Exhibit 4.B
STOCK TRUST AGREEMENT
TABLE
Article
FIRST Acceptance of Property 2
SECOND Investment Powers 2
THIRD Payments 5
FOURTH Administrative Powers 5
FIFTH Insurance Company Contracts 11
SIXTH Fiduciary Standards 12
SEVENTH Prohibition of Diversion 13
EIGHTH Hold Harmless 14
NINTH Accounts 16
TENTH Committee 16
ELEVENTH Compensation and Expenses 16
TWELFTH Resignation of Trustee 16
THIRTEENTH Amendment 17
FOURTEENTH Termination 17
FIFTEENTH Plan-to-Plan Transfers; Rollovers 18
SIXTEENTH Adopting Employers 18
SEVENTEENTH Alienation 19
EIGHTEENTH Bond 20
NINETEENTH Successors 20
TWENTIETH Communications 20
TWENTY FIRST Governing Law 21
STOCK TRUST AGREEMENT
WHEREAS, on September 1, 1993, Ford Microelectronics, Inc., hereinafter
referred to as the "Company," adopted The Ford Microelectronics, Inc. Salaried
Retirement Savings Plan, hereinafter referred to as the "Plan," for the purpose
of providing retirement and related benefits to eligible employees of the
Company and their beneficiaries, hereinafter referred to as "Participants"; and
WHEREAS, the Plan Committee, the members of which are "named fiduciaries"
as defined in the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (which named fiduciaries are hereinafter referred to as the
"Committee") has general responsibility for administration of the Plan; and
WHEREAS, the Plan calls for the establishment of a trust to which
contributions are to be made by the Company to be held by the Trustee and to be
managed, invested and reinvested for the exclusive benefit of Participants of
the Plan and their beneficiaries; and
WHEREAS, the Plan and trust are intended to qualify as a plan and trust
which meet the applicable requirements of Sections 401 (a) and SO I (a) of the
Internal Revenue Code of 1986, as amended, hereinafter referred to as the
"Code"; and
WHEREAS, on September 1, 1994, the Company entered into an agreement of
trust with Comerica Bank, a corporation organized and existing under the laws of
the State of Michigan, having its principal place of business at 000 Xxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxx, which has been removed or has resigned as trustee;
and
WHEREAS, the Company wishes to restate the agreement of trust, hereinafter
referred to as the "Trust" in its entirety and appoint UMB Bank, NA., a national
banking association, having its principal place of business at Kansas City,
Missouri, hereinafter referred to as the "Trustee"; and
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Trustee do hereby covenant and
agree as follows:
FIRST: Acceptance of Property. The Trustee shall accept such cash and other
property as is tendered to it as contributions hereunder, and as is acceptable
to it, hereinafter referred to as the "Trust Fund," but shall not be under any
duty to require the Company or any other adopting employer to contribute to the
Trust Fund or to determine whether the amount of any contributor has been
correctly computed under the terms of the Plan. In no event shall the Trustee be
considered a party to the Plan. The Trustee shall have only such duties with
respect to the Plan as are set forth in this Agreement.
SECOND: Investment Powers. The Trustee shall invest the assets of the Trust
Fund as directed by the Plan Administrator, Company or Committee, in accordance
with the provisions of the plan. In doing so, the Trustee will be a directed
trustee. Trust investments may include, without limitation, employer securities,
as that term is defined in section 407(D) of ERISA, without regard to
limitations imposed by Section 407(A) of ERISA, and any fund created for the
collective investment of the assets of employee benefit trusts, as long as such
collective investment fund is a qualified trust under the applicable provisions
of the Code (and while any portion of the trust fund is so invested, such
collective investment fund shall constitute a part of the plan, and the
instruments creating such fund shall constitute a part of this agreement). The
Trustee shall have no independent investment duties or responsibilities. The
Trustee assumes no financial responsibility with respect to the investment of
the assets of the Trust Fund. The Trustee will have no responsibility for
properly carrying out such investment directions and will have no liability for
any loss or diminution in value occasioned thereby unless due to the Trustee's
own gross negligence or willful misconduct.
