Exhibit 4.2
TRUST AGREEMENT
between
Xxxxxxx Xxxxx Trust Company, as the Trustee
and
Xxxx Xxx Communications, Inc. as the Employer
Trust Agreement entered into as of April 1, 1995 by and between the
above-named employer (the "Employer") and Xxxxxxx Xxxxx Trust Company, a New
Jersey corporation (the "Trustee"), with respect to a trust ("Trust") forming
part of the Xxxx Xxx Communications, Inc. Employees' Savings and Investment Plan
(the "Plan").
The Employer and the Trustee hereby agree as follows:
ARTICLE I
STATUS OF TRUST AND APPOINTMENT
AND ACCEPTANCE OF TRUSTEE
1.01 Status of Trust. The Trust is intended to be a qualified trust under
section 401(a) of the Internal Revenue Code of 1986, as amended from time
to time (the "Code"), and exempt from taxation pursuant to section 501(a)
of the Code.
1.02 Appointment of Trustee. The Employer represents that all necessary action
has been taken for the appointment of Xxxxxxx Xxxxx Trust Company (the
"Trust Company") as trustee of the Trust and that the Trust Agreement
constitutes a legal, valid and binding obligation of the Employer.
1.03 Acceptance of Appointment. The Trustee accepts its appointment as trustee
the Trust.
1.04 Title of Trust. The Trust shall be known as the Xxxx Xxx Communications,
Inc. Employees' Savings and Investment Trust.
1.05 Effectiveness. This Trust Agreement shall not become effective until
executed and delivered by both the Employer and the Trustee.
ARTICLE II
ADMINISTRATIVE AND INVESTMENT FIDUCIARIES
2.01 Named Administrative and Investment Fiduciaries. For purposes of this
Trust Agreement, the term "Named Administrative Fiduciary" refers to the
person named or provided for in the Plan as responsible for the
administration and operation of the Plan, and the term "Named Investment
Fiduciary" refers to the person provided for in the Plan as responsible
for the investment and management of Plan assets to the extent provided
for in this Trust Agreement. The Named Administrative Fiduciary and the
Named Investment Fiduciary may be the same person. If any such person is
not named or provided for in the Plan, or if so named or provided for, is
not then serving, the Employer shall be the Named Administrative Fiduciary
or the Named Investment Fiduciary or both, as the case may be.
2.02 Identification of Named Fiduciaries and Designees. The Named
Administrative Fiduciary and the Named Investment Fiduciary under the Plan
shall each be identified to the Trustee in writing by the Employer, and
specimen signatures of each, or of each member thereof, as appropriate,
shall be provided to the Trustee by the Employer. The Employer shall
promptly give written notice to the Trustee of a change in the identity
either of the Named Administrative Fiduciary or Named Investment
Fiduciary, or any member thereof, as appropriate, and until such notice is
received by the Trustee, the Trustee shall be fully protected in assuming
that the identity of the Named Administrative Fiduciary or Named
Investment Fiduciary, and the members thereof, as appropriate, is
unchanged. Each person authorized in accordance with the Plan to give a
direction to the Trustee on behalf of the Named Administrative Fiduciary
or the Named Investment Fiduciary shall be identified to the Trustee by
written notice from the Employer or the Named Administrative Fiduciary or
the Named Investment Fiduciary, as the case may be, and such notice shall
contain a specimen of the signature. The Trustee shall be entitled to rely
upon each such written notice as evidence of the identity and authority of
the persons appointed until a written cancellation of the appointment, or
the written appointment of a successor, is received by the Trustee from
the Employer, the Named Administrative Fiduciary or the Named Investment
Fiduciary, as the case may be.
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ARTICLE III
RECEIPTS AND TRUST FUND
3.01 Receipt by Trustee. The Trustee shall receive in cash or other assets
acceptable to the Trustee all contributions paid or delivered to it which
are allocable under the Plan and to the Trust and all transfers paid or
delivered under the Plan to the Trust from a predecessor trustee or
another trust (including a trust forming part of another plan qualified
udder section 401(a) of the Code), provided that the Trustee shall not be
obligated to receive any such contribution or transfer unless prior
thereto or coincident therewith, as the Trustee may specify, the Trustee
has received such reconciliation, allocation, investment or other
information concerning, or such direction, contribution or representation
with respect to, the contribution or transfer or the source thereof as the
Trustee may require. The Trustee shall have no duty or authority to (a)
require any contributions or transfers to be made under the Plan or to the
Trustee, (b) compute any amount to be contributed or transferred under the
Plan to the Trustee, or (c) determine whether amounts received by the
Trustee comply with the Plan.
3.02 Trust Fund. For purposes of this Trust Agreement, the "Trust Fund"
consists of all money and other property received by the Trustee pursuant
to Section 3.01 hereof, increased by any income or gains on or increment
in such assets and decreased by any investment loss or expense, benefit or
disbursement paid pursuant to this Trust Agreement. The Trustee shall hold
the Trust Fund, without distinction between principal and income, as a
non-discretionary trustee pursuant to the terms of this Trust Agreement.
All assets of the Trust other than those, if any, held by a second trustee
as provided for in Section 3.03 shall be held in an account governed by
the terms and conditions of the Cash Management Account(TM) Financial
Service for Business Retirement Plans Agreement (the "CMA(TM) Account")
which the Employer, having reviewed and understood the CMA Account Program
Description, hereby directs the Trustee to establish for the Trust with
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or such other account
or accounts as the Employer and the Trustee may agree upon from time to
time.
