Exhibit 4.5
HOSPIRA 401(k) RETIREMENT SAVINGS TRUST
This Trust Agreement is made as of this ____ day of ___________, 2004 by
and among Hospira, Inc., a Delaware corporation (the "Company"), Xxxxxx
Fiduciary Trust Company, a Massachusetts trust company having its principal
office in Boston, Massachusetts (the "Trustee") and Xxxxxxxx X. Xxxxxxx, Xxxx X.
Xxxxxxx, and Xxxxx X. Waishaar (collectively, the "Co-Trustees").
WITNESSETH:
1. ESTABLISHMENT OF PLAN. The Hospira 401(k) Retirement Savings Plan (the
"Plan") has been adopted by the Company and is intended to satisfy those
provisions of the Internal Revenue Code of 1986, as the same may be amended
from time to time (the "Code"), relating to qualified employer plans.
2. CREATION OF TRUST. There is hereby established a trust which shall be known
as the "Hospira 401(k) Retirement Savings Trust." The provisions of this
Agreement shall supersede and take precedence over any provision of the
Plan which deals with the Trustee's responsibilities and/or which may
conflict in any way with the Plan. All money and such property as shall be
acceptable to the Trustee and the Co-Trustees as shall from time to time be
paid or delivered to the Trustee and the Co-Trustees in their capacity as
such, all investments made therewith and proceeds thereof and all earnings
and profits thereon, less the payments which at the time of reference shall
have been made by the Trustee, as authorized herein, are referred to herein
as the "Trust." The Trustee and the Co-Trustees hereby accept the Trust
created hereunder and agree to perform the provisions of this Agreement on
their part to be performed. Subject to the conditions and limitations set
forth herein, the Trustee and the Co-Trustees each shall be responsible for
the property received by them as Trustee and Co-Trustees, but shall not be
responsible for the administration of the Plan or for those assets of the
Plan which have not been delivered to and accepted by them or which have
been delivered to and accepted by another trustee of the Trust. The
Co-Trustees shall not be liable for assets delivered to and accepted by the
Trustee. The Trustee and the Co-Trustees shall not have any authority or
obligation to determine the adequacy of or to enforce the collection from
the Company of any contribution to the Trust. Certain other agreements and
obligations between the Company and the Trustee or its affiliates may be
set forth from time to time in a service agreement between such parties
(the "Service Agreement").
The establishment of the Trust created by this Agreement shall not be
considered as giving any Plan Participant (as that term is defined in the
Plan) or any other person any legal or equitable rights as against the
Company, the Trustee or the Co-Trustees or the property, whether corpus or
income, of the Trust unless such right is specifically provided for in this
Agreement, the Plan, or by law, nor shall it be considered as giving any
Plan Participant or other employee the right to continue in the service of
the Company, any Affiliated Corporation or any Subsidiary (as those terms
are defined in the Plan).
As soon as practicable after April 30, 2004, the Administrator shall direct
the Trustee to receive assets from the Xxxxxx Laboratories Stock Retirement
Trust, which assets shall be held by the Trustee pursuant to the terms of
this Trust Agreement, and shall include shares of common stock of Xxxxxx
Laboratories.
3. PURPOSES. The Plan and the Trust have been established for the exclusive
benefit of the eligible employees and their beneficiaries. So far as
possible this Agreement shall be interpreted in a
manner consistent with the intention of the Company that the Trust satisfy
those provisions of the Code relating to qualified employees' trusts exempt
from taxation under Section 501(a) of the Code. It is specifically intended
that the Company shall have sole responsibility for maintaining the
tax-qualified status of the Plan and Trust, except as may otherwise be
provided in the Service Agreement. No property of the Trust or
contributions made by the Company pursuant to the terms of the Plan shall
revert to the Company or be used for any purpose other than providing
benefits to eligible employees or their beneficiaries and defraying the
expenses of the Plan and the Trust, except that to the extent provided by
the Plan:
(a) Upon request of the Company, contributions made to the Plan before the
issuance of a favorable determination letter by the Internal Revenue
Service with respect to the initial qualification of the Plan under
Section 401(a) of the Code may be returned to the contributor, with
all attributable earnings, within one year after the Internal Revenue
Service refuses in writing to issue such a letter.
(b) Any amount contributed under the Plan by the Company by a mistake of
fact as determined by the Company may be returned to the Company, upon
its request, within one year after its payment to the Trust.
(c) Any amount contributed under the Plan by the Company on the condition
of its deductibility under Section 404 of the Code may be returned to
the Company, upon its request, within one year after the Internal
Revenue Service disallows the deduction in writing.
(d) Earnings attributable to contributions returnable under paragraph (b)
or (c) shall not be returned to the Company, and any losses
attributable to those contributions shall reduce the amount returned.
4. MANAGEMENT OF TRUST. It shall be the duty of the Trustee:
(a) to hold and, subject to the provisions of this Agreement, to invest
and to reinvest the assets of the Trust, and
(b) to make payments therefrom in accordance with the written directions
of the Plan Administrator (the "Administrator") specified in the Plan
to administer the Plan. The Administrator shall be the "administrator"
of the Plan as defined in Section 3(16)(A) of the Employee Retirement
Income Security Act of 1974 ("ERISA"). The Administrator, the
Co-Trustees and the Employee Benefit Board of Review appointed by the
Board of Directors of the Company ("Board of Review") are "named
fiduciaries" within the meaning of Section 402(a) of ERISA. The
Administrator may direct payments to be made from the Trust to any
person, including the Administrator, or to the Company, or to any
paying agent designated by the Administrator, and in such amounts as
the Administrator may direct. Each such direction of the Administrator
shall be in writing and shall be deemed to include a certification
that any payment directed thereby is one which the Administrator is
authorized to direct, and the Trustee may conclusively rely on such
certification without further investigation. Payments by the Trustee
may be made by its check to the order of the payee and mailed to the
payee at the address last furnished to the Trustee by the
Administrator or by the payee, or if no such address has been
furnished, to the payee in care of the Company. The Trustee shall make
disbursements in the amounts and in the manner that the Administrator
directs from time to time in writing. The Trustee shall have no
responsibility to ascertain any direction's compliance with the
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terms of the Plan any applicable law or the direction's effect for tax
purposes or otherwise; nor shall the Trustee have any responsibility
to see to the application of any disbursement. The Trustee shall not
be required to make any disbursement in excess of the net realizable
value of the assets of the Trust at the time of the disbursement. The
Trustee shall not be required to make any disbursement in cash unless
the Administrator has provided a written direction as to the assets to
be converted to cash for the purpose of making the disbursement.
