EXHIBIT 10.33
INVESTMENT AGENCY APPOINTMENT
and
PARTICIPATION AUTHORIZATION
This INVESTMENT AGENCY APPOINTMENT AND PARTICIPATION AUTHORIZATION
(the "Agreement") dated as of the 3rd day of September, 1999, by and between
Intersil Corporation ("Plan Sponsor"), Intersil Corporation Master Trust
("Participating Trust"), and X. Xxxx Price Trust Company (the "Trustee") as
investment agent with respect to certain assets of the Participating Trust to be
managed by the Trustee ("Account").
By execution of this Agreement, the Plan Sponsor, the Participating
Trust and the Trustee hereby agree to the following terms and conditions:
I. DEFINITIONS
Wherever used in this Agreement, unless the context clearly
indicates otherwise, the following words shall have the following meanings:
a. "ERISA" means the Employee Retirement Income Security Act of
1974 and any amendments thereto.
b. "Fiduciary" means the undersigned person or persons who
control the investments of a Participating Trust.
c. "Prohibited Transaction" means any transaction which is a
prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code").
d. "Qualified Trust" means:
(1) A trust which forms part of an employees' pension,
profit sharing, or other benefit plan, which may include
a common trust fund or commingled investment fund
consisting solely of such plans, (1) which is exempt
from taxation under Section 50 1(a) of the Code by
reason of qualifying (or treated as qualifying) under
Section 401(a) of the Code (or corresponding sections of
amendments thereto or statutes enacted hereafter); and
(ii) which is permitted by existing or future rulings of
the United States Comptroller of the Currency or the
Office of the Maryland Commissioner of Financial
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Regulation to pool its funds in a group trust; and (iii)
which is administered under an agreement which
authorizes part or all of the assets of the trust to be
commingled for investment purposes with the assets of
other such trusts by investing such assets in a common
trust fund; and (iv) of which X. Xxxx Price Trust
Company is acting as trustee, co-trustee, agent for the
trustee or trustees, or investment agent;
(2) A governmental pension plan, the assets of which may be
invested in a group trust, as provided in Section
401(a)(24) of the Code; or
(3) A Trust established pursuant to Article II of the
Declaration of Trust, as defined below, which is
authorized to invest in other Trusts created under said
Article II.
e. "Trust(s)" means one or more of the separate investment trusts
established pursuant to Article II of the Trustee's Plan and
Declaration of Trust dated September 30, 1992, establishing
the X. Xxxx Price Institutional Common Trust Fund (the
"Institutional Fund"), as last amended and restated in the
Amended and Restated Declaration of Trust dated December 1,
1998 ("Declaration of Trust"), the terms of which are
incorporated herein by reference. Each Trust is intended to
qualify as a group trust under Internal Revenue Service
Revenue Ruling 81-100, 1981-C.B. 326, or any successor ruling,
regulation, or similar pronouncement, and this Declaration of
Trust shall be construed, and the Trust(s) shall be
administered, to give effect to that intention.
II. APPOINTMENT OF INVESTMENT AGENT AND INVESTMENT AUTHORIZATION
The Fiduciary hereby appoints the Trustee as investment agent of the
Account. By acceptance hereof, the Trustee acknowledges that it is an investment
manager, as defined in Section 3(38) of ERISA, and a fiduciary with regard to
the Account. The Trustee is authorized to invest such account in the X. Xxxx
Price Equity Index Trust, the X. Xxxx Price Bond Index Trust, and the X. Xxxx
Price Retirement Strategy Trust - Balanced, which are Trusts maintained by the
Trustee pursuant to the Declaration of Trust. The Trustee shall not be
authorized to take custody or possession of any assets of the Account except to
the extent that the Trustee shall make investments in the Institutional Fund.
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III. QUALIFICATION OF PARTICIPATING TRUST
The investment in any Trust which forms a part of the Institutional
Fund is conditioned upon the Participating Trust being a Qualified Trust.
