XXXX FOOD COMPANY, INC.
MASTER RETIREMENT SAVINGS TRUST
(DAILY VALUATION)
THIS AGREEMENT is made effective as of the 1st day of February, 1999
between XXXX FOOD COMPANY, INC., a Hawaiian corporation of Westlake Village,
California, herein referred to as the "Company", and THE NORTHERN TRUST
COMPANY an Illinois corporation, of Chicago, Illinois, as Trustee and
constitutes an amendment and restatement of the trust agreement serving as
the funding medium for the 401(k) Plan for Salaried Employees of Xxxx Food
Company, Inc. and Participating Subsidiaries and Divisions and the 401(k)
Plan for Hourly Employees of Xxxx Food Company, Inc. and Participating
Subsidiaries and Divisions to be known as the XXXX FOOD COMPANY, INC. MASTER
RETIREMENT SAVINGS TRUST (DAILY VALUATION) and under which the Trustee is
accepting appointment as successor trustee.
With respect to each Plan for which this agreement is adopted by the
Committee as the funding medium, the Committee shall appoint the Trustee as
successor under the trust agreement which is the predecessor funding medium
for the Plan, shall direct the Trustee as successor under that trust
agreement to add the assets held thereunder to the assets of the Trust Fund
and shall appoint the Committee as the fiduciary which has the responsibility
for administering the Plan and as the fiduciary which has the responsibility
for Plan investments.
The Trust Fund shall consist of all assets held by the Trustee as of the
date of this agreement or hereafter acquired by the Trustee as trustee or
successor trustee under any other trust agreement made by the Company or by a
Subsidiary in connection with a Plan for which this agreement is adopted as
the funding medium, all investments and reinvestments thereof and all
additions thereto by way of contributions, earnings and increments, and shall
be held upon the following terms:
ARTICLE ONE: DEFINITIONS
For the purposes of this agreement:
1.1 "Beneficiary" means a person designated to receive a benefit under
the Plan after the death of a Participant;
1.2 "Code" means the Internal Revenue Code of 1986, as amended;
1.3 "Committee" means the Corporate Compensation and Benefits Committee
of the Board of Directors of Xxxx Food Company, Inc. as constituted from time to
time which has the responsibility for administering the Plan and the
responsibility for allocating the assets of the Trust Fund among the Separate
Accounts and any Trustee Investment Accounts, for monitoring the diversification
of the investments of the Trust Fund, for determining the propriety of
investment of the Trust Fund in foreign securities and of maintaining the
custody
of foreign investments abroad, for assuring that the Plan does not violate
any provisions of ERISA limiting the acquisition or holding of "employer
securities" or "employer real property" and for the appointment and removal
of Investment Advisers and shall be deemed for purposes of ERISA to be named
fiduciary for Plan investments and the Plan administrator and the named
fiduciary for Plan administration;
1.4 "Company" means Xxxx Food Company, Inc. and any corporation which
is the successor thereto;
1.5 "Company Stock" means common stock of the Company;
1.6 "Company Stock Investment Fund" means any Investment Fund composed
of investments in Company Stock as provided in ARTICLE FIVE;
1.7 "Custodial Agent" means one or more persons or entities designated
by the Committee to maintain custody of assets of a Separate Investment
Account pursuant to 4.1(c);
1.8 "ERISA" means the Employee Retirement Income Security Act of 1974
as in effect from time to time and the regulations issued thereunder;
1.9 "Investment Adviser" means an Investment Manager or an Investment
Trustee to whom the Committee has delegated investment responsibility for a
Separate Account or the Committee with respect to any assets for which the
Committee has investment responsibility;
1.10 "Investment Fund" means each of the investment funds established
pursuant to ARTICLE FIVE; any of such Investment Funds may be composed of one
or more Separate Accounts and Trustee Investment Accounts designated by the
Committee;
1.11 "Investment Manager" means an investment manager registered as an
investment advisor under the Investment Advisers Act of 1940, a bank as
defined in that Act or an insurance company qualified to manage, acquire or
dispose of any asset of the Trust Fund, which is appointed by the Committee
to manage a Separate Investment Account; but the Trustee shall have no
responsibility to determine whether a person or entity acting as an
Investment Adviser meets or continues to meet this definition;
1.12 "Investment Trustee" means the trustee appointed by the Committee
to manage a Separate Investment Trust Account;
1.13 "Participant" means a person who is an employee or former employee
of the Company or of a Subsidiary and who is or was actually participating in
the Plan;
1.14 "Plan" means the 401(k) Plan for Salaried Employees of Xxxx Food
Company, Inc. and Participating Subsidiaries and Divisions and the 401(k)
Plan for Hourly Employees of Xxxx Food Company, Inc. and Participating
Subsidiaries and Divisions and any separate savings plan for employees of the
Company or of a Subsidiary for which this agreement has been adopted as the
funding medium;
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1.15 "Plan Account" means the interest of each Plan in the Trust Fund;
1.16 "Separate Account" means a Separate Investment Account, a Separate
Investment Trust Account or a Separate Insurance Contract Account;
1.17 "Separate Insurance Contract Account" means assets of the Trust
Fund allocated by the Committee to a Separate Account for investment in
insurance contracts directed by the Committee;
1.18 "Separate Investment Account" means assets of the Trust Fund
allocated by the Committee to a Separate Account to be managed by an
Investment Manager or the Committee;
1.19 "Separate Investment Trust Account" means assets of the Trust Fund
allocated by the Committee to a Separate Account to be managed by an
Investment Trustee;
1.20 "Subsidiary" means a subsidiary or affiliate of the Company;
1.21 "Subtrust" means assets of a Separate Investment Account which are
held by a Subtrustee pursuant to an agreement which the Committee has
approved and directed the Trustee to enter into;
1.22 "Subtrustee" means the trustee appointed by the Committee to act
as trustee of a Subtrust;
1.23 "Trust Fund" means all assets subject to this agreement;
1.24 "Trustee" means THE NORTHERN TRUST COMPANY and any successor to it
as trustee or trustees of the Trust Fund under this agreement; and
1.25 "Trustee Investment Account" means assets of the Trust Fund for
which investment responsibility has been allocated by the Committee to the
Trustee with the written consent of the Trustee.