5. INVESTMENTS. Except as otherwise provided in Sections 6, 7, 8 and 9 below,
the Trustee shall invest and reinvest the assets of the Trust and keep the
same invested, without distinction between principal and income, in stocks,
bonds, stock options, option contracts of any type, contracts for the
immediate or future delivery of financial instruments and other property,
or other securities or certificates of participation or shares of any
mutual investment company, trust or fund (including mutual funds which are
sponsored, underwritten or managed by affiliates of the Trustee), or
deposits in the Trustee which bear a reasonable rate of interest, or
annuity or investment contracts issued by an insurance company, bank or
other financial institution, or other property of any kind, real or
personal, tangible or intangible, as it may deem advisable, provided that
the Trustee may hold assets of the Trust uninvested from time to time if
and to the extent that it may deem such to be in the best interests of the
Trust. Notwithstanding the foregoing, unless an investment manager is
appointed in accordance with Section 8, or the Service Agreement otherwise
specifically provides, all of the assets of the Trust shall be invested as
the Co-Trustees direct in investment products sponsored, underwritten or
managed by affiliates of the Trustee, loans to Plan Participants or shares
of stock of the Company subject to the terms and conditions of Section 7 or
securities satisfying the terms and conditions of Section 8.
6. INVESTMENT FUNDS. The Co-Trustees from time to time may direct the Trustee
to establish one or more separate investment accounts within the Trust,
each such separate account being hereinafter referred to as an "Investment
Fund." The Trustee shall transfer to each such Investment Fund such portion
of the assets of the Trust as the Administrator or Plan Participants direct
in accordance with the specific provisions of the Plan and in the manner
provided in the Service Agreement. The Trustee shall invest and reinvest
the assets which have been allocated to an Investment Fund in accordance
with the investment guidelines, objectives and restrictions which have been
established by the Co-Trustees for that Investment Fund and, in the case of
an Investment Fund for which an Investment Manager has been appointed, the
specific investment directions of such Investment Manager. If, and to the
extent, specifically authorized by the Plan, and provided in the Service
Agreement, the Co-Trustees may direct the Trustee to establish an
Investment Fund all of the assets of which shall be invested in shares of
stock of the Company, subject to the terms and conditions of Section 7 and
Section 8.
The Trustee shall be under no duty to question or review the investment
guidelines, objectives and restrictions established, or the specific
investment directions given, by the Co-Trustees, the Administrator or the
Plan Participants for any Investment Fund or to make suggestions in
connection therewith. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the Co-Trustees', the
Administrator's or Plan Participants' exercise or non-exercise of rights
under this Section 6, or from any direction of the Co-Trustees,
Administrator or Plan Participants unless it is clear on the face of the
direction that the actions to be taken under the direction are prohibited
by the fiduciary duty rules of Section 404(a) of ERISA. The Trustee shall
incur no liability on account of investing the assets of the Trust in
accordance with investment directions of the Co-Trustees, Administrator or
Plan Participants so delivered to the Trustee.
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All interest, dividends and other income received with respect to, and any
proceeds received from the sale or other disposition of, securities or
other property held in an Investment Fund shall be credited to and
reinvested in such Investment Fund, and all expenses of the Trust which are
properly allocable to a particular Investment Fund shall be so allocated
and charged. The Co-Trustees may at any time direct the Trustee to
eliminate any Investment Fund or Funds, and the Trustee shall thereupon
dispose of the assets of such Investment Fund and reinvest the proceeds
thereof in accordance with the directions of the Co-Trustees.
Pending investment in the Investment Funds in accordance with the
directions of the Administrator or the Plan Participants, the Trustee shall
invest assets of the Trust as provided in the Service Agreement, or if
there is no such provision, the Trustee may invest assets of the Trust, in
whole or in part, at any time or from time to time, in interest-bearing
accounts or certificates of deposit (including deposits in the Trustee
which bear a reasonable interest rate), Treasury Bills, commercial paper,
money market funds (including any such fund sponsored, underwritten or
managed by one of its affiliates), short-term investment funds or other
short-term obligations in its discretion, and the investment return thereon
shall be allocated among the Plan Participants whose assets have been so
invested and added to their respective investments in the Investment Funds.
7. TRUST INVESTMENTS IN COMPANY STOCK. Trust investments pursuant to this
Section 7 shall be made only in securities constituting "qualifying
employer securities" within the meaning of Section 407(d)(5) of ERISA.
Trust investments in such securities of the Company ("Company Stock") shall
be subject to the following terms and conditions:
(a) ACQUISITION LIMIT. Pursuant to the Plan, the Trust may be invested in
Company Stock to the extent necessary to comply with investment
directions under Sections 5 and 6 of this Agreement.
(b) FIDUCIARY DUTIES OF NAMED FIDUCIARIES. The Co-Trustees as named
fiduciaries, shall continually monitor the suitability of acquiring
and holding Company Stock under the fiduciary duty rules of Section
404(a)(1) of ERISA (as modified by Section 404(a)(2) of ERISA). The
Trustee shall not be liable for any loss, or by reason of any breach,
which arises from the direction of the Co-Trustees with respect to the
acquisition and holding of Company Stock, unless it is clear on the
face of the direction that the actions to be taken under the direction
would be prohibited under ERISA. The Co-Trustees shall be responsible
for determining whether, under the circumstances prevailing at a given
time, their fiduciary duty to Plan Participants and beneficiaries
under the Plan and ERISA requires that the Company follow the advice
of independent counsel as to the voting and tender or retention of
Company Stock.
(c) EXECUTION OF PURCHASES AND SALES. To implement transactions regarding
investments in Company Stock, including purchases, redemptions and
exchanges, the Trustee shall purchase or sell Company Stock on the
open market, as the case may be, as soon as practicable following the
date on which the Trustee receives from the Company in good order all
information and documentation necessary to effect such purchase or
sale. However, the Trustee may accumulate all like purchases into a
single batch and may accumulate all like sales as a result of
receiving instructions for redemptions and exchanges out of Company
Stock into a single batch, but shall not be required to do so.
The Trustee may purchase or sell Company Stock from or to the Company
if the purchase or sale is for no more than adequate consideration
(within the meaning of
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Section 3(18) of ERISA) and no commission is charged. To the extent
that Company contributions under the Plan are to be invested in
Company Stock, the Company may transfer Company Stock to the Trust in
lieu of cash. The number of shares so transferred shall be determined
by dividing the amount of the contribution by the closing price of
Company Stock on any national securities exchange on the trading day
immediately preceding the date as of which the contribution is made.
The Trustee and the Company may, in an appendix to this Section 7,
agree upon such prescribed dates for purchases and sales of Company
Stock and such rules and conventions in connection with such purchases
and sales as they may find mutually acceptable.