To the maximum extent permitted by law, the Trustee shall not be liable for
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the acquisition, retention or disposition of any assets of the Trust Fund
or for any loss to or diminution of such assets unless due to the Trustee's own
gross negligence or willful misconduct.
The Committee may appoint an "investment manager," as defined in Section
3(38) of ERISA. Any investment manager so appointed shall be (i) an investment
adviser registered as such under the Investment Advisers Act of 1940, (ii) a
bank, or (iii) an insurance company qualified to perform investment management
services under the laws of more than one state of the United States. The
Committee shall notify the Trustee of any such appointment by delivering to the
Trustee an executed copy of the instrument under which the investment manager is
appointed and evidencing the investment manager's acceptance of such
appointment, an acknowledgment by the investment manager that it is a fiduciary
of the Plan, and a certificate evidencing the investment manager's current
registration under the Investment Advisers Act of 1940 or other appropriate
qualification. The Committee shall specify to the Trustee the portion of the
Trust Fund which shall be subject to such investment management. The Trustee
shall invest and reinvest the portion of the Trust Fund subject to such
investment management only to the extent and in the manner directed by the
investment manager in writing. During the term of such appointment, the Trustee
shall have no liability for the acts or omissions of such investment manager,
and except as provided in the preceding sentence, shall be under no obligation
to invest or otherwise manage the portion of the Trust Fund subject to such
investment management. The Trustee may maintain separate accounts within the
Trust Fund for the assets of the Trust Fund subject to such investment
management. The Committee may terminate its appointment of an investment manager
at any time and shall notify the Trustee in writing of such termination. To the
maximum extent permitted by XXXXX, the Trustee shall be protected in assuming
that the appointment of an investment manager remains in effect until it is
otherwise notified in writing by the Committee.
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In the event that the investment manager appointed hereunder is a bank or a
trust company, or an affiliate of a bank or a trust company, the Trustee shall,
upon the direction of the Committee, transfer funds to such bank, trust company,
or affiliate for investment through the medium of any fund created and
administered by such bank, trust company, or affiliate, acting as trustee
therefore, for the collective investment of the assets of employee benefit
trusts, provided that such fund is qualified under the applicable provisions of
the Code and while any portion of the assets are so invested, such fund shall
constitute part of the applicable plan or plans, and the instrument creating
such fund shall constitute part of this Trust. In order to implement the
provisions of this paragraph, the Trustee is authorized to enter into any
required ancillary trust, agency or other type of agreement with an investment
manager, or its affiliate, as described in the preceding sentence.
Except in the event of a tender or exchange offer as hereinafter provided,
or in the case of fractional shares received in any stock dividend, stock split
or other recapitalization or as necessary to make any distribution or payment
from the Trust Fund, or unless expressly prohibited by ERISA, the Trustee shall
have DO power or duty to sell, tender, exchange or otherwise dispose of any of
the Company's common stock held in the Fund, hereinafter referred to as the
"Company Stock Fund". In the event that a tender or exchange offer is made for
all or any portion of the stock held in the Company Stock Fund, the Company
shall take such action as is practicable to provide each Participant in the Plan
having an interest in such Fund with the same information that is distributed by
the Company to the stockholders of the Company owning the same class of common
stock for which such offer is made. Notwithstanding any other provision of the
Plan or this Trust Agreement, in the event such an offer is made, each such
Participant shall have the right to direct the Trustee, by timely notice, to
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tender or exchange all or any portion of the full shares of such common stock
credited to this account which is at such time fully vested and the Trustee
shall so tender or exchange only upon receipt of such direction. All property
received in exchange for such common stock so tendered shall upon receipt be
held by the Trustee in the Fund within the accounts of those Participants who so
tendered, the provisions of the Plan and this Trust Agreement shall hereby be
deemed amended to permit the holding of such property within said Fund and
thereafter administered, invested, reinvested and distributed in accordance with
the applicable terms of the Plan and Trust.
