EXHIBIT 99b1
AMERICAN BRANDS, INC.
MASTER DEFINED CONTRIBUTION PLAN TRUST
THIS AGREEMENT made as of the first day of January, 1992, by and between
AMERICAN BRANDS, INC., a corporation organized under the laws of the State of
Delaware (hereinafter referred to as the "Company") and THE NORTHERN TRUST
COMPANY, an Illinois corporation, of Chicago, Illinois, as Trustee (hereinafter
referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and certain of the Company's subsidiaries have adopted
and may hereafter adopt defined contribution employee pension benefit plans
("Separate Plans") for the benefit of their respective employees (the current
Separate Plans being set forth in Schedule A attached hereto); and
WHEREAS, the Company and certain of the Company's subsidiaries have
heretofore established separate trusts complying with the requirements of the
Employee Retirement Income Security Act of 1974 ("ERISA") for the investment of
the assets of the Separate Plans and desire to appoint the Trustee as successor
trustee under certain of such trusts; and
WHEREAS, the members of the Company's Trusts Investment Committee (the
"Committee") common to all of the Separate Plans have been designated under each
Separate Plan as named fiduciaries with respect to the management and control of
the assets of such Separate Plans; and
WHEREAS, all or part of the assets of each Separate Plan will be
transferred to the Trustee under this Agreement as successor trustee, pursuant
to the authority granted by the board of directors of the employer sponsoring
such Separate Plan; and
WHEREAS, the trust assets so transferred from time to time will constitute
a trust fund to be held hereunder for the benefit of the Separate Plans; and
WHEREAS, the Trustee is willing to hold and administer such trust assets
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Trustee do hereby covenant and
agree as follows:
ARTICLE ONE
DEFINITIONS
For the purpose of this Agreement:
1.1 "American Common Stock" means Common Stock of American Brands, Inc., a
Delaware corporation, as now constituted and any other common stock into which
it may be reclassified;
1.2 "Beneficiary" means a person designated to receive a benefit under a
Separate Plan after the death of a Participant;
1.3 "Board of Directors" means the Board of Directors of the Company;
1.4 "Code" means the Internal Revenue Code of 1986, as amended from time to
time, the regulations issued thereunder and any successor statute thereto;
1.5 "Committee" means the Trusts Investment Committee appointed by the
Board of Directors which has the responsibility for allocating the assets of the
Fund among the Separate Accounts and for assuring that no Separate Plan violates
any provision of ERISA limiting the acquisition or holding of securities or
other property of the Company or any Subsidiary, and which is deemed for
purposes of ERISA to be a named fiduciary with respect to the management and
control of the assets of the Separate Plans;
1.6 "Company" means American Brands, Inc. and any corporation which is the
successor thereto and which elects to become a party to this Agreement by
resolution adopted within ninety (90) days after the effective date of the
consolidation, merger or sale of assets by which the succession is effected;
1.7 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and the regulations issued thereunder;
1.8 "Fund" means all of the following considered collectively: the American
Stock Fund, the Diversified Fund, the Equity Fund, the Short-Term Investment
Fund, the Government Securities Fund, the Frozen GIC Fund and any other funds
designated pursuant to Article FIVE. Each may be composed of a Separate Account
or a group of Separate Accounts designated by the Committee;
1.9 "Investment Advisor" means an Investment Manager or an Investment
Trustee or, in cases where the Committee has assumed investment responsibility
for a Separate Account, the Committee;
1.10 "Investment Manager" means an investment manager registered as an
investment advisor under the Investment Advisors Act of 1940, a bank as defined
in that Act or an insurance company qualified to manage, acquire or dispose of
any asset of the Fund, which is appointed by the Company to manage a Separate
Investment Account, except that the Trustee shall have no responsibility to
determine whether a person or entity acting as an Investment Manager meets or
continues to meet this definition;
1.11 "Investment Trustee" means the trustee appointed by the Company to
manage a Separate Investment Trust Account; 1.12 "Participant" means a person
who is an employee or former employee of the Company or of a Subsidiary and who
is or was actually participating in a Separate Plan; 1.13 "Plan Account" means
the interest of each Separate Plan in the Fund; 1.14 "Separate Account" means a
Separate Investment Account, a Separate Investment Trust Account or a Separate
Insurance Contract Account;
1.15 "Separate Insurance Contract Account" means assets of the Fund
allocated by the Committee to a Separate Account for investment in insurance
contracts directed by the Committee;
1.16 "Separate Investment Account" means assets of the Fund allocated by
the Committee to the American Stock Fund and each Separate Account to be managed
by an Investment Manager or the Committee;
1.17 "Separate Investment Trust Account" means assets of the Fund allocated
by the Committee to a Separate Account to be managed by an Investment Trustee;
1.18 "Separate Plan" means any separate defined contribution employee
pension benefit plan for employees of the Company or any Subsidiary for which
this Agreement has been adopted as the funding medium;
1.19 "Subtrust" means assets of a Separate Investment Account which are
held by a subtrustee designated by the Company and which are subject to the
management of an Investment Manager;
1.20 "Subsidiary" means a subsidiary or affiliated organization of the
Company which adopts this Agreement; and
1.21 "Trustee" means The Northern Trust Company and any successor thereto
as trustee or trustees of the Fund under this Agreement.
ARTICLE TWO
VALUATION AND ALLOCATION
The Trustee shall hold the Fund as a commingled fund or commingled funds in
which each Separate Plan shall be deemed to have a proportionate undivided
interest in the fund or funds in which it participates, except that each fund or
asset identified by the Committee as allocable to a particular Plan Account,
herein referred to as an "identified fund" or "identified asset," and income,
appreciation or depreciation and expenses attributable to a particular Plan
Account or to an identified asset thereof, shall be allocated or charged to that
Plan Account. Contributions to a Separate Plan shall be designated by the
administrator of the Separate Plan as allocable, and distributions from a
Separate Plan shall be designated by the administrator of the Separate Plan as
chargeable, to a particular Plan Account and shall be so allocated or charged.
The beneficial interest of each Separate Plan shall be available solely to
satisfy the benefits payable under such Separate Plan and shall not be available
to satisfy the benefits payable under any other Separate Plan or any other plan.
At the close of business at the end of each month and at such other times as
directed by the Committee, the Trustee shall periodically determine the value of
each Plan Account on such basis as the Trustee and the Committee shall from time
to time agree (considering the fair market value of the assets initially
received from the predecessor trustee and subsequent contributions and
distributions, net income, net appreciation or depreciation and expenses
attributable to the Separate Plan) and shall render a statement thereof to the
Committee and the administrator of the respective Separate Plan within ninety
(90) days after each valuation date.
ARTICLE THREE
DISTRIBUTIONS
The Trustee shall make distributions from the Fund in cash or in kind to
such persons, in such amounts, at such times and in such manner as the
administrator of each Separate Plan shall from time to time direct in writing,
or the administrator of a Separate Plan may, after written notice to the Trustee
of its assumption of the responsibility, make the distributions from the Fund
through a commercial banking account held in the name of this Trust in a
federally insured banking institution (including the Trustee) which is used
exclusively for that purpose and to which the Trustee shall make such deposits
from the Fund as the administrator of the Separate Plan may from time to time
direct in writing, except that the Trustee may reserve such reasonable amount as
the Trustee shall deem necessary to pay any income or death taxes attributable
to a distribution or may require such release from a taxing authority or such
indemnification from the distributee as the Trustee shall deem necessary for the
protection of the Trustee. The Trustee shall have no responsibility to ascertain
whether any direction received by the Trustee from the administrator of a
Separate Plan in accordance with the preceding sentence is proper and in
compliance with the terms of the Separate Plan or to see to the application of
any distribution or, with respect to deposits made to a commercial banking
account, to account for funds retained therein or disbursed by the administrator
of the Separate Plan or to prepare any informational returns for tax purposes as
to distributions made therefrom.
