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EXHIBIT 4-d-1
TRUST AGREEMENT
THIS TRUST AGREEMENT, made as of the 30th day of September, 1995, by
and between the SAVINGS PLAN ASSET COMMITTEE (hereinafter referred to as the
"Committee") of Xxxxx-Xxxxxxx Company, Inc. (hereinafter referred to as the
"Company"), and FIRST INTERSTATE BANK OF CALIFORNIA, a California corporation
having its principal place of business at Los Angeles, California (hereinafter
referred to as the ("Trustee").
WITNESSETH:
WHEREAS, the Company has adopted the Xxxxx-Xxxxxxx Savings and
Investment Plan for Salaried Employees, the Xxxxx-Xxxxxxx Savings and Investment
Plan for Hourly Employees and the Xxxxx-Xxxxxxx Employee Savings Plan for
Represented Hourly Employees (hereinafter referred to collectively as the
"Plan"), for the benefit of such of its employees as become participants
therein, and their beneficiaries, if any, in the manner and to the extent
provided in the Plan; and
WHEREAS, the Plan provides that the property resulting from
contributions made on behalf of all participants, including contributions made
by the Company, shall constitute a trust fund to be held by a trustee or
trustees in trust for the purposes provided for in the Plan; and
WHEREAS, the Committee has been provided, pursuant to the provisions of
the Plan documents, authority to enter into a Trust Agreement on behalf of the
Company with respect to such trust fund;
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WHEREAS, the Committee, by action taken on September 13, 1995, has
appointed the Trustee as a trustee under the Plan; and the Trustee has
determined and agreed to act in such capacity;
NOW THEREFORE, the parties hereby agree as follows:
1. The Committee, on behalf of the Company and the Plan hereby
establishes a Trust with the Trustee pursuant to the Plan. Such Trust shall
comprise the property resulting from cash or other property (acceptable to the
Trustee) including the Common Stock of the Company ("Common Stock") received by
the Trustee from any other Trustee under the Plan at the direction of the
Committee, and contributions made pursuant to the Plan from time to time paid to
the Trustee by the Company in cash or other property (acceptable to the Trustee)
including Common Stock. All such cash, or other property, or investments or
proceeds thereof and all income, profits, increments, and accruals therefrom
(less the payments which the Trustee, from time to time, may make therefrom
pursuant to the provisions hereof) shall constitute the Trust Fund. The Trust
Fund shall be held by the Trustee in trust as herein provided. The Trust Fund
shall be under no duties whatsoever hereunder, except as expressly stated herein
and, without limiting the foregoing, shall have no responsibility to determine
whether the amount of the property paid to it by the Company is in accordance
with the Plan and no duty to collect, determine the accuracy of nor enforce
payment to it of any property due it from the Company or any Participant.
2. It shall be the duty of the Trustee hereunder (a) to hold, to
invest and to reinvest the Trust Fund as herein provided, (b) to transfer all or
any portion of the Trust Fund to any other Trustee as the Committee may from
time to time direct, (c) to make such payments in cash or Common Stock
("payments") from the Trust Fund (i) as the plan administrator of the Plan
(hereinafter referred to as the "Plan Administrator") may from time to time
direct, which payments shall be the payments to Participants or their
Beneficiaries as provided under the Plan, or to any other Trustee then serving
as a Trustee under the Plan, or (ii) for the payment of the expenses as provided
in Paragraph 7 of this Agreement, and (d) upon direction from the Committee to
transfer from the Trust Fund all or a portion of the accounts of Participants
employed by the Committee at a divested subsidiary, affiliate, component or part
of any thereof, to any trustee or other funding agent of any pension or profit
sharing plan or plans which is established or maintained by the acquirer of the
said divested subsidiary, affiliate, component or part of any thereof on behalf
of the said Participants in accordance with the provisions of section 401(a) of
the Internal Revenue Code. Upon such directions such payments shall be made
directly to the payee certified by the Committee to be entitled to receive them
under the Plan. The Trustee shall be fully protected in making such payments
from the Trust Fund upon such direction and shall not be charged with any
responsibility as to the application of such payments or as to compliance of
such transfer with Internal Revenue Code sections 401(a)(12) and 414(1).