Simultaneously with the execution of this Agreement, the Fiduciary will furnish
to the Trustee a copy of the determination letter issued by the Internal Revenue
Service, if applicable, pursuant to which an exemption from taxation under
Section 501(a) of the Code as a qualified trust under Section 401(a) of the Code
has been granted to the Participating Trust. The Trustee may, in its sole
discretion, accept an opinion of counsel satisfactory to it as to the tax exempt
status of the Participating Trust.
IV. REPRESENTATIONS BY THE FIDUCIARY
The Fiduciary hereby warrants and represents that (i) it is a
Fiduciary with respect to the Participating Trust, (ii) it is authorized to
determine the investments permissible for the Participating Trust (iii) it has
received a copy of the Declaration of Trust establishing the Institutional Fund
and its Trusts and is aware of the nature and investment objectives of the
Trusts; (iv) the Participating Trust is a Qualified Trust as defined in Section
I.d. herein; and (v) the Participating Trust is administered under a trust
agreement or plan document which authorizes the investment of plan assets in
common, collective or commingled trust funds such as the Trusts and adopts the
trust document of any such commingled fund as an integral part thereof to the
extent of the Participating Trust's investment in such commingled fund; (vi) the
Participating Trust has specifically adopted the terms of the Declaration of
Trust, as it may be subsequently amended from time to time, to the extent of the
Participating Trust's investment in the Trust(s); (vii) it is authorized to make
the appointments and give the authorizations provided for herein, and (viii) the
Fiduciary, its heirs, personal representatives, successors, and assigns agree to
be bound by the terms of this Agreement.
In accordance with Article I, Section 1.3 of the Declaration of
Trust, a Fiduciary that is the trustee of any Qualified Trust that is a common
trust fund or commingled investment fund ("CIF") shall only provide
representations on behalf of such CIF and not on behalf of each employee pension
plan invested in such CIF. Therefore, the Fiduciary of any CIF represents that,
to the best of its knowledge, the CIF is a Qualified Trust as defined in Section
I.d herein.
The Fiduciary further represents that the Participating Trust is not
a Xxxxx Plan other than a Xxxxx Plan qualified to invest in a collective trust
fund pursuant to Rule 180 under the Securities Act of 1933; a plan funded by an
annuity contract as described in Section 403(b) of the Code; or an Individual
Retirement Account.
With regard to an eligible deferred compensation plan sponsored by a
state or local government pursuant to Section 457 of the Code ("457 Plan"), the
Fiduciary hereby represents and certifies that: (i) the 457 Plan is for the
exclusive benefit of the employer's employees or their beneficiaries, (ii) the
purpose of the 457 Plan is the distribution of corpus and income funds, if any,
accumulated under such 457 Plan to the employer's employees or their
beneficiaries, (iii) no part of the corpus or income of the 457 Plan shall be
used for or diverted to
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any purpose other than the exclusive benefit of the employer's employees or
their beneficiaries prior to the satisfaction of all the 457 Plan's liabilities
to such employees and beneficiaries, except as noted below with regard to
certain 457 Plans created prior to August 20, 1996, (iv) the 457 Plan is not
funded by an annuity contract described in Section 403(b) of the Code, and (v)
no employee contributions to the 457 Plan will be invested by the 457 Plan in
securities of the employer or its controlled or commonly controlled entities.