The Trustee shall not be liable for any distribution made in good faith
without actual notice or knowledge of the changed condition or status of any
recipient. If any distribution made by the Trustee is returned unclaimed, the
Trustee shall notify the administrator of the Separate Plan from which the
distribution was made and shall dispose of the distribution as the administrator
of the Separate Plan shall direct.
ARTICLE FOUR
SEPARATE ACCOUNTS AND INVESTMENT ADVISORS
The Committee may from time to time (and shall with respect to any asset of
the Fund as to which the Trustee is for any reason unwilling or unable to act)
effect the establishment of one or more Separate Accounts, and one or more
Subtrusts, by written instrument delivered to the Trustee and shall designate
assets of the Fund to be allocated thereto, and direct the Trustee to transfer
assets of the Fund to or from a Separate Account or Subtrust. The following
provisions shall apply to the Separate Accounts:
4.1 With respect to each Separate Investment Account where an Investment
Manager has been appointed, the Investment Manager thereof shall acknowledge by
written notice to the Committee and to the Trustee that the Investment Manager
is a fiduciary with respect to the assets allocated thereto. The Investment
Manager shall have custody of any portion of the assets invested in a collective
trust fund operated by the Investment Manager or its banking affiliate, and the
subtrustee of a Subtrust shall have custody of any portion of the assets
allocated to it by the Committee; the Trustee shall have custody of all other
assets and shall act with respect to those assets only as directed by the
Investment Manager.
4.2 With respect to each Separate Investment Trust Account, the Trustee and
the Investment Trustee thereof shall execute an investment trust agreement with
respect thereto. The Investment Trustee shall have custody of such portion of
the assets as the Committee may from time to time determine; the Trustee shall
have custody of all other assets and shall act with respect to those assets only
as directed by the Investment Trustee.
4.3 With respect to each Separate Insurance Contract Account, with assets
allocated thereto the Trustee shall purchase or continue in effect such
insurance contracts, including annuity contracts and policies of life insurance,
as the Committee shall direct, the issuing company may credit those assets to
its general account or to one or more of its separate accounts, and the Trustee
shall act with respect to those contracts only as directed by the Committee.
4.4 The Committee may by written notice to the Trustee assume investment
responsibility for a Separate Account or for assets held in any cash account
maintained by the Trustee. With respect to assets or Separate Accounts over
which the Committee has assumed investment responsibility, the Trustee, acting
only as directed by the Committee, shall enter into such agreements as are
necessary to facilitate any investment, including agreements entering into a
limited partnership, Subtrust or the participation in real estate funds. The
Trustee shall not make any investment review of, or consider the propriety of
holding or selling, or vote any assets over which the Committee has assumed
investment responsibility.
4.5 With respect to each Separate Account, the Investment Advisor thereof
(or with respect to those assets in a cash account over which the Committee has
assumed investment responsibility, the Committee) shall have the investment
powers granted to the Trustee by Article SIX, as limited by 7.1 through 7.3, as
if all references therein to the Trustee referred to the Investment Advisor (or
the Committee).
4.6 The Committee may also direct the Trustee to lend securities of the
Fund held by the Trustee by entering into a written agreement with the Trustee.
The terms of the agreement between the Committee and the Trustee shall be
consistent with Department of Labor Prohibited Transaction Exemption 81-6 or any
successor exemption. The written agreement between the Committee and the Trustee
shall direct the Trustee to enter into a loan agreement with a borrower or
borrowers. The Trustee shall transfer securities to the borrower and invest the
collateral received in exchange for the securities. Notwithstanding anything in
this Agreement to the contrary, the borrower shall have the authority and
responsibility to vote securities it has borrowed. The Trustee shall maintain a
record of the market value of the loaned securities and shall be paid reasonable
compensation as agreed to by the Trustee and the Committee.
ARTICLE FIVE
INVESTMENT OF THE FUND
Except as otherwise provided in this Agreement, the Fund shall be composed
of assets of the American Stock Fund, the Diversified Fund, the Equity Fund, the
Short-Term Investment Fund, the Government Securities Fund, the Frozen GIC Fund
which shall be invested as herein provided and such other funds as may be
designated from time to time by the Committee. The administrator of each
Separate Plan shall direct the Trustee with respect to the allocation of assets
of the Separate Plan to the Funds and with respect to transfers among such
Funds. Pending directions to allocate contributions among the Funds, the Trustee
shall hold the contributions in a separate account invested in short-term
investments, including common or collective short-term investment funds of the
Trustee.
5.1 American Stock Fund. The American Stock Fund shall comprise such
contributions made to each Separate Plan as shall be specified by the
administrator of the Separate Plan, together with such portion of assets
transferred from the predecessor trustees as designated by the Committee,
together with the proceeds thereof, the income therefrom and any increment
thereon. With respect to the American Stock Fund the Trustee shall have the duty
to the extent practicable to buy American Common Stock, as now constituted and
any other common stock into which it may be reclassified, and pending investment
in American Common Stock or distribution from the American Stock Fund to invest
in collective short-term investment funds of the Trustee.
The Trustee may keep such portion of the American Stock Fund in cash or
cash balances as the Committee may from time to time direct for liquidity
purposes without liability for the payment of interest thereon.
Except for the short-term investment of cash, the Company has limited the
investment power of the Trustee in the American Stock Fund to the purchase of
American Common Stock. The Trustee shall not be liable for following the
provisions of this Agreement with respect to such investment in and retention of
American Common Stock and investment in and retention of any Preferred Share
Purchase Rights should such rights become transferable separately from American
Common Stock and of any security into which such rights may be exchanged and the
Company (which has the authority to do so under the laws of the State of
Delaware) agrees to indemnify the Trustee from any liability, loss and expense,
including reasonable legal fees and expenses which the Trustee may sustain by
reason thereof. This paragraph shall survive the termination of this Agreement.
5.2 Diversified Fund. The Diversified Fund shall comprise such
contributions made to each Separate Plan as shall be specified by the
administrator of the Separate Plan, together with such portion of assets
transferred from the predecessor trustees as designated by the Committee,
together with the proceeds thereof, the income therefrom and any increment
thereon. The Diversified Fund shall be invested and reinvested, without
distinction between principal and income, as the Trustee may be directed by and
in the sole discretion of the Investment Manager. In the absence of directions
from the Investment Manager the Trustee shall have no power, duty or authority
to invest the Diversified Fund except as expressly provided in 5.8.
5.3 Equity Fund. The Equity Fund shall comprise such contributions made to
each Separate Plan as shall be specified by the administrator of the Separate
Plan together with such portion of assets transferred from the predecessor
trustees as designated by the Committee, together with the proceeds thereof, the
income therefrom and any increment thereon. The Equity Fund shall be invested
and reinvested, without distinction between principal and income, as the Trustee
may be directed by and in the sole discretion of the Investment Manager. In the
absence of directions from the Investment Manager the Trustee shall have no
power, duty or authority to invest the Equity Fund except as expressly provided
in 5.8.