3.03 Second Trust Fund. If the Employer so elects, and the Trust Company
consents, the Employer may appoint a second trustee under the Plan with
respect to assets which the Employer desires to contribute or have
transferred to the Trust Company, as Trustee, but which the Trust Company
does not choose to accept. The appointment of a second trustee shall be
deemed a representation by the Employer that the Plan contains all
appropriate provisions relating to the second trustee. In the event and
upon the effectiveness of the acceptance of the second trustee's
appointment, the Employer shall be deemed to have created two trust funds
under the Plan each governed separately by this Trust Agreement except
that with respect to the second trust, this Trust Agreement shall apply as
if the second trustee were referred to by name in the introductory
paragraph and in Section 1.02 hereof. Each Trustee under such an
arrangement shall, however, discharge its duties and responsibilities
solely with respect to those assets of the Trust delivered into its
possession and, except pursuant to the Employee Retirement Income Security
Act of 1974, as amended from time to time ("ERISA"), shall have no duties,
responsibilities or obligations with respect to property of the other
Trust nor any liability for the acts or omissions of the other Trustee. As
a condition to its consent to the appointment of a second trustee, the
Trust Company shall assure that recordkeeping, distribution and reporting
procedures are established on a coordinated basis between it and the
second trustee as the Trust Company considers necessary or appropriate
with respect to the Trust.
ARTICLE IV
PAYMENTS, ADMINISTRATIVE DIRECTIONS AND EXPENSES
4.01 Payments by Trustee. Payments of money or property from the Trust Fund
shall be made by the Trustee upon direction from the Named Administrative
Fiduciary or its designee. Payments by the Trustee shall be transmitted to
the Named Administrative Fiduciary or its designee for delivery to the
proper payees or to payee addresses supplied by the Named Administrative
Fiduciary or its designee, and the Trustee's obligation to make such
payments shall be satisfied upon such transmittal. The Trustee shall have
no obligation to determine the identity of persons entitled to payments
under the Plan or their addresses.
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4.02 Named Administrative Fiduciary's Directions. Directions from or on behalf
of the Named Administrative Fiduciary or its designee shall be
communicated to the Trustee or the Trustee's designee for the purpose only
in a manner and in accordance with procedures acceptable to the Trustee.
The Trustee's designee shall not, however, be empowered to implement any
such directions except in accordance with procedures acceptable to the
Trustee. The Trustee shall have no liability for following any such
directions or failing to act in the absence of any such directions. The
Trustee shall have no liability for the acts or omissions of any person
making or failing to make any directions under the Plan or this Trust
Agreement nor any duty or obligation to review any such direction, act or
omission.
4.03 Disputed Payments. If a dispute arises over the propriety of the Trustee
making any payment from the Trust Fund, the Trustee may withhold the
payment until the dispute has been resolved by a court of competent
jurisdiction or settled by the parties to the dispute. The Trustee may
consult legal counsel and shall be fully protected in acting upon the
advice of counsel.
4.04 Trustee's Compensation and Expenses. If the Employer so elects on the
Client Authorization Form submitted to the Trust Company with respect to
the Plan (the "Client Authorization Form") or otherwise, the Employer
shall (a) pay the Trustee compensation for its services under this Trust
Agreement in accordance with the Trustee's fee schedule in effect and
applicable at the time such compensation becomes payable, and (b) pay or
reimburse the Trustee for all expenses incurred by the Trustee in
connection with or relating to the performance of its duties under this
Trust Agreement or its status as Trustee, including reasonable attorneys
fees. If the Employer does not so elect, such compensation and expenses
shall be charged against and withdrawn from the Trust Fund as provided
below.
Until paid by the Employer or charged against and withdrawn from the Trust
Fund, as the case may be, the Trustee's compensation and expenses shall be
a lien upon the Trust Fund. The Trustee is authorized to charge the Trust
Fund for and withdraw from the Trust Fund, without direction from the
Named Administrative Fiduciary or any other person, the amount of any such
fees or expenses which the Employer has not elected to pay and the amount
of any such fees or expenses which the Employer has so elected to pay but
which remain unpaid for a period of 60 days after presentation of a
statement for such amount to the Employer. Trust Fund assets shall be
applied to pay such fees and expenses in the following priority by asset
category to the extent thereof held at the time of withdrawal in the Trust
Fund subfund or account to which the fee or expense is allocated: (i)
uninvested cash balances; (ii) shares of any money market fund or funds
held in the Trust Fund; and (iii) any other Trust Fund assets. The Trustee
is authorized to allocate its fees and expenses among these subfunds or
accounts to which the fees or expenses pertain in such manner as the
Trustee deems appropriate under the circumstances unless prior to such
allocation the Employer or the Named Administrative Fiduciary specifies
the manner in which the allocation is to be made. The Trustee is also
authorized but not required to sell any shares or other assets referred to
above to the extent necessary for the purpose.
4.05 Taxes. The Trustee is authorized, with or without direction from the Named
Administrative Fiduciary or any other person, to withdraw from the Trust
Fund and pay any federal, state or local taxes, charges or assessments of
any kind levied or assessed against the Trust or assets thereof. Until
paid, such taxes shall be a lien against the Trust Fund. The Trustee shall
give notice to the Named Administrative Fiduciary of its receipt of a
demand for any such taxes, charges or assessments. The Trustee shall not
be personally liable for any such taxes, charges or assessments.
