DREYFUS TRUST AGREEMENT
THIS TRUST AGREEMENT is made by and between the Employer whose name is set
forth on the attached adoption agreement (the "Adoption Agreement") and the
person designated as Trustee in the Adoption Agreement (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer has adopted the qualified employee retirement plan
described in the Adoption Agreement (the "Plan") for the exclusive benefit of
its employees who are participants in such Plan (collectively the
"Participants" and individually a "Participant") and their beneficiaries; and
WHEREAS, the Employer desires to appoint the Trustee as a "nondiscretionary
trustee" (within the meaning of Section VI(g) of Prohibited Transaction Class
Exemption 77-9 under Section 408(a) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")) for the limited purposes hereinafter set
forth; and
WHEREAS, the Trustee desires to act as such a nondiscretionary trustee of the
Plan for the limited purposes hereinafter set forth;
NOW, THEREFORE, the Employer hereby establishes a fund with the Trustee that
shall be held, managed and controlled by the Trustee without distinction
between principal and income (the "Trust Fund") upon the terms and conditions
hereinafter set forth:
ARTICLE 1
CONCERNING THE TRUST FUND
Section 1.1. The Plan, this Trust Agreement and the Trust Fund created
hereunder are intended to meet all the applicable requirements of Sections
401(a) and 501(a) of the Internal Revenue Code of 1986, as amended (the "Code")
and ERISA. The Employer assumes full responsibility to establish and maintain
the Plan as a plan meeting the qualification requirements of Section 401(a) of
the Code and hereby agrees to notify the Trustee promptly in the event of any
change in such qualified status. Copies of all documents related to the Plan
including, without limitation, the Plan, amendments to the Plan and the most
recent determination letter received from the Internal Revenue Service with
respect to the Plan (or an opinion of counsel satisfactory to the Trustee as to
the plan's qualified status), upon request will be provided to the Trustee by
the Employer.
Section 1.2. The Employer certifies and represents to the Trustee that there
are no duties imposed on the Trustee under the terms of the Plan that are not
consistent with the provisions of this Trust Agreement.
Section 1.3. The Trustee agrees to accept contributions that are paid to it by
the Employer (as well as rollover contributions and transfers from other
qualified retirement plans) in accordance with the terms of the Plan. The
Trustee shall be entitled to rely upon the determination of the fiduciary named
in the Plan as having the authority to control and manage the administration of
the Plan and its delegates, designers, agents and employees (the "Committee")
that all assets received by the Trustee are properly contributed or transferred
in accordance with the terms of the Plan. Such contributions shall be in cash
or in such other form that may be acceptable to the Trustee. All contributions
received by the Trustee and all other receipts of the Trustee, whether by way
of dividends, interest or otherwise, for the account of the Trust Fund shall be
held, managed and controlled by the Trustee pursuant to the terms of this Trust
Agreement without distinction between principal and income and may be
commingled, and held and invested and, with all disbursements therefrom,
accounted for by the Trustee, as a single fund. The Employer hereby agrees
that the Employer and the Committee shall have the exclusive responsibility,
and the Trustee shall not have any responsibility or duty under this Trust
Agreement, to determine whether the amount, timing and type of any contribution
by the Employer or any Participant is in accordance with the terms of the Plan
or applicable law, or for the collection of any contributions under the Plan.
Section 1.4 The Trustee, solely from assets held in the Trust Fund, shall make
payments in such amounts and for such proper purposes as may be specified in
the Committee's Directions (as defined in Section 2.1 herein). The Employer
hereby agrees that the Committee shall have the exclusive responsibility, and
the Trustee shall not have any responsibility or duty, under this Trust
Agreement for determining that the Committee's Directions are in accordance
with the terms of the Plan and applicable law, including without limitation,
determining the amount, timing or method of payment or the identity of each
person to whom such payments shall be made. The Trustee shall have no
responsibility or duty to determine the tax effect of any payment or to see to
the application of any payment, but shall be responsible for the proper
application of amounts withheld from distributions for payment of taxes to the
appropriate authorities.
Section 1.5. The Trustee shall have no duties or obligations with respect to
the Trust Fund unless such duties or obligations have been specifically
undertaken by the Trustee by the express terms of the Trust Agreement or except
to the extent such duties or obligations are required under applicable laws.
ARTICLE II
INVESTMENT AND ADMINISTRATION OF THE FUND
Section 2.1.1. In accordance with the provisions of ERISA, the Trustee shall
have exclusive authority and discretion to manage and control the Trust Fund;
provided, however, that the Trustee's authority and discretion with respect to
the Trust Fund shall at all times, except to the extent that an Investment
Manager has been appointed pursuant to Section 2.5, be subject to the proper,
written directions of the Committee which are made in accordance with the terms
of the Plan and which are not contrary to ERISA (the "Committee's Directions").