5.4 Short-Term Investment Fund. The Short-Term Investment Fund shall
comprise such contributions made to each Separate Plan as shall be specified by
the administrator of the Separate Plan, together with such portion of assets
transferred from the predecessor trustees as designated by the Committee,
together with the proceeds thereof, the income therefrom and any increment
thereon. The Short-Term Investment Fund shall be invested and reinvested,
without distinction between principal and income, in common or collective
short-term investment funds of the Trustee, consisting principally or entirely
of any and all bonds, debentures, mortgages, equipment or other trust
certificates, notes, obligations issued or guaranteed by the United States
Government or its agencies, domestic bank certificates of deposit, domestic
bankers' acceptances and repurchase agreements, and high grade commercial paper,
all of which shall bear a fixed rate of return and are intended to minimize
market fluctuations. The Trustee shall not be liable for any loss to or
diminution of the Short-Term Investment Fund resulting from any action taken or
omitted except if due to the failure of the Trustee to diversify the investments
thereof so as to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so, or due to the failure of the
Trustee to act with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of like
character and with like aims.
In lieu of investment in common or collective short-term investment funds
of the Trustee, the Company may appoint an Investment Manager to direct the
Trustee as to the investment of the Short-Term Investment Fund in which event
the Short-Term Investment Fund shall be invested as directed by the Investment
Manager. In the absence of directions from the Investment Manager the Trustee
shall have no power, duty or authority to invest the Short-Term Investment Fund
except as expressly provided in 5.8.
5.5 Government Securities Fund. The Government Securities Fund shall
comprise such contributions made to each Separate Plan as shall be specified by
the administrator of the Separate Plan, together with the proceeds thereof, the
income therefrom and any increment thereon. The Government Securities Fund shall
be invested and reinvested, without distinction between principal and income, as
the Trustee may be directed by and in the sole discretion of the Investment
Manager. In the absence of directions from the Investment Manager the Trustee
shall have no power, duty or authority to invest the Government Securities Fund
except as expressly provided in 5.8.
5.6 Frozen GIC Fund. The Frozen GIC Fund shall comprise such guaranteed
interest contracts with insurance carriers which have been transferred from the
predecessor trustees. No new contributions or transfers to the Frozen GIC Fund
may be made by a Separate Plan. The Trustee shall have no investment
responsibility for such contracts and the Trustee shall act with respect to such
contracts only as directed by the Committee. Upon maturity of a guaranteed
interest contract held in the Frozen GIC Fund, the Committee shall direct the
Trustee to transfer the proceeds thereof to another Fund. In the absence of
directions from the Committee the Trustee shall have no power, duty or authority
to invest the Frozen GIC Fund or to take any action with respect to any
guaranteed investment contracts in the Frozen GIC Fund.
5.7 The Investment Manager of the Diversified Fund, Equity Fund, Short-Term
Investment Fund or Government Securities Fund at any time and from time to time
may issue orders for the purchase or sale of securities directly to a broker,
and in order to facilitate such transaction the Trustee upon request shall
execute and deliver appropriate trading authorizations. Written notification of
the issuance of each such order shall be given promptly to the Trustee by the
Investment Manager, and the execution of each such order shall be confirmed to
the Trustee by the broker. Such notification shall be authority for the Trustee
to pay for securities purchased in accordance with industry practice and to
deliver securities sold in accordance with industry practice, as the case may
be.
5.8 In the absence of instructions from the Investment Manager to the
contrary, the Trustee shall invest all or any portion of any cash or cash
balances in the Diversified Fund, Equity Fund, Short-Term Investment Fund or
Government Securities Fund, in common or collective short-term investment funds
of the Trustee. The Trustee shall not be liable for interest on any cash
balances it holds uninvested following the directions from the Investment
Manager.
ARTICLE SIX
POWERS OF TRUSTEE
Except as otherwise provided in this Agreement, the Trustee shall hold,
manage, care for and protect the assets of the Fund and shall have until
distribution thereof the following powers and, except to the extent inconsistent
herewith, those now or hereafter conferred by law:
6.1 To retain any asset originally included in the Fund or subsequently
added thereto;
6.2 To invest and reinvest the assets without distinction between income
and principal in bonds, stocks, mortgages, notes, options, futures contracts,
limited partnership interests or other property of any kind, real or personal,
foreign or domestic, and at the direction of the Committee to enter into
insurance contracts, including group annuity contracts;
6.3 To deposit any part or all of the assets with the Trustee or its
affiliate as trustee or another person or entity acting as trustee of any
collective or group trust fund which is now or hereafter maintained as a medium
for the collective investment of funds of pension, profit-sharing or other
employee benefit plans, and which is qualified under Section 401(a) and exempt
from taxation under Section 501(a) of the Code, and to withdraw any part or all
of the assets so deposited; any assets deposited with the trustee of a
collective or group trust fund shall be held and invested by the trustee
thereunder pursuant to all the terms and conditions of the trust agreement or
declaration of trust establishing the fund, which are hereby incorporated herein
by reference and shall prevail over any contrary provision of this Agreement;
6.4 To deposit cash in any depository, including the banking department of
the Trustee or its affiliate and any organization acting as a fiduciary with
respect to the Fund;
6.5 To hold any part of the assets in cash without liability for interest,
pending investment thereof or the payment of expenses or making of distributions
therewith;
6.6 To cause any asset, real or personal, to be held in a corporate
depository or federal book entry account system or registered in the Trustee's
name or in the name of a nominee or in such other form as the Trustee deems best
without disclosing the trust relationship, provided, however, that the Trustee
shall retain responsibility with respect to assets so held to the same extent as
if the Trustee retained custody thereof;
6.7 To vote, either in person or by general or limited proxy, or refrain
from voting, any corporate securities for any purpose; to exercise or sell any
subscription or conversion rights; to consent to and join in or oppose any
voting trusts, reorganizations, consolidations, mergers, foreclosures and
liquidations and in connection therewith to deposit securities and accept and
hold other property received therefor;
6.8 To lease any assets for any period of time though commencing in the
future or extending beyond the term of the Trust;
6.9 To borrow money from any lender, to extend or renew any indebtedness
and to mortgage or pledge any assets;
6.10 To sell at public or private sale, contract to sell, convey, exchange,
transfer and otherwise deal with the assets, and to sell put and covered call
options from time to time for such price and upon such terms as the Trustee sees
fit; the Company acknowledges that the Trustee may reverse any credits made to
the Fund by the Trustee prior to receipt of payment in the event that payment is
not received;
6.11 To employ agents, attorneys and proxies and to delegate to any one or
more of them any power, discretionary or otherwise, granted to the Trustee;
6.12 To compromise, contest, prosecute or abandon claims in favor of or
against the Fund;
6.13 To transfer the situs of any assets to any jurisdiction as often as
the Trustee deems it advantageous to the Fund, appointing a substitute to itself
to act with respect thereto; and in connection therewith, to delegate to the
substitute trustee any or all of the powers given to the Trustee, which may
elect to act as advisor to the substitute trustee and shall receive reasonable
compensation for so acting; and to remove any acting substitute trustee and
appoint another, or reappoint itself, at will;
6.14 To lend securities held by the Trustee and to receive and invest
collateral provided by the borrower, all pursuant to a written agreement with
the Committee; and
6.15 To perform other acts necessary or appropriate for the proper
administration of the Fund, execute and deliver necessary instruments and give
full receipts and discharges.
ARTICLE SEVEN
LIMITATIONS ON POWERS
For purposes of this Agreement, the powers and responsibilities allocated
to the Trustee shall be limited as follows.
7.1 The powers of the Trustee shall be exercisable for the exclusive
purpose of providing benefits to the Participants and Beneficiaries under the
Separate Plans and in accordance with the standards of a prudent man under
ERISA.
7.2 Subject to 7.1 and 7.3 and Article FIVE, the Trustee shall diversify
the investments of that portion of the Fund of which it has investment
responsibility so as to minimize the risk of large losses.