THIRD: Payments. Subject to the provisions of Article FOURTEENTH hereof,
the Trustee shall from time to time transfer cash or other property from the
Trust Fund to such persons, including an insurance company or companies or a
paying agent designated by the Committee, at such addresses, in such amounts,
for such purposes and in such manner as the Committee may direct, provided that
such transfer is administratively feasible, and the Trustee shall incur no
liability for any such payment made at the direction of the Committee. The
Committee shall be solely responsible to insure that any payment made at its
direction conforms with the provisions of the Plan, the provisions of this
Agreement, and ERISA, and the Trustee shall have DO duty to determine the rights
or benefits of any person in the Trust Fund or under the Plan or to inquire into
the right or power of the Committee to direct any such payment.
FOURTH: Administrative Powers. The Trustee is authorized to exercise from
time to time the following powers in respect of any property, real or personal,
of the Trust Fund, it being intended that these powers be construed in the
broadest possible manner;
(1) power to sell at public or private sale for cash or upon credit or partly
for cash and partly upon credit and upon such terms and conditions as it
shall deem proper. No purchaser shall be bound to see to or be liable for
the application of the proceeds of any such sale;
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(2) power to exchange securities or property held by it for other securities or
property, or partly for such securities or property and partly for cash,
and to exercise conversion, subscription, option and similar rights with
respect to securities held by it, and to make payments in connector
therewith;
(3) power to vote in person or by proxy at corporate or other meetings and to
participate in or consent to any voting bust, reorganization, dissolution,
merger or other action affecting securities in its possession or the
issuers thereof, provided, however, to the extent required by Section
409(e) of the Code or Plan provisions, each Participant in the Plan who has
an interest in the Company Stock Fund shall be entitled to direct the
Trustee as to the manner in which the Company's stock having voting rights
which is allocated to such Participant's account is to be voted. The
Trustee, itself or by its nominee shall be entitled to vote and shall vote
said stock with voting rights allocated to the accounts of said
Participants as follows: (i) The Company shall adopt reasonable measures to
notify said Participants of the date and purposes of each meeting of
stockholders of the Company at which holders of shares of stock shall be
entitled to vote, and to request instructions from such Participants to the
Company, its agent or the Trustee as to the voting at such meeting of the
number of shares of common stock (including fractional shares) in the
account of each such Participant whether or not vested. (ii) In each case,
the Trustee, itself or by proxy, shall vote the shares of said stock
(including fractional shares) in the account of each such Participant in
accordance with the directions of the Participant: as communicated directly
to the Trustee or to the Trustee by the Company or its agent. (iii) If
prior to the time of such meeting of stockholders (or a date prior thereto
specified by the Trustee), the Trustee shall not have received timely
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directions from a Participant as to the manner of voting any shares of
allocated stock in the account of such Participant, the Trustee shall,
either as directed by the Company or its agent, vote, itself or by proxy,
all such shares of common stock in all matters coming before the meeting,
in the same ratio, to the nearest whole vote, as the ratio in which the
total shares with respect to which timely directions were received were
voted in such matters;
(4) power to own or to manage, administer, operate, lease for any number of
years, regardless of any restrictions on leases made by fiduciaries except
restrictions imposed by XXXXX, 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 in the Trust Fund, to
hold any such real property in its own name or in the name of its nominee,
with or without the addition of words indicating that such property is held
in a fiduciary capacity, and to cause to be formed a corporation,
partnership, trust or other entity to hold title to any such real property
with the aforesaid powers, all upon such terms and conditions as may be
deemed advisable; to renew or extend or participate in the renewal or
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extension of any mortgage, and to agree to a reduction in the rate of
interest on any mortgage or to any other modifications 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 Fund or the preservation of any covenant or condition of any mortgage
or in the performance of any guarantee, or to enforce any default in such
manner and to such extent as may be deemed advisable; and to exercise and
enforce any and all rights of foreclosure, to bid on any property in