4.06 Expenses of Administration. Expenses incurred by the Employer, the Named
Administrative Fiduciary, the Named Investment Fiduciary, any Investment
Manager designated pursuant to Section 5.02 or any other persons
designated to act on behalf of the Employer, the Named Administrative
Fiduciary or the Named Investment Fiduciary, including reimbursement for
expenses incurred in the performance of their respective duties, shall be
the obligation of the Employer or other person specified in the Plan. Such
expenses, however, may be paid from the Trust Fund upon the written
direction to the Trustee of the Named Administrative Fiduciary.
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4.07 Restriction on Alienation. Except as provided in Section 4.08 or under
section 401(a)(13) of the Code, the interest of any Plan participant or
beneficiary in the Trust Fund shall not be subject to the claims of such
person's creditors and may not be assigned, sold, transferred, alienated
or encumbered. Any attempt to do so shall be void; and the Trustee shall
disregard any attempt. Trust assets shall not in any manner be liable for
or subject to debts, contracts, liabilities, engagement or torts of any
Plan participant or beneficiary, and benefits shall not be considered an
asset of any such a person in the event of the person's insolvency or
bankruptcy.
4.08 Payment on Court Order. The Trustee is authorized to make any payments
directed by court order in any action in which the Trustee is a party or
pursuant to a "qualified domestic relations order" under section 414(p) of
the Code; provided that the Trustee shall not make such payment if the
Trustee is indemnified and held harmless by the Employer in a manner
satisfactory to the Trustee against all consequences of such failure to
pay. The Trustee is not obligated to defend actions in which the Trustee
is named but shall notify the Employer or Named Administrative Fiduciary
of any such action and may tender defense of the action to the Employer,
the Named Administrative Fiduciary or the participant or beneficiary whose
interest is affected. The Trustee may in its discretion defend any action
in which the Trustee is named and any expenses, including reasonable
attorneys fees, incurred by the Trustee in that connection shall be paid
or reimbursed in accordance with Section 4.04 hereof.
ARTICLE V
INVESTMENTS
5.01 Investment Management. The Named Investment Fiduciary shall manage the
investment of the Trust Fund except insofar as (a) a person (an
"Investment Manager") who meets the requirements of section 3(38) of ERISA
has authority to manage Trust assets as referred to in Section 5.02 hereof
or (b) the Plan provides for participant or beneficiary direction of the
investment of assets allocable under the Plan to the accounts of such
participants and beneficiaries and the Trustee notifies the Employer that
such directions will be acceptable. In the latter situation, a list of the
participants and beneficiaries and such information concerning them as the
Trustee may specify shall be provided by the Employer or the Named
Administrative Fiduciary to the Trustee and/or such person(s) as are
necessary for the implementation of the directions in accordance with the
procedure acceptable to the Trustee. Except as required by ERISA, the
Trustee shall invest the Trust Fund as directed by the Named Investment
Fiduciary, an Investment Manager or a Plan participant or beneficiary, as
the case may be, and the Trustee shall have no discretionary control over,
nor any other discretion regarding, the investment reinvestment of any
asset of the Trust. The Trustee may limit the categories of assets in
which the Trust Fund may be invested.
It is understood that the Trustee may, from time to time, have on hand
funds which are received as contributions or transfers to the Trust which
are awaiting investment or funds from the sale of Trust assets which are
awaiting reinvestment. Absent receipt by the Trustee of a direction from
the proper person for the investment or reinvestment of such funds or
otherwise prior to the application of funds in implementation of such a
direction, the Trustee shall in accordance with the applicable CMA(TM)
Account procedures cause such funds to be invested in shares of the money
market fund specified by the Employer on the Client Information Form or
such other money market fund acceptable to the Trust Company as the
Employer or Named Investment Fiduciary may in writing to the Trust Company
specify for this purpose from time to time. Any such fund may be
sponsored, managed or distributed by an affiliate of the Trust Company.
The Employer or the Named Investment Fiduciary, as the case may be, hereby
acknowledges that prior to any such specification it has read or will have
read the then current prospectus for the specified fund.
5.02 Investment Managers. Notwithstanding any provision of the Plan to the
contrary, the Employer or the Named Investment Fiduciary may appoint one
or more Investment Managers, who may be an affiliate of the Trust Company,
to direct the Trustee in the investment of all or a specified portion of
the assets of the Trust. Any such Investment Manager shall be directed by
the Employer or the Named Investment Fiduciary, as the case may be, to act
in accordance with the procedures referred to in Section 5.04. The Named
Investment Fiduciary shall notify the Trustee in writing before the
effectiveness of the appointment or removal of any Investment Manager.
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If there is more than one Investment Manager whose appointment is
effective under the Plan at any one time, the Trustee shall, upon written
instructions from the Employer or the Named Investment Fiduciary,
establish separate funds for control by each such Investment Manager. The
funds shall consist of those Trust assets designated by the Employer or
the Named Investment Fiduciary.