7.3 The Trustee shall not make any investment review of, consider the
propriety of holding or selling, or vote other than as directed by the
Investment Advisor, any assets of the Fund allocated to a Separate Account in
accordance with Article FOUR, except that the limitation imposed upon the
Trustee by this paragraph shall not apply to any assets of the Fund loaned by
the Trustee pursuant to 4.6, and except, further, that if the Trustee shall not
have received contrary instructions from the Investment Advisor of a Separate
Account the Trustee shall invest for short-term purposes any cash of that
Separate Account in its custody in bonds, notes and other evidences of
indebtedness having a maturity date not beyond five years from the date of
purchase, United States Treasury Bills, commercial paper, banker's acceptances
and certificates of deposit, undivided interests or participations therein and
(if subject to withdrawal on a daily or weekly basis) participations in common
or collective funds composed thereof and regulated investment companies.
7.4 Voting of Shares in American Stock Fund.
(a) Notwithstanding any other provision of a Separate Plan or this
Agreement to the contrary, the Trustee shall have no discretion or authority to
exercise any voting rights with respect to American Common Stock held in the
American Stock Fund except as provided in this 7.4.
(b) Each Participant or Beneficiary shall be entitled to direct the Trustee
in writing, and the Trustee shall solicit the written direction of such
Participant or Beneficiary, as to the manner in which any voting rights of
shares of American Common Stock attributable to his interest in the American
Stock Fund are to be exercised with respect to any matter on which holders of
American Common Stock are entitled to vote by proxy, consent or otherwise, 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 received by
the Trustee from such Participant or Beneficiary. With respect to the voting
rights of shares of American Common Stock held in the American Stock Fund as to
which timely written directions have not been received by the Trustee as
provided in the preceding sentence and any shares of American Common Stock which
are unallocated to accounts of Participants or Beneficiaries, the Trustee shall
exercise the voting rights of such shares in the same manner and in the same
proportion in which the voting rights of shares as to which such directions were
received by the Trustee are to be exercised as provided in the preceding
sentence. The Trustee shall combine fractional interests of Participants and
Beneficiaries in shares of American Common Stock held in the American Stock Fund
to the extent possible so that the voting rights with respect to such matter are
exercised in a manner which reflects as accurately as possible the collective
directions given by Participants and Beneficiaries. In giving directions to the
Trustee as provided in this paragraph (b), each Participant or Beneficiary shall
be acting as a named fiduciary within the meaning of Section 403(a)(1) of ERISA
("Named Fiduciary") with respect to the exercise of voting rights of shares of
American Common Stock in accordance with such directions pursuant to both the
first and the second sentences of this paragraph (b).
(c) The Trustee shall communicate or cause to be communicated to all
Participants and Beneficiaries the procedures regarding the exercise of voting
rights of shares of American Common Stock held in the American Stock Fund. The
Trustee shall distribute or cause to be distributed as promptly as possible to
all Participants and Beneficiaries entitled to give directions to the Trustee as
to the exercise of voting rights with respect to any matter all communications
and other materials, if any, that the Trustee may receive from any person or
entity (including the Company, any Subsidiary and any other subsidiary or
affiliated organization of the Company) that are being distributed to the
holders of American Common Stock and either are directed generally to such
holders or relate to any matter on which holders of American Common Stock are
entitled to vote by proxy, consent or otherwise, and the Company shall promptly
furnish to the Trustee all such communications and other materials, if any, as
are being distributed by or on behalf of the Company, any Subsidiary or any
other subsidiary or affiliated organization of the Company. The Company and the
administrator of each Separate Plan shall provide the Trustee with such
information, documents and assistance as the Trustee may reasonably request in
connection with any communications or distributions to Participants and
Beneficiaries as aforesaid. This information shall include the names and current
addresses of Participants and Beneficiaries, the number of shares of American
Common Stock credited to each Participant's or Beneficiary's account and the
number of shares of American Common Stock not yet allocated thereto, upon which
the Trustee may conclusively rely. Anything to the contrary in this Agreement or
a Separate Plan notwithstanding, except if the Company or Subsidiary serves as
recordkeeper, to the extent necessary to provide the Company or Subsidiary with
information necessary accurately to maintain records of Participant and
Beneficiary account balances, the Trustee shall use its best efforts to keep
confidential the direction (or the absence thereof) from each Participant or
Beneficiary in connection with the exercise of voting rights of shares of
American Common Stock held in the American Stock Fund and the identity of such
Participant or Beneficiary and not to divulge such direction or identity to any
person or entity, including, without limitation, the Company, any Subsidiary and
any other subsidiary or affiliated organization of the Company and any director,
officer, employee or agent thereof, it being the intent of this 7.4 that the
Company, each Subsidiary and each other subsidiary or affiliated organization of
the Company and their directors, officers, employees and agents not be able to
ascertain the direction given (or not given) by any Participant or Beneficiary
in connection with the exercise of voting rights of such shares.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of this Agreement with respect to the
exercise of voting rights of shares of American Common Stock held in the
American Stock Fund, or cause any such provision or provisions to conflict with
ERISA, or require the Trustee not to act or such voting rights not to be
exercised in accordance with such provision or provisions, then, upon written
notice thereof to the Trustee, in the case of an opinion of counsel to the
Company, or to the Company, in the case of an opinion of counsel to the Trustee,
such provision or provisions shall be given no further force or effect in such
circumstances. Except to the extent otherwise specified in such opinion, order
or decree, the Trustee shall nevertheless have no discretion or authority in
such circumstances to exercise voting rights with respect to shares of American
Common Stock held in the American Stock Fund, but shall exercise such voting
rights in accordance with the last-dated timely written directions received from
Participants and Beneficiaries to the extent such directions have not been
invalidated. To the extent the Trustee exercises any fiduciary responsibility it
may have in any circumstances with respect to any exercise of voting rights of
shares of American Common Stock held in the American Stock Fund, the Trustee in
exercising its fiduciary responsibility, unless pursuant to the requirements of
ERISA or otherwise it is unlawful to do so, (i) shall take into account
directions timely received from Participants and Beneficiaries as being the most
indicative of their best interests with respect to the exercise of such voting
rights and (ii) shall take into consideration, in addition to any relevant
financial factors bearing on any exercise of such voting rights, the continuing
job security of Participants as employees of the Company, conditions of
employment, employment opportunities and similar matters and the prospects of
Participants and Beneficiaries for benefits under the Separate Plan and may also
take into consideration such other relevant non-financial factors as the Trustee
deems appropriate.
7.5 Tendering of Shares in American Stock Fund.
(a) Notwithstanding any other provision of a Separate Plan or this
Agreement to the contrary, the Trustee shall have no discretion or authority to
tender, deposit, sell, exchange or transfer any shares of American Common Stock
(which, for purposes of this 7.5, shall include any rights within the meaning of
7.6(a) hereof) held in the American Stock Fund pursuant to any tender offer (as
defined herein) except as provided in this 7.5. For purposes of this 7.5, a
"tender offer" shall mean any tender or exchange offer for or request or
invitation for tenders or exchanges of shares of American Common Stock the
consummation of which would result in any "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended), or any affiliates or associates thereof, becoming the beneficial owner
of 10% or more of the then outstanding shares of American Common Stock and shall
include, without limitation, any such tender offer made by the Company, any
Subsidiary or any other subsidiary or affiliated organization of the Company.