(d) SECURITIES LAW REPORTS. The Company shall be responsible for filing
all reports required under federal or state securities laws with
respect to the Trust's ownership of Company Stock, including, without
limitation any reports required under Section 13 or 16 of the
Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Company Stock pending the filing of any report. The Trustee shall
provide to the Company such information on the Trust's ownership of
Company Stock as the Company may reasonably request in order to comply
with federal or state securities laws.
(e) VOTING. Notwithstanding any other provision of this Agreement, the
provisions of this Section 7(e) shall govern the voting of Company
Stock. When the issuer of Company Stock files preliminary proxy
solicitation materials with the Securities and Exchange Commission (or
definitive proxy solicitation materials where no preliminary proxy
solicitation materials are filed), the Company shall cause a copy of
all the materials to be simultaneously sent to the Trustee, and the
Trustee shall prepare a voting instruction form on behalf of the
Co-Trustees based upon these materials. The Co-Trustees shall vote or
not vote shares of Company Stock in the manner provided below.
A copy of any notice or other information provided to shareholders in
connection with each meeting of the holders of Company Stock will be
furnished or made available to each Participant whose Account contains
such shares, together with an appropriate form for the Participant's
use in directing the Co-Trustees with respect to voting the shares of
Company Stock that, at the record date for determination of the
shareholders entitled to notice of, and to vote at, the meeting, are
both: (a) credited to the Account of the Participant, and (b) of
record in the name of the Trustee or its nominee. Such directions
shall be communicated in writing, by facsimile, electronically or by
similar means and shall be held in confidence by the Trustee and the
Co-Trustees and not divulged to the Company, or any officer or
employee thereof, or any other person. If a Participant furnishes
timely directions to the Co-Trustees, the Co-Trustees shall vote or
not vote the shares (including fractional shares) of Company Stock
credited to the Participant's Account in accordance with the
directions of the Participant. Shares of Company Stock allocated to
Participants' Accounts for which timely voting directions are not
received by the Co-Trustees, and all shares of Company Stock held by
the Trustee in the Unallocated Account, shall be voted by the
Co-Trustees in their sole judgment.
(f) TENDER OFFERS. Upon commencement of a tender offer for any Company
Stock, the Company shall notify each Plan Participant, and use its
best efforts to timely distribute or cause to be distributed to Plan
Participants the same information that is distributed to shareholders
of the issuer of Company Stock in connection with the tender offer,
and after consulting with the Co-Trustees, shall provide at the
Company's expense a means by which Plan Participants may direct the
Co-Trustees whether or not to tender the
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Company Stock credited to their accounts (whether or not vested). The
Company will provide to the Trustee and the Co-Trustees a copy of any
material provided to Plan Participants and shall certify to the
Trustee and the Co-Trustees that the materials have been mailed or
otherwise sent to Plan Participants.
Each Plan Participant shall have the right to direct the Co-Trustees
to tender or not tender some or all of the shares of Company Stock
credited to his accounts. Directions from a Plan Participant to the
Co-Trustees concerning the tender of Company Stock shall be
communicated in writing or by facsimile or such similar means and
shall be held in confidence by the Trustee and the Co-Trustees and not
divulged to the Company, or any officer or employee thereof, or any
other person. The Co-Trustees shall tender or not tender shares of
Company Stock as directed by the Plan Participant. The Co-Trustees
shall not tender shares of Company Stock credited to a Plan
Participant's accounts for which they have received no directions from
the Plan Participants.
The Co-Trustees shall tender that number of shares of Company Stock
not credited to Plan Participants' accounts determined by multiplying
the total number of such shares by a fraction, of which the numerator
is the number of shares of Company Stock credited to Plan
Participants' accounts for which the Co-Trustees have received
directions from Plan Participants to tender (which directions have not
been withdrawn as of the date of this determination), and of which the
denominator is the total number of shares of Company Stock credited to
Plan Participants' accounts.
A Plan Participant who has directed the Co-Trustees to tender some or
all of the shares of Company Stock credited to his accounts may, at
any time before the tender offer withdrawal date, direct the
Co-Trustees to withdraw the directed number of shares from the tender
offer before the tender offer withdrawal deadline. A Plan Participant
shall not be limited as to the number of directions to tender or
withdraw that he may give to the Co-Trustees.
A direction by a Plan Participant to the Co-Trustees to tender shares
of Company Stock credited to his accounts shall not be considered a
written election under the Plan by a Plan Participant to withdraw or
have distributed to him any or all of such shares. The Co-Trustees
shall credit to each account of the Plan Participant from which the
tendered shares were taken the proceeds received by the Co-Trustees in
exchange for the shares of Company Stock tendered from that account.
Pending receipt of directions from the Plan Participant as to the
investment of the proceeds of the tendered shares, the Trustee shall
invest the proceeds as the Co-Trustees direct or if no directions are
provided, the Trustee shall invest the proceeds as set forth in the
Service Agreement.
8. TRUST INVESTMENTS IN ABBOTT STOCK. As the Administrator may direct, Trust
investments may include shares of common stock of Xxxxxx Laboratories
("Abbott Stock"). Trust investments in Abbott Stock shall be subject to the
following terms and conditions:
(a) ACQUISITION LIMIT. As described in the third paragraph of Section 2 of
this Agreement, Abbott Stock is being transferred to this Plan in
connection with the transfer of assets from Xxxxxx Laboratories Stock
Retirement Trust as soon as practicable after April 30, 2004. As
provided in the Plan, a Plan Participant may elect that shares of
Abbott Stock in his or her Plan account be sold and the proceeds
transferred to an Investment Fund in accordance with Section 6 of this
Agreement. No Plan Participant may elect that a portion of his Plan
accounts that is not invested in Xxxxxx Stock be invested in Abbott
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Stock. In accordance with rules established by the Co-Trustees, cash
dividends on Xxxxxx Stock shall be reinvested in Xxxxxx Stock.
(b) FIDUCIARY DUTIES OF NAMED FIDUCIARIES. The Co-Trustees as named
fiduciaries, shall continually monitor the suitability of acquiring
and holding Abbott Stock under the fiduciary duty rules of Section
404(a)(1) of ERISA (as modified by Section 404(a)(2) of ERISA). The
Trustee shall not be liable for any loss, or by reason of any breach,
which arises from the direction of the Co-Trustees with respect to the
acquisition and holding of Abbott Stock, unless it is clear on the
face of the direction that the actions to be taken under the direction
would be prohibited under ERISA. The Co-Trustees shall be responsible
for determining whether, under the circumstances prevailing at a given
time, their fiduciary duty to Plan Participants and beneficiaries
under the Plan and ERISA requires that the Co-Trustees follow the
advice of independent counsel as to the voting and tender or retention
of Abbott Stock.
