Exhibit 4.3
TRUST AGREEMENT
FOR THE
CBRE HOLDING COMMON STOCK FUND
UNDER THE
CB XXXXXXX XXXXX 401(K)PLAN
TABLE OF CONTENTS
Page
ARTICLE 1 - Definitions
1.1 Incorporation of Definitions Used in Plan ................................................... 1
1.2 Definitions of Certain Terms Used in Trust Agreement ........................................ 1
1.3 Named Fiduciaries ........................................................................... 2
ARTICLE 2 - Establishment of Trust and Certain Primary Conditions of its Operation
2.1 Establishment of Trust ...................................................................... 2
2.2 Designation of Trust ........................................................................ 2
2.3 Trust Fund .................................................................................. 2
2.4 Exclusive Benefit Rule ...................................................................... 2
2.5 Reversion Prohibited ........................................................................ 2
2.6 Claims against the Trust Fund ............................................................... 2
2.7 Employer Contributions ...................................................................... 3
2.8 Distributions ............................................................................... 3
ARTICLE 3 - Investment of the Trust Fund
3.1 General Responsibility and Authority for Investment of Trust Fund Assets .................... 3
3.2 ERISA Requirements .......................................................................... 3
3.3 Investment in Company Stock ................................................................. 3
3.4 Other Trust Fund Investments ................................................................ 4
3.5 Sale of Company Stock ....................................................................... 4
ARTICLE 4 - Powers of the Trustee
4.1 Scope of Powers ............................................................................. 4
4.2 Powers Exercised by the Trustee In Its Sole Discretion ...................................... 4
4.3 Powers Exercisable by the Trustee Only upon the Direction of the Committee .................. 5
4.4 Powers Exercisable by the Trustee Only upon the Direction of a Participant .................. 5
4.5 Documents, Instruments and Facilities ....................................................... 6
ARTICLE 5 - Duties and Obligations of the Trustee
5.1 Scope of Duties and Obligations ............................................................. 6
5.2 General Duties and Obligations .............................................................. 6
5.3 Voting of Company Stock ..................................................................... 6
5.4 Tender of Company Stock ..................................................................... 7
5.5 Valuation ................................................................................... 8
5.6 Records ..................................................................................... 8
5.7 Reports ..................................................................................... 8
5.8 Instructions ................................................................................ 8
5.9 Hiring of Agents and Related Expenses ....................................................... 9
ARTICLE 6 - Compensation, Rights and Indemnities of the Trustee
6.1 Compensation and Reimbursement .............................................................. 9
6.2 Rights of the Trustee ....................................................................... 9
6.3 Indemnification ............................................................................. 10
6.4 Limitation of Liability of Trustee .......................................................... 10
6.5 Court Proceedings and Necessary Parties to Legal Actions .................................... 11
6.6 Bonding of Trustee .......................................................................... 11
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6.7 Third Party ................................................................................. 11
6.8 Tax and Information Returns ................................................................. 11
ARTICLE 7 - Resignation or Removal of the Trustee
7.1 Resignation ................................................................................. 11
7.2 Removal ..................................................................................... 11
7.3 Successor Trustee ........................................................................... 11
7.4 Settlement .................................................................................. 12
7.5 Transfer to Successor Trustee ............................................................... 12
7.6 Duties of the Trustee Prior to Transfer to Successor Trustee ................................ 12
7.7 Powers, Duties and Rights of the Successor Trustee .......................................... 12
7.8 Merger or Consolidation Involving Corporate Trustee ......................................... 12
ARTICLE 8 - Amendment of the Trust Agreement or Termination of a Plan
8.1 Amendment of the Trust Agreement ............................................................ 12
8.2 Termination of the Plan ..................................................................... 13
ARTICLE 9 - Communications
9.1 Company's and Committee's Address ........................................................... 13
9.2 Trustee's Address ........................................................................... 13
9.3 Binding Upon Receipt ........................................................................ 14
9.4 Communication in Writing .................................................................... 14
ARTICLE 10 - Miscellaneous
10.1 Gender, Tense and Headings .................................................................. 14
10.2 Governing Law ............................................................................... 14
10.3 Mistake of Fact ............................................................................. 14
10.4 Deductibility of Contributions .............................................................. 14
10.5 Alienation .................................................................................. 14
10.6 Title of Trust Assets ....................................................................... 15
10.7 Titles for Convenience Only ................................................................. 15
10.8 Entire Agreement; Parties Bound ............................................................. 15
10.9 Executed Counterparts ....................................................................... 15
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TRUST AGREEMENT
FOR THE
CBRE HOLDING COMMON STOCK FUND
UNDER THE
CB XXXXXXX XXXXX 401(K) PLAN
This Trust Agreement for the CBRE Holding Common Stock Fund under the
CB Xxxxxxx Xxxxx 401(k) Plan (the "Plan"), entered into by and between CB
Xxxxxxx Xxxxx Services, Inc., a Delaware corporation (the "Company"), and U.S.
Trust Company, National Association (the "Trustee"), is effective as of the 9th
day of July, 2001.
WITNESSETH
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WHEREAS, the Company has adopted and is maintaining the Plan for the
exclusive benefit of the Plan's participants and beneficiaries; and
WHEREAS, the Company has appointed the Trustee as the trustee over the
portion of the Plan that is invested in the Company Stock Fund (as hereinafter
defined) and the Trustee has accepted such appointment and is willing,
commencing as of the effective date of this Trust Agreement, to serve as trustee
for such portion of the Plan's assets and to hold in trust those assets of the
Company Stock Fund in accordance with the provisions of this Trust Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
ARTICLE 1
DEFINITIONS
1.1 Incorporation of Definitions Used in Plan
Except as provided below, the definitions stated in the Plan are
hereby incorporated by reference into this Trust Agreement.
1.2 Definitions of Certain Terms Used in Trust Agreement
(a) "Bank" means (1) a banking institution organized under the
laws of the United States; (2) a member bank of the Federal Reserve System; or
(3) any other banking institution, whether or not incorporated, doing business
under the laws of any state or the United States, a substantial portion of the
business of which consists of receiving deposits or exercising fiduciary powers
similar to those permitted to national banks under the authority of the
Comptroller of the Currency, and which is supervised and examined by state or
federal authority having supervision over banks.
