons acting on behalf of the Plan or a participant
in the Plan to verify data on transactions.
IN WITNESS WHEREOF, FOREST OIL CORPORATION and THE XXXXXXX XXXXXX TRUST
COMPANY, have caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the day and year first above written.
FOREST OIL CORPORATION
Company
By: /s/ Xxxx X. Xxxxxx
Printed Name: Xxxx X. Xxxxxx
Title: Vice President
THE XXXXXXX XXXXXX TRUST COMPANY
Trustee
By: /s/ Xxxxxxx Dallas
Printed Name: Xxxxxxx Dallas
Title: Trust Officer
THE XXXXXXX XXXXXX TRUST COMPANY
INVESTMENT GUIDELINES
FOR TRUST AND CUSTODY ACCOUNTS
INVESTMENT GUIDELINES
ACCEPTABLE ASSETS. Assets are considered to be Acceptable Assets depending on
the adequacy of CSTC's ability to support and administer the asset, CSTC's
powers and duties over the asset, the type of account, business risk, and other
factors. Because CSTC does not exercise investment management powers over the
Account, CSTC does not ordinarily make judgments about whether a particular
investment decision made by the Account Holder or the Investment Manager fits
the investment objectives of the Account or is otherwise appropriate for the
Account. Subject to the foregoing subjective criteria, and to other policies and
procedures that may be issued, the following types of assets are ordinarily
acceptable in CSTC accounts:
1. Cash.
2. Publicly traded stock listed on a U.S. stock exchange or regularly quoted
over-the-counter.
3. Publicly traded bonds listed on a U.S. bond exchange or regularly quoted
over-the-counter.
4. Mutual funds available through the Xxxxxxx Xxxxxx & Co., Inc. Mutual Fund
Marketplace.
5. Registered limited partnership interests, REITs and similar investments
listed on a U.S. stock exchange or regularly quoted over-the-counter.
6. Commercial paper, bankers acceptances eligible for rediscounting at the
Federal Reserve, repurchase and reverse repurchase agreements and other
"money market" instruments for which trading and custodial facilities are
readily available.
7. U.S. Government and U.S. Government Agency issues.
8. Municipal securities whose bid and asked values are readily available.
9. Federally insured savings accounts, Certificates of Deposit and Bank
Investment Contracts. The party directing such investments is responsible
for determining Federal insurance coverage and limits and for diversifying
Account assets in accordance with those limits.
10. American Depository Receipts, Eurobonds and similar instruments listed on a
U.S. exchange or regularly quoted domestically over-the-counter for which
trading and custodial facilities are readily available.
11. Life insurance, annuities, and Guaranteed Investment Contracts issued by
insurance companies licensed to do business in one or more states in the
U.S. (Note: The party directing such investments is responsible for
determining the safety of such investments, the economic viability of the
underwriter and for diversifying Account assets accordingly.)
The Account Holder understands that in certain circumstances a particular
investment may be determined by CSTC to be unacceptable, even though it would be
acceptable in other instances.
UNACCEPTABLE ASSETS. CSTC generally cannot acquire or hold the following assets:
1. General partnerships or undivided interests in real property.
2. Tangible personal property (e.g., precious metals, gems, works of art,
stamps, coins, furniture and other household items, motor vehicles, etc.).
3. Foreign currency and bank accounts.
4. Short sales.
5. Commodity futures and forward contracts.
6. Oil, gas and mineral interests.
7. Intangible personal property (e.g., patents and rights).
8. Real property.
9. Unsecured loans.
CONDITIONALLY ACCEPTABLE ASSETS. CSTC will follow the directions of the Account
Holder or the Investment Manager to acquire or hold Conditionally Acceptable
Assets only after analysis of CSTC's administrative capabilities and the
business risk involved in holding the particular assets in question. The Account
Holder understands that CSTC reserves the right in its sole discretion to refuse
to purchase or hold any particular issue or asset described below. In addition,
the purchase and holding of any such assets may be subject to certain
conditions, including additional fees.
1. Unregistered Limited Partnerships.
2. Other unregistered securities, closely held stock and other securities for
which there is no readily available market.
3. Loans secured by First Deeds of Trust.
4. Other secured loans.
5. The securities of the Xxxxxxx Xxxxxx Corporation, its affiliates and
subsidiaries. These securities may be subject to legal and regulatory
prohibitions or restrictions. In any event, no Trust account may acquire
and hold securities of the Xxxxxxx Xxxxxx Corporation securities unless
specifically authorized by the underlying Trust agreement.
6. Foreign securities for which trading and custodial facilities are readily
available.
7. Options.
SPECIFIC INDEMNITY. Notwithstanding any general indemnity given elsewhere, CSTC
reserves the right to seek specific indemnity from the Account Holder or other
appropriate parties where CSTC determines in its sole discretion that the
acquisition or holding of a particular asset or class of asset involves unusual
business risk.