3. (a) To the extent directed by the Committee, the Trustee shall
establish:
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(i) A Diversified Fund consisting of all contributions made
by Participants under the Plan subsequent to September
30, 1995 and designated pursuant to provisions of the
Plan as applicable from time to time (including
provisions, if any, regarding transfers of sums between
funds), as contributions to the Diversified Fund; all
property purchased therewith and the proceeds and
income of such contributions and property; and
(ii) A Fixed Income Fund consisting of all contributions
made by Participants under the Plan subsequent to
September 30, 1995 and designated pursuant to
provisions of the Plan as applicable from time to time
(including provisions, if any, regarding transfers of
sums between funds), as contributions to the Fixed
Income Fund, all property purchased therewith and
proceeds and income of such contributions and property;
and
(iii) A Stock Fund A consisting of all cash and Common Stock
of the Company contributed by the Company to match
contributions deducted from the Participant's
compensation on or after October 1, 1995 and the
proceeds and income therefrom; and
(iv) RESERVED
(v) An Intermediate Term Bond Fund consisting of all
contributions made by Participants under the Plan
subsequent to September 30, 1995 and designated
pursuant to provisions of the Plan as applicable from
time to time as contributions to the Intermediate Term
Bond Fund, all property purchased therewith and
proceeds and income of such contributions and property;
and
(vi) A Guaranteed Return Fund consisting of all
contributions made by Participants under the Plan and
designated pursuant to provisions of the Plan as
applicable from time to time as contributions to the
Guaranteed Return Fund (including provisions, if any,
regarding transfers of sums between funds), any
interest in a guaranteed return contract or contracts
with an insurance company or companies acquired
therewith and any other proceeds therefrom.
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(b) To the extent directed by the Committee, the Trustee shall
from time to time:
(i) Invest and reinvest the principal and income of the
Diversified Fund, without direction and without
distinction between principal and income of the said
Diversified Fund, which has not been segregated in an
Investment Manager Account or accounts, in every kind
of property (real, personal or mixed, and every kind of
investment, specifically including, but not by way of
limitation, corporate obligations of every kind and
stocks preferred or common) which men of prudence,
acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a
like character and with like aims, as the Trustee shall
in its discretion determine, provided that the Trustee
shall not invest such principal and income in any
security issued by the Company. Notwithstanding any
other provision of this Agreement, up to 10% of the
contributions made to the Diversified Fund may, to the
extent directed by the Committee, be invested by the
Trustee in any special investment fund maintained by
the Trustee designed to offer unusual possibilities for
growth and capital investment, and specifically within
the contemplation hereof, and notwithstanding any other
provision of this instrument, the persons, natural or
legal, who control the investments of this Trust, may
cause any part or all of the assets of this Trust to be
invested collectively with the money and other assets
of trust created by others by causing such money and
other assets to be invested as part of any common,
collective or commingled trust fund, as the same may
have heretofore been or may hereafter be established by
the Trustee, which is qualified under the provisions of
section 401(a) and exempt under the provisions of
section 501(a) of the Internal Revenue Code of 1986, as
the same may be amended. The money and other assets of
this Trust so added to any such common, collective or
commingled trust fund maintained by the Trustee shall
be subject to all of the provisions of the Declaration
of Trust, as the same may be amended, under which any
such common, collective or commingled trust fund shall
be maintained, and for the period of any such
collective investment of assets of this Trust such
Declaration of Trust, as the same may be amended, shall
constitute a
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part of this instrument. The Trustee shall have the sole
responsibility with respect to selecting, making and
retaining investments; and
(ii) Invest and reinvest the principal and income of the Fixed
Income Fund without direction and without distinction between
principal and income of the said Fixed Income Fund, in the
following kinds of instruments of debt with maturity of not
more than three years: treasury bills, treasury notes,
treasury bonds, federal agency obligations, other instruments
of federal, state and local government debt, bankers
acceptances and bank certificates of deposit, and cash
equivalents including short-term fixed income commingled and
collective investment funds of banks, but the Trustee shall