(b) "Company Stock" means the Class A common stock, $.01 par
value per share, of the Company's parent, CBRE Holding, Inc., a Delaware
corporation.
(c) "Company Stock Fund" means the New Company Stock Fund
established under the Plan, substantially all of the assets of which are
intended to be invested in Company Stock.
(d) "Fiduciary" means a person or organization that is a
fiduciary with respect to the Plan or the Trust Fund within the meaning of ERISA
Section 3(21).
(e) "Plan" means the CB Xxxxxxx Xxxxx 401(k) Plan, as amended
and/or restated from time to time.
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(f) "Trust" means the trust established hereunder.
1.3 Named Fiduciaries
The members of the Committee, collectively and individually, are
the named fiduciaries under the Plan for purposes of Section 402 of ERISA with
respect to the administration of the Plan, and each Participant is a named
fiduciary for purposes of Section 402 of ERISA with respect to certain matters
relating to Company Stock, as provided in the Plan. Except to the extent that
the provisions of the Plan or this Trust Agreement expressly provide that the
Trustee is subject to the direction of a named fiduciary, the Trustee shall have
exclusive authority and discretion to manage the acquisition and disposition of
Company Stock.
ARTICLE 2
ESTABLISHMENT OF TRUST AND CERTAIN PRIMARY CONDITIONS OF ITS OPERATION
2.1 Establishment of Trust
This Trust Agreement establishes this Trust pursuant to the
provisions of the Plan. The Company and the Trustee hereby agree that the Trust
Fund shall be held in trust and administered, invested and distributed for the
benefit of Participants and their Beneficiaries under the terms and conditions
of the Plan and this Trust Agreement.
2.2 Designation of Trust
The Trust shall be known as the CBRE Holding Common Stock Fund
Trust.
2.3 Trust Fund
The Trust Fund shall consist of the assets of the Plan allocated
by the Named Fiduciaries to the Company Stock Fund, and the contributions made
to the Trust by the Participating Companies under the provisions of the Plan,
plus the earnings and less the losses thereupon, without distinction between
principal and income, less the payments and distributions which at the time of
reference have been made by the Trustee as authorized herein. The Trustee need
not inquire into the source of any money or property transferred to it nor into
the authority or right of the transfer of such money or property to the Trustee.
2.4 Exclusive Benefit Rule
The Trust is expressly declared to be irrevocable, subject to the
provisions of Article 8. It shall be impossible, at any time prior to the
satisfaction of all liabilities with respect to Participants and their
Beneficiaries, for any part of the principal or income of the Trust Fund to be
used for, or diverted to, any purpose which is not for the exclusive benefit of
Participants and their Beneficiaries. The preceding sentence shall not be
construed in such a way as to prohibit the use of assets of the Trust Fund to
pay fees and other expenses and obligations incurred in the maintenance,
administration and investment of the Trust Fund in accordance with the
provisions of this Trust Agreement.
2.5 Reversion Prohibited
Except as permitted in the Plan, and by ERISA and the tax
qualification requirements of the Code, it shall be impossible for any part of
the Trust Fund to revert to the Company.
2.6 Claims against the Trust Fund
Subject to the claims procedures provided under the Plan, the
Committee shall have complete control and authority to determine the existence,
nonexistence, nature and amount of the rights and interests of all persons in or
to the Trust Fund or under the Plan. Except as otherwise required by ERISA, the
Trustee shall have no duty to question or to examine any determination made by
the Committee or direction given by the Committee to the Trustee in respect of
such matters.
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2.7 Employer Contributions
Employer contributions to the Trust Fund shall consist only of
cash, Company Stock or other property reasonably acceptable to the Trustee. The
Trustee shall have no duty to administer the Plan nor to determine that the
contributions received from the Company comply with the provisions of the Plan,
or to determine that the assets of the Trust are adequate to provide any benefit
payable pursuant to the Plan. The Trustee shall not be obligated to collect any
contributions from the Company, nor be obligated to see that funds deposited
with it are deposited according to the provisions of the Plan.
2.8 Distributions
Notwithstanding any provision herein to the contrary, payments
shall be made from the Trust Fund at the direction of the Committee (including
pursuant to authority contemplated under Section 4.3(b)) to such persons, in
such manner, at such times, and in such amounts as the Committee shall from time
to time direct in writing. To the extent permitted by ERISA, the Trustee shall
not be liable for any distribution made in reliance upon a written direction of
the Committee.
ARTICLE 3
INVESTMENT OF THE TRUST FUND
3.1 General Responsibility and Authority for Investment of Trust Fund
Assets
The assets of the Trust Fund shall be invested and reinvested by
the Trustee, subject to and in accordance with the terms of this Trust
Agreement, the Plan, and ERISA. The Company shall cause the Trustee to be
furnished with a copy of each amendment to or restatement of the Plan, and the
Trustee shall not be subject to any provision of the Plan that would affect its
responsibility and authority under this Trust Agreement until it has received a
copy of such provision.
3.2 ERISA Requirements
(a) In investing and managing the assets of the Trust Fund, the
Trustee, who, except as otherwise provided in the Plan or in this Trust
Agreement, has investment responsibility and authority, shall exercise the care,
skill, prudence and diligence, under the circumstances then prevailing, which
prudent men, acting in like capacity and familiar with such matters, would use
in the conduct of an enterprise of like character and with like aims.
(b) Except as authorized by regulations promulgated by the
Department of Labor, no fiduciary may maintain the indicia of ownership of any
assets of the Plan outside the jurisdiction of the district courts of the United
States.
(c) Notwithstanding any other provision of the Trust Agreement,
the Trustee shall not be required to comply with any provisions of the Trust
Agreement that is not consistent with the requirements of Title I of ERISA. In
the event a court of competent jurisdiction shall issue an opinion or order to
the Plan, the Company or the Trustee, which shall, in the opinion of counsel to
the Company or the Trustee, invalidate under ERISA, in all circumstances or in
any particular circumstances, any provision or provisions of this Trust
Agreement, then, upon notice thereof to the Company or to the Trustee, as the
case may be, such invalid or conflicting provisions of this Trust Agreement
shall be given no further force or effect in the applicable circumstances.