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 proceeding at law or in equity any rights or
remedies in respect of any such mortgage or guarantee;
(5) power to acquire, hold or dispose of property in unregistered form, or in
its name without designation of fiduciary capacity, or in the name of its
nominee or any custodian, and to the extent permitted by XXXXX, to combine
certificates representing investments with investments of the same issue
held by the Trustee in other fiduciary capacities, and to deposit property
in a depository or clearing corporation or with the federal reserve bank in
its district;
(6) power to compromise and adjust all debts or claims due to or made against
it, to participate in any plan or reorganization, consolidation, merger,
combination, liquidation or other similar plan or any action thereunder, or
any contract, lease, mortgage, purchase, sale or other action by any
corporation or other entity;
(7) power to borrow money from any lender, in accordance with ERISA, in any
amount and upon any reasonable terms and conditions, for purpose of this
Agreement, and to pledge or mortgage any property held in the Trust Fund to
secure the repayment of any such loan;
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(8) power to deposit any such property with any protective, reorganization or
similar committee; to delegate discretionary power to any such committee;
and to pay part of the expenses and compensation of any such committee; and
any assessments levied with respect to any property so deposited;
(9) power to exercise any conversion privilege or subscription right available
in connection with any such property; to oppose or to consent to the
reorganization, consolidation, merger or readjustment of the finances of
any corporation, company or association, or to the sale, mortgage, pledge
or lease of the property of any corporation, company or association any of
the securities of which may at any time be held in the Trust Fund and to do
any act with reference thereto, including the exercise of options, the
making of agreements or subscriptions and the payments of expenses,
assessments or subscriptions, which may be deemed necessary or advisable in
connection therewith and to hold and retain any securities or other
property which it may so acquire;
(10) power to make distributions in cash or in specific property, real or
personal, or an undivided interest therein, or partly in cash and partly in
such property;
(11) power to engage legal counsel, including counsel to the Company or the
Trustee in its individual capacity, and any other suitable agents, and to
consult with such counsel or agents with respect to the construction of
this Agreement, the administration of the Trust Fund, and the cubes of the
Trustee hereunder,
(12) power to commence or defend suits or legal proceedings and to represent the
Trust Fund in all suits or legal proceedings; to settle, compromise or
submit to arbitration any claims, debts or damages due or owing to or from
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the Trust Fund, provided that the Trustee shall notify the Committee of
all such suits, legal proceedings and claims and, except in the case of a
suit, legal proceeding or claim involving solely the Trustee's action or
omissions to act, shall obtain the written consent of the Company before
settling, compromising or submitting to binding arbitration any claim, suit
or legal proceeding of any nature whatsoever,
(13) power, upon the written direction of the Committee, to enter into any
contract or policy with an insurance company or companies, for the purpose
of insurance coverage or otherwise, provided that, except as provided in
Article FIFTH, the Trustee shall be the sole owner of all such contracts or
policies and all such contracts or policies shall be held as assets of the
Trust Fund;
(14) power to make, execute and deliver, as Trustee, any and all deeds, leases,
notes, bonds, guarantees, mortgages, conveyances, contracts, waivers,
releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers;
(15) power to transfer assets of the Trust Fund to a successor trustee as
provided in Article TWELFTH; and
(16) power to appoint custodians or subcustodians to hold any or all of the
Trust Fund;
(17) power to appoint ministerial agents to perform various functions of the
Trustee; and
(18) power to exercise, generally, any of the powers which an individual owner
might exercise in connection with property either real, personal or mixed
held by the Trust Fund, and to do all other acts that the Trustee may deem
necessary or proper to carry out any of the powers set forth in this
Article.
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FOURTH or otherwise in the best interests of the Trust Fund.
Notwithstanding the foregoing, in the event that an investment manager is
appointed pursuant to Article SECOND hereof, such investment manager shall
exercise such of the powers enumerated in this Article FOURTH and otherwise
contained in this Agreement with respect to the portion of the Trust Fund
subject to its control as may be specified in the instrument under which the
investment manager was appointed.