(c) EXECUTION OF SALES. To implement transactions regarding investments in
Abbott Stock, including purchases, redemptions and exchanges, the
Trustee shall purchase or sell Abbott Stock on the open market, as the
case may be, as soon as practicable following the date on which the
Trustee receives from the Co-Trustees in good order all information
and documentation necessary to effect such purchase or sale. However,
the Trustee may accumulate all like purchases into a single batch and
may accumulate all like sales as a result of receiving instructions
for redemptions and exchanges out of Abbott Stock into a single batch,
but shall not be required to do so.
The Trustee may purchase or sell Abbott Stock from or to the Company
if the sale is for at least adequate consideration (within the meaning
of Section 3(18) of ERISA), the purchase is for no more than adequate
consideration, and no commission is charged. The Trustee and the
Co-Trustees may, in an appendix to this Section 8, agree upon such
prescribed dates for sales of Abbott Stock and such rules and
conventions in connection with such purchases and sales as they may
find mutually acceptable.
(d) SECURITIES LAW REPORTS. The Company shall be responsible for filing
all reports required under federal or state securities laws with
respect to the Trust's ownership of Abbott Stock, including, without
limitation any reports required under Section 13 or 16 of the
Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Abbott Stock pending the filing of any report. The Trustee shall
provide to the Company such information on the Trust's ownership of
Abbott Stock as the Company may reasonably request in order to comply
with federal or state securities laws.
(e) VOTING. Notwithstanding any other provision of this Agreement, the
provisions of this Section 8(e) shall govern the voting of Abbott
Stock. The Co-Trustees shall vote or not vote shares of Abbott Stock
at their sole discretion.
(f) TENDER OFFERS. The Co-Trustees shall tender or not tender shares of
Abbott Stock at their sole discretion.
9. APPOINTMENT OF INVESTMENT MANAGERS. The Co-Trustees from time to time may
appoint one or more Investment Managers (as that term is defined in Section
3(38) of ERISA) to manage (including the power to acquire and dispose of)
all or any portion or portions of the Trust. The Co-Trustees may enter into
such agreements setting forth the terms and conditions of any such
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appointment as they determine to be appropriate. The Co-Trustees shall
retain the right to remove and discharge any Investment Manager. The
compensation of such Investment Managers shall be an expense payable in
accordance with Section 15. The Co-Trustees shall notify the Trustee of the
appointment of any Investment Manager by delivering to the Trustee an
executed copy of the agreement under which such Investment Manager was
appointed together with a written acknowledgment by such Investment Manager
that it is:
(a) a fiduciary with respect to the Plan,
(b) bonded as required by ERISA, and
(c) either
(i) registered as an investment advisor under the
Investment Advisers Act of 1940, or
(ii) a bank as defined in said Act, or
(iii) an insurance company qualified to perform investment
management services under the laws of more than one
state of the United States.
The Trustee shall be entitled to rely upon such notice until such time as
the Co-Trustees shall notify and direct the Trustee in writing that another
Investment Manager has been appointed in the place and stead of the
first-named Investment Manager, or in the alternative, that the Investment
Manager has been removed. In each case where an Investment Manager is
appointed, the Co-Trustees shall determine the assets of the Trust to be
allocated to the Investment Manager from time to time and shall issue
appropriate instructions to the Trustee with respect thereto. The Trustee
shall carry out the written instructions of any Investment Manager with
respect to the management and investment of the assets then under control
of such Investment Manager and shall not incur any liability on account of
its compliance with such instructions. Purchase and sale orders may be
placed without the intervention of the Trustee and, in such event, the
Trustee's sole obligation shall be to make payment for purchased securities
and deliver those that have been sold when advised of the transaction. The
Trustee shall not incur any liability on account of its failure to exercise
any of the powers delegated to any Investment Manager because of the
failure of such Investment Manager to give instructions for the management
of the assets under the control of such Investment Manager. The Trustee
shall be under no duty to question any Investment Manager, nor to review
any securities or other property acquired or retained at the direction of
any Investment Manager, nor to make any suggestions to any Investment
Manager in connection therewith. The Trustee shall have no obligation to
vote upon any securities over which the Investment Manager has investment
management control unless the Trustee is instructed in writing by the
Investment Manager as to the voting of such securities within a reasonable
time before the time for voting thereof expires.
Each Investment Manager shall have the authority to exercise all of the
powers of the Trustee hereunder with respect to assets under its control
but only to the extent that such powers relate to the investment of such
assets.
Notwithstanding any provision to the contrary elsewhere herein:
(i) The Co-Trustees may retain and exercise the powers of an Investment
Manager with respect to all or any portion or portions of the Trust.
The Co-Trustees shall notify the Trustee in
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writing of any such reservation of powers and the Trustee shall be
entitled to rely upon any such notice. In any such event, the Trustee
shall carry out the written instructions of the Co-Trustees with
respect to the management and investment of the assets then under
control of the Co-Trustees and shall not incur any liability on
account of its compliance with such instructions. The Trustee shall
not incur any liability on account of its failure to exercise any of
the powers retained by the Co-Trustees because of the failure of the
Co-Trustees to give instructions for the management of the assets
under the control of the Co-Trustees. The Trustee shall be under no
duty to question the Co-Trustees, nor to review any securities or
other property acquired or retained at the direction of the
Co-Trustees, nor to make any suggestions to the Co-Trustees in
connection therewith; and
10. INSURANCE CONTRACTS. The Co-Trustees may direct the Trustee to receive and
hold or apply assets of the Trust to the purchase of individual or group
insurance or annuity contracts ("policies" or "contracts") issued by any
insurance company and in a form approved by the Co-Trustees (including
contracts under which the contract holder is granted options to purchase
insurance or annuity benefits), or financial agreements which are backed by
group insurance or annuity contracts ("financial agreements"). If such
investments are to be made, the Co-Trustees shall direct the Trustee to
execute and deliver such applications and other documents as are necessary
to establish record ownership, to value such policies, contracts or
financial agreements under the method of valuation selected by the
Co-Trustees, and to record or report such values to the Co-Trustees or any
investment manager selected by the Co-Trustees, in the form and manner
agreed to by the Co-Trustees.