not invest such principal and income in any instrument of
debt issued by the Company. The Trustee shall have the sole
responsibility with respect to selecting, making and
retaining investments, and
(iii) Use all cash in the Stock Fund A only to purchase Common
Stock. Purchases may be made from or through any source
(other than the Committee) including a Participant. Rights,
options or warrants offered to purchase Common Stock shall be
exercised by the Trustee in his discretion but only to the
extent that there is cash available in the Stock Fund A for
investment. To the extent they are not exercised, the same
shall be sold on the open market. Rights, options or warrants
to purchase securities of Rockwell International Corporation
or its subsidiaries or affiliates other than Common Stock
shall be sold by the Trustee on the open market; and
(iv) RESERVED
(v) Invest and reinvest the principal and income of the Fixed
Income Fund without direction and without distinction between
principal and income of the said Fixed Income Fund, in the
following kinds of instruments of debt with a combined
average maturity of not more than five years: treasury bills,
treasury notes, treasury bonds, federal agency obligations
and other instruments of government debt. The Trustee shall
have the sole responsibility with respect to selecting,
making and retaining investments, and
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(vi) Invest and reinvest the principal and income of the
Guaranteed Return Fund only in one or more contracts executed
between the Trustee and one or more insurance companies
whereby such companies agree to guarantee a defined rate or
rates of earnings or interest on amounts so invested. Such
contract or contracts shall contain such terms, and shall be
with such insurance company or companies, as the Company may
direct; and
(vii) In making all investments pursuant to the above subsections,
the Trustee (A) shall not, except as provided in Part 4 of
Title I of the Employee Retirement Income Security Act of
1974, be bound by any law or court doctrine of any state or
jurisdiction limiting trust investments, (B) makes no
warranty or representation with respect to the continuing
value of participating units, and (C) shall give
consideration to the cash requirements of the Plan.
(c) The Trustee may exercise or sell any options, rights or warrants which
entitle the Trustee to subscribe or purchase securities, subject,
however, to the requirements of the preceding subparagraph 3.(b)(iii)
and (iv) hereof as to securities of the Company. If any sales are made
other than on a national securities exchange, the price shall be no
less than the lowest quotation for such options, rights or warrants on
the New York Stock Exchange, or such other exchange on which such
security is listed, on the date of such sale, adjusted for brokerage
fees, commission and other handling charges.
(d) Notwithstanding any provisions herein to the contrary, the Trustee
shall not cause the Plan to engage in any transaction constituting a
prohibited transaction within the meaning of sections 406 through 408
of the Employee Retirement Income Security Act or section 4975 of the
Internal Revenue Code.
4. (a) Except as otherwise provided in this Paragraph 4, the duty with respect
to the voting, retention, and tendering of Common Stock held in the
Stock Fund A or the Stock Fund B shall be solely that of the Trustee,
to be exercised solely in the Trustee's discretion.
(b) With respect to any matter as to which a vote of the outstanding shares
of Common Stock is solicited by proxies, consents or authorizations:
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(i) Each Participant shall be entitled to direct the Trustee, and
the Trustee shall solicit the direction in writing of each
Participant, as to the manner in which voting rights of
shares of Common Stock held in the Stock Fund A or the Stock
Fund B which either represent the vested or non-vested
interest of such Participant in the Stock Fund A as of the
record date fixed for determining the holders of Common Stock
entitled to vote on such matter or have been credited as of
such record date to the Stock Fund B account of such
Participant are to be exercised with respect to such matter,
and the Trustee shall exercise the voting rights of such
shares with respect to such matter in accordance with the
last-dated timely written direction, if any, of such
Participant. In connection with the solicitation of written
directions from Participants, the Committee will cause to be
furnished to each Participant and the Trustee notice of each
occasion for the exercise of such voting rights, an
appropriate form on which such written direction may be
given, and a statement containing the information that the
Company distributes to stockholders generally regarding the
exercise of such voting rights; and
(ii) The duty with respect to the exercise of voting rights on
shares of Common Stock held in the Stock Fund A or the Stock
Fund B as to which no timely direction in writing has been
received pursuant to paragraph (i) of this subsection (b)
shall be solely that of the Trustee, to be exercised solely
in the Trustee's discretion.