The Trustee shall be entitled to rely entirely on the Committee's Directions,
shall be under no duty to determine or make inquiry whether the Committee's
Directions received by it are in accordance with the provisions of the Plan or
applicable law, and shall have no liability and shall be fully indemnified by
the Employer for any action taken in accordance with, or any failure to act in
the absence of, the Committee's Directions.
Section 2.1.2. If the Committee advises the Trustee that the Plan provides for
individual accounts and permits each Participant to direct the investment of
the assets in the Participant's account, then, pursuant to the Committee's
Directions, the Trustee shall invest the assets in such account among the
investment options established pursuant to Section 2.3 as directed by each such
Participant in accordance with such procedures as are acceptable to the
Trustee. If such procedures include the effecting of exchanges among the
investment options established pursuant to Section 2.3 or otherwise directing
the investment of the assets allocated to a Participant's account by use of the
telephone system maintained for such purpose by the trustee or its agent, the
Trustee shall be entitled to rely on any telephonic direction reasonably
believed by it to be genuine from any person representing himself or herself to
be a Participant directing the investment of assets in his or her account,
provided that the Trustee employs reasonable procedures for processing such
directions, such as requiring a form of personal identification, to confirm
that telephonic directions are genuine. If the Trustee does not follow such
procedures, it may be liable for any losses due to processing unauthorized or
fraudulent directions. Subject to the foregoing, the Trustee shall be entitled
to rely entirely on Participants' directions, shall be under no duty to
determine or make inquiry whether Participants' directions are in accordance
with the provisions of the Plan or applicable law, and shall have no liability
and shall be fully indemnified by the Employer for any action taken in
accordance with, or any failure to act in the absence of, Participants'
directions.
Section 2.2 Except to the extent an Investment Manager has been appointed
pursuant to Section 2.5, the Committee shall have authority and discretion to
select the nature and amount of the investments to be made under the Plan.
Subject to Section 2.5, the Trustee shall invest, reinvest and dispose of the
assets comprising the Trust Fund in accordance with the Committee's Directions.
The Committee shall exercise such authority and discretion solely in the
interest of the Participants and their beneficiaries and (1) for the exclusive
purpose of (a) providing benefits to the Participants and their beneficiaries
and (b) defraying reasonable expenses of administering the Plan, (2) with the
care, skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims, (3) by diversifying the investments of the Plan so as to minimize the
risk of large losses, unless under the circumstances it is clearly prudent not
to do so and (4) in accordance with the terms of the Plan and with applicable
law. The Trustee shall have no duty hereunder to review the investments held
in the Trust Fund. The Trustee shall not make suggestions or otherwise render
investment advice to the Committee or any Participant with respect to
investment, reinvestment, or disposition of assets held in the Trust Fund.
Section 2.3. Except to the extent required under applicable law, the authority
and discretion of the Trustee with respect to the Trust Fund shall be limited
to the following nondiscretionary powers which, with the exception of those
powers set forth in Section 2.3(0), shall be exercised solely in accordance
with the Committee's Directions or, to the extent provided in Section 2.1.2,
the directions of Participants or, to the extent provided in Section 2.5, the
directions of an Investment Manager:
(a) To open and maintain accounts for the Plan, and to the extent that
the Plan is a "defined contribution plan" (within the meaning of
Section 3(34) of ERISA), individual accounts for each of the
Participants.
(b) To receive contributions from the Employer and to credit
contributions made by the Employer to the individual accounts of
Participants established pursuant to paragraph (a) above.
(c) To invest contributions made by the Employer and other assets of the
Plan in shares of any investment company sponsored, managed, advised,
administered or distributed by The Dreyfus Corporation or any of its
affiliates (the "Dreyfus Funds"), in equity securities issued by the
Employer or an affiliate which are publicly traded and which are
"qualifying employer securities" within the meaning of Section
407(d)(5) of ERISA ("Employer Stock"), in any collective investment
fund maintained by a bank or trust company as a "group trust" for the
collective investment of employee benefit plans qualified under
Section 401(a) of the Code, and such other investments as may be
acceptable to the Trustee and as agreed to in writing by The Dreyfus
Corporation ("Sponsor") and the Committee (the Dreyfus Funds and such
other investments shall be collectively referred to as the
"Investments"); and to reinvest dividends and other distributions in
the Dreyfus Funds or other Investments provided, however, that if the
Plan is established pursuant to one of the Sponsor's prototype plan
documents, investments shall be subject to such investment
limitations or minimum requirements for investments in Dreyfus Funds
as may be imposed by the Sponsor. The Employer hereby agrees that
the Trustee shall not be restricted in making such investments to
investments that are authorized by governing state laws (as
determined under Section 9.5) for the investment of trust funds. If
Plan assets are invested in any group trust, the terms of the group
trust agreement or other governing document are hereby incorporated
by reference and made a part of the Trust Agreement as long as the
group trust remains exempt from taxation under Section 501(a) of the
Code. The Trustee shall not be responsible in any way respecting the
form, terms, payment provisions or issuer of any insurance contract
which it is directed to purchase and/or hold to provide for the
payment of benefits, or for performing any functions under any such
insurance contract which it may be directed to purchase and/or hold
as contract holder thereunder (other than the execution of any
documents incidental thereto and transfer or receipt of funds
thereunder in accordance with the Committee's Directions).