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ARTICLE TWO: VALUATION AND ALLOCATION
The Trustee shall hold the Trust Fund as a commingled fund or commingled
funds in which each separate Plan shall be deemed to have a proportionate
undivided interest in the fund or funds in which it participates, except that
each fund or asset identified by the Committee as allocable to a particular
Plan Account, herein referred to as an "identified fund" or "identified
asset", and income, appreciation or depreciation and expenses attributable to
a particular Plan Account or to an identified asset thereof, shall be
allocated or charged to that Plan Account. Contributions shall be designated
by the Committee as allocable, and distributions shall be designated by the
Committee as chargeable, to a particular Plan Account and shall be so
allocated or charged. Upon the direction of the Committee or its designee,
the Trustee shall periodically determine the value of each Plan Account on
such basis as the Trustee and the Committee or its designee shall from time
to time agree (considering the fair market value of the assets initially
received from the predecessor trustee or the Company with respect to the Plan
and subsequent contributions and distributions, net income, net appreciation
or depreciation and expenses attributable to the Plan) and shall render a
statement thereof to the Committee within 60 days after each valuation date.
ARTICLE THREE: DISTRIBUTIONS
The Trustee shall make distributions from the Trust Fund to such
persons, in such amounts (but not exceeding the then value of the Plan
Account to which the distribution is chargeable), at such times and in such
manner as the Committee or its designee shall from time to time direct
pursuant to the service description attached as Exhibit A as may be amended
by the Trustee from time to time. The Trustee shall have no responsibility
to ascertain whether any direction received by the Trustee from the Committee
or its designee in accordance with the preceding sentence is proper and in
compliance with the terms of the Plan or to see to the application of any
distribution. The Trustee shall not be liable for any distribution made in
good faith without actual notice or knowledge of the changed condition or
status of any recipient. If any distribution made by the Trustee is returned
unclaimed, the Trustee shall notify the Committee or its designee and shall
dispose of the distribution as the Committee or its designee shall direct.
The Trustee shall have no obligation to search for or ascertain the
whereabouts of any payee of benefits of the Trust Fund.
Notwithstanding the foregoing, the Committee or its designee may make
distributions from the Trust Fund through a commercial banking account in a
federally insured banking institution (including the Trustee) established by the
Committee or its designee for such purpose after written notice to the Trustee
that the commercial banking account has been so established. Upon such written
notice, the Committee shall have the responsibility to assure that any such
commercial banking account is established and maintained in accordance with
ERISA and is properly insured. The Trustee shall make such deposits from the
Trust Fund to the commercial banking account as the Committee or its designee
may from time to time direct. The Trustee shall have no responsibility to
account for funds held in or disbursed from
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any such commercial banking account, or to prepare any information returns
for tax purposes as to distributions made therefrom.