(c) In the event of any Tender Offer (as defined in Section 17.1 of the
Plan):
(i) Each Participant shall be entitled to direct the Trustee,
and the Trustee shall solicit the direction in writing of
each Participant, as to the tendering or depositing of any
shares of Common Stock held in the Stock Fund A or the Stock
Fund B which either represent the vested or non-vested
interest of such Participant in the Stock Fund A as of the
Tender Date (as defined herein) with respect to such
Participant or have been credited as of such Tender Date to
the Stock Fund B account of such Participant, and,
except as limited by paragraph (iii) hereof, the
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Trustee shall tender or deposit such shares pursuant to any
such Tender Offer in accordance with the last dated timely
written direction, if any, of such Participant;
(ii) Except as limited by Paragraph (iii) hereof, the duty with
respect to the retention, tendering or depositing of shares
of Common Stock held in the Stock Fund A or the Stock Fund B
as to which no timely direction in writing has been received
pursuant to paragraph (i) hereof shall be solely that of the
Trustee to be exercised solely in the Trustee's discretion;
and
(iii) Shares of Common Stock held in the Stock Fund A or the Stock
Fund B shall not be tendered or deposited by the Trustee
pursuant to any such Tender Offer until the earliest of (A)
immediately preceding the scheduled expiration of the Tender
Offer pursuant to which such shares are to be tendered or
deposited or (B) immediately preceding the expiration of the
period during which such shares of Common Stock will be taken
up and paid for on a pro rata basis pursuant to such Tender
Offer or (C) the expiration of 30 days from the date of the
Trustee's solicitation of Participant's written direction
pursuant to paragraph (i) hereof; and
(iv) The duty with respect to the withdrawing of, or other
exercise of any right to withdraw, shares of Common Stock
held in the Stock Fund A or the Stock Fund B which have been
tendered or deposited pursuant to any such Tender Offer shall
be solely that of the Trustee, provided that the Trustee may
solicit the direction in writing of each Participant with
respect to whom any such shares of Common Stock have been
tendered or deposited pursuant to any such Tender Offer as to
the withdrawing of, or other exercise of any right to
withdraw, such shares of Common Stock, and if such
solicitation is made, the Trustee shall act in accordance
with the last dated timely written direction, if any, of each
such Participant. As used in this subparagraph (c) with
respect to a Participant, the term "Tender Date" means the
date on which the Trustee tenders or deposits any shares of
the Common Stock either representing the vested
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or non-vested interest of such Participant in the Stock Fund
A or credited to the Stock Fund B account of such Participant
in accordance with this subparagraph (c).
5. (a) While the provisions of Article XVII of the Plan are in effect,
the Trustee shall establish:
(i) A Sub Fund A consisting of any cash, securities or other
consideration received by the Trustee as payment for shares
of Common Stock previously held in the Stock Fund A which
were tendered or deposited in accordance with Paragraph 4,
all property purchased therewith and the proceeds and income
therefrom; and
(ii) A Sub Fund B consisting of any cash, securities or other
consideration received by the Trustee as payment for shares
of Common Stock previously held in the Stock Fund B which
were tendered or deposited in accordance with Paragraph 4,
all property purchased therewith and the proceeds and income
therefrom.
(b) The Trustee shall use all cash in the Sub Fund A and the Sub Fund
B only to purchase the kinds of instruments of debt with maturity
of not more than three years in which the Trustee and any
Investment Manager may invest and reinvest the principal and
income of the Fixed Income Fund pursuant to Paragraph 3(b)(ii) and
shall so invest and reinvest the principal thereof and income
thereon. Dividends, income and other distributions received on,
and proceeds from the sale or other disposition of, any securities
or other consideration held by the Trustee for Participants in the
Sub Fund A or the Sub Fund B pursuant to a tender or deposit of
shares of Common Stock in accordance with Paragraph 4 shall be
similarly invested and reinvested.
6. The Trustee, in its discretion, may keep any portion of any of the Trust
Fund in cash or cash balances in such amounts as may be necessary to meet
contemplated requirements of the Plan. The Trustee is authorized to hold
the cash amounts described in this Section 6 in deposits in its commercial
banking department which bear a reasonable rate of interest. However, no
provision of this Trust Agreement shall be construed as requiring payment of
interest on cash held for a reasonable period of time pending investment or
pending disbursement pursuant to the Plan and this Trust Agreement.