(d) To redeem, transfer or exchange shares of the Dreyfus Funds, to sell,
exchange, convey, transfer or otherwise dispose of any other
Investments; and to make, execute and deliver to the purchasers
thereof good and sufficient legal documents of conveyance therefor,
and all assignments, transfers and other legal instruments, either
necessary or convenient for passing the title and ownership of the
Investments, and no person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the
validity, expediency or propriety of any such sale or disposition.
(e) To make distributions from the Trust Fund to Participants and their
beneficiaries.
(f) Except as otherwise stated in Section 2.4, to deliver notices,
prospectuses and proxy statements to Participants or to the Employer,
and to vote in person or by proxy with respect to any securities held
by the Trust Fund in accordance with the written directions of the
Committee or of the Participants, as the case may be; and in
accordance with such power, to exercise subscription, conversion and
other rights and options and to take action or refrain from taking
any action with respect to any reorganization, consolidation, merger,
dissolution or other recapitalization or refinancing to the extent
that the exercise of such rights and options or the taking or
refraining from such actions may be deemed by the Trustee to be
necessary or proper to protect the best interests of the Trust Fund.
(g) To maintain records of contributions, investments, distributions and
other transactions, and to report such transactions to the Employer
or such other persons as may be designated by the Employer.
(h) To make necessary filings with the Internal Revenue Service, the
Department of Labor and other governmental agencies.
(i) To hold any part of the Trust Fund in cash or cash balances.
(j) To hold custody of the assets of the Plan; and with respect to any
such assets held in custody by the Trustee, to cause any investment
of the Trust Fund to be registered in the name of the Trustee or the
name of its nominee or nominees or to retain such investment
unregistered or in a form permitting transfer by delivery, provided
that the books and records of the Trustee shall at all times show
that all such investments are part of the Trust Fund.
(k) To apply for, purchase, hold or transfer any life insurance,
retirement income, endowment or annuity contract.
(l) To consult and employ any suitable agent(s) to act on behalf of the
Trustee and to contract for legal, accounting, clerical and other
services deemed necessary by the Trustee to administer the Trust Fund
according to the terms of this Trust Agreement and the instructions
of the Committee.
(m) To make loans from the Trust Fund to Participants in amounts and on
terms approved by the Committee; and Employer hereby agrees that the
Committee shall have the sole responsibility, and the Trustee shall
not have any duty or responsibility, for computing and collecting any
loan repayments required to be made under the Plan.
(n) To pay from the Trust Fund all taxes imposed or levied with respect
to the Trust Fund or any part thereof under existing or future laws,
and to contest the validity or amount of any tax, assessment, claim
or demand respecting the Trust Fund or any part thereof.
(o) To pay out of the Trust Fund (i) all brokerage fees and transfer tax
expenses and other expenses incurred in connection with the sale or
purchase of investments, (ii) the Trustee's compensation and (iii)
all other expenses of administering the Plan and the Trust Fund
including, without limitation, any payments authorized by Section 1.4
of this Agreement, unless promptly paid to the Trustee, or otherwise,
by the Employer. The Trustee shall have the authority to pay all
fees and expenses described in this Section 2.3(0) out of the Trust
Fund in the event such fees and expenses are not promptly paid by the
Employer and the Trustee is not in receipt of Committee Direction to
make such payments.
(p) To do all such acts, and to exercise all such rights and privileges,
although not specifically mentioned herein, as the Trustee may deem
necessary or proper to carry out any of the nondiscretionary powers
set forth herein or otherwise in the best interests of the Trust Fund
and required by applicable law.
Section 2.4. Investments in Employer Stock shall be subject to the following
notwithstanding any other provision in this Trust Agreement:
(a) In accordance with the Committee's Directions, the Trust Fund may be
invested in Employer Stock without regard to the ten percent (10%)
limitation with respect to the acquisition and holding of employer
securities set forth in Section 407(a)(2) of ERISA if the Plan
qualifies as an "eligible individual account plan" under Section
407(d)(3) of ERISA.
(b) The Committee shall be responsible for determining the
appropriateness under the fiduciary responsibility and other
applicable provisions of ERISA of acquiring and holding Employer
Stock. The Trustee shall not be liable for any loss, or by reason of
any breach, which arises from following directions with respect to
the acquisition and holding of Employer Stock.
(c) Subject to the provisions of Section 2.4(d), the Trustee shall
purchase and sell Employer Stock in accordance with such procedures
and guidelines as annexed hereto as Schedule A.