3.3 Investment in Company Stock
The Company Stock Fund provides for all or substantially all of
the investment to be in shares of Company Stock. In furtherance of such purpose,
the Trustee shall, in accordance with the terms of the Plan, (a) acquire shares
of Company Stock with assets of the Trust Fund and (b) hold shares of Company
Stock which have been contributed by the Company or otherwise acquired,
notwithstanding any other applicable fiduciary standard relating to (i)
diversification of Trust Fund assets, (ii) the speculative character of Trust
Fund investments, (iii) the lack or inadequacy of income provided by Trust Fund
assets, or (iv) the fluctuation in the fair market value of Trust Fund assets.
Subject to the provisions of the Plan, the Trustee is expressly authorized and
directed, except as may be necessary or appropriate to pay benefits not in the
form of Company Stock which are currently due or
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which are expected to become due in the near future, to hold 100% of the assets
of the Trust Fund in shares of Company Stock.
The Trustee may enter into purchase or sale transactions of Company
Stock for the Trust Fund either directly or indirectly with the Company or any
shareholder of the Company, including any person deemed to be a "party in
interest" within the meaning of ERISA section 3(14) or a "disqualified person"
within the meaning of Code section 4975. The Trustee shall comply with all
federal and state securities laws and with all applicable provisions of ERISA
when purchasing or selling Company Stock, including, if required, the condition
that no more than adequate consideration (as defined in Section 3(18) of ERISA)
be paid for such Company Stock, and no commission be charged when a purchase or
sale of Company Stock is made from a "party in interest" or a "disqualified
person."
3.4 Other Trust Fund Investments
The Committee may direct the Trustee to deposit or invest any assets
of the Trust Fund other than shares of Company Stock, (a) in short-term
cash-equivalent investments, such as Treasury Notes, Treasury Bills or other
similar short-term obligations of the United States Government or any
instrumentality thereof, savings accounts, bankers' acceptances, certificates of
deposit, commercial paper or other interest bearing accounts in a Bank
(including those of the Trustee, if the Trustee is a Bank and such instruments
or accounts bear a reasonable rate of interest), or in a non-interest bearing
checking account for the purpose of meeting contemplated payments under the
Plan, and (b) other securities, including mutual funds.
3.5 Sale of Company Stock
The Trustee is not authorized to sell shares of Company Stock
allocated to a Participant's Accounts prior to a Liquidation Event, except (a)
as provided in Section 5.4, (b) for purchases and sales of shares of Company
Stock between the Accounts of electing Participants, to the extent the Committee
establishes a mechanism permitting such purchase and sale transactions and (c)
to the extent the Trustee determines that Company Stock is no longer a prudent
investment for the Plan. If a Liquidation Event occurs with respect to a
Participant and the Participant elects to have his interest in the Company Stock
Fund distributed in cash, the Trustee shall, upon notice from the Committee of
the Participant's election, sell to the Company or the Affiliated Company, and
the Company or an Affiliated Company shall purchase from the Trustee, the shares
of Company Stock allocated to the Participant's Accounts as of the Repurchase
Date. The Company or Affiliated Company shall purchase such shares of Company
Stock for cash at a price per share equal to the fair market value of the
Company Stock as of the Repurchase Date as determined in good faith by the
Trustee based upon an appraisal provided at least annually by an independent
appraiser selected by the Trustee. No commission shall be charged with respect
to such purchase and sale.
ARTICLE 4
POWERS OF THE TRUSTEE
4.1 Scope of Powers
The Trustee has whatever powers are required to discharge its
obligations and exercise its rights under this Trust Agreement, without being
limited by any state statute or rule of law regarding investments by trustees,
including (but not limited to) the powers specified in the following Sections of
this Article, and the powers and authority granted to the Trustee under other
provisions of this Trust Agreement. The enumeration of any power herein shall
not be by way of limitation, but shall be cumulative and construed as full and
complete power in favor of the Trustee.
4.2 Powers Exercised by the Trustee In Its Sole Discretion
The Trustee is authorized and empowered to exercise the following
powers in its sole discretion:
(a) To sell, exchange, convey or transfer assets of the Trust
consistent with the provisions of Section 3.5.
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(b) To register any investment held in the Trust Fund in its own
name or in the name of a nominee, with or without the addition of words
indicating that such securities are held in a fiduciary capacity, and to hold
any investment in bearer form, and to deposit any investment in a depositary or
clearing corporation, but the books and records of the Trustee shall show that
all such investments are part of the Trust Fund.
(c) Subject to Section 5.2 of this Trust Agreement and the terms of
the Plan, to vote upon any stocks (including Company Stock), bonds, or other
securities in the Trust Fund and to give general or special proxies or powers of
attorney with or without power of substitution, to exercise any conversion
privileges, subscription rights or other options and to make any payments
incidental thereto, to consent to or otherwise participate in corporate
reorganizations or other changes affecting corporate securities in the Trust
Fund and to exercise rights of appraisal and similar rights and make decisions
with respect to choice of consideration relating thereto, and to delegate
discretionary powers and to pay any assessments or charges in connection
therewith.
(d) To employ suitable agents (who may be agents or employees of
the Company), including such public accountants, brokers, custodians, ancillary
trustees, and appraisers as shall be necessary and appropriate, and to employ
counsel (which may be counsel for the Committee or the Company), whose
reasonable expenses and compensation shall be paid by the Company, and if the
Company fails to pay, by the Trust Fund.
4.3 Powers Exercisable by the Trustee Only upon the Direction of the
Committee
The Trustee is authorized and empowered to exercise the following
powers only upon the direction of the Committee.
(a) To accept, compromise or otherwise settle any obligations or
liability due to or from it as Trustee hereunder, including any claim that may
be asserted for taxes under present or future laws, or to enforce or contest the
same by appropriate legal proceedings.
(b) To make distributions to Participants and Beneficiaries and
alternate payees under Qualified Domestic Relations Orders as contemplated
below.
(c) To sell shares of Company Stock pursuant to Section 3.5
following a Liquidation Event.
The Committee may authorize the Trustee in writing to exercise any
power with respect to which direction from the Committee is called for in this
Trust Agreement without specific directions or other instructions from the
Committee. However, to the extent that the Committee directs the Trustee
hereunder to take any actions pursuant to its directions, the Trustee shall be
protected to the extent permitted by ERISA in relying on such directions (other
than directions to the Trustee to act in its own discretion) and shall not be
liable in any way for following such direction. Moreover, if the Committee
neither directs the Trustee pursuant to this Section 4.3 nor authorizes the
Trustee in writing to exercise its independent powers with respect to such
matters without need for Committee direction, then with respect to matters for
which Committee direction is called for hereunder, the Trustee shall not be
liable, and shall be indemnified and held harmless by the Company, for any
failure to act hereunder, to the extent permitted by ERISA.