FIFTH: Insurance Company Contracts. The Trustee may, at the direction of
the Committee, (i) enter into one or more contracts with legal reserve life
insurance companies, the rate of return from which is fixed by the teens of such
contracts, (ii) transfer to any such insurance companies a portion of the Trust
Fund in accordance with any such contracts, and (iii) hold any such contracts as
a part of the Trust Fund until directed otherwise by the committee. The
Committee shall give such direction to the Trustee by delivering to the Trustee
a copy of the action of the Committee signed by at least two members thereof,
which shall specifically refer to this Article FIFTH and direct the Trustee to
so act. The Committee may direct the Trustee to (i) request any information from
any such insurance companies necessary or appropriate to make an investment
decision, (ii) demand or accept withdrawals or other distributions under any
such contracts, (iii) exercise or not to exercise any rights, powers, privileges
and options under any such contracts and (iv) assign, amend, modify or terminate
any such contracts. The Trustee shall take no action with respect to any such
contracts except at the direction of the Committee. The Trustee shall incur no
liability for complying with or failing to comply with any direction of the
Committee. Any insurance companies issuing any contracts as hereinabove
described may deal with the Trustee as the absolute owner of any such contracts
and need not inquire as to the authority of the Trustee to act with regard to
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such contracts. Any such insurance company may accept and rely upon any
communication from the Trustee which is signed by an officer of the Trustee. For
purposes of this Agreement, any such insurance company shall be considered to be
an investment manager with regard to the assets of the Plan subject to its
control. In no event shall the underlying assets of such insurance company in
which such contracts are invested be considered assets of the Plan or part of
the Trust Fund.
SIXTH: Fiduciary Standards. The Trustee (or any investment manager
appointed pursuant to Article SECOND hereof) shall (i) discharge its duties
hereunder 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 a like character and
with like alms; (ii) subject to the investment funds specified in the Plan, if
any, and to the extent required by ERISA, diversify the investments of the Trust
Fund so as to minimize the risk of large losses unless under the circumstances
it is clearly prudent not to do so; and (iii) discharge its duties in accordance
with the provisions of the Plan and this Agreement insofar as such provisions
are consistent with ERISA.
The Trustee (or any investment manager appointed pursuant to Article SECOND
hereof) shall not engage in any transaction which it knows or should know
violates Section 406 of ERISA. Notwithstanding the foregoing, the Trustee (or
any investment manager appointed pursuant to Article SECOND hereof) may, in
accordance with any appropriate exemption provided under ERISA or upon the
approval of the Secretary of the Department of Labor, enter into any transaction
otherwise prohibited under Section 406 of ERISA.
The Trustee shall not be responsible for the administration of the Plan,
for determining the funding policy of the Plan, or the adequacy of the Trust
Fund to meet and discharge liabilities under the Plan.
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The Trustee shall not be responsible for any failure of the Committee or
the Company to discharge any of their respective responsibilities with respect
to the Plan nor be required to enforce payment of any contributions to the Trust
Fund.
SEVENTH: Prohibition of Diversion.
(a) At no time prior to the satisfaction of all liabilities with
respect to Participants in the Plan and their beneficiaries shall any part
of the corpus or income of the Trust Fund be used for, or diverted to,
purposes other than for the exclusive benefit of such Participants and
their beneficiaries. Except as provided in paragraphs (b), (c) and (d)
below, and Article THIRTEENTH, the assets of the Trust Fund shall never
inure to the benefit of the Company and shall be held for the exclusive
purpose of providing benefits to Participants in the Plan and their
beneficiaries and defraying the reasonable expenses of administering the
Plan.
(b) In the case of a contribution that is made by the Company by a mistake of
fact, paragraph (a) above shall not prohibit the return to the Company of
such contribution at the direction of the Committee within one year after
the payment of the contribution.
(c) If a contribution by the Company is expressly conditioned on qualification
of the Plan under Section 401 of the Code, and if the Plan does not so
qualify, then paragraph (a) above shall not prohibit the return to the
Company of such contribution at the direction of the Committee within one
year after the date of denial of qualification of the Plan, to the extent
permitted by XXXXX and the Code.
(d) If a contribution by the Company is expressly conditioned upon the
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deductibility of the contribution under Section 404 of the Code, then to
the extent such deduction is disallowed, paragraph (a) above shall not
prohibit the return to the Company of such contribution at the direction
of the Committee, to the extent disallowed, within one year after the date
of such disallowance.