5.03 Direction of Voting and Other Rights. The voting and other rights in
securities or other assets held in the Trust shall be exercised by the
Trustee as directed by the Named Investment Fiduciary or other person who
at the time has the right as referred to in Section 5.01 hereof to direct
the investment or reinvestment of the security or other asset involved,
provided that notwithstanding any provision of the Plan to the contrary,
(a) except as provided in clause (b) of this Section, such voting and
other rights in any such security or other asset selected by the Employer
or the Named Investment Fiduciary shall be exercised by the Named
Investment Fiduciary and (b) such voting and other rights in any "employer
security" with respect to the Plan within the meaning of Section 407(d)(1)
of ERISA which is held in an account under the Plan over which a Plan
participant or beneficiary has control as to specific assets to be held
therein or which is held in an account which consists solely or primarily
of "employer securities" shall be exercised by the participants or
beneficiaries having interests in that account. Notwithstanding any
provision hereof or of the Plan to the contrary, (i) in the event a Plan
participant or beneficiary or an Investment Manager with the right to
direct a voting or other decision with respect to any security or other
asset held in the Trust does not communicate any decision on the matter to
the Trustee or the Trustee's designee by the time prescribed by the
Trustee or the Trustee's designee for that purpose or if the Trustee
notifies the Named Investment Fiduciary either that it does not have
precise information as to the securities or other assets involved
allocated on the applicable record date to the accounts of all
participants and beneficiaries or that time constraints make it unlikely
that participant, beneficiary or Investment Manager direction, as the case
may be, can be received on a timely basis, the decision shall be the
responsibility of the Named Investment Fiduciary and shall be communicated
to the Trustee on a timely basis, and (ii) in the event the Named
Investment Fiduciary with any right under the Plan or hereunder to direct
a voting or other decision with respect to any security or other asset
held in the Trust, including any such right under clause (a) or clause (i)
of this Section, does not communicate any decision on the matter to the
Trustee or the Trustee's designee by the time prescribed by the Trustee
for that purpose, the Trustee may, at the cost of the Employer, retain an
Investment Manager with full discretion to make the decision. Except as
required by ERISA, the Trustee shall (a) follow all directions
above-referred to in this Section and (b) shall have no duty to exercise
voting or other rights relating to any such security or other asset.
5.04 Investment Directions. Directions for the investment or reinvestment of
Trust assets or of a type referred to in Section 5.03 from the Employer,
the Named Investment Fiduciary, an Investment Manager or a Plan
participant or beneficiary, as the case may be, shall, in a manner and in
accordance with procedures acceptable to the Trustee, be communicated to
and implemented by, as the case may be, the Trustee, the Trustee's
designee or, with the Trustee's consent, broker/dealer designated for the
purpose by the Employer or the Named Investment Fiduciary. Communication
of any such direction to such a designee or broker/dealer shall
conclusively be deemed an authorization to the designee or broker/dealer
to implement the direction even though coming from a person other than the
Trustee. The Trustee shall have no liability for its or any other person's
following such directions or failing to act in the absence of any such
directions. The Trustee shall have no liability for the acts or omissions
of any person directing the investment or reinvestment of Trust Fund
assets or making or failing to make any direction referred to in Section
5.03. Neither shall the Trustee have any duty or obligation to review any
such investment or other direction, act or omission or, except upon
receipt of a proper direction, to invest or otherwise manage any asset of
the Trust which is subject to the control of any such person or to
exercise any voting or other right referred to in Section 5.03.
5.05 Communication of Proxy and Other Materials. The Employer or Named
Administrative Fiduciary shall establish a procedure acceptable to the
Trustee for the timely dissemination to each person entitled to direct the
Trustee or its designee as to a voting or other decision called for
thereby or referred to therein of all proxy and other materials bearing on
the decision.
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5.06 Common and Collective Trust Funds. Any person authorized to direct the
investment of Trust assets may, if the Trustee and the Named Investment
Fiduciary so permit, direct the Trustee to invest such assets in a common
or collective trust maintained by the Trustee for the investment of assets
of qualified trusts under section 401(a) of the Code, individual
retirement accounts under section 408(a) of the Code and plans or
governmental units described in section 818(a)(6) of the Code. The
documents governing any such common or collective trust fund maintained by
the Trustee, and in which Trust assets have been invested, are hereby
incorporated into this Trust Agreement by reference.
ARTICLE VI
RESPONSIBILITIES AND INDEMNITY
6.01 Relationship of Fiduciaries. Each fiduciary of the Plan and this Trust
shall be solely responsible for its own acts or omissions. The Trustee
shall have no duty to question any other Plan fiduciary's performance of
fiduciary duties allocated to such other fiduciary pursuant to the Plan.
The Trustee shall not be responsible for the breach of responsibility by
any other Plan fiduciary except as provided for in ERISA.
6.02 Benefit of Participants. Each fiduciary shall, within the meaning of the
Code and ERISA, discharge its duties with respect to the Trust solely in
the interest of participants in the Plan and their beneficiaries and for
the exclusive purpose of providing benefits to such participants and
beneficiaries and defraying reasonable expenses of administering the Plan.
6.03 Status of Trustee. The Trustee acknowledges its status as a "fiduciary" of
the Plan within the meaning of ERISA.
6.04 Location of Indicia of Ownership. Except as permitted by ERISA, the
Trustee shall not maintain the indicia of ownership of any assets of the
Trust outside the jurisdiction of the district courts of the United
States.