(d) At the Committee's Directions, the Trustee shall purchase or sell
Employer Stock on the open market or from or to the Employer. In
addition, the Employer may contribute Employer Stock in lieu of cash
to the Trust Fund. In the event the Trustee uses one of its
affiliates to effect the purchase or sale of Employer Stock, the
Trustee and such affiliate shall comply with the provisions of
Prohibited Transaction Class Exemption 86-128. In the event that the
Committee directs the Trustee to use a particular broker or dealer to
effect the purchase or sale of Employer Stock, the Committee shall
represent to the Trustee that such direction (i) is for the exclusive
benefit of Participants and Beneficiaries of the Plan, and (ii) shall
not constitute, or cause the Trust Fund to be engaged in, a
"prohibited transaction" as defined in Section 406 of ERISA. In the
event the Trustee purchases or sells Employer Stock from or to the
Employer, such purchase or sale shall be for "adequate consideration"
as defined in Section 3(18) of ERISA and no commission shall be
charged. In the event that the Employer contributes Employer Stock
in lieu of cash to the Trust Fund, such transfer shall be for
"adequate consideration" as defined in Section 3(18) of ERISA and no
commission shall be charged.
(e) The Employer represents and warrants that it has filed and will file
with the Securities and Exchange Commission and with all applicable
state agencies or authorities all required registration statements
relating to shares of Employer Stock and other interests which may be
issued under the Plan. The Employer acknowledges that it is and
shall be responsible for, and that the Trustee shall not be
responsible for, preparing or filing such registration statements or
for the accuracy of statements contained therein, or for preparing or
filing any other reports, statements or filings required under
federal or state securities laws with respect to the Trust Fund's
investment in Employer Stock.
(f) The Employer shall provide the Trustee with all proxy solicitation
materials proposed to be sent to stockholders or if the issuer of
Employer Stock held in the Trust Fund files preliminary proxy
solicitation materials with the Securities and Exchange Commission,
the Employer shall cause a copy of all materials to be simultaneously
sent to the Trustee. The Trustee shall vote the shares of Employer
Stock consistent with its current policies and procedures.
(g) In the event of a tender or exchange offer for any Employer Stock
held in the Trust Fund, the Participants rather than the Trustee
shall vote as to the tender or exchange offer. The Trustee shall use
its best efforts to distribute or cause to be distributed to each
affected Participant in a timely manner all information and materials
that are distributed to the stockholders of the issuer of the
Employer Stock in connection with the offer and directions as to how
the Participant may instruct the Trustee whether or not to tender or
exchange the Employer Stock credited to the Participant's account
(both vested and non-vested). Alternatively, the Trustee may agree
that the notification of Participants and distribution of the
information, materials and directions described above are to be
effected by the Employer or its designee. In such event, the
Employer shall provide the Trustee with a copy of all information,
materials and directions provided to Participants and shall certify
to the Trustee that the information, materials and directions have
been mailed or otherwise sent to each affected Participant. The
Trustee, in its discretion, may prepare or amend any instruction form
sent to Participants. Instructions shall be returnable to the
Trustee or its designee. Each Participant shall be entitled to
direct the Trustee to tender or exchange shares (including fractional
interest in shares) of Employer Stock credited to such Participant's
account (both vested and non-vested). Upon timely receipt of
instructions, the Trustee shall act with respect to Employer Stock as
instructed. Instructions received by the Trustee from Participants
shall be held by the Trustee in strict confidence and shall not,
except as may be required by law, be divulged or released to any
person including officers or employees of the Employer or members of
the Committee; provided, however, that the Trustee may advise the
Employer, upon request, of the total number of shares of Employer
Stock that have been tendered or exchanged. The Trustee shall not
make recommendations to Participants on whether to tender or
exchange. The Trustee shall not tender or exchange shares of
Employer Stock credited to a Participant's account for which it has
not received instructions from the Participant. The Trustee shall
not be obligated to solicit a response from Participants from whom it
has not received instructions. The Trustee shall tender or exchange
that number of shares of Employer Stock not credited to Participants'
accounts which is determined (after giving effect to the withdrawal
of any shares of Employer Stock before the expiration of the offer or
any earlier date set by the Trustee) by multiplying the total number
of shares of Employer Stock not credited to Participants' accounts by
a fraction of which the numerator is the number of shares of Employer
Stock credited to Participants' accounts for which the Trustee has
received instructions from Participants to tender or exchange and of
which the denominator is the total number of shares of Employer Stock
credited to Participants' accounts. A Participant who has instructed
the Trustee to tender or exchange shares of Employer Stock credited
to such Participant's account may, at any time prior to the
expiration of the offer or any earlier date set by the Trustee,
instruct the Trustee to withdraw a specified number of shares from
the offer. A Participant shall not be limited as to the number of
instructions that the Participant may give to the Trustee. If a
Participant instructs the Trustee to tender or exchange shares of
Employer Stock credited to the Participant's account, the Trustee
shall credit to each account of such Participant from which the
shares were taken the consideration received by the Trustee for the
shares of Employer Stock tendered or exchanged from that account.