EIGHTH: Hold Harmless. To the maximum extent permitted by ERISA and other
applicable law, the Trustee shall not be liable for and the Company shall
indemnify the Trustee against, and agrees to hold the Trustee harmless from, all
liabilities and claims (including attorney's fees and expenses in defending
against such liabilities and claims) against the Trustee, arising from the
Trustee's performance of its cubes in conformance with the terms of the Plan and
this Agreement, including any liability and claim arising with regard to the
provisions of Article SECOND, unless such liability or claim results from
reckless or willful acts of commission or omission by the Trustee. To the
maximum extent permitted by XXXXX and other applicable law, the Trustee shall
not be liable for acting (or for taking no action) in accordance with any
written direction of the Committee or an investment manager designated under
Article SECOND, or, where an investment manager has been designated, failing to
act in the absence of any such direction, including, without limitation, any
claim or liability that may be asserted against the Trustee on account of
failure to receive securities purchased, or failure to deliver securities sold
pursuant to orders issued by an investment manager, and the Company shall
indemnify the Trustee against and agrees to hold the Trustee harmless from, all
such liabilities and claims (including attorney's fees and expenses in defending
against such liabilities and claims). The foregoing indemnification's shall also
apply to liabilities and claims against the Trustee arising from any breach of
fiduciary responsibility by a fiduciary other than the Trustee, unless the
Trustee (i) participates knowingly in or knowingly undertakes to conceal such
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breach, (ii) has enabled such fiduciary to commit such breach by its failure
to exercise its fiduciary cubes under ERISA or (iii) has actual knowledge of
such breach and fails to take reasonable remedial action to remedy such breach.
NINTH: Accounts. The Trustee or its agent shall keep records of all
transactions relating to the Trust Fund, which shall be made available at all
reasonable times to persons designated by the Board of Directors of the Company
or as may be required by law. The Trustee or its agent shall render an
accounting to the Company and the Committee at least annually. The Committee may
approve such accounting on behalf of itself and the Company by an instrument in
writing delivered to the Trustee. If the Committee does not file with the
Trustee objections to any such accounting within sixty (60) days after its
receipt, the Committee shall be deemed to have approved such accounting on
behalf of itself and the Company. In such case, or upon the written approval of
the Committee of any such accounting, the Trustee shall, to the extent permitted
by law, be discharged from all liability to the Committee and the Company for
its acts or failures to act described in such accounting. Except to the extent
otherwise provided in ERISA, no person, other than the Company or the Committee,
may require an accounting or bring any action against the Trustee with respect
to the Trust Fund. The Trustee shall render to the Committee, at least
quarterly, a statement of the Trust Fund assets and their values and, whenever a
contribution is made to the Trust Fund other than in cash, a statement of the
value of such property on the date it is received by the Trustee.
Nothing contained in this Agreement or in the Plan shall deprive the
Trustee of the right to have judicial settlement of its accounts. In any
proceeding for a judicial settlement of the Trustee's accounts, or for
instructions with regard to the Trust, the only necessary parties thereto in
addition to the Trustee shall be the Committee. If the Trustee so elects, it may
join as a party or parties defendant any other person or persons.
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TENTH: Committee. The Company shall certify to the Trustee the names of the
persons from time to time constituting the Committee. All directions to the
Trustee by the Committee shall be in writing, and the Trustee shall be entitled
to rely without further inquiry upon all such written directions received from
the Committee.
ELEVENTH: Compensation and Expenses. The Trustee shall be entitled to
receive such reasonable compensation for its services as may be agreed upon from
time to time by the Company and the Trustee. Unless paid by Company, such
compensation, attorneys' fees incurred in the administration of the Trust Fund,
all taxes levied or assessed against the Trust Fund, and such other expenses as
are incurred in the administration of the Trust Fund shall be paid from the
Trust Fund.
TWELFTH: Resignation of Trustee. The Trustee may resign at any time by
giving thirty (30) days written notice to the Company. The Board of Directors of
the Company may remove the Trustee at any time by giving thirty (30) days
written notice to the Trustee. In the case of the resignation or removal of the
Trustee, the Board of Directors of the Company shall appoint a successor trustee
who shall have the same powers and duties as those conferred upon the Trustee.