6.05 Trustee's Reliance. The Trustee shall have no duty to inquire whether
directions by the Employer, the Named Administrative Fiduciary, the Named
Investment Fiduciary or any other person conform to the Plan, and the
Trustee shall be fully protected in relying on any such direction
communicated in accordance with procedures acceptable to the Trustee from
any person who the Trustee reasonably believes is a proper person to give
the direction. The Trustee shall have no liability to any participant, any
beneficiary or any other person for payments made, any failure to make
payments, or any discontinuance of payments, on direction of the Named
Administrative Fiduciary, the Named Investment Fiduciary or any designee
of either of them or for any failure to make payments in the absence of
directions from the Named Administrative Fiduciary or any person
responsible for or purporting to be responsible for directing the
investment of Trust assets. The Trustee shall have no obligation to
request proper directions from any person. The Trustee may request
instructions from the Named Administrative Fiduciary or the Named
Investment Fiduciary and shall have no duty to act or liability for
failure to act if such instructions are not forthcoming. The Trustee shall
have no responsibility to determine whether the Trust Fund is sufficient
to meet the liabilities under the Plan, and shall not be liable for
payments or Plan liabilities in excess of the Trust Fund.
6.06 Indemnification. The Employer hereby indemnifies the Trustee against, and
shall hold the Trustee harmless from, any and all loss, claims, liability,
and expense, including reasonable attorneys fees, imposed upon the Trustee
or incurred by the Trustee as a result of any acts taken, or any failure
to act, in accordance with the directions from the Named Administrative
Fiduciary, Named Investment Fiduciary, Investment Manager or any other
person specified in Article IV or V hereof, or any designee of any such
person, or by reason of the Trustee's good faith execution of its duties
with respect to the Trust, including, but not limited to, its holding of
assets of the Trust as provided for in Section 3.02, the Employer's
obligations in the foregoing regard to be satisfied promptly on request by
the Trustee, provided that in the event that the loss, claim, liability or
expense involved is determined by a no longer appealable final judgment
entered in a lawsuit or proceeding to have resulted from the gross
negligence or willful misconduct of the Trustee, the Trustee shall
promptly thereafter return to the Employer any amount previously received
by the Trustee under this Section with respect to such loss, claim,
liability or expense.
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6.07 Protection of Designees. To the extent that any designee of the Trustee is
performing a function of the Trustee under this Trust Agreement, the
designee shall have the benefit of all of the applicable limitations on
the scope of the Trustee's duties and liabilities, all applicable rights
of indemnification granted hereunder to the Trustee and all other
applicable protections of any nature afforded to the Trustee.
ARTICLE VII
POWERS OF TRUSTEE
7.01 Nondiscretionary Investment Powers. At the direction of the person
authorized to direct such action as referred to in Article V hereof, but
limited to those assets or categories of assets acceptable to the Trustee
as referred to in Section 5.01, the Trustee, or the Trustee's designee or
a broker/dealer as referred to in Section 5.04, is authorized and
empowered:
(a) To invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible preferred
stock, bonds, debentures, convertible debentures and bonds,
mortgages, notes, commercial paper and other evidences of
indebtedness (including those issued by the Trustee), shares of
mutual funds (which funds may be sponsored, managed or offered by an
affiliate of the Trustee), guaranteed investment contracts, bank
investment contracts, other securities, policies of life insurance,
annuity contracts, options, options to buy or sell securities or
other assets, and all other property of any type (personal, real or
mixed, and tangible or intangible);
(b) To deposit or invest all or any part of the assets of the Trust in
savings accounts or certificates of deposit or other deposits in a
bank or savings and loan association or other depository
institution, including the Trustee or any of its affiliates,
provided with respect to such deposits with the Trustee or an
affiliate the deposits bear a reasonable interest rate;
(c) To hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust Fund; to sell, convey, transfer,
exchange, partition, lease for any term, even extending beyond the
duration of this Trust, and otherwise dispose of the same from time
to time;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay
assessments and other sums deemed by the Trustee necessary for the
protection of the Trust Fund; to vote any corporate stock either in
person or by proxy, with or without power of substitution, for any
purpose; to participate in voting trusts, pooling agreements,
foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with
or transfer title to any protective or other committee; to exercise
or sell stock subscriptions or conversion rights; and, regardless of
any limitation elsewhere in this instrument relative to investments
by the Trustee, to accept and retain as an investment any securities
or other property received through the exercise of any of the
foregoing powers;
(e) Subject to Section 5.01 hereof, to hold in cash, without liability
for interest, such portion of the Trust Fund which it is directed to
so hold pending investments, or payment of expenses, or the
distribution of benefits;
(f) To take such actions as may be necessary or desirable to protect the
Trust from loss due to the default on mortgages held in the Trust
including the appointment of agents or trustees in such other
jurisdictions as may seem desirable, to transfer property to such
agents or trustees, to grant to such agents such powers as are
necessary or desirable to protect the Trust Fund, to direct such
agent or trustee, or to delegate such power to direct, and to remove
such agent or trustee;
(g) To settle, compromise or abandon all claims and demands in favor of
or against the Trust Fund;
(h) To invest in any common or collective trust fund of the type
referred to in Section 5.06 hereof maintained by the Trustee;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally
under the laws of the State of New Jersey, so that the powers
conferred upon the Trustee herein shall not be in limitation of any
authority conferred by law, but shall be in addition thereto;
(j) To borrow money from any source and to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust
assets as security, subject to applicable requirements of the Code
and ERISA; and
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(k) To maintain accounts at, execute transactions through, and lend on
an adequately secured basis stocks, bonds or other securities to,
any brokerage or other firm, including any firm which is an
affiliate of the Trustee.