4.4 Powers Exercisable by the Trustee Only upon the Direction of a
Participant
The Trustee is authorized and empowered to exercise the following
powers only upon the direction of a Participant:
(a) To purchase shares of Company Stock in connection with the
offer by CBRE Holding, Inc. to sell such shares to the Plan.
(b) To purchase and sell shares of Company Stock between the
Accounts of Participants, to the extent the Committee establishes a mechanism
permitting such purchase and sale transactions.
(c) To exercise voting powers with respect to Company Stock
pursuant to Section 5.3.
(d) To tender or exchange shares of Company Stock pursuant to
Section 5.4.
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4.5 Documents, Instruments and Facilities
(a) In order to effectuate the specific powers and authority herein
granted to the Trustee, the Trustee may make, execute, acknowledge and deliver
any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate.
(b) The Trustee may use its own facilities in effecting any
transaction involving assets of the Trust Fund, upon prior notice to the Company
and the Committee, unless such use is prohibited by ERISA section 406.
ARTICLE 5
DUTIES AND OBLIGATIONS OF THE TRUSTEE
5.1 Scope of Duties and Obligations
The Trustee agrees to perform the duties and obligations imposed by
this Trust Agreement. No duties or obligations shall be imposed upon the Trustee
with respect to the Trust Fund unless undertaken by the Trustee under the
express terms of this Trust Agreement or unless imposed upon the Trustee by
statute or at common law. The Trustee shall have no duty or obligation to advise
Participants or Beneficiaries as to the effect of federal or state securities
laws on the Plan, the Trust Fund or any distributions therefrom.
5.2 General Duties and Obligations
(a) The Trustee shall hold all property received by it and any
income and gains thereupon. The Trustee shall manage, invest and reinvest the
Trust Fund, shall collect the income therefrom, and shall make payments as
provided in the Plans and in this Trust Agreement. The Trustee may utilize
depositories to hold assets of the Trust Fund; provided, however, that the
Trustee shall not be relieved of any fiduciary responsibility with respect to
the assets so held.
(b) The Trustee is responsible only for money or assets that it
actually receives. The Trustee has no duty to compute amounts to be paid to it
by the Company or to enforce collection of any contribution due from the
Company. The Trustee is not responsible for the correctness of the computation
of the amount of any contribution made or to be made by the Company.
(c) The Trustee shall make payments and disbursements from the
Trust Fund to or on the order of the Committee. Orders of the Committee with
respect to disbursements from the Trust Fund shall specify the application to be
made of such funds, and the Trustee may (to the extent permitted by law) rely on
the Committee's instructions regarding disbursements from the Trust Fund.
(d) Subject to the provisions of Section 8.2(b), the Trustee shall
comply with any directive issued by the Board or the Committee to withdraw and
transfer all or any part of the Trust Fund to another trustee or another
successor funding agent.
(e) With respect to all Company Stock held in the Trust Fund, the
Trustee shall (i) vote such shares on any matter presented to shareholders for a
vote in accordance with the provisions of Section 5.3; (ii) decide whether to
give general or special proxies or powers of attorney with or without power of
substitution with respect to such shares; (iii) decide whether to exercise any
conversion privileges, subscription rights or other options and to make any
payments incidental thereto; (iv) decide whether to consent to or otherwise
participate in corporate reorganizations or other changes affecting such shares;
(v) decide whether to exercise rights of appraisal and similar rights and make
decisions with respect to choice of consideration relating thereto or to
delegate discretionary powers and to pay any assessments or charges in
connection therewith; (vi) decide whether to tender such shares in the event of
a tender offer in accordance with the provisions of Section 5.4.
5.3 Voting of Company Stock
(a) The Trustee will vote Company Stock held in the Trust Fund in
accordance with the provisions of this Section 5.3. Within a reasonable time
before each annual or special meeting of shareholders of
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Company Stock, the Company or its delegate will send to each Participant whose
accounts are invested in the Company Stock Fund a copy of the applicable proxy
solicitation material, together with a form requesting instructions for the
Trustee on how to vote Company Stock allocated to such Participant's accounts.
Such Participants will also receive a notice from the Trustee explaining (i)that
all shares of Company Stock will be voted or not voted by the Trustee only in
accordance with instructions provided by Participants acting in their capacity
as named fiduciaries; (ii) the implications under the fiduciary responsibility
provisions of ERISA of the Participant's agreeing to become a named fiduciary;
(iii) that by returning the proxy solicitation and pursuant thereto specifically
directing the Trustee how the shares are to be voted, such Participant is
consenting to his appointment as named fiduciary with respect to the shares of
Company Stock allocated to his accounts and a proportionate number of shares of
Company Stock allocated to the accounts of Participants who fail to consent to
their appointment as named fiduciaries; (iv) that a Participant's consent to
appointment as a named fiduciary or failure to consent to such appointment shall
be binding only with respect to the specific proxy solicitation; and (v) that if
voting instructions for the shares of Company Stock allocated to the
Participant's accounts are not timely received, the Trustee shall treat the
non-receipt as a refusal by the Participant to be appointed as named fiduciary
with respect to that proxy solicitation. The disclosure materials provided to
each Participant must include an explanation that, when the Participant agrees
to become a named fiduciary with respect to the Company Stock allocated to his
accounts, he also is agreeing to become a named fiduciary with respect to a
proportionate number of shares of Company Stock allocated to the accounts of
Participants who have declined their appointment as named fiduciaries.
(b) Upon receipt of instructions, the Trustee will vote the shares
as instructed. The Trustee will maintain the instructions of each Participant in
confidence. The Trustee will vote Company Stock for which it does not receive
timely voting instructions with respect to such transaction in the same
proportion as the Trustee votes Company Stock for which it does receive timely
instructions; provided, however, that the Trustee will in all events exercise
its voting obligations consistent with the Trustee's fiduciary duties under
ERISA.