ARTICLE FOUR: SEPARATE ACCOUNTS AND INVESTMENT ADVISERS
The Trust Fund shall consist of one or more Separate Accounts and, with
the Trustee's written consent, one or more Trustee Investment Accounts. All
Separate Accounts and any Trustee Investment Accounts shall be established by
the Trustee at the direction of the Committee or its designee. The Committee
or its designee shall designate assets of the Trust Fund to be allocated to
each Separate Account and each Trustee Investment Account and shall direct
the Trustee with respect to any transfer of assets between Separate Accounts
or between a Separate Account and a Trustee Investment Account; provided that
no asset shall be allocated or transferred to a Trustee Investment Account
without the Trustee's written consent. The Committee shall have investment
responsibility for any assets of the Trust Fund not otherwise allocated to a
Separate Account or Trustee Investment Account, and such assets shall
comprise a Separate Investment Account for which the Committee serves as
Investment Adviser. The following provisions shall apply to the Separate
Accounts:
4.1 With respect to each Separate Investment Account, the Committee or
its designee shall appoint an Investment Adviser, who shall acknowledge by a
writing delivered to the Committee and to the Trustee that the Investment
Adviser is a fiduciary with respect to the assets allocated thereto. The
Trustee shall act with respect to assets allocated to a Separate Investment
Account only as directed by the Investment Adviser. The Committee may direct
that any or all of the assets of a Separate Investment Account be held by a
Subtrustee. The Trustee shall have custody of and custodial responsibility
for all assets of the Trust Fund held in a Separate Investment Account except
as otherwise provided in this agreement or as follows:
(a) The Subtrustee of a Subtrust shall have custody of and
custodial responsibility for any assets of a Separate Investment Account
allocated to it by the Committee;
(b) The trustee of a collective or group trust fund (including
without limitation an Investment Manager or its bank affiliate) shall have
custody of and custodial responsibility for any assets of a Separate
Investment Account invested in such collective or group trust fund; and
(c) The Committee may direct in writing that the custody of
additional assets of a Separate Investment Account (other than those
referred to in paragraphs (a) and (b) of this Section 4.1) be maintained
with a Custodial Agent. In such event, the Committee shall approve, and
direct the Trustee to enter into, a custody agreement with the Custodial
Agent (which custody agreement may authorize the Custodial Agent to
maintain custody of such assets with one or more subagents, including a
broker or dealer registered under the Securities Exchange Act of 1934 or a
nominee of such broker or dealer). The Custodial Agent shall have
custodial responsibility for any
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assets maintained with the Custodial Agent or its subagents pursuant to
the custody agreement. Notwithstanding any other provision of this
agreement, the Company (which has the authority to do so under the laws
of its state of incorporation) agrees to indemnify THE NORTHERN TRUST
COMPANY from any liability, loss and expense, including reasonable legal
fees and expenses, which THE NORTHERN TRUST COMPANY may sustain by
reason of acting in accordance with any directions of the Committee
pursuant to this paragraph (c). This paragraph shall survive the
termination of this agreement.
4.2 With respect to each Separate Investment Trust Account, the
Trustee and the Investment Trustee thereof shall upon the direction of the
Committee execute an investment trust agreement with respect thereto. The
Investment Trustee shall have custody of all of the assets of the Separate
Investment Trust Account except such assets as the Committee may from time to
time determine shall be held in the custody of the Trustee with the Trustee's
written consent; the Trustee shall act with respect to any such assets in its
custody only as directed by the Investment Trustee.
4.3 With respect to each Separate Insurance Contract Account, from
assets allocated thereto the Trustee shall purchase or continue in effect
such insurance contracts as the Committee shall direct, the issuing insurance
company may credit those assets to its general account or to one or more of
its separate accounts, and the Trustee shall act with respect to those
contracts only as directed by the Committee.
4.4 The Committee shall have investment responsibility for assets held
in any Separate Account for which an Investment Manager or Investment Trustee
has not been retained, has been removed, or is for any reason unwilling or
unable to act. With respect to assets or Separate Accounts for which the
Committee has investment responsibility, the Trustee, acting only as directed
by the Committee, shall enter into such agreements as are necessary to
facilitate any investment, including agreements entering into a limited
partnership, Subtrust or the participation in real estate funds. The Trustee
shall not make any investment review of, or consider the propriety of holding
or selling, or vote any assets for which the Committee has investment
responsibility.
4.5 With respect to each Separate Account, the Investment Adviser
thereof shall have the investment powers granted to the Trustee by ARTICLE
SIX, as limited by 7.1 through 7.3 of ARTICLE SEVEN, as if all references
therein to the Trustee referred to the Investment Adviser.
4.6 The Committee may direct the Trustee to (i) enter into such
agreements as are necessary to implement investment in futures contracts and
options on futures contracts; (ii) transfer initial margin to a futures
commission merchant or third party safekeeping bank pursuant to directions
from an Investment Adviser and (iii) pay or demand variation margin in
accordance with industry practice to or from such futures commission merchant
based on daily marking to market calculations. The Trustee shall have no
investment or custodial responsibility with respect to assets transferred to
a futures commission merchant or third party safekeeping bank.
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ARTICLE FIVE: INVESTMENT FUNDS
The Trust Fund shall be composed of assets of the Company Stock
Investment Fund and any other Investment Funds designated in writing by the
Committee. The Committee is authorized to terminate the existing Investment
Funds and establish new Investment Funds by giving advance written notice to
the Trustee describing the fund to be terminated or established and the
effective date thereof; provided that in no event shall the Trustee's duties
be modified without its consent. The Committee or its representative shall
direct the Trustee with respect to the allocation of assets to Investment
Funds and with respect to transfers among such Investment Funds. The Trustee
shall use its best efforts to move funds as soon as practicable when
transfers are delayed for any reason, but shall in no event be required to
advance its own funds for such purpose. Pending directions from the Committee
to allocate contributions among the Investment Funds, the Trustee shall hold
the contributions in a separate account invested in short term investments,
including common or collective short term investment funds of the Trustee.