7.02 Additional Powers of Trustee. To the extent necessary or which it deems
appropriate to implement its powers under Section 7.01 or otherwise to
fulfill any of its duties and responsibilities as trustee of the Trust
Fund, the Trustee shall have the following additional powers and
authority:
(a) to register securities, or any other property, in its name or in the
name of any nominee, including the name of any affiliate or the
nominee name designated by any affiliate, with or without indication
of the capacity in which property shall be held, or to hold
securities in bearer form and to deposit any securities or other
property in a depository or clearing corporation;
(b) to designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel
and accountants as the Trustee considers necessary or appropriate,
any of whom may be an affiliate of the Trustee or a person who
renders services to such an affiliate, and, as a part of its
expenses under this Trust Agreement and to the extent permissible
under ERISA, to pay their reasonable expenses and compensation;
(c) to make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in
writing necessary or appropriate for the accomplishment of any of
the powers listed in this Trust Agreement; and
(d) generally to do all other acts which the Trustee deems necessary or
appropriate for the protection of the Trust Fund.
ARTICLE VIII
RECORDS, ACCOUNTINGS AND VALUATIONS
8.01 Records. The Trustee shall maintain or cause to be maintained accurate
records and accounts of all Trust transactions and assets. The records and
accounts shall be available at reasonable times during normal business
hours for inspection or audit by the Named Administrative Fiduciary and
the Named Investment Fiduciary or any person designated for the purpose by
either of them.
8.02 Accountings. Within 90 days following the close of each fiscal year of the
Plan or the effective date of the removal or resignation of the Trustee,
the Trustee shall file with the Named Administrative Fiduciary a written
accounting setting forth all transactions since the end of the period
covered by the last previous accounting. The accounting shall include a
listing of the assets of the Trust showing the value of such assets at the
close of the period covered by the accounting. On direction of the Named
Administrative Fiduciary, and if previously agreed to by the Trustee, the
Trustee shall submit to the Named Administrative Fiduciary interim
valuations, reports or other information pertaining to the Trust.
The Named Administrative Fiduciary may approve the accounting by written
approval delivered to the Trustee or by failure to deliver written
objections to the Trustee within 60 days after receipt of the accounting.
Any such approval shall be binding on the Employer, the Named
Administrative Fiduciary, the Named Investment Fiduciary and, to the
extent permitted by ERISA, all other persons.
8.03 Valuation. The assets of the Trust shall be valued as of each valuation
date under the Plan at fair market value as determined by the Trustee
based upon such sources of information as it may deem reliable, including,
but not limited to, stock market quotations, statistical evaluation
services, newspapers of general circulation, financial publications,
advice from investment counselors or brokerage firms, or any combination
of sources. The reasonable costs incurred in establishing values of the
Trust Fund shall be a charge against the Trust Fund, unless paid by the
Employer.
When the Trustee is unable to arrive at a value based upon information
from independent sources, it may rely upon information from the Employer,
Named Administrative Fiduciary, Named Investment Fiduciary, appraisers, or
other sources, and shall not incur any liability for inaccurate valuation
based in good faith upon such information.
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ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.01 Resignation. The Trustee may resign at any time upon at least 30 days
written notice to the Employer.
9.02 Removal. The Employer may remove the Trustee upon at least 30 days written
notice to the Trustee.
9.03 Appointment of a Successor. Upon resignation or removal of the Trustee,
the Employer shall appoint a successor trustee. Upon failure of the
Employer to appoint, or the failure of the effectiveness of the
appointment by the Employer of, a successor trustee by the effective date
of the resignation or removal, the Trustee may apply to any court of
competent jurisdiction for the appointment of a successor.
Promptly after receipt by the Trustee of notice of the effectiveness of
the appointment of the successor trustee, the Trustee shall deliver to the
successor trustee such records as may be reasonably requested to enable
the successor trustee to properly administer the Trust Fund and all
property of the Trust after deducting therefrom such amounts as the
Trustee deems necessary to provide for expenses, taxes, compensation or
other amounts due to or by the Trustee pursuant to Sections 4.04 or 5.03
hereof not paid by the Employer prior to the delivery.
9.04 Settlement of Account. Upon resignation or removal of the Trustee, the
Trustee shall have the right to a settlement of its account, which
settlement shall be made, at the Trustee's option, either by an agreement
of settlement between the Trustee and the Employer or by a judicial
settlement in an action instituted by the Trustee. The Employer shall bear
the cost of any such judicial settlement, including reasonable attorneys
fees.
9.05 Expenses and Compensation. The Trustee shall not be obligated to transfer
Trust assets until the Trustee is provided assurance by the Employer
satisfactory to the Trustee that all fees and expenses reasonably
anticipated will be paid.
9.06 Termination of Responsibility and Liability. Upon settlement of the
account and transfer of the Trust Fund to the successor trustee, all
rights and privileges under this Trust Agreement shall vest in the
successor trustee and all responsibility and liability of the Trustee with
respect to the Trust and assets thereof shall, except as otherwise
required by ERISA, terminate subject only to the requirement that the
Trustee execute all necessary documents to transfer the Trust assets to
the successor trustee.