5.4 Tender of Company Stock
(a) The Trustee will notify each Participant whose accounts are
invested in the Company Stock Fund of each tender or exchange offer for one
percent or more of the Company Stock and will use its best efforts to distribute
or cause to be distributed to each such Participant in a timely manner all
information distributed to shareholders of Company Stock in connection with any
such tender or exchange offer. Each Participant will have the right from time to
time with respect to the Company Stock allocated to his accounts to instruct the
Trustee in writing as to the manner in which to respond to any tender or
exchange offer which shall be pending or which may be made in the future for all
such shares or any portion thereof. Any Participant's instructions will remain
in force until superseded in writing by the Participant.
(b) Such Participants will also receive a notice from the Trustee
explaining that (i) all shares of Company Stock allocated to such Participant's
accounts and subject to the offer will be tendered or exchanged, or will not be
tendered or exchanged, by the Trustee only in accordance with decisions made by
Participants acting in their capacity as named fiduciaries; (ii) by timely
returning a tender or exchange instruction form and pursuant thereto
specifically directing that the shares subject to the decision of the
Participant either be tendered or exchanged or not tendered or exchanged, such
Participant is consenting to his appointment as named fiduciary hereunder; and
(iii) a Participant's consent to appointment as a named fiduciary or failure to
consent to such appointment shall be binding only with respect to the specific
tender or exchange offer described in the materials sent to the Participant by
the Trustee. The Trustee will tender or exchange whole shares only as and to the
extent so instructed and will aggregate Participants' responses with respect to
fractional shares and tender or exchange fractional shares in a manner designed
to comply as closely as reasonably possible with the aggregate responses of all
Participants with respect to such fractional shares. Except as otherwise
provided by law, if the Trustee does not receive instructions from a Participant
regarding any tender or exchange offer for Company Stock allocated to such
Participant's accounts, the Participant's failure to furnish instructions will
be treated by the Trustee as the Participant's affirmative instruction not to
tender or exchange any shares allocated to the Participant's accounts.
(c) Unless and until shares are tendered or exchanged, the
individual instructions received by the Trustee from Participants will be held
by the Trustee in strict confidence and will not be divulged or released to any
person, including officers or employees of the Company or any Affiliated
Company, or any other company unless consented to by the Participant or
otherwise required by law; provided, however that the Trustee will advise the
Company at any time upon request of the total number of shares of Company Stock
held by the Trustee not subject to instructions or tender.
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5.5 Valuation
(a) The Trustee shall determine, and report to the Committee, the
current fair market value of the assets and liabilities of the Trust Fund, and
Participants' and Beneficiaries' interests therein, as of the regular Valuation
Date and as of any interim Valuation Date that may be fixed by the Committee.
(b) The fair market value of assets of the Trust Fund shall be
determined by the Trustee. In valuing the assets, the Trustee may rely on
information from the Company, the Committee, an appraiser or other sources, and,
to the extent permitted by ERISA, will not be liable for an inaccurate valuation
based in good faith on such information. Notwithstanding the foregoing, the fair
market value of shares of Company Stock shall be (i) if the Company Stock is
readily tradeable on an established securities market, the fair market value of
such stock on such market on the Valuation Date or (ii) if the Company Stock is
not readily tradeable on an established securities market, the fair market value
determined in good faith by the Trustee in accordance with the requirements of
ERISA and the provisions of Section 3.5.
(c) Reasonable costs incurred in valuing the Trust Fund shall be a
charge against the Trust Fund, to the extent not paid by the Company.
5.6 Records
The Trustee shall keep or have access to complete accounts of all
investments, receipts and disbursements, and other transactions with respect to
the Trust Fund, and gains and losses resulting from same. Such accounts shall be
sufficiently detailed to meet the Trustee's duties of reporting and disclosure
required under applicable federal or state law as shall exist from time to time.
All accounts, books, contracts and records relating to the Trust Fund shall be
open to inspection and audit at all reasonable times by any person designated by
the Committee.
5.7 Reports
(a) On a quarterly basis, within 90 days following the Trustee's
resignation or removal under Article 7 of this Trust Agreement, and at such
other times as agreed to by the Trustee and the Committee, the Trustee shall
furnish the Committee with a written report setting forth the transactions
effected by the Trustee during the period since it last furnished such a report
and any gains or losses resulting from same, any payments or disbursements made
by the Trustee during such period, the assets of the Trust Fund as of the last
day of such period (at cost and at fair market value as of the most recent
Valuation Date), and any other information about the Trust Fund that the
Committee may reasonably request. The Trustee shall certify the accuracy of the
report if such certification is requested by the Committee or is required by any
applicable federal or state law or regulation.
(b) The Committee may approve any report furnished by the Trustee
under subsection (a) either by written statement of approval furnished to the
Trustee or shall be deemed to have approved of any such report by failure to
file a written objection to the report with the Trustee within 90 days of the
date on which the Committee receives such report. The Committee shall not be
liable to any person for its approval, disapproval or failure to approve any
such report rendered by the Trustee.
(c) Notwithstanding anything in this Section 5.7 to the contrary,
nothing in this Section 5.7 shall be construed to limit Trustee's liability to
any party for the Trustee's own negligence or willful misconduct.
5.8 Instructions
All communications required hereunder from the Company or the
Committee to the Trustee shall be in writing signed by an officer of the Company
or by a member of the Committee authorized to sign on its behalf. The Committee
may authorize one or more of its members to sign on its behalf all
communications required hereunder between the Committee and the Trustee. At all
times during which communications between the Committee and the Trustee are
required hereunder, the Company and the Committee shall keep the Trustee advised
of the names and specimen signatures of all members of the committee and the
individuals authorized to sign on behalf of the Committee. In the absence of any
notification of changes, the Trustee may, absent actual knowledge to the
contrary, assume that the members of the Committee are the same as last reported
by the Company or Committee to the Trustee.
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5.9 Hiring of Agents and Related Expenses
The Trustee may employ suitable agents and counsel who may be agents
or counsel for the Company. The reasonable expenses incurred by the Trustee and
the Committee in hiring such agents or counsel or otherwise in the performance
of their duties hereunder and all other reasonable charges, expenses,
disbursements and compensation of the Trustee or the Committee otherwise
provided for hereunder shall be paid by the Trust Fund, to the extent not paid
by the Company.
ARTICLE 6
COMPENSATION, RIGHTS AND INDEMNITIES OF THE TRUSTEE
6.1 Compensation and Reimbursement
(a) The Trustee shall receive for its services reasonable
compensation as agreed upon in writing from time to time between the Company and
the Trustee.