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7. The Trustee is authorized and empowered in its discretion subject to the
terms of Section 3 hereof but not by way of limitation;
(a) To sell, exchange, convey, transfer or dispose of and also to
grant options with respect to, any property at any time held
by it, and any sale may be made by private contract or by
public auction, and for cash or upon credit, or partly for
cash and partly upon credit, as the Trustee may deem best,
and no person dealing with the Trustee shall be bound to see
to the application of the purchase money or to inquire into
the validity, expediency or propriety of any such sale or
other disposition.
(b) To compromise, compound and settle any debt or obligation due
to or from it as the Trustee hereunder and to reduce the rate
of interest on, to extend or otherwise modify, or to
foreclose upon default or otherwise enforce any such
obligation;
(c) To vote in person or by proxy on any stocks, bonds or other
securities held by it, subject to the provisions of Paragraph
4 in the case of shares of common stock;
(d) To exercise any options appurtenant to any stocks, bonds or
other securities for the conversion thereof into other
stocks, bonds or securities, or to exercise any rights to
subscribe for additional stocks, bonds or other securities
and to make any and all necessary payments therefor; to join
in, or to dissent from, and to oppose, the reorganization,
recapitalization, consolidation, liquidation, sale or merger
of corporations or properties in which it may be interested
as Trustee, upon such terms and conditions as it may deem
wise;
(e) To make, execute, acknowledge and deliver any and all deeds,
assignments and instruments;
(f) To cause any investments from time to time held by it to be
registered in, or transferred into, its name as Trustee or
the name of its nominee or nominees, or to retain them
unregistered or in bearer form, but the books and records of
the Trustee shall at all times show that all such investments
are part of the Trust Fund;
(g) To do all acts whether or not expressly authorized which it
may deem necessary or proper for the protection of the
property held hereunder.
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8. (a) The duties imposed upon the Trustee by this Amendatory Trust Agreement
shall be subject to the provisions of this Paragraph 8.
(b) The Committee from time to time may direct the segregation of all or a
portion of the Trust Fund in an Investment Manager Account (or
Accounts), and if it does so, shall also appoint an Investment Manager
(or Investment Managers) with respect to the portion of the Trust Fund
so segregated. Written notice of any such appointment will be given to
the Trustee and to the Investment Manager. The Investment Manager
shall have full discretion (subject to the criteria set forth in
Paragraph 3(b) hereof which shall be incorporated in the document
appointing the Investment Manager) to direct the Trustee with respect
to the acquisition, retention, management and disposition of the assets
from time to time comprising the Investment Manager Account. The
Trustee shall follow the directions of the Investment Manager regarding
the acquisition, retention, management and disposition of assets
comprising the Investment Manager Account and shall be under no duty or
obligation to review the assets comprising the Investment Manager
Account from time to time, or to make any recommendations with respect
to the investment or reinvestment thereof. The Trustee shall have no
liability or responsibility to the Committee or any beneficiary of the
Trust Fund for acting on the direction of, or for the Trustee's failure
to act in the absence of any directions from, the Investment Manager.
The Trustee may assume that any Investment Manager Account previously
created and the appointment of any Investment Manager previously made
continue in force until receipt of written notice to the contrary from
the Committee. Pending receipt of instructions from the Investment
Manager with respect thereto, any cash received by the Trustee from
time to time for the Investment Manager Account may be retained by the
Trustee, in its discretion, in cash or cash balances. Neither the
Trustee nor the Investment Manager shall be liable or responsible for
the acts of the other.
(c) In the event the Committee has appointed more than one trustee to
serve as trustees under the Plan, the Committee from time to time may
allocate specific responsibilities, obligations or duties among
trustees, provided each trustee to whom responsibilities, obligations
or duties are allocated agrees in writing to such allocation. In the
event of such allocation, a trustee to whom certain responsibilities,
obligations or duties have not been
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allocated shall not be liable either individually or as a trustee
for any loss resulting to the Plan arising from the acts or
omissions on the part of another trustee to whom such
responsibilities, obligations or duties have been allocated.