Any cash held from time to time in any Investment Fund may be invested in
common or collective funds of the Trustee or its affiliate, or participations
in regulated investment companies (including those for which the Trustee or
its affiliate is adviser).
To the extent that any Investment Fund is invested in mutual fund shares
or bank commingled funds, the Committee shall initially select funds to be
invested in and shall be responsible for retaining the availability of or
terminating the availability of such funds. To the extent the Trustee is
required to enter into a custody agreement with the sponsor of a bank
commingled fund or such other type of fund, the Committee shall direct the
Trustee to enter into such agreement.
The Company Stock Investment Fund shall be composed of investments in
Company Stock. The Committee shall notify the Trustee in writing from time
to time of the amount of the fund to be maintained in the collective short
term investment fund and the Trustee shall not be required to advance funds
to make any transfers or distributions. Any cash held by the Trustee from
time to time in the Company Stock Investment Fund may be invested in common
or collective short term investment funds of the Trustee.
The Company has determined that daily movement of Participant balances
among the Investment Funds is an important design feature and objective of
the Plan and that timely transfers and distributions from the Company Stock
Investment Fund need to be facilitated in order to achieve such objective.
The Committee may authorize and direct the Trustee in writing to seek to
obtain settlement for sales of Company Stock on an expedited basis under
certain circumstances in which case the Trustee shall carry out its
responsibilities for execution of Company Stock sale transactions in
accordance with such direction and subject to any limitations expressed
therein.
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ARTICLE SIX: POWERS OF TRUSTEE
Except as otherwise provided in this agreement and subject to the
limitations on powers set forth in Article Seven and elsewhere hereof, the
Trustee shall hold, manage, care for and protect the assets of the Trust fund
and shall have until actual distribution thereof the following powers and,
except to the extent inconsistent herewith, those now or hereafter conferred
by law:
6.1 To retain any asset originally included in the Trust Fund or
subsequently added thereto;
6.2 To invest and reinvest the assets without distinction between
income and principal in bonds, stocks, mortgages, notes, options, futures
contracts, options on futures contracts, limited partnership interests,
participations in regulated investment companies (including those for which
the Trustee or its affiliate is adviser), or other property of any kind, real
or personal, foreign or domestic, and to enter into insurance contracts;
6.3 To deposit any part or all of the assets with the Trustee or its
affiliate as trustee, or another person or entity acting as trustee of any
collective or group trust fund which is now or hereafter maintained as a
medium for the collective investment of funds of pension, profit sharing or
other employee benefit plans, and which is qualified under Section 401(a) and
exempt from taxation under Section 501(a) of the Code, and to withdraw any
part or all of the assets so deposited; any assets deposited with the trustee
of a collective or group trust fund shall be held and invested by the trustee
thereunder pursuant to all the terms and conditions of the trust agreement or
declaration of trust establishing the fund, which are hereby incorporated
herein by reference and shall prevail over any contrary provision of this
agreement;
6.4 To deposit cash in any depository, including the banking
department of the Trustee or its affiliate and any organization acting as a
fiduciary with respect to the Trust Fund;
6.5 To hold any part of the assets in cash without liability for
interest, pending investment thereof or the payment of expenses or making of
distributions therewith, notwithstanding the Trustee's receipt of "float"
from such uninvested cash;
6.6 To cause any asset, real or personal, to be held in a corporate
depository or federal book entry account system or registered in the
Trustee's name or in the name of a nominee or in such other form as the
Trustee deems best without disclosing the trust relationship;
6.7 To vote, either in person or by general or limited proxy, or
refrain from voting, any corporate securities for any purpose, except that
any security as to which the Trustee's possession of voting discretion would
subject the issuing company or the Trustee to any law, rule or regulation
adversely affecting either the company or the Trustee's ability to retain or
vote company securities, shall be voted as directed by the Committee; to
exercise or sell any
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subscription or conversion rights; to consent to and join in or oppose any
voting trusts, reorganizations, consolidations, mergers, foreclosures and
liquidations and in connection therewith to deposit securities and accept and
hold other property received therefor;
6.8 To lease any assets for any period of time though commencing in
the future or extending beyond the term of the trust;
6.9 To borrow money from any lender, to extend or renew any existing
indebtedness and to mortgage or pledge any assets;
6.10 To sell at public or private sale, contract to sell, convey,
exchange, transfer and otherwise deal with the assets in accordance with
industry practice, and to sell put and covered call options from time to time
for such price and upon such terms as the Trustee sees fit; the Company
acknowledges that the Trustee may reverse any credits made to the Trust Fund
by the Trustee prior to receipt of payment in the event that payment is not
received;
6.11 To employ agents, attorneys and proxies and to delegate to any one
or more of them any power, discretionary or otherwise, granted to the Trustee;
6.12 To compromise, contest, prosecute or abandon claims in favor of or
against the Trust Fund;
6.13 To appoint foreign custodians as agent of the Trustee to custody
foreign securities holdings of any Separate Account established by the
Committee or of any Trustee Investment Account;
6.14 To utilize any tax refund claim procedures with respect to taxes
withheld to which the Trust Fund may be entitled under applicable tax laws,
treaties and regulations; any exercise of such power by the Trustee shall be
on a best efforts basis; and
6.15 To perform other acts necessary or appropriate for the proper
administration of the Trust Fund, execute and deliver necessary instruments
and give full receipts and discharges.