(b) Each Participant or Beneficiary shall be entitled to direct the Trustee
in writing, and the Trustee shall solicit the written direction of such
Participant or Beneficiary, as to the tendering, depositing, selling, exchanging
or transferring of shares of American Common Stock attributable to his interest
in the American Stock Fund pursuant to any tender offer received by the Trustee,
and the Trustee shall tender, deposit, sell, exchange or transfer such shares
(or shall retain such shares in the American Stock Fund) pursuant to such tender
offer in accordance with the last-dated timely written direction received by the
Trustee from such Participant or Beneficiary. With respect to shares of American
Common Stock held in the American Stock Fund as to which timely written
directions have not been received by the Trustee from Participants and
Beneficiaries to whose interests in the American Stock Fund such shares are
attributable, such Participants and Beneficiaries shall be deemed to have
directed the Trustee that such shares be retained in the American Stock Fund
subject to all provisions of the Separate Plan and this Agreement and not be
tendered, deposited, sold, exchanged or transferred pursuant to such tender
offer, and the Trustee shall not tender, deposit, sell, exchange or transfer any
of such shares pursuant thereto. As to any shares of unallocated American Common
Stock held by the Trustee, the Trustee shall tender the same proportion thereof
as the shares of American Common Stock as to which the Trustee has received
written instructions from Participants and Beneficiaries to tender bears to all
shares of American Common Stock allocated to Participant and Beneficiary
accounts. In the event that, under the terms of such tender offer or otherwise,
any shares of American Common Stock tendered or deposited pursuant thereto may
be withdrawn, the Trustee shall use its best efforts to solicit the written
direction of each Participant or Beneficiary as to the exercise of withdrawal
rights with respect to shares of American Common Stock that have been tendered
or deposited pursuant to this 7.5, and the Trustee shall exercise (or refrain
from exercising) such withdrawal rights in the same manner as shall reflect the
last-dated timely written directions received with respect to the exercise of
such withdrawal rights. The Trustee shall not withdraw shares except pursuant to
a timely written direction of a Participant or Beneficiary. As to any shares of
unallocated American Common Stock held by the Trustee, the Trustee shall
withdraw the same proportion thereof as the shares of American Common Stock as
to which the Trustee has received written instructions from Participants and
Beneficiaries to withdraw bears to all shares of American Common Stock allocated
to Participant and Beneficiary accounts. The Trustee shall combine fractional
interests of Participants and Beneficiaries in shares of American Common Stock
held in the American Stock Fund to the extent possible so that such shares are
tendered, deposited, sold, exchanged or transferred, and withdrawal rights with
respect thereto are exercised, in a manner which reflects as accurately as
possible the collective directions given or deemed to have been given by
Participants and Beneficiaries in accordance with this 7.5. In giving or being
deemed to have given directions to the Trustee as provided in this paragraph
(b), each Participant or Beneficiary shall be acting as a Named Fiduciary with
respect to the tender, deposit, sale, exchange or transfer of shares of American
Common Stock (or the retention of such shares in the American Stock Fund) in
accordance with such directions pursuant to both the first and second sentences
of this paragraph (b) and the exercise of (or the refraining from exercising)
withdrawal rights with respect to shares of American Common Stock tendered or
deposited pursuant to the third sentence of this paragraph (b).
(c) In the event of a tender offer as to which Participants and
Beneficiaries are entitled to give directions as provided in this 7.5, the
Trustee shall communicate or cause to be communicated to all Participants and
Beneficiaries entitled to give directions the procedures relating to their right
to give directions as Named Fiduciaries to the Trustee and in particular the
consequences of any failure to provide timely written direction to the Trustee.
In the event of such a tender offer, the Trustee shall distribute or cause to be
distributed as promptly as possible to all Participants and Beneficiaries
entitled to give directions to the Trustee with respect to such tender offer all
communications and other materials, if any, that the Trustee may receive from
any person or entity (including the Company, any Subsidiary and any other
subsidiary or affiliated organization of the Company) that are being distributed
to the holders of the securities to whom such tender offer is directed and
either are directed generally to such holders or relate to such tender offer,
and the Company shall promptly furnish to the Trustee all such communications
and other materials, if any, as are being distributed by or on behalf of the
Company, any Subsidiary or any other subsidiary or affiliated organization of
the Company. The Company and the administrator of each Separate Plan shall
provide the Trustee with such information, documents and assistance as the
Trustee may reasonably request in connection with any communications or
distributions to Participants and Beneficiaries as aforesaid. This information
shall include the names and current addresses of Participants and Beneficiaries,
the number of shares of American Common Stock credited to each Participant's or
Beneficiary's account and the number of shares not yet allocated thereto, upon
which the Trustee may conclusively rely. Anything to the contrary in this
Agreement or a Separate Plan notwithstanding, except if the Company or
Subsidiary serves as recordkeeper, to the extent necessary to provide the
Company or Subsidiary with information necessary accurately to maintain records
of Participant and Beneficiary account balances, the Trustee shall use its best
efforts to keep confidential the direction (or the absence thereof) from each
Participant or Beneficiary with respect to any tender offer and the identity of
such Participant or Beneficiary and not to divulge such direction or identity to
any person or entity, including, without limitation, the Company, any Subsidiary
and any other subsidiary or affiliated organization of the Company and any
director, officer, employee or agent thereof, it being the intent of this 7.5
that the Company, each Subsidiary and each other subsidiary or affiliated
organization of the Company and their directors, officers, employees and agents
not be able to ascertain the direction given (or not given) or deemed to have
been given by any Participant or Beneficiary with respect to any tender offer.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of this Agreement with respect to the
tendering, depositing, sale, exchange or transfer of shares of American Common
Stock held in the American Stock Fund or the exercise of any withdrawal rights
with respect to shares tendered or deposited pursuant to a tender offer, or
cause any such provision or provisions to conflict with ERISA,or require the
Trustee not to act or such shares not to be tendered, deposited, sold, exchanged
or transferred or such withdrawal rights not to be exercised in accordance with
such provision or provisions, then, upon written notice thereof to the Trustee,
in the case of an opinion of counsel to the Company, or to the Company, in the
case of an opinion of counsel to the Trustee, such provision or provisions shall
be given no further force or effect in such circumstances. Except to the extent
otherwise specified in such opinion, order or decree, the Trustee shall
nevertheless have no discretion or authority in such circumstances to tender,
deposit, sell, transfer or exchange shares of American Common Stock held in the
American Stock Fund (or the retention of such shares in the American Stock Fund)
pursuant to a tender offer or with respect to the exercise of (or refraining
from exercising) any withdrawal rights with respect to shares tendered or
deposited pursuant to a tender offer, but shall act in accordance with the
last-dated timely written directions received from Participants and
Beneficiaries to the extent such directions have not been invalidated. To the
extent the Trustee exercises any fiduciary responsibility it may have in any
circumstances with respect to the tendering, depositing, sale, exchange or
transfer of shares of American Common Stock held in the American Stock Fund or
the exercise of any withdrawal rights with respect to shares tendered or
deposited pursuant to a tender offer, the Trustee in exercising its fiduciary
responsibility, unless pursuant to the requirements of ERISA or otherwise it is
unlawful to do so, (i) shall take into account directions timely received from
Participants and Beneficiaries as being the most indicative of their best
interests with respect to a tender offer and (ii) shall take into consideration,
in addition to any relevant financial factors bearing on any sale, exchange or
transfer or any exercise of withdrawal rights, the continuing job security of
Participants as employees of the Company, conditions of employment, employment
opportunities and similar matters and the prospects of Participants and
Beneficiaries for benefits under the Separate Plan and may also take into
consideration such other relevant non-financial factors as the Trustee deems
appropriate.