(d) The Committee shall indemnify the Trustee against and save it
harmless from any and all liability and costs, including
attorney's fees, which the Trustee may incur as a result of any
action taken by the Trustee in accordance with any direction of
the Committee or any such Investment Manager designated by the
Committee, or by reason of the Trustee's failure to exercise any
of its powers because of the failure of the Committee or such
Investment Manager to give such directions.
9. (a) Except as provided in Paragraph (b) below, all costs and expenses
incurred in the administration of the Plan, including the
Trustee's fees and expenses, Investment Manager fees and expenses,
and those of the Trustee's and Investment Manager's counsel, shall
be borne by the Company and shall constitute a charge on the Trust
Fund until so paid; provided that unless the Board of Directors
shall by resolution provide to the contrary the Company shall not,
and in no event shall the Trust Fund, pay any such Trustee,
Trustee's counsel, Investment Manager or investment advisors fees
or expenses incurred (1) in preparing for or prosecuting any
action against the Committee, any member of the Plan Committee or
the Plan Administrator or (2) in defending or settling, or
satisfying a judgment relating to any proceeding either arising
out of any alleged misfeasance or nonfeasance in any person's
performance of duties with respect to the Plan or arising out of
any alleged wrongful act against the Plan.
(b) Brokerage fees, commissions, stock transfer taxes and other
charges and expenses incurred in connection with transactions
relating to the acquisition or disposition of property for or of
the Trust Fund, including any part segregated in an Investment
Manager Account, or distributions therefrom shall be paid from the
Trust Fund, including any part segregated in an Investment Manager
Account. Taxes, if any, payable by the Trustee on the assets at
any time held in the Trust Fund or on the income thereof shall be
paid from the Trust Fund.
10. The Trustee may consult legal counsel (who may be counsel for the
Committee) concerning any question which may arise in connection with its duties
under this Agreement, and the opinion of such counsel shall be full and complete
protection with respect to any action taken or suffered by the Trustee hereunder
in good faith and in accordance with the opinion of counsel, provided that the
Trustee shall not be protected by
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this Section for reliance upon the opinion of counsel other than Committee
counsel in a matter involving interpretation of the Plan unless Committee
counsel has failed to provide, within a reasonable period following notice of
such opinion, inconsistent advice with respect to such matter.
11. The Trustee shall keep accurate and detailed records of all investments,
receipts and disbursements and other transactions hereunder including those
directed by an Investment Manager and to the extent directed by the Committee,
shall keep such records so as to segregate with respect to each Participant
amounts contributed by each Participant and amounts contributed by the Company
on his behalf. All such accounts, books and records relating thereto shall be
open to inspection and audit at all reasonable times by any person or persons
designated by the Committee. As soon as practicable following each Valuation
Date under the Plan, the Trustee shall provide the Committee such data as shall
be required to determine values of all accounts in accordance with the unit
valuation procedure described in the Plan. Within sixty (60) days following
October 1 of each year or following the close of such other annual period as may
be agreed upon between the Trustee and the Committee and within sixty (60) days
after the removal or resignation of the Trustee as provided in Paragraph 3
hereof, the Trustee shall file with the Committee a written report setting forth
all investments, receipts and disbursements and other transactions effected by
it during such year, or such other annual period or during the period from the
close of such year or other annual period to the date of such removal or
resignation, including a description of all securities and investments purchased
and sold with the costs or net proceeds of such purchases and sales (excluding
accrued interest paid or received), and showing all cash, securities and other
property held at the end of such year or other period. Upon the expiration of
six (6) months from the date of filing such annual or other account, the Trustee
shall be forever released and discharged from any liability or accountability to
anyone with respect to the propriety of its acts or transactions shown in such
account, except with respect to any such acts or transactions as to which the
Committee shall within such six (6) month period file with the Trustee a written
statement claiming negligence or willful misconduct or lack of good faith on the
part of the Trustee.