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ARTICLE SEVEN: LIMITATIONS ON POWERS
For purposes of this agreement, the powers and responsibilities
allocated to the Trustee shall be limited as follows:
7.1 The powers of the Trustee shall be exercisable for the exclusive
purpose of providing benefits to the Participants and Beneficiaries under the
Plans and in accordance with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in like capacity
and familiar with such matters and consistent with the standards of a prudent
man under ERISA;
7.2 Subject to 7.1 and 7.3, the Trustee shall diversify the
investments of that portion of the Trust Fund for which it has investment
responsibility so as to minimize the risk of large losses;
7.3 Subject to 7.1, the Trustee shall, with respect to that portion of
the Trust Fund for which it has investment responsibility, follow the
investment guidelines established by the Committee given in exercise of that
Committee's responsibility;
7.4 The Trustee shall not make any investment review of, consider the
propriety of holding or selling, or vote other than as directed by the
Investment Adviser, any assets of the Trust Fund allocated to a Separate
Account in accordance with ARTICLE FOUR, except that if the Trustee shall
not have received contrary instructions from the Investment Adviser thereof,
the Trustee shall invest for short term purposes any cash consisting of U.S.
dollars of a Separate Account in its custody in bonds, notes and other
evidences of indebtedness having a maturity date not beyond five years from
the date of purchase, United States Treasury bills, commercial paper,
bankers' acceptances and certificates of deposit, and undivided interests or
participations therein and (if subject to withdrawal on a daily or weekly
basis) participations in common or collective funds composed thereof. For
currencies other than U.S. dollars, the Trustee shall invest cash of a
Separate Account as directed by the Investment Adviser with respect to that
Separate Account and such investments may include an interest bearing account
of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company
Stock Investment Fund and respond to a tender or exchange offer in accordance
with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee,
shall furnish to each Participant who has Company Stock credited to his or
her individual account under the Company Stock Investment Fund the date and
purpose of each meeting of the stockholders of the Company at which Company
Stock is entitled to be voted. The Trustee, or the Company if it has
furnished the above information, shall request from each Participant
instructions to be furnished to the Trustee (or to a tabulating agent
appointed by the Trustee) as to the voting at that meeting of Company Stock
credited to the Participant's account. If the Participant furnishes such
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instructions to the Trustee or its agent within the time specified in the
notification, the Trustee shall vote such Company Stock in accordance with
the Participant's instructions. All Company Stock credited to Participant
accounts as to which the Trustee or its agent do not receive instructions
as specified above, and all unallocated Company Stock held in the Company
Stock Investment Fund shall be voted by the Trustee proportionately in the
same manner as it votes Company Stock as to which the Trustee or its agent
have received voting instructions as specified above. Similarly, the
Trustee, or the Company upon written notice to the Trustee, shall furnish
to each Participant who has Company Stock credited to his or her individual
account under the Company Stock Investment Fund notice of any tender offer
for, or a request or invitation for tenders of, Company Stock received by
the Trustee. The Trustee, or the Company if it has furnished such notice,
shall request from each such Participant instructions to be furnished to
the Trustee (or to a tabulating agent appointed by the Trustee) as to the
tendering of Company Stock credited to the Participant's account and for
this purpose the Trustee or the Company, as the case may be, shall provide
Participants with a reasonable period of time in which they may consider
any such tender offer for, or request or invitation for tender of, Company
Stock of which the Trustee has been advised by the Committee. The Trustee
shall tender such Company Stock as to which the Trustee or its agent have
received instructions to tender from Participants within the time specified
by the Trustee or the Company, as the case may be. Company Stock credited
to Participant accounts as to which the Trustee or its agent have not
received instructions from Participants shall not be tendered. As to all
unallocated Company Stock held by the Trustee, the Trustee shall tender the
shares pursuant to the Direction of the Committee. The Committee shall
provide the Trustee with timely information regarding proxy voting and
tender offers and in carrying out its responsibilities under this provision
the Trustee may conclusively rely on information furnished to it by the
Committee, including the names and current addresses of Participants, the
number of shares of Company Stock credited to Participant accounts under
the Company Stock Investment Fund, and the number of shares of Company
Stock held by the Trustee in the Company Stock Investment Fund that have
not yet been allocated.