(b) The Trustee shall be reimbursed within 60 days of billing for
all reasonable out-of-pocket expenses it incurs in the performance of its duties
under this Trust Agreement. In this regard, reasonable expenses include (but are
not limited to) accounting, consulting, appraisal, brokerage, custodial,
actuarial and legal fees for professional services related to the administration
of the Plan and this Trust Agreement.
(c) Compensation and expenses payable under this Section 6.1 shall
be paid by the Trust Fund (and may be charged, if applicable, to an appropriate
subaccount or subtrust) to the extent not paid by the Company. In addition, the
Company, in its discretion, may reimburse the Trust Fund for any such
compensation and expenses paid from the Trust Fund.
6.2 Rights of the Trustee
(a) Whenever in the administration of the Plan a certification or
direction is required to be given to the Trustee, or the Trustee deems it
necessary that a matter be proved prior to taking, suffering or omitting any
action hereunder, such certification or direction shall be fully made, or such
matter may be deemed to be conclusively proved, by delivery to the Trustee of an
instrument signed either:
(1) in the name of the Company by an officer of the Company;
or
(2) unless the matter concerns the authority of the
Committee, in the name of the Committee by a member of the Committee;
(3) and the Trustee may reasonably rely upon such instrument
to the extent permitted by ERISA. Notwithstanding the foregoing, the Trustee may
in its sole discretion accept such other evidence of a matter or require such
further evidence as may seem reasonable to it, in lieu of such instrument.
Generally, to the extent permitted by ERISA, the Trustee shall be protected in
acting upon any notice, resolution, order, certificate, opinion, telegram,
letter or other document reasonably believed by the Trustee to be genuine and to
have been signed by the proper party or parties, and may act thereon without
notice to a Participant or Beneficiary and without considering the rights of any
Participant or Beneficiary.
(b) The Trustee may consult with legal counsel (who may be counsel
for the Committee or the Company) with respect to the construction of the Plan
or this Trust Agreement or its duties thereunder, or with respect to any legal
proceeding or any question of law, and shall be fully protected to the extent
permitted by ERISA with respect to any action it takes or omits in good faith
upon the advice of such counsel.
(c) The Trustee shall be provided with specimen signatures of the
current members of the Committee. The Trustee shall be entitled to rely in good
faith upon any directions signed by a majority of the members of the Committee
or their appointed delegate, and, to the extent permitted by ERISA, shall incur
no liability for following such directions.
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(d) The Trustee may accept communications by photostatic
teletransmissions with duplicate or facsimile signatures as a delivery of such
communications in writing until notified in writing by the Committee that the
use of such devices is not longer authorized.
(e) Until advised to the contrary by the Company, the Trustee shall
assume that the Trust is exempt from all Federal, State, and local income taxes,
and may act in accordance with that assumption. If the whole or any part of the
Trust Fund, or the proceeds thereof, becomes liable for the payment of any
estate, inheritance, income or other tax, charge or assessment which the Trustee
is required to pay, the Trustee shall have full power and authority to pay such
tax, charge or assessment out of any money or other property in its hand for the
account of the person whose interests hereunder are so liable, but at least 10
days prior to the making of any such payment the Trustee must mail notice to the
Committee of its intention to make such payment. Prior to making any transfers
or distributions of any of the proceeds of the Trust Fund, the Trustee may
require such releases or other documents from any lawful taxing authority and
may require such indemnity from any payee or distributee, as it deems necessary.
6.3 Indemnification
(a) The Company and its successors shall indemnify and hold harmless
the Trustee from all loss or liability (including expenses and reasonable
attorneys' fees) to which the Trustee may be subject by reason of its execution
of its duties under this Trust Agreement, or by reason of any acts taken in good
faith in accordance with directions, or acts omitted in good faith due to
absence of directions, from the Committee unless such loss or liability is due
to the Trustee's negligence or willful misconduct. The Trustee is entitled to
collect on the indemnity provided by this Section 6.3 only from the Company, and
is not entitled to any direct or indirect indemnity payment from assets of the
Trust Fund.
(b) For purposes of this Section 6.3, negligence shall be defined as
acts or omissions that constitute a material departure from standards of
ordinary care.
6.4 Limitation of Liability of Trustee
(a) If the Trustee makes a written request for directions from the
Committee to be given as provided hereunder, the Trustee, to the extent
permitted by ERISA, may await such directions without incurring liability. To
the extent permitted by ERISA, the Trustee has no duty to act in the absence of
such requested directions, but may in its discretion take such action as it
deems appropriate to carry out the purposes of this Trust Agreement, without
liability therefor.
(b) To the extent permitted by ERISA, the Trustee shall not be liable
to any person for any distribution made at the direction of the Committee.
(c) The Trustee is not responsible for determining the adequacy of the
Trust Fund to meet liabilities under the Plan, and is not liable for any
obligations of the Plan or the Trust Fund in excess of the assets of the Trust
Fund.
(d) The Trustee shall not be liable for the acts or omissions of any
other fiduciary or person with respect to the Plan or the Trust Fund except to
the extent required under ERISA.
(e) The Trustee is not responsible for any matter affecting the
administration of the Plan by the Company, the Committee or any other person or
persons to whom responsibility for administration of the Plan is delegated
pursuant to the terms of the Plan.
(f) The Trustee shall not be liable for any action taken or omitted
upon direction of the Committee, the Company or a Participant or Beneficiary
pursuant to Section 4.3 or Section 4.4. If at any given time the Committee or
Company should fail to give directions or instructions to the Trustee as
provided in this Agreement, the Trustee, to the extent permitted by ERISA, shall
act or refrain from acting without such directions or instructions and may
exercise its own discretion and judgment as seems appropriate and advisable
under the circumstances in carrying out the purposes of this Agreement, without
liability by the Trustee to the Committee or the Company therefor.
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(g) Notwithstanding any provision or inference to the contrary
contained in the Trust Agreement or the Plan, the Trustee will not be
responsible for: (i) calculating or withholding payroll taxes on any
contributions by or on behalf of Participants; or (ii) maintaining any records
of Participants' Accounts under the Plan.