12. In the event the Committee has appointed two or more Trustees to serve
as Trustees of and under the Plan, one of such Trustees shall in the event the
Committee elects to have the unit values determined by a Trustee upon direction
from the Committee determine the value of each Unit in the Trust Fund as of each
Valuation Date in accordance with the provisions of the Plan. The Trustee
responsible for determination of the value of each Unit shall be entitled to
rely upon the market values of trust property held under the Plan by any other
Trustees as determined by such other Trustees, upon receipt of written
certification of such values by such Trustees. The Trustee shall in any event
determine the fair market value of all property in the Trust Fund on such basis
as it deems appropriate, as of such dates as the Committee may direct.
13. The Trustee may be removed by the Committee at any time upon ninety (90)
days' notice in writing to the Trustee. The Trustee may resign at any time upon
ninety (90) days' notice in writing to the Committee. Upon such removal or
resignation of the Trustee the Committee shall appoint and designate a successor
Trustee and the Trustee shall assign and transfer and pay over to such successor
Trustee the funds and properties
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then constituting the Trust Fund. Any successor Trustee appointed as provided
in this paragraph shall execute and deliver to the Committee and its predecessor
Trustee an instrument accepting such appointment hereunder, and such successor
Trustee, without any further act, deed or conveyance, shall as of the effective
date of its appointment become vested with all rights, powers, duties and
obligations of its predecessor Trustee hereunder, with like effect as if
originally named as Trustee hereunder; but, nevertheless, on the written request
of the Committee or of the successor Trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due to it pursuant to the provisions of
Paragraph 9 of this Agreement, execute and deliver an instrument transferring to
each successor Trustee all the rights and powers of the Trustee so ceasing to
act. Upon request of any such successor Trustee, the Committee shall execute
any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor Trustee all such rights and powers. The Trustee is
authorized to reserve such sum of money, or to liquidate such property and
reserve such sum of money, or to liquidate such property and reserve the
proceeds thereof, as to it may seem advisable for the payment of its expenses in
connection with the settlement of its accounts, and the payment of any other
amounts then due to it pursuant to the provisions of Paragraph 9 of this
Agreement, or otherwise, and any balance of such reserve remaining after the
payment of such expenses shall be paid over to such successor Trustee.
14. All requests, directions, requisitions, certificates and instructions
to the Trustee from the Committee shall be in writing signed by a person
authorized to sign such documents by the Plan Committee and the Trustee shall
act and shall be fully protected in acting in accordance with such requests,
directions, requisitions, certificates and instructions. Any action by the Plan
Committee pursuant to the provisions of this paragraph shall be taken by a
resolution by such body, a copy of which shall be provided to the Trustee.
15. It is the intention of the Committee that this Trust and the Plan of
which it is a part shall be permanently administered for the benefit of
employees and this Trust is, accordingly, irrevocable; but, if changing
conditions require, this Agreement and the Trust created hereby may be
terminated at any time by the Committee, and upon such termination the Trust
shall be distributed by the Trustee as and when directed by the Committee in
accordance with the provisions of Paragraph 2. From and after the date of
termination of this Agreement and the Trust and until the final distribution of
the Trust, the Trustee shall continue to have all the powers provided under this
Agreement as are necessary and expedient for the orderly liquidation and
distribution of the Trust.
16. This Agreement, other than this Paragraph 16, may be amended at any
time by the Committee, provided, however, in no event shall any such amendment
operate to (a) revest the Trust or any part thereof in the Committee, (b) reduce
the then accrued benefit or the amount then held for the benefit of any
Participant in the Plan, or (c) cause any part of the Trust Fund (except as
provided in Paragraph 9(b) hereof) to be used for, or diverted to, purposes
other than for the exclusive benefit of the said employees and their
Beneficiaries. The Committee shall provide Trustee with notice of any such
amendment by
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delivering a copy thereof to the Trustee. In no event shall any modifications
or amendments which affect the rights, duties or responsibilities of the Trustee
be made without the Trustee's written consent. This paragraph shall not be
construed to enlarge the obligations of the Committee beyond those assumed under
the Plan.
17. The term "Plan" whenever used herein shall mean the Plan as the same
may be amended or modified from time to time. The Committee shall cause a copy
of each amendment or modification, or a copy of the Plan as so amended or
modified, to be delivered to the Trustee for convenience or reference.