The Co-Trustees may direct the Trustee to exercise or may exercise directly
the powers of contract holder under any policy, contract or financial
agreement, and the Trustee shall exercise such powers only upon direction
of the Co-Trustees. The Trustee shall have no authority to act in its own
discretion, with respect to the terms, acquisition, valuation, continued
holding and/or disposition of any such policy, contract or financial
agreement or any asset held thereunder. The Trustee shall be under no duty
to question any direction of the Co-Trustees or to review the form of any
such policy, contract or financial agreement or the selection of the issuer
thereof, or to make recommendations to the Co-Trustees or to any issuer
with respect to the form of any such policy, contract or financial
agreement.
The Trustee shall be fully protected in acting in accordance with written
directions of the Co-Trustees, and shall be under no liability for any loss
of any kind which may result by reason of any action taken or omitted by it
in accordance with any direction of the Co-Trustees, or by reason of
inaction in the absence of written directions from the Co-Trustees. In the
event that the Co-Trustees direct that any monies or property be paid or
delivered to the contract holder other than for the benefit of specific
individual beneficiaries, the Trustee agrees to accept such monies or
property as assets of the Trust subject to all the terms hereof.
11. POWERS OF TRUSTEE. Subject to the foregoing provisions and limitations, the
Trustee is authorized and empowered:
(a) to sell at public auction or by private contract, redeem, convey,
transfer, exchange, pledge, or otherwise realize upon, any securities,
investments or other property forming a part of the Trust, and for
such purposes may execute such instruments and writings and do such
things as it shall deem proper;
(b) to keep any or all securities or other property in the name of some
other person, nominee, firm or corporation or in its own name without
disclosing its fiduciary capacity, but the
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books and records of the Trustee shall at all times show that all such
securities and other property are part of the Trust;
(c) except as otherwise provided in Sections 7, 8 and 9, to the extent
that the Trustee receives direction from the Co-Trustees or the Plan
Participants, as the case may be, to vote upon any stock, bonds or
other securities of any corporation, association or trust at any time
comprising the Trust, or otherwise consent to or request any action on
the part of such corporation, association or trust, and to give
general or special proxies or powers of attorney, with or without
power of substitution, and to exercise any conversion privileges,
subscription rights or other options, to participate in
reorganizations, recapitalizations, consolidations, mergers and
similar transactions with respect to such securities; to deposit such
stocks or other securities in any voting trust, or with any protective
or like committee, or with a trustee, or with depositories designated
thereby; and generally to exercise any of the powers of an owner with
respect to stocks or other securities or property comprising the Trust
which the Trustee deems to be for the best interests of the Trust. The
Trustee will not vote such stock or other securities as to which it
receives no written directions;
(d) when instructed or directed by the Co-Trustees, to borrow money for
the purposes of this Trust in such amounts and upon such terms and
conditions as the Co-Trustees, in their discretion, may approve, and
for any amount so borrowed to issue the promissory note of the Trustee
and to secure the repayment thereof by pledge, mortgage, or
hypothecation of all or any part of the property of the Trust, and no
person loaning money to the Trustee shall be bound to see to the
application of the money loaned or to inquire into the validity of any
such borrowing;
(e) to make, execute, acknowledge and deliver any and all instruments that
it shall deem necessary or appropriate to carry out the powers herein
granted;
(f) to manage, administer, operate, lease for any number of years,
develop, improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real property or
interest therein at any time held by it, and to cause to be formed a
limited partnership, corporation or trust to hold title to any such
real property with the aforesaid powers, all upon such terms and
conditions as may be deemed advisable;
(g) to renew or extend or participate in the renewal or extension of any
mortgage, upon such terms as may be deemed advisable, and to agree to
a reduction in the rate of interest on any mortgage or to any other
modification or change in the terms of any mortgage or of any
guarantee pertaining thereto, in any manner and to any extent that may
be deemed advisable for the protection of the Trust or the
preservation of the value of the investment, to waive any default
whether in the performance of any covenant or condition of any
mortgage or in the performance of any guarantee, or to enforce any
such default in such manner and to such extent as may be deemed
advisable, to exercise and enforce any and all rights of foreclosure,
to bid in property on foreclosure, to take a deed in lieu of
foreclosure with or without paying a consideration therefore and in
connection therewith to release the obligation on the bond secured by
such mortgage; and to exercise and enforce in any action, suit or
proceedings at law or in equity any rights or remedies in respect to
any such mortgage or guarantee;
(h) upon express direction by the Co-Trustees, to transfer assets of the
Trust to itself as trustee or to any other trustee of any trust which
has been qualified under Section 401(a)
10
and is exempt from tax under Section 501(a) of the Code, and which is
maintained by it or such other trustee as a medium for the collective
investment of funds of pension, profit-sharing or other employee
benefit trusts, in which event such trust shall be deemed to be a part
of the Plan, and to withdraw any assets of the Trust so transferred;
(i) when instructed or directed by the Co-Trustees, to settle, compromise
or submit to arbitration any claims, debts, or damages, due or owing
to or from the Trust, to commence or defend suits or legal proceedings
and to represent the Trust in all suits or legal proceedings in any
court of law or before any other body or tribunal; provided, however,
that the Trustee shall have no obligation to take any legal action for
the benefit of the Trust unless it shall have been first indemnified
for all expenses in connection therewith, including counsel fees;
(j) to lend to Plan Participants such amount or amounts, and upon such
terms and conditions, as the Administrator may direct in accordance
with the provisions of the Plan, if applicable;
(k) to employ such agents, consultants, custodians, depositories,
advisors, and legal counsel as may be reasonably necessary or
desirable in the Trustee's judgment in managing and protecting the
Trust and, subject to the provisions of Section 14, to pay them
reasonable compensation out of the Trust;
(l) to cause any securities or other property which may at any time form a
part of the Trust to be issued, held or registered in the individual
name of the Trustee, or in the name of its nominee (including any
custodian employed by the Trustee, any nominee of such a custodian,
and any depository, clearing corporation or other similar system), or
in such form that title will pass by delivery;
(m) to enter into stand-by agreements for future investment either with or
without a stand-by fee;
(n) to transfer any assets of the Trust to a custodian or sub-custodian
employed by the Trustee;
(o) when directed by the Co-Trustees, to participate in a securities
lending program sponsored and administered by the Trustee and, in
connection therewith, the Trustee is authorized to release and deliver
securities and return collateral received for loaned securities in
accordance with the provisions of such program;
(p) when directed by the Co-Trustees, to write options on securities held
or to otherwise participate in so-called covered option writing;
(q) when instructed or directed by the Co-Trustees, to accept all or any
assets transferred to the Trustee held (whether by a trustee,
custodian or otherwise) in respect of a plan which satisfies the
applicable requirements of Section 401 (a) of the Code and which is
maintained for the benefit of any eligible Employee;
(r) upon express direction by the Co-Trustees, to transfer assets of the
Trust to any other trustee of any trust with respect to which the
Company has obtained a ruling from the Internal Revenue Service
confirming that such transfer will not disqualify the Trust or subject
the transfer to income or excise taxes; and
11
(s) to do all other acts in its judgment necessary or desirable for the
proper administration of the Trust, in accordance with the provisions
of the Plan and this Agreement, although the power to do such acts is
not specifically set forth herein.