(e) The proceeds of any sale, exchange or transfer of shares of American
Common Stock pursuant to the direction of a Participant or Beneficiary in
accordance with this 7.5 shall be allocated to his account in the Separate Plan
in the same manner, in the same proportion and as of the same date as were the
shares sold, exchanged or transferred and shall be governed by the provisions of
this paragraph (e) and, to the extent not inconsistent with this paragraph (e),
all other applicable provisions of this Agreement. Such proceeds shall be deemed
to be held in the American Stock Fund and shall be subject to this paragraph
(e); provided, however, that, to the extent necessary to segregate any return,
loss, gain or income on or from such proceeds (or on or from any reinvestment
thereof) from any return, loss, gain or income on or from the remainder of the
American Stock Fund, the Company or the administrator of the Separate Plan shall
direct the Trustee to segregate such proceeds (and any income or proceeds
therefrom) in one or more identified funds. Any such identified fund shall be
otherwise governed by the other applicable provisions of this Agreement. Any
such proceeds (and any income or proceeds therefrom) shall be invested or
reinvested in the same manner as the assets held in the Short-Term Investment
Fund.
7.6 Exercise of Certain Rights Held in American Stock Fund.
(a) Notwithstanding any other provision of a Separate Plan or this
Agreement to the contrary, the Trustee shall have no discretion or authority to
sell, exercise, exchange or retain any Preferred Share Purchase Rights of the
Company (or any rights issued by the Company in substitution or replacement
therefor) held in the American Stock Fund ("rights") except as provided in this
7.6; provided, however, that the sale, retention or taking of any other action
relating to rights pursuant to any tender offer shall be governed by the
provisions of 7.5 hereof and not by the provisions of this 7.6; and provided,
further, that, in connection with any transfer of shares of American Common
Stock held in the American Stock Fund as provided in this Agreement, the Trustee
may transfer with such shares any rights that are not then transferable
separately from such shares.
(b) Subject to paragraph (d) below, in the event that any rights held in
the American Stock Fund shall become transferable separately from the shares of
American Common Stock held in the American Stock Fund or shall become
exercisable, each Participant or Beneficiary shall be entitled to direct the
Trustee in writing, and the Trustee shall solicit the written direction of such
Participant or Beneficiary, to sell, exercise or exchange the rights which are
attributable to his interest in the American Stock Fund or to retain such rights
in the American Stock Fund, and the Trustee shall sell, exercise, exchange or
retain such rights in accordance with the last-dated timely written direction
received by the Trustee from such Participant or Beneficiary; provided, however,
in the case of a Participant or Beneficiary who directs the exercise of such
rights, the rights shall be exercised only to the extent cash is available in
the Participant's or Beneficiary's account in the American Stock Fund or cash
can be obtained pursuant to paragraph (e) below. With respect to rights as to
which timely written directions have not been received by the Trustee as
provided in the preceding sentence, the Trustee shall in its sole discretion
sell, exercise, exchange or retain such rights. The Trustee shall combine
fractional interests in rights of Participants and Beneficiaries who have given
timely written directions as provided in the first sentence of this paragraph
(b) to the extent possible so that the rights attributable to their interests in
the American Stock Fund are sold, exercised, exchanged or retained in a manner
which reflects as accurately as possible the collective directions given by
them. In giving directions to the Trustee as provided in this paragraph (b),
each Participant or Beneficiary shall be acting as a Named Fiduciary with
respect to the sale, exercise, exchange or retention of rights in accordance
with such directions.
(c) Subject to paragraph (d) below, in the event that any rights shall
become transferable separately from the shares of American Common Stock held in
the American Stock Fund or shall become exercisable, the Trustee shall
communicate or cause to be communicated to all Participants and Beneficiaries
entitled to give directions with respect thereto as provided in this 7.6 the
procedures relating to their right to give directions as Named Fiduciaries to
the Trustee and in particular the consequences of any failure to provide timely
written directions to the Trustee and shall distribute or cause to be
distributed as promptly as possible to such Participants and Beneficiaries all
communications and other materials, if any, that the Trustee may receive from
any person or entity (including the Company, any Subsidiary and any other
subsidiary or affiliated organization of the Company) that are being distributed
to holders of such rights and either are directed generally to such holders or
relate to such rights, and the Company shall promptly furnish to the Trustee all
such communications and other materials, if any, as are being distributed by or
on behalf of the Company, any Subsidiary or any other subsidiary or affiliated
organization of the Company. The Company and the administrator of each Separate
Plan shall provide the Trustee with such information, documents and assistance
as the Trustee may reasonably request in connection with any communications or
distributions to Participants and Beneficiaries as aforesaid. This information
shall include the names and current addresses of Participants and Beneficiaries,
the number of rights credited to the Participant's or Beneficiary's account, and
the amount of cash available in the Participant's or Beneficiary's account in
the American Stock Fund, upon which the Trustee may conclusively rely. Anything
to the contrary in this Agreement or a Separate Plan notwithstanding, except if
the Company or Subsidiary serves as recordkeeper, to the extent necessary to
provide the Company or Subsidiary with information necessary accurately to
maintain records of Participant and Beneficiary account balances, the Trustee
shall use its best efforts to keep confidential the direction (or the absence
thereof) from each Participant or Beneficiary with respect to such rights and
the identity of such Participant or Beneficiary and not to divulge such
direction or identity to any person or entity, including, without limitation,
the Company, any Subsidiary and any other subsidiary or affiliated organization
of the Company and any director, officer, employee or agent thereof, it being
the intent of this 7.6 that the Company, each Subsidiary and each other
subsidiary or affiliated organization of the Company and their directors,
officers, employees and agents not be able to ascertain the direction given (or
not given) by any Participant or Beneficiary with respect to any rights.
(d) In the event that a court of competent jurisdiction shall issue an
opinion, order or decree which, in the opinion of counsel to the Company or the
Trustee, shall, in all or any particular circumstances, invalidate under ERISA
or otherwise any provision or provisions of this Agreement with respect to the
sale, exercise, exchange or retention of any rights held in the American Stock
Fund, or cause any such provision or provisions to conflict with ERISA, or
require the Trustee not to act or such rights not to be sold, exercised,
exchanged or retained in accordance with such provision or provisions, then,
upon written notice thereof to the Trustee, in the case of an opinion of counsel
to the Company, or to the Company, in the case of an opinion of counsel to the
Trustee, such provision or provisions shall be given no further force or effect
in such circumstances. Except to the extent otherwise specified in such opinion,
order or decree, the Trustee shall nevertheless have no discretion or authority
in such circumstances to sell, exercise, exchange or retain such rights as to
which written directions were received from Participants and Beneficiaries, but
shall act with respect to such rights in accordance with the last-dated timely
written directions received from Participants and Beneficiaries to the extent
such directions have not been invalidated. To the extent the Trustee exercises
any discretion or fiduciary responsibility it may have in any circumstances with
respect to the sale, exercise, exchange or retention of any rights held in the
American Stock Fund, the Trustee in exercising its fiduciary responsibility,
unless pursuant to the requirements of ERISA or otherwise it is unlawful to do
so, (i) shall take into account directions timely received from Participants and
Beneficiaries as being the most indicative of their best interests with respect
to the sale, exercise, exchange or retention of such rights and (ii) shall take
into consideration, in addition to any relevant financial factors bearing on any
sale, exercise, exchange or retention of such rights, the continuing job
security of Participants as employees of the Company, conditions of employment,
employment opportunities and similar matters and the prospects of Participants
and Beneficiaries for benefits under the Separate Plan and may also take into
consideration such other relevant non-financial factors as the Trustee deems
appropriate.