Upon the resignation nation or removal of the Trustee and the appointment of the
successor trustee, the trustee shall account for the administration of the Trust
Fund up to the date of its resignation or removal in the manner provided in
Article NINTH hereof and, upon the approval or deemed approval of such
accounting, the Trustee shall transfer to the successor trustee all of the
assets then constituting the Trust Fund and the Trustee shall to the maximum
extent permitted by ERISA be forever released and discharged from all liability
and accountability with respect to the propriety of its acts and transactions;
provided, however, that the Trustee may, in its sole discretion, transfer such
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assets prior to the completion of such accounting if the Company agrees
thereto in writing, such writing to include such limitations on the Trustee's
liability therefor as the Trustee may deem appropriate. The term "Trustee" as
used in this Agreement shall be deemed to apply to any successor trustee acting
hereunder.
THIRTEENTH: Amendment. The Board of Directors of the Company may amend all
or any part of this Agreement at any time provided, however, that any amendment
shall not be effective until the instrument of amendment has been agreed to and
executed by the Trustee. Any such amendment or modification of this Agreement
may be retroactive if necessary or appropriate to qualify or maintain the Trust
Fund as a part of a plan and trust exempt from federal income taxation under
Sections 401(a) and 501(a) of the Code, the provisions of ERISA, or any other
applicable provisions of federal or state law, as now in effect or hereafter
amended or adopted, and any regulations issued thereunder, including, without
limitation, any regulations issued by the United States Treasury Department, or
the United States Department of Labor.
Notwithstanding anything contained in this Article THIRTEENTH to the
contrary, no amendment shall divert any part of the Trust Fund to, and no part
of the Trust Fund shall be used for, any purpose other than for the exclusive
purpose of providing benefits to Participants and their beneficiaries; provided,
however, that nothing in this Article THIRTEENTH shall be deemed to limit or
otherwise prevent the payment from the Trust Fund of expenses and other charges
as provided in Article ELEVENTH.
FOURTEENTH: Termination. This Agreement and the Trust Fund hereby created
may be terminated at any time by the Board of Directors of the Company by
written notice, executed and acknowledged so as to authorize it to be recorded
in the State of Missouri delivered to the Trustee. Upon receipt of such notice
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of termination, the Trustee shall, after Agreement, and to be bound by all the
terms and conditions of the Plan and this Agreement. The Company shall have the
sole authority to enforce this Agreement on behalf of any such affiliated
corporation and the Trustee shall in no event be required to deal with any such
affiliated corporation except by dealing with the Company as its agent.
Irrespective of the number of affiliated corporations which may become parties
to this Agreement, the Trustee shall in all respects invest and administer the
Trust Fund as a single fund for investment and accounting purposes without
allocation of any part of the Trust Fund as between the Company and any such
affiliated corporation.
An affiliated corporation which has adopted the Plan shall cease to be a
party to this Agreement upon the Company delivering to the Trustee a certified
copy of a resolution of such affiliated corporation's board of directors
terminating its participation in the Plan. In such event, or in the event of the
merger, consolidation, sale of property or stock, separation, reorganization or
liquidation of the Company or of any such affiliated corporation, or in the
event of the establishment, modification or continuance of any other retirement
plan which separately or in conjunction with this Plan qualifies under Section
401(a) of the Code, the Trustee shall continue to hold the portion of the Trust
Fund which is attributable to the participation in the Plan of the employees and
their beneficiaries affected by such termination or by such transaction, and
this Agreement shall continue in force with respect to such portion, until
otherwise directed by the Committee, in accordance with the provisions of the
Plan and ERISA.
FIFTEENTH: Plan-to-Plan Transfers; Rollovers. The Trustee or its agent may
transfer all of the property representing a participant's vested interest in the
Plan to the trustees of any trust qualified under Section 401(a) of the Code.
The Trustee or its agent may make such a transfer only at the direction of the
Committee.
The Trustee may accept as part of the Trust Fund such property as is
acceptable to the Trustee which represents a Participant's retirement benefits
transferred from a trust qualified under Section 401(a) of the Code or
transferred from the Participant or an individual retirement account as
permissible rollover under Section 402(c) or 408(d)(3) of the Code. The Trustee
may accept as such a transfer only at the direction of the Committee. A
Participant shall at all times be fully vested in any property so transferred as
a rollover to the Trust Fund. Such Property shall be distributed to the
Participant or his beneficiary at the direction of the Committee within the time
required for distribution of his retirement benefits under the applicable
provisions of the Plan.