No person dealing with the Trustee shall be required to take any notice of
this Agreement, but all persons so dealing shall be protected in treating
the Trustee as the absolute owner with full power of disposition of all the
monies, securities and other property of the Trust, and all persons dealing
with the Trustee are released from inquiry into the decision or authority
of the Trustee and from seeing to the application of monies, securities or
other property paid or delivered to the Trustee.
12. LIQUIDATION OF ASSETS. Upon termination of the Trust as provided herein,
the Trustee shall not be required to make any payments hereunder until it
has received such documentation as it shall consider necessary to establish
that the termination complies with applicable law, or to make any payments
in excess of the net realizable value of the assets of the Trust at the
time of such payment. The Trustee shall not be required to make any
payments in cash unless there shall be in the Trust at the time an amount
of cash sufficient for the purpose. In case of a deficiency in cash, the
Trustee shall take such action as to the disposition of securities or other
property forming a part of the Trust as will provide the amount of cash for
such payments. The Trustee shall not be required to make any payment in
cash until the Co-Trustees have provided direction as to the assets to be
converted to cash for the purpose of making such payment.
13. DIRECTION BY BOARD OF REVIEW, ADMINISTRATOR OR CO-TRUSTEES. The Board of
Review shall certify to the Trustee the names and specimen signatures of
the Administrator and the Co-Trustees. The Board of Review shall give
prompt notice to the Trustee of changes in the Administrator and the
Co-Trustees, and until such notice is received by the Trustee, the Trustee
shall be fully protected in assuming that the Administrator and the
Co-Trustees are unchanged and are acting accordingly. The Administrator and
the Co-Trustees may certify to the Trustee the names of persons authorized
to act for it or them in relation to the Trustee and may designate a
person, corporation or other entity, whether or not affiliated with the
Company, to so act. Whenever the Trustee is required or authorized to take
any action hereunder pursuant to any written direction or determination of
the Company, the Administrator or the Co-Trustees, such direction or
determination shall be sufficient protection to the Trustee if contained in
a writing signed by any one or more of the persons authorized to execute
documents on behalf of the Company, the Administrator or the Co-Trustees,
as the case may be, pursuant to the Plan. A majority of the Co-Trustees may
act by meeting or by writing signed without meeting. The Trustee shall act,
and shall be fully protected in acting, in accordance with such orders,
requests and instructions of the Company, the Administrator or the
Co-Trustees. By such a writing the Company, the Administrator or the
Co-Trustees, as the case may be, may ratify, approve or confirm any action
taken by the Trustee, and upon such ratification, approval or confirmation
the Trustee shall be protected as though authorization or determination by
the Company, the Administrator or the Co-Trustees had preceded such action.
In the absence of direction by the Company, the Administrator or the
Co-Trustees as to any matter provided in this Agreement or the Plan, the
Trustee may in its discretion take such action as it deems fit and proper
with respect thereto after reasonable attempts to secure Company,
Administrator or Co-Trustee direction, provided, however, that the Trustee
shall not be obligated to take any such action. The Trustee may deliver
documents to the Company, the Administrator or the Co-Trustees by
delivering the same, or by mailing the same, postage prepaid, addressed to
the Company or the Administrator, as the case may be, at its principal
place of business.
12
14. RECORDS AND ACCOUNTING. The Trustee shall keep adequate and accurate
accounts of investments, receipts, disbursements and other transactions
hereunder, and all accounts, books and records relating thereto shall be
open at all reasonable times to inspection and audit by the Co-Trustees and
their authorized representatives. The Trustee shall render to the Company
and the Co-Trustees in writing, at least once each twelve ( 12) months and
at such times as required by the Plan and, in any event, within ninety (90)
days after its removal or resignation as provided in Section 17 hereof,
accounts of its transactions under this Agreement, and the Co-Trustees may
approve such accounts of the Trustee by an instrument in writing delivered
to the Trustee. In the absence of the filing in writing with the Trustee by
the Co-Trustees of exceptions or objections to any such account within one
year after the receipt thereof, the Co-Trustees shall be deemed to have
approved such account; and in such case, or upon the written approval of
the Administrator of any such account, the Trustee, to the extent permitted
by applicable law, shall be released, relieved and discharged with respect
to all matters and things set forth in such account. The Trustee shall from
time to time make such other reports and furnish such other information
concerning the Trust (including valuations of each Investment Fund
established pursuant to Section 6) to the Co-Trustees as the Co-Trustees
may reasonably request or as may be required by the Plan. The Co-Trustees
shall arrange for each Investment Manager appointed pursuant to Section 9,
and each insurance company issuing contracts held by the Trustee pursuant
to Section 10, to furnish the Trustee with such valuations and reports as
are necessary to enable the Trustee to fulfill its obligations under this
Section 14, and the Trustee shall be fully protected in relying upon such
valuations and reports. The Co-Trustees may, within ninety (90) days after
their removal or resignation as provided in Section 17 hereof render to the
Company and the Trustee in writing, accounts of their transactions under
this Agreement, and the Company and the Trustee may approve such accounts
of the Co-Trustees by an instrument in writing delivered to the
Co-Trustees. In the absence of the filing in writing with the Co-Trustees
by the Trustee of exceptions or objections to any such account within one
year after the receipt thereof, the Company and the Trustee shall be deemed
to have approved such account; and in such case, or upon the written
approval of the Administrator of any such account, the Co-Trustees, to the
extent permitted by applicable law, shall be released, relieved and
discharged with respect to all matters and things set forth in such
account. In any proceeding instituted by the Trustee, the Company, the
Co-Trustees or the Administrator or all of them with respect to any account
of the Trustee, only the Company, the Co-Trustees, the Administrator and
the Trustee shall be necessary parties.