6.5 Court Proceedings and Necessary Parties to Legal Actions
The Trustee may institute, maintain or defend any litigation necessary
to protect the rights of the Trust Fund, provided that the Trustee shall be
under no duty or obligation to do so unless it shall have been indemnified to
its satisfaction against all expenses and liabilities which it may sustain or
reasonably anticipate by reason thereof. All costs and expenses of litigation
for which the Trustee would be liable shall be paid by the Trust Fund to the
extent not paid by the Company. Except as required by ERISA section 502(h), only
the Company, the Committee and the Trustee shall be considered necessary parties
in any legal action or proceeding with respect to the Trust Fund, and no
Participant, Beneficiary or other person having an interest in the Trust Fund
shall be entitled to notice. Any judgment entered on any such action or
proceeding shall be binding on the Company, the Committee, the Trustee and all
persons claiming under the Trust. Nothing in this Section 6.5 is intended to
preclude a Participant or Beneficiary from enforcing his legal rights.
6.6 Bonding of Trustee
The Trustee shall not be required to furnish any bond or security for
the performance of its powers and duties hereunder, unless, irrespective of this
provision, the Trustee is required to do by State or Federal statute or
regulation.
6.7 Third Party
No person dealing with the Trustee shall be obligated to see to the
proper application of any money paid or property delivered to the Trustee, or to
inquire whether the Trustee has acted pursuant to any of the terms of the Plan
or Trust. Each person dealing with the Trustee may act upon any notice, request,
or representation in writing by the Trustee, or by the Trustee's duly authorized
agent, and shall not be liable to any person in so doing. The certificate of the
Trustee that it is acting in accordance with the Plan or Trust shall be
conclusive in favor of any person relying on the certificate.
6.8 Tax and Information Returns
The Company shall be responsible for timely filing all tax and
information returns, as well as all required descriptions, reports, and
disclosures, relating to the Plan and Trust.
ARTICLE 7
RESIGNATION OR REMOVAL OF THE TRUSTEE
7.1 Resignation
The Trustee may resign at any time by delivering to the Board of
Directors or the Committee a written notice of resignation, to take effect not
less than 60 days after delivery, unless such notice is waived by the Board of
Directors of the Company or the Committee.
7.2 Removal
The Board of Directors or the Committee may remove the Trustee at any
time by delivering to the Trustee, not less than 30 days before it is to take
effect, a written notice of removal (unless such notice is waived by the
Trustee).
7.3 Successor Trustee
Upon the resignation or removal of the Trustee, the Board of Directors
or the Committee shall appoint a successor Trustee, which may accept such
appointment by execution of this Trust Agreement. In the event
11
that no successor Trustee is appointed, the Trustee shall continue to act as
Trustee until a successor Trustee is appointed. If, within 60 days after notice
of resignation or removal has been given, a successor Trustee has not been
appointed, the resigning or removed Trustee or the Company may apply to a court
of competent jurisdiction for the appointment of a successor Trustee.
7.4 Settlement
The Trustee shall have the right to have a final settlement of the
accounts of the Trust by judicial settlement in an action instituted by the
Trustee in a court of competent jurisdiction.
7.5 Transfer to Successor Trustee
Upon settlement of the Trustee's account, the Trustee shall transfer
to the successor Trustee the Trust Fund as it is then constituted and true
copies of its records relating to the Trust Fund. Upon the completion of this
transfer, the Trustee's responsibilities under this Trust Agreement shall cease
and, to the extent permitted by ERISA, the Trustee shall be discharged from
further accountability for all matters embraced in its settlement; provided,
however, that the Trustee executes and delivers all documents and written
instruments which are necessary to transfer and convey the right, title and
interest in the Trust Fund assets, and all rights and privileges with respect to
such assets, to the successor Trustee. Notwithstanding the foregoing, the
Trustee is authorized to reserve such amount as it may deem advisable for
payment of its fees and expenses in connection with the settlement of its
account. Any balance of such reserve remaining after the payment of such fees
and expenses shall be paid over promptly to the successor Trustee.
Notwithstanding any provision of Trust Agreement to the contrary, the Trustee
may invest and reinvest such reserves in any investment or investment vehicle
appropriate for the temporary investment of cash reserves of trust.
7.6 Duties of the Trustee Prior to Transfer to Successor Trustee
The Trustee's powers, duties, rights and responsibilities under this
Trust Agreement shall continue until the date on which the transfer of the Trust
Fund assets and delivery of the related documents to the successor Trustee under
Section 7.5 is completed. Nothing contained herein shall relieve the Trustee of
its duties under Section 5.7. The successor Trustee shall neither be liable or
responsible for any act or omission to act with respect to the operation or
administration of the Trust Fund under this Trust Agreement prior to such date,
nor be under any duty or obligation to audit or otherwise inquire into or take
any action concerning the acts or omissions of the Trustee or any predecessor
Trustee.
7.7 Powers, Duties and Rights of the Successor Trustee
Upon its receipt of all the assets of the Trust Fund and all of the
documents related thereto, the successor Trustee shall become vested with all
the estate, powers, duties, rights and discretion of the Trustee under this
Trust Agreement with the same effect as though the successor Trustee were
originally named as Trustee hereunder.
7.8 Merger or Consolidation Involving Corporate Trustee
Any corporation into which a corporation acting as Trustee hereunder
may be merged or with which it may be consolidated, or any corporation resulting
from any merger, reorganization or consolidation to which such Trustee may be a
party, shall be the successor of the Trustee hereunder without the necessity of
any appointment or other action, provided it does not resign and is not removed.
ARTICLE 8
AMENDMENT OF THE TRUST AGREEMENT OR TERMINATION OF A PLAN
8.1 Amendment of the Trust Agreement
(a) The Company reserves the right to amend this Trust Agreement in
the manner set forth in subsection(b) at any time and to any extent that it may
deem advisable or appropriate, provided, however, that:
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(1) No amendment may increase the duties, rights,
responsibilities or liabilities of the Trustee without its written consent;
(2) No amendment may have the effect of vesting in the Company
any interest in or control over any property subject to the terms of this Trust
Agreement, except as permitted by law; and
(3) No amendment may contravene the provisions of Section 2.4.
(b) Any amendment to this Trust Agreement shall be made only pursuant
to action of the Board of Directors of the Company. A certified copy of the
resolution adopting any amendment and a copy of the adopted amendment as
executed by the Company shall be delivered to the Trustee. Upon such action by
the Company, the Trust Agreement shall be deemed amended as of the date
specified as the effective date by such action or in the instrument of the
amendment. The effective date of any amendment may be before, on or after the
date of such action.