SIXTEENTH: Adopting Employers. An affiliated corporation of the Company
which has adopted the Plan in accordance with its terms shall become a party to
this Agreement by delivering to the Company and the Trustee a certified copy of
a resolution of its board of directors to the effect that it agrees to adopt the
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Plan, to become a party to this Agreement, and to be bound by all the terms and
conditions of the Plan and this Agreement. The Company shall have the sole
authority to enforce this Agreement on behalf of any such affiliated corporation
and the Trustee shall in no event be required to deal with any such affiliated
corporation except by dealing with the Company as its agent. Irrespective of the
number of affiliated corporations which may become parties to this Agreement,
the Trustee shall in all respects invest and administer the Trust Fund as a
single fund for investment and accounting purposes without allocation of any
part of the Trust Fund as between the Company and any such affiliated
corporation.
An affiliated corporation which has adopted the Plan shall cease to be a
party to this Agreement upon the Company delivering to the Trustee a certified
copy of a resolution of such affiliated corporation's board of directors
terminating its participation in the Plan. In such event, or in the event of the
merger, consolidation, sale of property or stock, separation, reorganization or
liquidation of the Company or of any such affiliated corporation, or in the
event of the establishment, modification or continuance of any other retirement
plan which separately or in conjunction with this Plan qualifies under Section
401(a) of the Code, the Trustee shall continue to hold the portion of the Trust
Fund which is attributable to the participation in the Plan of the employees and
their beneficiaries affected by such termination or by such transaction, and
this Agreement shall continue in force with respect to such portion, until
otherwise directed by the Committee, in accordance with the provisions of the
Plan and ERISA.
SEVENTEENTH: Alienation. No interest in the Trust Fund shall be assignable
or subject to anticipation, sale, transfer, mortgage, pledge, charge,
garnish, attachment, bankruptcy or encumbrance or levy of any kind, and the
Trustee shall not recognize any attempt to assign, sell, transfer, mortgage,
pledge, charge, garnish, attach or otherwise encumber the same except to the
extent that such attempt is made pursuant to a court order determined by the
plan administrator to be a qualified domestic relations order, as defined in
Section 414 of the Code and Section 206 of ERISA or as otherwise required by
law.
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EIGHTEENTH: Bond. The Trustee shall not be required to give any bond or any
other security for the faithful performance of its duties under this Agreement
except as required by law.
NINETEENTH: Successors. This Agreement shall be binding upon the respective
successors and assigns of the Company and the Trustee. Any corporation which
shall, by merger, consolidator, purchase or otherwise, succeed to substantially
all the trust business of the Trustee shall, upon such succession, and without
any appointment or other action by any person, be and become successor Trustee
hereunder.
TWENTIETH: Communications. Communications to the Company or the Committee
shall be addressed to the Company, or to the Committee in care of the Company,
as the case may be, at 0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx; provided,
however, that upon the Company's written request such communications shall be
sent to such other address as the Company may specify.
Communications to the Trustee shall be addressed to:
UMB Bank, N A.
Employee Benefit Division
0000 Xxxxx Xxxxxx
P.O. Box 419692
Kansas City, MO 64141-6692
provided, however, that upon the Trustee's written request, such
communications shall be sent to such other address as the Trustee may
specify. No communication shall be binding on the Trustee until it is
received by the Trustee.
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TWENTY-FIRST: Governing Law. This Agreement shall be construed in
accordance with ERISA and, to the extent not preempted by XXXXX, the laws of the
State of Missouri.
IN WITNESS WHEREOF the Company and the Trustee have executed this
instrument this 3rd day of December, 1996
ATTEST:
/S/X. X. XXXXXXXX By:/s/Xxxxxxx Xxxxxx
(Corporate Seal)
UMB Bank, N.A.
ATTEST:
/S/XXXXXX X. XXXXXX By:/s/Xxxx Xxxxx
Title: Assistant Secretary Title: Senior Vice-President
(Corporate Seal)