15. TRUSTEE'S COMPENSATION AND EXPENSES. The Trustee shall be paid such
reasonable compensation as provided in the Service Agreement. Employees of
the Company or of any Affiliate or Subsidiary of the Company who are
Co-Trustees shall not receive additional compensation for serving as a
Co-Trustee. The compensation of the Trustee and any reasonable expenses,
including reasonable attorneys' fees and the cost of any bond, surety or
other security which may be required of the Trustee by ERISA, incurred by
the Trustee in the performance of its duties, and all other proper charges
and disbursements of the Trustee may be paid by the Company within thirty
(30) days after so billed, and will automatically be deducted from the
Trust if, upon the expiration of thirty (30) days, such fees are not
separately paid by the Company. All expenses (including taxes pursuant to
Section 23) of the Trust, other than those expenses which are paid by the
Company, which are allocable to an Investment Fund established pursuant to
Section 6 shall be charged to such Investment Fund. All such expenses which
are not so allocable shall be charged against each of the Investment Funds
in the same proportion as the value of the assets held in such Investment
Fund bears to the value of the total assets held in all of the Investment
Funds. Any account maintenance or administration fees applicable to any
Plan Participant's account which are not paid hereunder by the Company
shall be charged against the interest of the Plan Participant and, in the
case of a loan of a Plan Participant, if applicable, all expenses
(including taxes pursuant to Section 23) of the Trust, other than those
expenses which are paid by
13
the Company, which are allocable to such loan, shall be charged against the
interest of such Plan Participant under the Plan.
16. LITIGATION INVOLVING TRUST ASSETS. If any asset of the Trust is, or while
this Agreement is in effect becomes, subject to any claims or litigation
(other than a routine claim for benefits brought by a Participant or
Beneficiary against the Trust generally), the Administrator shall direct
the Trustee to execute and deliver on behalf of the Trust such forms,
pleadings, agreements or other documents necessary to the prosecution or
defense of such claims or litigation. The Trustee shall have no authority
to act on its own discretion with respect to such claim or litigation and
shall have no duty to question any direction of the Administrator relating
thereto. Except as may otherwise be provided under ERISA, the Trustee shall
be fully protected in acting in accordance with written directions of the
Administrator, and shall be under no liability for any loss of any kind
which may result by reason of any action taken or omitted by it in
accordance with any direction of the Administrator, or by reason of
inaction in the absence of written directions from the Administrator. The
Trustee's retention of counsel in order to monitor the progress of such
claim or litigation (including, but not limited to, review of all pertinent
documents), shall be separate from the counsel representing the Company or
any other party in respect of such claim or litigation. The cost of such
counsel shall be an expense of the Trust and shall be charged to the Trust
as provided in Section 15 unless paid by the Company.
17. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may resign at any time upon
sixty (60) days' written notice to the Board of Review, and the Board of
Review may remove the Trustee at any time upon sixty (60) days' written
notice to the Trustee; provided, however, that the parties may by written
instrument waive such notice. Any Co-Trustees may resign at any time upon
sixty (60) days' written notice to the Board of Review and to the Trustee,
and the Board of Review may remove any of the Co-Trustees at any time upon
sixty (60) days' written notice to the Co-Trustees and to the Trustee;
provided, however, that the parties may by written instrument waive such
notice. The Trustee reserves the right at any time to resign immediately if
the Company transfers the Plan's administration to a recordkeeper other
than the recordkeeper designated in the Service Agreement, without the
Trustee's prior written consent, by delivering to the Company a notice of
resignation certified by the Trustee. The Trustee further reserves the
right at any time to resign immediately by delivering to the Company a
notice of resignation certified by the Trustee if the assets of the Trust
are not invested in investment products which are sponsored, underwritten
or managed by affiliates of the Trustee, unless the Service Agreement
otherwise specifically provides. If the Trustee or any of the Co-Trustees
shall resign, be removed or for any other reason cease to be Trustee or a
Co-Trustee, as applicable, the Board of Review shall appoint a successor
Trustee or Co-Trustee. If such Successor Trustee is appointed, the Trustee,
upon receipt of acceptance by such successor, shall promptly deliver all of
the assets of the Trust less any unpaid fees or expenses to the Successor
Trustee. Subject to the foregoing provisions, any resignation or removal of
the Trustee or any Co-Trustee or appointment of a new Trustee or Co-Trustee
shall be by instrument in writing and shall become effective on the date
therein specified. Any successor Trustee or Co-Trustee shall have the same
powers and duties as the succeeded Trustee or Co-Trustee, as the case may
be, subject to such changes as the Board of Review may then determine. Upon
request of such successor Trustee or Co-Trustee, the Board of Review and
the Trustee or Co-Trustee ceasing to act shall execute and deliver such
instruments of conveyance and further assurance and do such things as may
reasonably be required for more fully and certainly vesting and confirming
in such successor Trustee or Co-Trustee all the right, title and interest
of the retiring Trustee or Co-Trustee in and to the assets of the Trust.
The Trustee is authorized, however, to reserve such sums of money as may be
reasonable for payment of its compensation and expenses (including legal
fees) in connection with the settlement of its account or otherwise, and
any balance of such reserve remaining after payment of such compensation
and
14
expenses shall be promptly paid over to the successor Trustee or Trustees.
18. DUTIES OF TRUSTEE. The Trustee shall discharge its duties with respect to
the Trust solely in the interests of the Plan Participants and their
beneficiaries and 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. The duties of the Trustee shall be only
those specifically undertaken by the Trustee pursuant to this Trust
Agreement. The Trustee shall have no responsibility for the administration
of the Plan (including, but not limited to, the determination of Plan
participation rights of employees of the Company, the determination of
benefits of participants of the Plan and the maintenance of individual
accounts of participants of the Plan), except as may otherwise be provided
in the Service Agreement. Except as otherwise provided by ERISA or this
Trust Agreement, in no event shall the Trustee be responsible for any act
or omission of any other fiduciary of the Plan. The Trustee shall have no
liability for the acts or omissions of any predecessors and successors in
office.
19. INDEMNIFICATION. The Company hereby agrees to indemnify and hold harmless
the Trustee from and against any losses, damages, liabilities, claims,
costs or expenses (including reasonable attorneys' fees) which the Trustee
may incur by reason of this Trust Agreement, (including, without
limitation, by reason of the Trustee's making benefit payments pursuant to
fraudulent or unauthorized instructions) excepting only losses, damages,
liabilities, claims, costs or expenses arising from the Trustee's
negligence or willful misconduct. A waiver by the Trustee of any signature
guarantee requirement relating to the investments held hereunder shall not
be construed as negligence or willful misconduct on the part of the
Trustee. The provisions of this Section 19 shall survive the termination of
this Trust Agreement.
20. AMENDMENT OR TERMINATION. The Board of Review may, at any time and from
time to time, amend, in whole or in part, any or all of the provisions of
this Agreement, and the Company may terminate this Agreement, by delivering
to the Trustee and the Co-Trustees a copy of an amendment or a notice of
termination certified by the Secretary of the Board of Review or an officer
of the Company, as the case may be; provided, that no such amendment which
affects the rights, duties or responsibilities of the Trustee may be made
without its consent, and provided further that no such amendment shall
authorize or permit any part of the corpus or income of the Trust to be
used for or diverted to purposes other than those set forth in Section 3.