With regard to 457 Plans created prior to August 20, 1996, and until
January 1, 1999, or such earlier time as the plan document is amended in
accordance with the requirements of the Small Business Job Protection Act of
1996, assets of such 457 Plans shall remain subject to the claims of the general
creditors of the employer solely to the extent necessary to maintain
qualification under Section 457 of the Code. As long as assets remain subject to
the general creditors of the employer pursuant to Section 457 of the Code, the
Fiduciary shall provide the Trustee with written notification of reasons for
withdrawal of plan assets from the Trust(s), the person to whom assets will be
transferred and verification that assets will not be subject to the employer's
use. Assets may only be withdrawn (i) to pay benefits to participating
employees, (ii) to transfer assets to the 457 Plan's custodian or other person
designated by the sponsoring employer in connection with the selection of
alternative investment arrangements, (iii) to distribute plan assets to
participating employees in the event the 457 Plan is terminated pursuant to a
plan of liquidation, (iv) to reimburse an employer for plan benefits paid out of
employer assets or to correct excess deferral or other mistaken investments in
the Trust(s), (v) to transfer plan assets to a trustee in bankruptcy or other
authorized agent in the event of the employer's insolvency or bankruptcy, or
(vi) to satisfy the claims of the employer's general creditors in the event of
the employer's insolvency or bankruptcy. In the event assets of such 457 Plans
are to be withdrawn from the Trust(s) to transfer assets to a trustee in
bankruptcy or to satisfy the general creditors of the employer, the Fiduciary
shall provide the Trustee with evidence of the formal determination of
insolvency after a public hearing.
The Fiduciary consents to the Trustee investing assets of the X.
Xxxx Price Equity Index Trust, the X. Xxxx Price Bond Index Trust, and the X.
Xxxx Price Retirement Strategy Trust - Balanced in group trusts and common or
collective trust funds, including the X. Xxxx Price U.S. Treasury Money Market
Trust and others for which the Trustee, or an affiliate of the Trustee, acts as
trustee and/or investment adviser, in the X. Xxxx Price Prime Reserve mutual
fund ("Prime Reserve"), and the Reserve Investment Fund ("Reserve Fund"), an
underlyrng series of the X. Xxxx Price Reserve Investment Funds, Inc., for which
affiliates of the Trustee act as adviser and service provider. The purchase or
sale of shares of Prime Reserve and the Reserve Fund are subject to the terms of
the current applicable prospectus. The purchase or sale of units of U.S.
Treasury Money Market Trust are subject to the terms of the current Declaration
of Trust. The Fiduciary (i) acknowledges that it is a fiduciary for the
Participating Trust; (ii) acknowledges receipt of a current prospectus of Prime
Reserve and the Reserve Fund and the Declaration of Trust which include
necessary information for the Trustee's conclusion that investments in the
mutual funds and U.S. Treasury Money Market Trust are appropriate for the liquid
assets of the Trust; and (iii) approves the fees payable directly to the Trustee
hereunder regarding assets
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invested in the Reserve Fund (in addition to the non-advisory fees and expenses
disclosed in the Reserve Fund's prospectus which includes fees paid indirectly
to affiliates of the Trustee); and approves the fees payable indirectly to
affiliates of the Trustee through Prime Reserve and acknowledges that the rate
payable by Prime Reserve may differ from, and may be greater than, the rate
otherwise payable under the Trust(s). In the event assets of the Trust(s) are
invested in Prime Reserve, no fees shall be charged hereunder with regard to
such assets. Fees payable with regard to any assets of a Trust invested in the
U.S. Treasury Money Market Trust shall be paid in accordance with Section X
hereunder and the attached Schedule of Fees.
V. NOTIFICATION OF DISQUALIFICATION
Within 15 days after the receipt by the Fiduciary or the Plan
Sponsor of a notice of determination from the Internal Revenue Service that the
Participating Trust's exemption letter will not be issued or has been revoked,
terminated, or otherwise modified so that the Participating Trust is no longer
exempt from taxation, as specified above, or after the agreement under which the
Participating Trust is administered has been amended or altered so as to no
longer permit investment in a collective investment trust, the Fiduciary or Plan
Sponsor shall deliver to the Trustee a copy of such determination letter, if
applicable, or amendment and documents representing all of the Participating
Trust's interest for purpose of withdrawal. Such withdrawal shall be effected in
accordance with the provisions of Article V of the Declaration of Trust.