8.2 Termination of the Plan
(a) In the event that the Plan is terminated, the Committee shall
notify the Trustee as to whether the Trust Fund is to be distributed or is to be
maintained by the Trustee in accordance with the provisions of the Plan and this
Trust Agreement. If the Committee directs that the Trust Fund is to be
distributed, the Trustee shall establish the fair market value of the Trust Fund
as of such interim Valuation Date as designated by the Committee, and, after
paying the reasonable expenses involved in the termination of the Plan, shall
distribute all or a part of the assets of the Trust Fund (converting such assets
into cash, as necessary) in accordance with the written directions of the
Committee.
(b) Notwithstanding the provisions of subsection (a):
(1) To the extent permitted by ERISA, the Trustee may pay, from
the assets of the Trust Fund, the reasonable expenses involved in the
termination of the Trust Fund prior to distributing the assets of the Trust Fund
as directed by the Committee;
(2) The Trustee shall not comply with any instruction to transfer
assets of the Trust Fund to the funding agent of any other employee benefit plan
unless the Trustee determines that such transfer of assets will comply with the
requirements of the Code, and that any required actuarial statement of valuation
has been properly filed; and
(3) The Trustee may condition the delivery, transfer or
distribution of any or all assets of the Trust Fund upon its receipt of
assurance satisfactory to it that there has been proper compliance with all
notices and other procedures required by applicable law.
ARTICLE 9
COMMUNICATIONS
9.1 Company's and Committee's Address
Communications to the Company shall be addressed to it at Office of
General Counsel, CB Xxxxxxx Xxxxx Services, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. Communications to the Committee shall be
addressed to it in care of the Company, at the address above, provided, however,
that upon the Company's or the Committee's written request, such communications
shall be sent to such other address as the Company or the Committee, as the case
may be, may specify.
9.2 Trustee's Address
Communications to the Trustee shall be addressed to the attention of
Mr.XxxxxxxX. Xxxx, Executive Vice President, U.S. Trust Company, N.A., 000 Xxxxx
Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, provided, however, that upon the
written request of the Trustee, such communications shall be sent to such other
address or addresses as the Trustee may specify.
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9.3 Binding Upon Receipt
No communication shall be binding on the Trustee, Company or Committee
until it is received by such party.
9.4 Communication in Writing
Any action of the Company or the Committee pursuant to this Trust
Agreement, including all orders, requests, directions, instructions, approvals
and objections of the Company or the Committee to the Trustee, shall be in
writing signed on behalf of the Company or the Committee by any duly authorized
officer of the Company or member of the Committee, respectively. The Trustee
shall be governed by such action and, to the maximum extent permitted by ERISA,
be fully protected, and indemnified in accordance with and subject to the
conditions of Section 6.3 hereof, in relying thereon.
ARTICLE 10
MISCELLANEOUS
10.1 Gender, Tense and Headings
Whenever any words are used herein in the masculine gender, they shall
be construed as though they were also used in the feminine gender in all cases
where they would so apply. Whenever any words used herein are in the singular
form, they shall be construed as though they were also used in the plural form
in all cases where they would so apply.
Headings of Articles, Sections and subsections as used herein are
inserted solely for convenience and reference and constitute no part of this
Trust Agreement.
10.2 Governing Law
This Trust Agreement shall be construed and governed in all respects
in accordance with applicable federal law, and, to the extent not preempted by
such federal law, in accordance with the laws of the State of California without
giving effect to the choice of laws principles of such State.
10.3 Mistake of Fact
Notwithstanding any other provisions herein contained, if any
contribution is made due to a mistake of fact, such contribution shall, upon the
direction of the Committee, which shall be given in conformity with the
provisions of ERISA, be returned to the Company or the party who made it, as
directed by the Company, without liability to any person (including, but not
limited to, Participants and Beneficiaries).
10.4 Deductibility of Contributions
Notwithstanding any other provisions herein contained, all
contributions made under the Plan are hereby expressly conditioned upon their
deductibility under Section 404 of the Code and the Treasury Regulations
thereunder, as amended from time to time, and, if the deduction for any
contribution is disallowed in whole or in part, then such contribution (to the
extent the deduction is disallowed) shall, upon the direction of the Committee,
which shall be given in conformity with the provisions of ERISA, be returned to
the Company or the party who made it without liability to any person.
10.5 Alienation
Except in the case of a Qualified Domestic Relations Order, or as
otherwise required by Federal law, (a) the benefits, proceeds, payments, or
claims of any Participant or Beneficiary payable from the Trust assets shall not
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary or involuntary including any such liability which is for
alimony or other payments for support of a spouse or former spouse, (b) any
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber,
garnish, levy or otherwise dispose of or execute upon any right or
14
benefit payable hereunder shall be void, and (c) the Trust assets shall not in
any manner be liable for or subject to the debts, contracts, liabilities,
engagements, or torts of any Participant entitled to benefits hereunder and such
benefits shall not be considered an asset of the Participant in the event of his
insolvency or bankruptcy.
10.6 Title of Trust Assets
The legal and equitable title and ownership of all assets at any time
constituting a part of the Trust Fund shall be and remain with the Trustee and
neither the Company nor any Participant shall ever have any legal or equitable
estate therein, save and except that a Participant shall be entitled to receive
distributions as and when lawfully made under the terms hereof.
10.7 Titles for Convenience Only
Titles to the Section of the Trust Agreement are included for
convenience only and shall not control the meaning of interpretation of any
provision of the Trust Agreement.
10.8 Entire Agreement; Parties Bound
The Trust Agreement and the Plan contain the entire agreement and
understanding of the Company and the Trustee with respect to the subject matter
hereof and supersede all prior agreements and understandings related to such
subject matter. This Agreement shall be binding upon the parties hereto and
their successors and assigns.
10.9 Executed Counterparts
The Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed to be the original although the others shall not
be produced.
IN WITNESS WHEREOF, the Company and the Trustee have executed this Trust
Agreement as of the date first written above.
CB XXXXXXX XXXXX SERVICES, INC. U.S. TRUST COMPANY, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------- ------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxx
Its: Senior Executive Vice President Its: Executive Vice President
15