ARTICLE X
AMENDMENT AND TERMINATION
10.01 Amendment. The Employer reserves the right to amend this Trust Agreement,
provided that no amendment of this Trust Agreement or the Plan shall be
effective which would (a) cause any assets of the Trust Fund to be used
for, or diverted to, purposes other than the exclusive benefit of Plan
participants or their beneficiaries other than an amendment permissible
under the Code and ERISA, or (b) affect the rights, duties,
responsibilities, obligations or liabilities of the Trustee without the
Trustee's written consent. The Employer shall amend this Trust Agreement
as requested by the Trustee to reflect changes in law which counsel for
the Trustee advises the Trustee require such changes. Amendments to the
Trust Agreement or a certified copy of the amendments shall be delivered
to the Trustee promptly after adoption, and if practicable under the
circumstances, any proposed amendment under consideration by the Employer
shall be communicated to the Trustee to permit the Trustee to review and
comment thereon in due course before the Employer acts on the proposed
amendment.
10.02 Termination. The Trust may be terminated by the Employer upon at least 60
days written notice to the Trustee. Upon such termination, and subject to
Section 11.01 hereof, the Trust Fund shall be distributed as directed by
the Named Administrative Fiduciary.
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ARTICLE XI
MISCELLANEOUS
11.01 Exclusive Benefit Rule. Except as provided in Section 11.02, or as
otherwise permitted as required by ERISA or the Code, no asset of this
Trust shall be used for, or diverted to, purposes other than the exclusive
benefit of Plan participants or their beneficiaries or for the reasonable
expenses of administering the Plan and Trust until all liabilities for
benefits due Plan participants or their beneficiaries have been satisfied.
11.02 Refunds to Employer. The Trustee shall, upon the written direction of the
Named Administrative Fiduciary which shall include a certification that
such action is proper under the Plan, ERISA and the Code specifying any
relevant sections thereof, return to the Employer any amount referred to
in section 403(c)(2) of ERISA.
11.03 Authorized Action. Any action to be taken under this Trust Agreement by an
Employer or other person which is: (a) a corporation shall be taken by the
board of directors of the corporation or any person or persons duly
empowered by the board of directors to take the action involved, (b) a
partnership shall be taken by an authorized general partner of the
partnership, and (c) a sole proprietorship by the sole proprietor.
11.04 Text of Plan. The Employer represents that prior to the execution of this
Trust Agreement by both parties it delivered to the Trustee the text of
the Plan as in effect as of the date of this Trust Agreement. The Employer
shall deliver to the Trustee promptly after adoption thereof a certified
copy of each other amendment of the Plan.
11.05 Conflict with Plan. The rights, duties, responsibilities, obligations and
liabilities of the Trustee are as set forth in this Trust Agreement, and
no provision of the Plan or any other document shall be deemed to affect
such rights, duties, responsibilities, obligations and liabilities. If
there is a conflict between provisions of the Plan and this Trust
Agreement with respect to any subject involving the Trustee, including but
not limited to the responsibility, authority or powers of the Trustee, the
provisions of this Trust Agreement shall be controlling.
11.06 Failure to Maintain Qualification. If the Trust fails to qualify as a
qualified trust under section 401(a) of the Code, or loses its status as
such a qualified trust, the Employer shall immediately so notify the
Trustee, and the Trustee shall, without further notice or direction,
remove the Trust assets from any common or collective trust fund
maintained by the Trustee for investments by qualified trusts.
11.07 Governing Law and Constructions. This Trust Agreement and the Trust shall
be construed, administered and governed under ERISA and other pertinent
federal law, and to the extent that federal law is inapplicable, under the
laws of the State of New Jersey. If any provision of this Trust Agreement
is susceptible to more than one interpretation, the interpretation to be
given is that which is consistent with the Trust being a qualified trust
under section 401(a) of the Code. If any provision of this Trust Agreement
is held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions shall continue to be fully
effective to the extent possible under the circumstances.
11.08 Arbitration.
o Arbitration is final and binding on the parties.
o The parties are waiving their right to seek remedies in court,
including the right to jury trial.
o Pre-arbitration discovery is generally more limited than and
different from court proceedings.
o The arbitrators' award is not required to include factual
findings or legal reasoning and any party's right to appeal or
to seek modification of rulings by the arbitrators is strictly
limited.
o The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities
industry.
The Employer agrees that all controversies which may arise between the
Employer and either or both the Trustee and its affiliate Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S") in connection with the
trust, including, but not limited to, those involving conduct of the CMA
Account, and any transactions therein, or the construction, performance,
or breach of this or any other agreement between the Employer and either
or both the Trustee and MLPF&S, whether entered into prior, on, or
subsequent to the date thereof, shall be determined by arbitration. Any
arbitration under this agreement shall be conducted only before the New
York Stock Exchange, Inc., The American Stock Exchange, Inc., or
arbitration facility provided by any other
10
exchange of which MLPF&S is a member. The National Association of
Securities Dealers, Inc., or the Municipal Securities Rulemaking Board,
and in accordance with its arbitration rules then in force. The Employer
may elect in the first instance whether arbitration shall be conducted
before The New York Stock Exchange, Inc., The American Stock Exchange,
Inc., other exchange of which MLPF&S is a member, The National Association
of Securities Dealers, Inc., or The Municipal Securities Rulemaking Board,
but if the employer fails to make such election, by registered letter or
telegram addressed to Xxxxxxx Xxxxx Trust Company, Employee Benefit Trust
Operations, X.X. Xxx 00000, Xxx Xxxxxxxxx, Xxx Xxxxxx 00000-0000, before
the expiration of five days after receipt of a written request from MLPF&S
and/or the Trustee to make such election, then MLPF&S and/or the Trustee
may make such election. Judgment upon the award or arbitrators may be
entered in any court, state or federal, having jurisdiction.