Pending receipt of Committee Directions or, to the extent provided in
Section 2.1.2 of the Trust Agreement, instructions from the
Participant as to the investment of such proceeds, the Trustee shall
invest any cash consideration in such money market mutual fund as is
designated in writing by the Committee.
(g) For purposes of this Section 2.4, the number of shares of Employer
Stock deemed "credited" to a Participant's account shall be
determined as of the last preceding valuation date for which an
allocation has been completed and Employer Stock has actually been
credited to Participants' accounts. The Trustee may, in its
discretion, require a special valuation of Participant accounts and
crediting of Employer Stock.
(h) In the event that the Trustee, in its discretion, determines that
time constraints make it unlikely that Participant tender or exchange
instructions can be received in a timely fashion, the Trustee shall
notify the Committee and the Committee or its designee shall be
responsible for such matter, and the Trustee shall vote proxies or
respond to a tender or exchange offer in accordance with the
Committee's Directions.
(i) All costs incurred by the Trustee in handling proxy and tender or
exchange offer matters, including without limitation all costs
associated with the printing and mailing of Participant instruction
forms and other materials and attorneys' fees, shall be expenses of
the Trust Fund within the meaning of Section 6.1 of the Trust
Agreement.
Section 2.5. If permitted by the Plan, the Employer or the Committee may
appoint one or more investment managers within the meaning of Section 3(38) of
ERISA ("Investment Manager") to direct investments with respect to all or part
of the Trust Fund. Any Investment Manager so appointed shall be (i) an
investment adviser registered as such under the Investment Advisers Act of
1940, or (ii) a bank, as defined in that Act, or (iii) any insurance company
qualified to perform investment management services under the laws of more than
one state. Any Investment Manager so appointed shall, in writing, certify to
the Employer that it is qualified to act in such capacity under clause (i),
(ii) or (iii) of the preceding sentence, accept its appointment as Investment
Manager, acknowledge that it is a fiduciary with respect to the Plan, and
certify the identity of the person or persons authorized to give instructions
or directions on its behalf. The Employer shall certify to the Trustee that it
has appointed each Investment Manager in accordance with the provisions of the
Plan and ERISA, and instruct the Trustee as to the portion of the Plan that is
to be managed by each Investment Manager. The Trustee may continue to rely
upon all certifications and agreements made under this Section 2.5 unless
otherwise notified in writing by the Employer or the Investment Manager, as the
case may be. The Trustee shall be entitled to rely entirely on an Investment
Manager's directions, shall be under no duty to determine or make inquiry
whether an Investment Manager's directions received by it are in accordance
with the provisions of the Plan or applicable law, and shall have no duty to
review or recommend the sale, retention, or other disposition of any asset
purchased or retained in accordance with an Investment Manager's directions.
The Trustee shall have no liability for any loss to the Trust Fund resulting
from the purchase, sale, or retention of any asset in accordance with an
Investment Manager's directions, or resulting from not having sold such assets
so purchased or retained in the absence of an Investment Manager's directions,
to make such sale or take any other action. The Trustee shall be fully
indemnified by the Employer for any action taken in accordance with, or any
failure to act in the absence of, an Investment Manager's directions.
ARTICLE III
DUTIES AND RESPONSIBILITIES
Section 3.1.1. The Trustee shall discharge its duties and responsibilities
under this Trust Agreement solely in the interest of Participants and their
beneficiaries, and
(a) for the exclusive purpose of providing benefits to the Participants
and their beneficiaries and defraying the reasonable expenses of
administering the Plan;
(b) with the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims.
Section 3.1.2. In the event that the Employer designates The Dreyfus Trust
Company ("The Trust Company") as the Trustee in the Adoption Agreement hereto,
and the Trustee has been designated as an additional Trustee for the Plan, The
Trust Company as Trustee shall have no responsibilities other than as set forth
herein, and this Trust Agreement shall constitute a supplemental trust
agreement. The duties of The Trust Company shall be limited to assets held in
the Trust Fund, and The Trust Company shall have no duties with respect to
assets held by any other person including, without limitation, any other
trustee for the Plan. The Employer hereby agrees that The Trust Company shall
not serve as, and shall not be deemed to be, a co-trustee under any
circumstances.
Section 3.1.3. Subject to the limitations set forth in Section 3.1.2 herein,
in the event that more than one individual Trustee has been designated in the
Adoption Agreement, the action of such individual Trustees shall be determined
by vote of the majority of such individual Trustees; provided, however, that
any one of such individual Trustees may execute any applications for insurance
or annuity contracts provided for herein and documents necessary for the
exercise of ownership rights thereunder and may perform other such ministerial
acts; and further provided, that the Trustees may enter into an agreement
allocating among themselves specific responsibilities, obligations and duties.