A Participant shall be a "named fiduciary" under ERISA to the extent
of the Participant's authority to direct the investment in, voting, tender,
exchange or sale of Company Stock allocated to the Participant's account
and their proportionate share of unallocated Company Stock held by the
Trustee.
(b) No provision of this Section 7.5 shall prevent the Trustee from
taking any action relating to its duties under this Section 7.5 if the
Trustee determines in its sole discretion that such action is necessary in
order for the Trustee to fulfill its fiduciary responsibilities under
ERISA.
(c) Purchases and sales of Company Stock may be made to, from or
through any source, provided that such purchases from or sales to a party
in interest (as defined in Section 3(14) of ERISA) shall comply with the
requirements of Section 408(e) of ERISA. Rights, options or warrants
offered to purchase Company Stock
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shall be exercised by the Trustee to the extent that there is cash
available for the investment; to the extent cash is not available, the
same shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has
limited the investment power of the Trustee in the Company Stock Investment
Fund to the purchase of Company Stock. The Trustee shall not be liable for
the purchase, retention, voting, tender, exchange or sale of Company Stock
and the Company (which has the authority to do so under the laws of the
state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY
from any liability, loss and expense, including reasonable legal fees and
expenses which THE NORTHERN TRUST COMPANY may sustain by reason of
purchase, retention, voting, tender, exchange or sale of Company Stock.
This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to
maintain the custody of foreign investments abroad. Except as otherwise
directed by the Committee, custody of foreign investments shall be maintained
with foreign custodians selected by the Trustee. The Trustee shall have no
responsibility for losses to the Trust Fund resulting from the acts or
omissions of any foreign custodian appointed by the Trustee unless due to the
foreign custodian's fraud, negligence or willful misconduct. The Trustee
shall maintain custody of foreign investments in any jurisdiction where the
Trustee has not selected a custodian solely as directed by the Committee.
The Trustee shall have no responsibility for the financial condition, acts or
omissions of any foreign custodian holding assets of the Trust fund at the
direction of the Committee.
ARTICLE EIGHT: ACCOUNTS
The Trustee shall keep accurate and detailed accounts of all
investments, receipts and 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 any person designated by the
Company or entitled thereto, under ERISA. Such accounts of all receipts and
disbursements shall include accounts of all contributions, distributions,
purchases, sales and other transactions of the Trust Fund. Within 60 days
after the close of each fiscal year of the Trust Fund and of any other period
agreed upon by the Trustee and the Committee the Trustee shall render to the
Committee a statement of account for the Trust Fund for the period commencing
with the close of the last preceding period and a list showing each asset
thereof as of the close of the current period and its cost and fair market
value. The Trustee shall rely conclusively upon the determination of the
issuing insurance company with respect to the fair market value of each
insurance contract and upon the determination of the Investment Adviser of
each Separate Account with respect to the fair market value of those assets
allocated thereto for which the Trustee deems not to have a readily
ascertainable value, and the Trustee shall have no responsibility with
respect thereto.
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An account of the Trustee may be approved by the Committee by written
notice delivered to the Trustee or by failure to object to the account by
written notice delivered to the Trustee within eighteen (18) months of the
date upon which the account was delivered to the Committee. The approval of
an account shall constitute a full and complete discharge to the Trustee as
to all matters set forth in that account as if the account had been settled
by a court of competent jurisdiction in an action or proceeding to which the
Trustee, the Company and the Committee were parties. In no event shall the
Trustee be precluded from having its accounts settled by a judicial
proceeding. Nothing in this article shall relieve the Trustee of any
responsibility, or liability for any responsibility, under ERISA.
ARTICLE NINE: TRUSTEE SUCCESSION
The Trustee may resign at any time by written notice to the Committee,
or the Committee may remove the Trustee by written notice to the Trustee.
The resignation or removal shall be effective 60 days after the date of the
Trustee's resignation or receipt of the notice of removal or at such earlier
date as the Trustee and the Committee may agree.
In case of the resignation or removal of the Trustee, the Committee
shall appoint a successor trustee by delivery to the Trustee of a written
instrument executed by the Committee appointing the successor trustee and a
written instrument executed by the successor trustee accepting the
appointment, whereupon the Trustee shall deliver the assets of the Trust Fund
to the successor trustee but may reserve such reasonable amount as the
Trustee may deem necessary for outstanding and accrued charges against the
Trust Fund.
The successor trustee, and any successor to the trust business of the
Trustee by merger, consolidation or otherwise, shall have all the powers
given the originally named Trustee. No successor trustee shall be personally
liable for any act or omission of any predecessor. Except as otherwise
provided in ERISA, the receipt of the successor trustee and the approval of
the Trustee's final account by the Committee in the manner provided in
ARTICLE EIGHT shall constitute a full and complete discharge to the Trustee.