VI. ADMINISTRATION AND MANAGEMENT OF THE INSTITUTIONAL FUND
It is understood and agreed that the Trustee is the Trustee of the
Institutional Fund and any Trust which forms a part thereof, and that the
Trustee shall administer such Trusts in accordance with the provisions of the
Declaration of Trust. The Trustee has retained the services of an investment
adviser, X. Xxxx Price Associates, Inc., the parent of the Trustee, to assist it
in the investment of assets of the Trust, such investment adviser being
compensated by the Trustee for its services.
VII. BROKERAGE AUTHORIZATION
The Trustee shall be authorized to effect transactions for the
Participating Trust with or through such brokers, dealers, and other financial
institutions as it shall determine from time to time in its sole discretion. So
long as the provisions of Section 28(e) of the Securities Exchange Act of 1934
are met, the Trustee may cause a broker or dealer to be paid commissions in
excess of those another broker or dealer would charge.
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VIII. DISCLOSURE OF CERTAIN INFORMATION
Prior to or simultaneously with the execution of this Agreement and,
thereafter, upon request by the Trustee from time to time, the Fiduciary or Plan
Sponsor shall disclose such information, including but not limited to financial
statements, which will enable the Trustee to determine whether the Institutional
Fund or any Trust which forms a part thereof has entered into a Prohibited
Transaction. If such information reveals to the Trustee that assets,
liabilities, transactions, agreements, obligations or undertakings on behalf of
the Participating Trust would result, or has resulted, in the Institutional Fund
or any Trust being treated as having entered into a Prohibited Transaction, then
the Fiduciary shall either (i) upon request of the Trustee, immediately dispose
of any such assets or liabilities and/or terminate such obligation, agreement,
or undertaking, or (ii) deliver to the Trustee documents representing all of the
Participating Trust's beneficial interest so that it may be withdrawn in
accordance with the provisions of Article V of the Declaration of Trust.
IX. ADMISSION AND WITHDRAWAL; PROHIBITIONS ON TRANSFER
Admissions and withdrawals to the Trust(s) shall be effected in
accordance with the provisions of Article V of the Declaration of Trust.
Units of beneficial interest shall not be assignable and the
Fiduciary shall not assign or otherwise transfer or pledge or otherwise encumber
any or all of the Participating Trust's interest in the Institutional Fund,
other than upon withdrawal in accordance with the aforesaid provisions of
Article V of the Declaration of Trust.
X. FEES
The Trustee shall receive, as full compensation for services
rendered as investment agent, investment agent's fees ("Fees"), in accordance
with the provisions of the Schedules of Fees attached to and made a part of this
Agreement. The Fiduciary approves the fees for the X. Xxxx Price Equity Index
Trust, the X. Xxxx Price Bond Index Trust, and the X. Xxxx Price Retirement
Strategy Trust -- Balanced.
XI. NOTICE
Any notice, advice or report to be given pursuant to this Agreement
shall be delivered or mailed to:
o the Trustee at --
X. Xxxx Price Trust Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Legal Department
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o the Fiduciary at --
Intersil Corporation Retirement Plan Committee
Attn: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxx Xxxx XX
Xxxx Xxx, Xxxxxxx 00000
XII. CONSTRUCTION OF AGREEMENT
To the extent state laws shall not have been pre-empted by the
provisions of ERISA, regulations of the Office of the Maryland Commissioner of
Financial Regulation or any other laws of the United States heretofore or
hereinafter enacted, as the same may be amended from time to time, this
Agreement shall be construed and the rights and obligations of the parties
hereunder enforced in accordance with the laws of the State of Maryland.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the day and year first above written.
INTERSIL CORPORATION
PLAN SPONSOR
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
----------------------------------
Treasurer
INTERSIL CORPORATION
RETIREMENT PLAN COMMITTEE
FIDUCIARY
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
----------------------------------
Treasurer
This Agreement is hereby
ACCEPTED and agreed to as of the date hereof:
X.XXXX PRICE TRUST COMPANY, TRUSTEE
BY: [illegible]
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Vice President