Section 3.1.4. The Trustee shall be solely responsible for its own acts and
omissions. The Trustee shall have no duty to question, or otherwise inquire
into, the performance of another fiduciary with respect to duties allocated to
such other fiduciary under the Plan. The Trustee shall not be responsible for
the breach of any other such fiduciary unless the Trustee (i) participates
knowingly in, or knowingly undertakes to conceal, an act or omission of such
other fiduciary, knowing such act or omission is a breach, (ii) has actual
knowledge of a breach by such other fiduciary and fails to make reasonable
effort under the circumstances to remedy the breach or (iii) has failed to
perform its own specific fiduciary duties and thereby has enabled another
fiduciary to commit a breach.
Section 3.2. The Trustee shall keep full and accurate records of all receipts,
investments, disbursements and other transactions hereunder, including such
specific records as may be agreed upon in writing between the Company, the
Committee and the Trustee. All such records shall be open to inspection during
the Trustee's normal business hours by any authorized representative of the
Employer or the Committee upon reasonable prior notice to the Trustee.
Section 3.3. Within 90 days after the end of each Plan Year, as that term is
defined in the Plan, or within 90 days after its removal or resignation, or the
termination of the Plan or this Trust Agreement, the Trustee shall file with
the Committee a written account of the administration of the Trust Fund showing
all transactions effected by the Trustee subsequent to the period covered by
the last such accounting, if any, to the end of such Plan Year or date of such
removal or resignation, or the termination of the Plan or this Trust Agreement,
and all property held at its fair market value at the end of the accounting
period. Upon approval of such accounting by the Committee, neither the Employer
nor the Committee shall be entitled to any further accounting by the Trustee.
The Committee shall approve such accounting by written notice of approval
delivered to the Trustee or by failure to express objection to such accounting
in writing delivered to the Trustee within 60 days from the date on which the
accounting is mailed to the Committee and, in either case, the Trustee shall be
forever released and discharged from all liability and accountability with
respect to the propriety of its acts and transactions as to which the Committee
shall within such 60 day period file with the Trustee no such written
objections.
Section 3.4. The Trustee may from time to time consult with counsel and shall
be entitled to rely entirely upon the advice of counsel with respect to any act
or omission.
Section 3.5. In the event of any disagreement resulting in conflicting
instructions to, or adverse claims or demands upon, the Trustee with respect to
payments or instructions, the Trustee shall be entitled, at its option, to
refuse to comply with any such instruction, claim or demand so long as such
disagreement shall continue, and in the exercise of such refusal, the Trustee
may elect not to make any payment or other disposition of assets held pursuant
to this Trust Agreement. The Trustee shall not be or become liable in any way
for its failure or refusal to comply with any such conflicting instructions or
adverse claims or demands, and it shall be entitled to continue to refrain from
acting until such conflicting or adverse instructions, claims or demands (a)
shall have been adjusted by agreement and it shall have been notified in
writing therefor or (b) shall have been finally determined in a court of
competent jurisdiction.
Section 3.6. The Trustee shall not, by act, delay, omission or otherwise, be
deemed to have waived any right or remedy it may have either under this Trust
Agreement or generally, and no waiver shall be valid unless it is contained in
a written instrument signed by the Trustee and only to the extent expressly set
forth therein. A waiver by the Trustee under the terms of this Trust Agreement
shall not be construed as a bar to, or waiver of, the same or any other such
right or remedy that it would otherwise have on any other occasion.
Section 3.7. The Trustee will not be compelled to do any act under this Trust
Agreement or to take any action toward the execution or enforcement of the
Trust Fund created hereunder or to prosecute or defend any suit in respect
thereof, unless indemnified by the Employer to its satisfaction against any
loss, costs, liability and expense; and the Trustee will be fully indemnified
by the Employer for any liability or obligation to any person that results from
any failure on the part of the Employer or the Committee to perform any of
their respective obligations under the Plan or under the terms of this Trust
Agreement, or for any error or omission whatsoever on the part of the Committee
or the Employer.
Section 3.8. Unless resulting from the Trustee's own negligence or willful
misconduct, the Employer shall indemnify the Trustee and save it harmless from,
against, for and in respect of any and all damages, losses, obligations,
liabilities, liens, deficiencies, costs and expenses (including, without
limitation, attorney's fees and other costs and expenses incident to any suit,
action, investigation, claim or proceedings) suffered, sustained, incurred or
required to be paid by the Trustee in connection with the Plan or this Trust
Agreement. The provisions of this Section 3.8 shall survive termination of
this Trust Agreement.
ARTICLE IV
PROHIBITION OF DIVERSION
Section 4.1. Except as provided in Section 4.2 herein, at no time prior to the
satisfaction of all liabilities with respect to Participants and their
beneficiaries under the Plan shall any part of the corpus or income of the Fund
be used for, or diverted to, purposes other than for the exclusive benefit of
Participants or their beneficiaries, or for defraying reasonable expenses of
administering the Plan.