ARTICLE TEN: MISCELLANEOUS
10.1 Any action required to be taken by the Company or by a Subsidiary
shall be by resolution of its board of directors or by written direction of
one or more of its president, any vice president or treasurer. The Trustee
may rely upon a resolution or direction filed with the Trustee and shall have
no responsibility for any action taken by the Trustee in accordance with any
such resolution or direction.
10.2 The Company shall certify to the Trustee the names of the members of
the Committee acting from time to time, and the Trustee shall not be charged
with knowledge of a change in the membership of the Committee until so notified
by the Company. Any action required to be taken by the Committee shall be by
direction of such person or persons as shall be designated by the Committee to
act for the Committee. The Trustee may rely upon an
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instrument of designation signed by the secretary or chairman of the
Committee and filed with the Trustee and shall have no responsibility for any
action taken by the Trustee in accordance with any such direction.
Notwithstanding anything herein to the contrary, the Committee may delegate
any of its responsibilities hereunder to a representative by giving to the
Trustee in writing a letter which identifies the representative and sets
forth the list of its responsibilities under this agreement that it has
authorized the representative to carry out.
10.3 The Trustee may consult with legal counsel, who may also be
counsel for the Company, with respect to its responsibilities under this
Agreement and shall be fully protected in acting or refraining from acting in
reliance upon the written advice of legal counsel for the Company. The
Company shall have no obligation to cause its legal counsel to provide any
advice to the Trustee.
10.4 In no event shall the terms of any Plan, either expressly or by
implication, be deemed to impose upon the Trustee any power or responsibility
other than those set forth in this agreement. The Trustee may assume until
advised to the contrary that each Plan and the Trust Fund is qualified under
Section 401(a) and exempt from taxation under Section 501(a) of the Code, or
under corresponding provisions of subsequent federal tax laws. The Trustee
shall be accountable for contributions made to a Plan and included among the
assets of the Trust Fund but shall have no responsibility to determine
whether the contributions comply with the provisions of the Plan or of ERISA.
10.5 In any judicial proceeding to settle the accounts of the Trustee,
the Trustee, the Company and the Committee shall be the only necessary
parties; in any other judicial proceeding with respect to the Trustee or the
Trust Fund, the Trustee, the Company and each affected Subsidiary shall be
the only necessary parties; and no Participant or Beneficiary shall be
entitled to any notice of process. A final judgment in any such proceeding
shall be binding upon the parties to the proceeding and all Participants and
Beneficiaries.
10.6 The Trustee shall be reimbursed for all reasonable expenses
incurred in the management and protection of the Trust Fund, including
reasonable accounting and legal fees, and shall receive such reasonable
compensation for its services and as the Trustee and the Company shall from
time to time agree. The initial fees of the Trustee for its services
hereunder are set forth on Exhibit B attached hereto and incorporated herein
by this reference.
10.7 Without limiting the rights of the Trustee as otherwise provided
in this agreement, pursuant to direction by the Committee, the Trustee shall
pay from the Trust Fund expenses of a Plan or compensation to parties
providing services to a Plan including but not by way of limitation, expenses
or compensation related to actuarial, legal, accounting, office space,
printing, computer, record-keeping, investment, performance evaluation or any
other material or service provided to a Plan.
10.8 In the event that THE NORTHERN TRUST COMPANY incurs any liability,
loss, claim, suit or expense (including reasonable attorneys fees) in connection
with or arising out of its provision of services under this agreement, or its
status as Trustee hereunder, under circumstances where THE NORTHERN TRUST
COMPANY cannot obtain or would be
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precluded by law from obtaining payment or reimbursement of such liability,
loss, claim, suit or expense (including reasonable attorneys fees) from the
Trust Fund, then the Company (which has the authority to do so under the laws
of the state of its incorporation) shall indemnify and hold THE NORTHERN
TRUST COMPANY harmless from and against such liability, loss, claim, suit or
expense, except to the extent such liability, loss, claim, suit or expense
arises directly from a breach by the Trustee of responsibilities specifically
allocated to it by the terms of this agreement. Notwithstanding the
foregoing, THE NORTHERN TRUST COMPANY shall not be indemnified for any loss,
liability, claim, suit or expense to the extent the Trustee participated
knowingly in, or knowingly undertook to conceal, an act or omission of any
other person or entity constituting a breach of such person or entity's
fiduciary responsibility hereunder, knowing such act or omission was a
breach; provided however, that the Trustee shall not be deemed to have
"participated" in a breach for purposes of this undertaking solely as a
result of the performance by the Trustee or its officers, employees, or
agents of any custodial, reporting, recording and bookkeeping functions with
respect to any assets of the Trust Fund managed by an Investment Manager or
the Committee or solely as a result of settling purchase and sale
transactions entered into or directed by an Investment Manager or the
Committee or to have "knowledge" of any breach solely as a result of the
normal information received by the Trustee or its officers, employees, or
agents in the normal course of performing such functions or settling such
transactions. This paragraph shall survive the termination of this agreement.