11.09 Successors and Assigns. This Trust Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns.
11.10 Gender. As used in this Trust Agreement, the masculine gender shall
include the feminine and the neuter genders and the singular shall include
the plural and the plural the singular as the context requires.
11.11 Headings. Headings and subheadings in this Trust Agreement are for
convenience of reference only and are not to be considered in the
construction of the provisions of the Trust Agreement.
11.12 Counterparts. This Trust Agreement may be executed in several
counterparts, each of which shall be deemed an original, and these
counterparts shall constitute one and the same instrument which may be
sufficiently evidenced by any one counterpart.
IN WITNESS WHEREOF, the Employer and the Trustee have executed this
Trust Agreement each by action of a duly authorized person.
By signing this Agreement, the undersigned Employer acknowledges (1)
that, in accordance with paragraph 11.08 on page 10 of this Agreement, the
Employer is agreeing in advance to arbitration any controversies which may arise
with either or both Xxxxxxx Xxxxx Trust Company or Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, and (2) receipt of a copy of this Agreement.
XXXX XXX COMMUNICATIONS, INC.
-----------------------------
(Employer)
By: /s/ Xxxx Xxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxx
-----------------------
Title: Sr VP
----------------------
XXXXXXX XXXXX TRUST COMPANY, TRUSTEE
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
-----------------------
Title: Vice President
----------------------
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FIRST ADDENDUM TO TRUST AGREEMENT BETWEEN
XXXXXXX XXXXX TRUST COMPANY AND
XXXX XXX COMMUNICATIONS, INC.
AMENDMENT to the Trust Agreement entered into as of April 1, 1995 by and
between Xxxxxxx Xxxxx Trust Company (the "Trustee") and Xxxx Xxx Communications,
Inc. (the "Employer"), with respect to the Trust under the Xxxx Xxx
Communications, Inc. Employees' Savings and Investment Plan (the "Agreement").
WHEREAS, the Trustee and the Employer wish to amend the Agreement as
hereinafter set forth:
NOW, THEREFORE, the Trustee and the Employer agree that the Agreement
shall be amended as follows:
1. The third sentence of Section 6.05 of the Agreement is amended in its
entirety to provide as follows:
"The Trustee shall have no obligation to request proper directions from
any person; provided, however, that in the event the Trustee receives
directions from the Employer, the Named Administrative Fiduciary, the
Named Investment Fiduciary, or any designee thereof, which directions are
not communicated in accordance with procedures acceptable to the Trustee,
the Trustee shall notify the Employer or other person from whom such
directions originated that the directions were not communicated in
accordance with such procedures."
2. Section 6.06 of the Agreement is amended in its entirety to provide as
follows:
"6.06 Indemnification. The Employer hereby indemnifies the Trustee
against, and shall hold the Trustee harmless from, any and all loss,
claims, liability, and expense, including reasonable attorneys' fees,
imposed upon the Trustee or incurred by the Trustee as a result of any
acts taken, or any failure to act, in accordance with the directions from
the Named Administrative Fiduciary, Named Investment Fiduciary, Investment
Manager or any other person specified in Article IV or V hereof, or any
designee of any such person, or by reason of the Trustee's good faith
execution of its duties with respect to the Trust, including, but not
limited to, its holding of assets of the Trustee as provided for in
Section 3.02, the
Employer's obligations in the foregoing regard to be satisfied promptly on
request by the Trustee, provided that in the event that the loss, claim,
liability or expenses involved is determined by a court of competent
jurisdiction to have resulted from the negligence or willful misconduct of
the Trustee, the Employer shall have no indemnification obligation
hereunder and the Trustee shall promptly thereafter return to the Employer
any amount previously received by the Trustee under this Section 6.06 with
respect to such loss, claim, liability or expense."
3. Article VIII of the Agreement is amended to add the following new
Section 8.04 at the end thereof:
"8.04 Loans. In the event that participant loans are available under the
Plan, the Trustee shall reflect one aggregate balance for participant
loans under the Plan and shall reflect changes thereto only as directed by
the Employer or Named Administrative Fiduciary. The Trustee has no
responsibility with respect to maintenance of promissory notes or
monitoring of loan amortization schedules."
4. The last sentence of Section 9.04 of the Agreement is amended in its
entirety to provide as follows: "Either party may request judicial determination
of which party shall bear the cost of any such judicial settlement, including
reasonable attorneys fees; provided, however, that if no such judicial
determination is requested or made, the Employer shall bear such cost."
This Amendment shall be effective as of the effective date of the
Agreement.
Except as provided herein, the Agreement shall remain in full force and
effect as specifically amended hereby.
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IN WITNESS WHEREOF, the Trustee and the Employer have caused this
Amendment to be executed on the date(s) set forth below.
XXXXXXX XXXXX TRUST COMPANY XXXX XXX COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxxxx
----------------------------------- ---------------------------
Name/Title: Xxxxx Xxxxx, Vice President Name/Title: Xxxx Xxxxxxxx Xx VP
--------------------------- -------------------
Date: 4/7/95 Date: February
--------------------------------- -------------------------
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