Section 4.2.1. Notwithstanding the provisions of Section 4.1, but subject to
the provisions of Section 4.2.2 herein, contributions made by the Employer
under the Plan shall be returned to the Employer under the following conditions
and only as the Trustee is instructed in writing by the Committee:
(a) If a contribution is made by mistake of fact, such contribution shall
be returned to the Employer within one year of the payment of such
contributions;
(b) To the extent that contributions to the Plan are specifically
conditioned upon their deductibility under the Code, and a deduction
is disallowed for any such contribution, it shall be returned to the
Employer within one year after the disallowance of the deduction; and
(c) To the extent that contributions to the Plan are specifically
conditioned on initial qualification of the Plan under the Code, and
the Plan is determined to be disqualified, contributions and the
earnings thereon made in respect of any period subsequent to the
effective date of such disqualification shall be returned to the
Employer within one year after the date of denial of qualification,
provided that the Employer makes timely application to the Internal
Revenue Service for a determination of the qualified status of the
Plan.
Section 4.2.2 Earnings attributable to any contributions returned to the
Employer under Sections 4.2.1(a) and 4.2.1 (b) shall not be returned to the
Employer. Losses attributable to any contributions returned to Employer under
Section 4.2.1 shall reduce the amount to be so returned.
ARTICLE V
COMMUNICATION WITH COMMITTEE AND THE EMPLOYER
Section 5.1. Except as otherwise specifically provided herein, any action by
an Employer that is a corporation pursuant to any of the provisions of this
Trust Agreement shall be evidenced by (1) a resolution of its board of
directors (the "Board") certified to the Trustee over the signature of its
Secretary or Assistant Secretary or other duly authorized agent under the
corporate seal, if any, or (2) by appropriate written authorization of any
person or committee to which the Board has delegated the authority to take such
action. Any action by an Employer that is a partnership or a sole
proprietorship shall be evidenced by a written certification of a general
partner of the partnership or the sole proprietor, as the case may be. The
Trustee shall be entitled to rely entirely on, and shall be fully indemnified
by the Employer for acting in accordance with, any such resolution,
certification or other authorization.
Section 5.2. The Employer shall provide to the Trustee a certificate, signed
by an authorized officer of the Employer, that contains (a) the name, (b)
specimen signature and (c) a description of the specific powers and duties, of
each member of the Committee. The Employer shall give prompt written notice of
any change in the identity, powers or duties of any member of the Committee,
and the Trustee shall be entitled to rely entirely on its failure to receive
such notice as a certification of the Employer that a designated member of the
Committee and such member's duties and powers have not been changed. The
Trustee shall have no duty to inquire into the qualifications of any member of
the Committee.
Section 5.3. The Committee's Directions shall be communicated to the Trustee
in a certificate that sets forth the action of the Committee, signed by the
person then acting as Chairman or Secretary of the Committee, or in a written
statement signed by any two or more members of the Committee or any person or
agent designated to act on behalf of the Committee. Such person or agent shall
be so designated either under the provisions of the Plan or in a certificate by
the Committee that contains (a) the name, (b) specimen signature and (c) a
description of the specific powers and duties of each such person or agent.
The Committee shall give prompt written notice of any change in the identity,
powers and duties of any such person or agent, and the Trustee shall be
entitled to rely entirely on its failure to receive such notice as a
certification of the Committee that the identity, powers and duties of such
person or agent have not been changed.
Section 5.4. The Trustee shall have no liability hereunder for any action
taken in good faith in reliance upon any instructions, directions,
certifications and communications believed by the Trustee to be genuine and to
have been signed or communicated by the proper person.
ARTICLE VI
TRUSTEE'S COMPENSATION; EXPENSES
Section 6.1. The Trustee shall receive reasonable compensation for its
services in accordance with its schedule of compensation in effect when such
services are rendered. The Trustee may amend the schedule from time to time,
which amendment shall become effective no earlier than 30 days after written
notice is sent to the Employer. The Trustee shall also be entitled to
reimbursement for all reasonable expenses incurred by it in the performance of
its duties hereunder including, without limitation, any expenses incurred in
the consultation or employment of any agent pursuant to Section 2.3(l). Any
such compensation or expenses and any income or other taxes which may be levied
against the Trust Fund shall be paid out of the Trust Fund, unless paid
directly by the Employer.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1. The Trustee may resign at any time by written notice to the
Employer which shall be effective 30 days after delivery to the Employer of
such notice, provided that a successor Trustee shall have been appointed by the
Employer; provided, however, that such notice may be waived by the Employer.
Section 7.2. The Trustee may be removed by the Employer at any time upon 30
days' prior written notice to the Trustee, provided that a successor Trustee
shall have been appointed by the Employer; provided, however, that such notice
may be waived by the Trustee.