10.9 Neither the Company nor the Committee shall direct the Trustee to
cause any part of the Trust Fund to be diverted to any purpose other than the
exclusive benefit of the Participants and Beneficiaries or, except as
otherwise permitted under the relevant Plan and under ERISA, to be remitted
to the Company or a Subsidiary.
10.10 Any person dealing with the Trustee shall not be required to see
to the application of any money paid or property delivered to the Trustee or
inquire into the provisions of this agreement or of a Plan or the Trustee's
authority thereunder or compliance therewith, and may rely upon the statement
of the Trustee that the Trustee is acting in accordance with this agreement.
10.11 Except as otherwise directed by the Committee, which direction
shall be in compliance with all applicable provisions of the 1984 Retirement
Equity Act, the relevant Plan and Section 401(a)(13) of the Code, any
interest of a Participant or Beneficiary in the Trust Fund or a Plan or in
any distribution therefrom shall not be subject to the claim of any creditor,
any spouse for alimony or support, or others, or to legal process, and may
not be voluntarily or involuntarily alienated or encumbered.
10.12 If for any reason the Trustee is unwilling or unable to act as to
any property, such person or qualified corporation as the Trustee shall from
time to time designate in writing, with the consent of the Committee provided
such consent shall not be unreasonably withheld, shall act as special trustee
as to that property. Any person or corporation acting as special trustee may
resign at any time by written notice to the Trustee provided that such trust
agreement appointing such special trustee shall require the special trustee
to hold all assets transferred to such special trustee to be held in trust
until a successor trustee shall be
15
appointed. Each special trustee shall have the powers granted to the Trustee
by this agreement, to be exercised only with the approval of the Trustee, to
which the net income and the proceeds from sale of any part or all of the
property shall be remitted to be administered under this agreement.
10.13 Loans to Participants as provided for in a Plan shall be granted
and administered by the Committee. The Trustee shall distribute cash to such
Participants who are granted loans in such amount and at such times as the
Committee shall from time to time direct in writing. Loan payments collected
by the Committee shall be forwarded to the Trustee. The amount of such loans
shall be carried by the Trustee as an asset of the trust equal to the
combined unpaid principal balance of all Participants. The Trustee shall
rely conclusively upon the determination of the Committee with respect to the
amount of the combined unpaid principal balance of all Participants. The
Trustee shall have no responsibility to ascertain whether a loan complies
with the provisions of a Plan, for the decision to grant a loan or for the
collection and repayment of a loan.
ARTICLE ELEVEN: GOVERNING LAW
The provisions of ERISA and the internal laws of Illinois shall govern
the validity, interpretation and enforcement of this agreement, and in case
of conflict, the provisions of ERISA shall prevail. The invalidity of any
part of this agreement shall not affect the remaining parts thereof.
ARTICLE TWELVE: AMENDMENT AND TERMINATION
The Company may at any time or times with the consent of the Trustee
amend this agreement in whole or in part by instrument in writing delivered
to the Trustee and effective upon the date therein provided.
This agreement shall terminate with respect to a Plan by action of the
Company or Subsidiary responsible for making contributions to the Plan
Account. Upon termination with respect to a Plan, the Trustee shall
distribute the Plan Account in the manner directed by the Committee, in cash
or in kind or partly in each as the Trustee and the Committee shall agree,
except that the Trustee shall be entitled to prior receipt of such rulings
and determinations from such administrative agencies as it may deem necessary
or advisable to assure itself that the distribution directed is in accordance
with law and will not subject the Trust Fund or the Trustee to liability, and
except, further, that the Trustee may reserve such reasonable amount as the
Trustee may deem necessary for outstanding and accrued charges against the
Plan Account. This agreement shall terminate in its entirety when there is
no asset included in the Trust Fund.
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IN WITNESS WHEREOF, the Company and the Trustee have executed this
agreement by their respective duly authorized officers and have caused their
respective corporate seals to be affixed hereto the day and year first above
written.
XXXX FOOD COMPANY, INC.
By:
--------------------------------------
Its:
-------------------------------------
ATTEST:
---------------------
(CORPORATE SEAL)
The undersigned, _____________________, does hereby certify that he/she
is the duly elected, qualified and acting Secretary of XXXX FOOD COMPANY,
INC. (the "Company") and further certifies that the person whose signature
appears above is a duly elected, qualified and acting officer of the Company
with full power and authority to execute this Trust Agreement on behalf of
the Company and to take such other actions and execute such other documents
as may be necessary to effectuate this Agreement.
-------------------------
Secretary
XXXX FOOD COMPANY, INC.
THE NORTHERN TRUST COMPANY
By:
---------------------------------------
Its:
--------------------------------------
ATTEST:
----------------------
(CORPORATE SEAL)
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