(e) If practicable and to the extent necessary to exercise rights
attributable to the interest of any Participant or Beneficiary in the American
Stock Fund, the Trustee shall sell such portion of the rights attributable to
such interest as will enable the Trustee to apply the proceeds therefrom to the
exercise of the remaining portion of such rights or the Trustee may obtain cash
in such other manner deemed appropriate by the Trustee provided such other
manner is permitted by applicable law, will not affect the continued qualified
status of the Separate Plan or the tax-exempt status of the Trust under the Code
and will not result in a "prohibited transaction" (as defined in the Code or
ERISA).
(f) The proceeds of any sale, exercise or exchange of rights pursuant to
the direction of a Participant or Beneficiary in accordance with this 7.6 shall
be allocated to his account in a Separate Plan in the same manner, in the same
proportion and as of the same date as were the shares to which the sold,
exercised or exchanged rights were attributable and shall be governed by the
provisions of this paragraph (f) and, to the extent not inconsistent with this
paragraph (f), all other applicable provisions of this Agreement. Such proceeds
shall be deemed to be held in the American Stock Fund and shall be subject to
this paragraph (f); provided, however, that, to the extent necessary to
segregate any return, loss, gain or income on or from such proceeds (or on or
from any reinvestment thereof) from any return, loss, gain or income on or from
the remainder of the American Stock Fund, the Company or the administrator of
the Separate Plan shall direct the Trustee to segregate such proceeds (and any
income or proceeds therefrom) in one or more identified funds. Any such
identified fund shall be otherwise governed by the other applicable provisions
of this Agreement. Any such proceeds (and any income or proceeds therefrom)
shall be invested or reinvested in the same manner as the assets held in the
Short-Term Investment Fund.
7.7 The Trustee shall not be liable for any action taken or not taken in
accordance with any written directions given or deemed to have been given by
Participants or Beneficiaries acting as Named Fiduciaries as provided in the
Separate Plan and this Agreement. The administrator of a Separate Plan shall, as
promptly as possible and from time to time thereafter, certify in writing to the
Trustee the names, addresses and social security numbers of all Participants and
Beneficiaries. Notwithstanding anything to the contrary in this Agreement, (i)
the Trustee shall not be authorized to take any direction or deemed direction
from or on behalf of any person claiming (or who is claimed) to be a Participant
or Beneficiary who has not been certified by the administrator of a Separate
Plan to be such pursuant to the preceding sentence and (ii) the Trustee shall
have no responsibility to communicate with Participants or Beneficiaries at any
addresses other than the most recent addresses certified by the administrator of
a Separate Plan pursuant to the preceding sentence or to locate any Participants
or Beneficiaries whose addresses are not those most recently so certified. The
Trustee shall promptly advise the administrator of the Separate Plan of any
information the Trustee may have that the names, addresses and social security
numbers most recently certified by the administrator of the Separate Plan
pursuant to the next preceding sentence are not current or are otherwise
inaccurate.
ARTICLE EIGHT
ACCOUNTS
The Trustee shall maintain accounts of all receipts and disbursements,
including contributions and distributions and purchases, sales and other
transactions of the Fund. The accounts, and the books and records relating
thereto, shall be open to inspection and audit at all reasonable times by any
person or persons designated by the Company or entitled thereto under ERISA.
Within sixty (60) days after the close of each fiscal year of the Fund and
of any other period agreed upon by the Trustee and the Committee, the Trustee
shall render to the Committee a statement of account for the Fund for the period
commencing with the close of the last preceding period and a list showing each
asset thereof as of the close of the current period and its cost and fair market
value. The Trustee shall rely conclusively upon the determination of the issuing
insurance company with respect to the fair market value of each insurance
contract and upon the determination of the Investment Advisor of each Separate
Account with respect to the fair market value of those assets allocated thereto
which the Trustee deems not to have a readily ascertainable value, and the
Trustee shall have no responsibility with respect thereto.
An account of the Trustee may be approved by the Committee by written
notice delivered to the Trustee or by failure to object to the account by
written notice delivered to the Trustee within six (6) months of the date upon
which the account was delivered to the Committee.
The approval of an account shall constitute a full and complete discharge
to the Trustee as to all matters set forth in that account as if the account had
been settled by a court of competent jurisdiction in an action or proceeding to
which the Trustee, the Company and the Committee were parties. In no event shall
the Trustee be precluded from having the accounts of the Trustee settled by a
judicial proceeding. Nothing in this Article shall relieve the Trustee of any
responsibility, or liability for any responsibility, under ERISA.
ARTICLE NINE
TRUSTEE SUCCESSION
The Trustee may resign at any time by giving written notice to the Company.
The Trustee may be removed by the Company at any time with or without cause by
giving written notice to the Trustee. The resignation or removal shall be
effective sixty (60) days after the date of the Trustee's resignation or receipt
of the notice of removal or at such earlier date as the Trustee and the Company
may agree.
In case of the resignation or removal of the Trustee, the Company shall
appoint a successor trustee by delivery to the Trustee of a written instrument
executed by the Company appointing the successor trustee and a written
instrument executed by the successor Trustee accepting the appointment,
whereupon, the Trustee shall deliver the assets of the Fund to the successor
Trustee but may reserve such reasonable amount as the Trustee may deem necessary
for outstanding and accrued charges against the Fund.
The successor Trustee, and any successor to the trust business of the
Trustee by merger, consolidation or otherwise, shall have all the powers given
the originally named Trustee. No successor Trustee shall be personally liable
for any act or omission of any predecessor. Except as otherwise provided in
ERISA, the receipt of the successor Trustee and the approval of the Trustee's
final account by the Committee in the manner provided in Article EIGHT shall
constitute a full and complete discharge to the Trustee.
ARTICLE TEN
MISCELLANEOUS
Any action required to be taken by the Company shall be by resolution of
the Board of Directors or its Executive Committee or by such one or more of its
officers and agents as shall be designated to act for the Company by such
resolution. Any action required to be taken by any Subsidiary shall be by
resolution of its board of directors or by written direction of such one or more
of its officers and agents as shall be designated by resolution of its board of
directors to act for the Subsidiary. The Trustee may rely upon a certified copy
of a resolution filed with the Trustee and shall have no responsibility for any
action taken by the Trustee in accordance with any such resolution or direction.
The Company shall certify to the Trustee the names of the members of the
Committee acting from time and the identity of each administrator of a Separate
Plan, and the Trustee shall not be charged with knowledge of a change in the
membership of the Committee or the identity of an administrator of a Separate
Plan until so notified by the Company. Any action required to be taken by the
Committee shall be by written direction of such one or more of its Secretary and
members as shall be designated by the Committee to act for the Committee and the
Trustee shall have no responsibility for any action taken by the Trustee in
accordance with any such written direction.
The Trustee may consult with legal counsel, who may also be counsel for the
Company, with respect to its responsibilities under this Agreement and shall be
fully protected in acting or refraining from acting in reliance upon the written
advice of legal counsel.
In no event shall the terms of any Separate Plan, either expressly or by
implication, be deemed to impose upon the Trustee any power or responsibility
other than those set forth in this Agreement or in ERISA. The Trustee may assume
until advised to the contrary that each Separate Plan and the Fund is qualified
under Section 401(a) and exempt from taxation under Section 501(a) of the Code.
The Trustee shall be accountable for contributions made to a Separate Plan and
included among the assets of the Fund but shall have no responsibility to
determine whether the contributions comply with the provisions of the Separate
Plan or of ERISA.
In any judicial proceeding to settle the accounts of the Trustee, the
Company and the Committee shall be the only necessary parties; in any other
judicial proceeding with respect to the Trustee or the Fund, the Trustee, the
Company and each affected Subsidiary shall be the only necessary parties; and no
Participant or Beneficiary shall be entitled to any notice of process. A final
judgment in any such proceeding shall be binding upon the parties to the
proceeding and upon all Participants and Beneficiaries.