Section 7.3. The appointment of a successor Trustee hereunder shall be
accomplished by and shall take effect upon the delivery to the resigning or
removed Trustee, as the case may be, of written notice from the Employer
appointing such successor Trustee, and an acceptance in writing of the
successor Trustee. Any successor Trustee may be either a corporation
authorized and empowered to exercise trust powers or one or more individuals.
All of the provisions set forth herein with respect to the Trustee shall relate
to each successor Trustee so appointed with the same force and effect as if
such successor Trustee had been originally named herein as the Trustee
hereunder. If a successor Trustee shall not have been appointed within 30 days
after delivery to the Employer of notice of the Trustee's resignation pursuant
to Section 7.1, the resigning Trustee may apply to a court of competent
jurisdiction for the appointment of a successor Trustee.
Section 7.4. Upon the appointment of a successor Trustee, the resigning or
removed Trustee shall transfer and deliver the Trust Fund to such successor
Trustee, after reserving such reasonable amounts as are necessary to provide
for its reasonable expenses in the settlement of its account, the amount of any
compensation due to it and any sums chargeable against the Trust Fund for which
it may be liable. If the sums so reserved are not sufficient for such
purposes, the resigning or removed Trustee shall be entitled to reimbursement
for any deficiency from the Employer or out of the Trust Fund.
Section 7.5. At the time the Trust Fund shall have been transferred and
delivered to a successor trustee and the accounts of the Trustee have been
approved pursuant to Section 3.3 herein, the Trustee shall be released and
discharged from all further accountability or liability for the Trust Fund and
shall not be responsible in any way for the further disposition of the Trust
Fund or any part thereof.
ARTICLE VIII
AMENDMENT AND TERMINATION OF THE TRUST AND PLAN
Section 8.1. The Employer may terminate this Agreement at any time upon 30
days' prior written notice delivered to the Trustee; provided that such
termination by the Employer is subject to the condition that a new trustee
assumes the responsibilities and functions of the Trustee as set forth herein;
and provided, further, that the trusteeship shall, if terminated by the
Employer, continue thereafter for such period as may be necessary for the
complete divestiture to a newly appointed trustee of all assets held in the
Trust Fund.
Section 8.2. If the Plan is terminated in whole or in part, or if the Employer
permanently discontinues its contributions to the Plan, the Trustee shall
distribute the Fund or any part thereof in accordance with the Committee's
Directions. Upon the Employer's termination of the Plan in whole or in part or
the revocation or termination of this Trust Agreement, the Trustee shall have
the right to have its accounts approved. When the Trust Fund shall have been
so applied or distributed, and the accounts of the Trustee shall have been
approved pursuant to Section 3.3 herein, the Trustee shall not be responsible
in any way for the further disposition of the Trust Fund (or that part thereof
so applied or distributed, if the Plan is terminated only in part). The
Trustee shall have the right to withhold distribution or application of any
part of the Trust Fund unless and until written approval of any such
termination has been granted by the Internal Revenue Service and, if the Plan
is subject to the jurisdiction of the Pension Benefit Guaranty Corporation (the
"PBGC"), (a) the period of time set forth in Section 4041(b)(2)(C) of ERISA has
elapsed and the PBGC has not issued any notice of noncompliance or (b) the PBGC
has notified the Plan Administrator that the requirements or a distress
termination have been met pursuant to Section 4041(c)(3)(A) of ERISA. Assets
of the Trust Fund shall not be returned to the Employer unless and until the
Employer has delivered to the Trustee (a) a certification of an enrolled
actuary stating that there is an amount remaining in the Trust Fund that is not
required for the payment of the benefits provided under the Plan for
participants or their beneficiaries and (b) an opinion of counsel satisfactory
to the Trustee, stating that such return of assets is permitted under the terms
of the Plan and applicable law.
Section 8.3. This Trust Agreement may be amended or modified by a written
agreement signed by the parties hereto or by the Trustee upon 60 days' prior
written notice to the Employer.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 9.1. This Trust Agreement shall be adopted by execution of the
Adoption Agreement.
Section 9.2. In the event that any provision of this Trust Agreement is deemed
or held to be unlawful or invalid for any reason, such event shall not
adversely affect any other provision contained herein unless such illegality
shall make impossible or impracticable the functioning of this Trust Agreement,
and in such case, the appropriate parties shall immediately amend this Trust
Agreement.
Section 9.3. The titles and headings of the Sections in this instrument are
placed herein for convenience of reference only. In the event of any conflict,
the text of this instrument, rather than such titles or headings, shall control
the interpretation of any of the terms and provisions contained herein.
Section 9.4. Except as otherwise specifically provided herein, all notices or
other communications required or permitted to be given pursuant to this
Agreement shall be given in writing and delivered by personal delivery or sent
by U.S. first class mail, postage prepaid, addressed to their last respective
address of record.
Section 9.5. The construction, validity and administration of this Trust
Agreement shall be governed by the laws of the state where the Trustee has its
principal place of business, except to the extent that such laws are preempted
by ERISA.