Any such amendment shall be effective upon delivery to the Trustee unless a
different effective date is specifically stated and any such amendment may
be made retroactively as shall be permitted under applicable law. Upon
termination of this Agreement, the Trustee, upon direction of the Board of
Review, shall liquidate the Trust to the extent required for distribution
and, after the final account of the Trustee and Co-Trustees has been
approved and settled, shall distribute the balance of the Trust remaining
in its hands as directed by the Board of Review or in the absence of such
direction, as may be directed by a judgment or decree of a court of
competent jurisdiction. Following any such termination, the powers of the
Trustee hereunder shall continue as long as any of the assets of the Trust
remain in its hands, but only as to those assets which during such time
remain in the Trust.
21. ADDITIONAL PARTICIPATING COMPANIES. Any affiliate or subsidiary of the
Company may, with the consent of the Board of Review, become a
participating employer by action of the board of directors of such
affiliate or subsidiary to adopt the Trust as a trust for the benefit of
its employees. Each such additional participating employer shall be deemed
the "Company" hereunder and shall have and exercise all the rights, powers,
and duties thereof with respect to the Trust as applied to itself and its
employees and that part of the Trust which represents the interest
15
of participants employed by it; provided, however, that each such
additional participating employer hereby delegates all such rights, powers,
and duties, including amendment or termination of the Trust, to Hospira,
Inc. acting alone, except as such additional participating employer may
exercise the same for itself with the approval of Hospira, Inc.
22. SPENDTHRIFT PROVISION. Except as otherwise provided in the Plan, to the
maximum extent permitted by law, beneficial interests in the Trust of
participants or former participants under the Plan or their beneficiaries
shall not be assignable nor subject to alienation, sale, transfer, pledge,
encumbrance, mortgage, attachment, execution, levy or receivership, nor
shall they pass to any trustee in bankruptcy or be reached or applied by
any legal process for the payment of any obligations of any such person;
provided, however, that nothing herein shall prevent a participant from
assigning his interest in the Trust as security for the repayment of any
loan made to him from the Trust pursuant to the Plan, and further provided
that nothing herein shall prevent the Trustee from making payments in
accordance with a Qualified Domestic Relations Order, as that term is
defined in Code Section 414(p). Any attempt at any other assignment,
alienation, sale, transfer, pledge, encumbrance, mortgage, attachment,
execution or levy shall be void and unenforceable.
23. PAYMENT OF TAXES. The Trustee may pay out of the Trust (or the appropriate
Investment Fund or Funds) any and all taxes of any and all kinds, including
without limitation property taxes and income taxes levied or assessed under
existing or future laws upon or in respect of the Trust or any monies,
securities or other property forming a part thereof or the income therefrom
subject to the terms of any agreements or contracts made with respect to
trust investments which make other provision for such tax payments. The
Trustee may assume that any taxes assessed on or in respect of the Trust or
its income are lawfully assessed unless the Co-Trustees shall in writing
advise the Trustee that in the opinion of counsel for the Company such
taxes are or may be unlawfully assessed. In the event that the Co-Trustees
shall so advise the Trustee, the Trustee will, if so requested in writing
by the Co-Trustees contest the validity of such taxes in any manner deemed
appropriate by the Company or its counsel but at the expense of the Trust;
or the Company may contest the validity of any such taxes at the expense of
the Trust and in the name of the Trustee; and the Trustee agrees to execute
all documents, instruments, claims, and petitions necessary or advisable in
the opinion of the Company or its counsel for the refund, abatement,
reduction or elimination of any such taxes. At the direction of the
Co-Trustees, the Trustee shall collect all income tax to be withheld from
any benefit payments from the Trust and shall report and pay over such
taxes to the Internal Revenue Service, except for payments made directly by
an insurer to a Plan Participant or beneficiary under an annuity or
insurance contract, if applicable.
24. SUCCESSOR TO COMPANY OR TRUSTEE. Any successor to all or a major part of
the business of the Trustee, by whatever form or manner resulting, shall
ipso facto succeed to all the rights, powers and duties hereunder of the
Trustee. Any successor to all or a major or part of the business of the
Company, by whatever form or manner resulting, may continue the Plan and
Trust by executing appropriate amendments thereto, and thereupon such
successor shall ipso facto succeed to all the rights, powers and duties
hereunder of the Company.
25. CONSTRUCTION. In any question of interpretation or other matter of doubt,
the Trustee, the Co-Trustees, the Administrator, the Board of Review and
the Company may rely upon the opinion of counsel for the Company or any
other attorney at law designated by the Company with the approval of the
Trustee. The provisions of this Agreement shall be construed, administered
and enforced according to the laws of the United States and, to the extent
permitted by such laws, by the laws of the state of Illinois. All
contributions to the Trust shall be deemed to be made in the state of
Illinois.
16
26. IMPOSSIBILITY OF PERFORMANCE. In case it becomes impossible for the
Company, the Administrator, the Board of Review, the Trustee or the
Co-Trustees to perform any act under this Trust Agreement, that act shall
be performed which in the judgment of the Co-Trustees will most nearly
carry out the intent and purpose of the Plan and Trust. All parties to this
Agreement or in any way interested in the Trust shall be bound by any acts
performed under such condition.
27. DEFINITION OF WORDS. Feminine or neuter pronouns shall be substituted for
those of the masculine form, and the plural shall be substituted for the
singular, in any place or places herein where the context may require such
substitution or substitutions.
28. TITLES. The titles of sections are included only for convenience and shall
not be construed as part of this Agreement or in any respect affecting or
modifying its provisions.
29. EXECUTION OF TRUST AGREEMENT. This Trust Agreement may be executed in any
number of counterparts and each fully executed counterpart shall be deemed
an original.
IN WITNESS WHEREOF these presents have been signed and sealed for and in
behalf of the Company and the Trustee by their duly authorized officers and the
Co-Trustees as of the ____ day of ___________________, 2004.
HOSPIRA, INC.
-------------------------- By:
Witness ---------------------------------
Title:
-------------------------
Date:
-------------------
-------------------------- By:
Witness ---------------------------------
Title: Co-Trustee
------------------
Date:
-------------------
-------------------------- By:
Witness ---------------------------------
Title: Co-Trustee
------------------
Date:
-------------------
-------------------------- By:
Witness ---------------------------------
Title: Co-Trustee
------------------
Date:
-------------------
XXXXXX FIDUCIARY TRUST
COMPANY
-------------------------- By:
Witness ---------------------------------
Title:
------------------
Date:
-------------------
17