18. Any qualified corporation into which the Trustee may merge or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Trustee may be a party, shall be the successor of the
Trustee hereunder, without the execution or filing of any additional instrument
or the performance of any further act.
19. No right or benefit provided for in this Plan or in this Agreement
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the same shall be
void. No such right or benefit shall be in any manner liable for or subject to
the debts, contracts, liabilities, engagements or torts of any person entitled
to such right or benefit. No such right or benefit shall be subject to
garnishment, attachment, execution or levy of any kind. If any Participant or
Beneficiary shall become a bankrupt or shall attempt to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge such right or benefit
deriving from the Trust Fund, or if such right or benefit to which such person
may be entitled should be held by any court to be subject to garnishment,
attachment, execution or levy of any kind, then in the discretion of and upon
direction from the Committee such right or benefit shall cease and terminate and
the same shall be held or applied, in whole or in part, to or for the benefit of
such Participant or Beneficiary or his spouse, children, or other dependents, or
any of them, in such manner and in such proportion as the Committee shall deem
proper. Any payment so made or applied shall be conclusively deemed to have
been made for the benefit of such Participant or Beneficiary, as the case may
be.
20. In the event any controversy or disagreement shall arise as to the
payee or payees to whom payment or delivery of any funds, contracts or property
shall be made by the Trustee, or as to any other matter arising in the
administration of this Trust, the Trustee may retain the funds, contracts or
property involved without liability pending settlement of the controversy or
disagreement. The Trustee shall not be liable for the payment of any interest
or income on any cash or other property held by it under such circumstances,
except only to the extent of interest or income received by it.
21. In the event that the Plan Administrator shall find that any
Participant or Beneficiary to whom a benefit is payable under the terms of the
Plan from the Trust Fund is unable to care for his affairs because of illness or
accident, is otherwise mentally or physically incompetent, or unable to give a
valid receipt, the Plan Administrator may cause the payments becoming due to
such Participant or Beneficiary to be paid to another person
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for his benefit without responsibility on the part of the Committee, or the
Trustee, to follow the application of such payment. Any such payment shall be a
payment for the account of the Participant or Beneficiary and shall operate as
a complete discharge of all liability therefor under the Plan of the Trustee
and the Committee.
22. Nothing in the Plan or in this Agreement shall be deemed to confer any
legal or equitable right or interest in the Trust Fund in the favor of any
Participant, Beneficiary or other person, except to the extent expressly
provided in the Plan.
23. The Trustee accepts the Trust created hereunder and agrees to be bound
by all the terms of this Agreement.
24. This Agreement shall be construed and enforced according to the laws
of the State of California, and all provisions hereof shall be administered
according to the laws of the said State.
25. All terms used in this Agreement and not defined herein shall have the
same meaning as when used in the Plan, unless a different meaning is required by
the context.
26. The Company intends to have the Plan qualified with and approved by
the Internal Revenue Service as a Plan, contributions to which are deductible by
the Company for Federal income tax purposes. Subject to the provisions of
Paragraph 16 hereof, any modification or amendment of the Plan or the Trust
Agreement may be made retroactively by the Company, if necessary or appropriate,
to qualify or maintain the Plan as a plan and trust, meeting the requirements of
applicable sections of the Internal Revenue Code and of other Federal and State
tax laws, as now in effect or hereafter amended or enacted.
27. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and the said counterparts shall constitute
but one and the same instrument.
28. This Trust shall continue in effect indefinitely unless terminated in
accordance with the provisions of this Agreement, provided, however, should
section 28004 of the California Corporations Code or 715.3 of the California
Civil Code, or either of them, be held unconstitutional, or invalid, or
inapplicable, or be repealed or amended with retroactive effect so that this
Trust offends against the Rule against Perpetuities, then this Trust shall
terminate upon the death of the last survivor of all persons who are in being on
the date hereof and who are or may become Participants under the Plan.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and their
corporate seals to be hereunto affixed and duly attested, all as of the day and
year first above written.
SAVINGS PLAN ASSET COMMITTEE
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
FIRST INTERSTATE BANK OF CALIFORNIA
Attest: By: /s/ X. Xxxx
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Vice President
/s/ Xxxxxx Xxxxxxxx
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Trust Officer