The Trustee shall be reimbursed for all reasonable expenses incurred in the
management and protection of the Fund, including reasonable accounting and legal
fees, and shall receive such reasonable compensation for its service as the
Trustee and the Company shall from time to time determine. Those items of
expense and compensation shall be paid from the Fund, subject to prior payment
or reimbursement by the Company or Subsidiary in its discretion.
The Company has allocated fiduciary responsibility among various persons
and entities in accordance with the terms of the Separate Plans and of this
Agreement. The Trustee shall have no responsibility for any error or loss that
may result by reason of the exercise or non-exercise of that fiduciary
responsibility by the person to whom or entity to which it is allocated (other
than those duties allocated to the Trustee), and the Company (which has the
authority to do so under the laws of the State of Delaware) agrees to indemnify
the Trustee from any liability, including reasonable legal fees and expenses,
arising therefrom.
The following provisions shall apply in the event that the Trustee shall be
entitled to indemnification under any provision of this Agreement. The Company
will be entitled to participate in the defense, or, if it so elects, to assume
the defense and to have the defense conducted by counsel chosen by the Company.
If the Company provides the defense, any defense expenses incurred by the
Trustee (including expenses of additional counsel selected by the Trustee),
shall be paid for by the Trustee. In the event the interests of the Company and
the Trustee in any such defense are adverse, the Trustee shall be entitled to
have the defense conducted by counsel selected by it, the identity of whom shall
be subject to the written approval of the Company which shall not be
unreasonably withheld, and the reasonable fees of such counsel shall be paid by
the Company.
No part of the Fund shall be diverted to any purpose other than the
exclusive benefit of the Participants and Beneficiaries or, except as otherwise
permitted under the affected Separate Plan and under ERISA, be remitted to the
Company or a Subsidiary; provided, however, that in the event that the Committee
shall certify that (i) any contribution has been made by a mistake of fact, or
(ii) that a contribution to the Trust has been conditioned on initial
qualification of a Separate Plan under Section 401 or 403(a) of the Code and
that such initial qualification has been denied, or (iii) that a contribution
has been conditioned upon the deductibility thereof under Section 404 of the
Code and that such deduction has been disallowed, and shall direct the return of
any such contribution, the Trustee shall return such contribution (or the value
thereof if less, as determined by the Committee) to the plan sponsor that made
such contribution in accordance with such direction, but in no event shall the
Committee direct a return be made other than prior to the expiration of one year
following the payment thereof in the case of a direction under (i) above, the
denial of initial qualification in the case of a direction under (ii) above, or
the disallowance of the deduction in the case of a direction under (iii) above.
Any person dealing with the Trustee shall not see to the application of any
money paid or property delivered to the Trustee or inquire into the provisions
of this Agreement or of any Separate Plan or the Trustee's authority thereunder
or compliance therewith, and may rely upon the statement of the Trustee that the
Trustee is acting in accordance with this Agreement.
Except as otherwise directed by the administrator of a Separate Plan, which
direction shall be in compliance with all applicable provisions of the 1984
Retirement Equity Act, the relevant Separate Plan and Section 401(a)(13) of the
Code, any interest of a Participant or Beneficiary in the Fund or in any
Separate Plan or in any distribution therefrom shall not be subject to the
claims of any creditor, any spouse for alimony or support, or others, or to
legal process, and may not be voluntarily or involuntarily alienated or
encumbered.
Loans to Participants as provided for in a Separate Plan shall be granted
and administered by the administrator of the Separate Plan. The Trustee shall
distribute cash to such Participants who are granted loans in such amount and at
such times as the administrator of the Separate Plan shall from time to time
direct in writing. Loan payments collected by the administrator of a Separate
Plan shall be forwarded to the Trustee. The amount of such loans shall be
carried by the Trustee as an asset of the Trust equal to the combined unpaid
principal balance of all Participants. The Trustee shall have no responsibility
to ascertain whether a loan complies with the provisions of a Separate Plan, for
the decision to grant a loan or for the collection and repayment of a loan.
ARTICLE ELEVEN
GOVERNING LAW
The provisions of ERISA and the law of the State of Illinois shall govern
the validity, interpretation and enforcement of this Agreement, and in case of
conflict, the provisions of ERISA shall prevail. The invalidity of any part of
this Agreement shall not affect the remaining parts hereof.
ARTICLE TWELVE
AMENDMENT AND TERMINATION
The Company may at any time or times with the consent of the Trustee amend
this Agreement in whole or in part by written instrument delivered to the
Trustee and effective upon the date therein provided.
This Agreement shall terminate with respect to a Separate Plan by action of
the Company or Subsidiary responsible for making contributions to the Plan
Account, by the Separate Plan's loss of its qualified status under Section
401(a) of the Code, by the Company's sale or dissolution of the Subsidiary
responsible for making contributions to the Plan Account, or by the failure of a
corporate successor to the Company to elect to become a party to this Agreement
as provided in Section 1.6 of this Agreement. Upon termination with respect to a
Separate Plan, the Trustee shall distribute the Plan Account in the manner
directed by the administrator of the Separate Plan, in kind to the extent of
identified assets and the balance in cash or in kind or partly in each as the
Trustee and the administrator of the Separate Plan shall agree, except that the
Trustee shall be entitled to prior receipt of such rulings and determinations
from such administrative agencies as it may deem necessary or advisable to
assure itself that the distribution directed is in accordance with law and will
not subject the Fund or the Trustee to liability, and except, further, that the
Trustee may reserve such reasonable amount as the Trustee may deem necessary for
outstanding and accrued charges against the Plan Account.
This Agreement shall terminate in its entirety when there is no asset
included in the Fund.
IN WITNESS WHEREOF the Company and the Trustee have executed this Agreement
by their respective duly authorized officers and have caused their respective
corporate seals to be affixed hereto the day and year first above written.
ATTEST: AMERICAN BRANDS, INC.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ▇. ▇▇▇▇▇▇
------------------------------ By--------------------
Secretary
(CORPORATE SEAL)
ATTEST: THE NORTHERN TRUST COMPANY
M. Short ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ By------------------------
Assistant Secretary Vice President
(CORPORATE SEAL)
STATE OF CONNECTICUT )
: ss.: Old Greenwich
COUNTY OF FAIRFIELD )
On the 30th day of September, 1991, before me personally came ▇▇▇▇▇▇
▇▇▇▇▇▇ to me known who being by me duly sworn, did depose and say that he
resides at ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, that he is the Executive
Vice President and Chief Financial Officer of AMERICAN BRANDS, INC., the
corporation described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name
thereto by like order.
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
STATE OF ILLINOIS )
: ss.:
COUNTY OF ▇▇▇▇ )
On the 4th day of December, 1991, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇▇ to me known who being by me duly sworn, did depose and say that
she resides at ▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, that she is the Vice President
of THE NORTHERN TRUST COMPANY, the banking institution described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
Vita ▇▇▇▇ ▇▇▇
-----------------------------------
SCHEDULE A
----------
1. Profit-Sharing Plan of American Brands, Inc.
2. Profit-Sharing Plan of ▇▇▇ ▇▇▇▇ Brands Co.
3. Aristokraft, Inc. Employee Savings Plan.
4. Day-Timers, Inc. Employee Savings Plan.
5. Master Lock Company Savings Plan for Salaried Employees.
6. ▇▇▇▇ Incorporated Savings Plus Plan.
7. Twentieth Century Companies, Inc. Employee Savings Plan.
8. Waterloo Industries, Inc. Employee Savings Plan.
