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Exhibit 10.4
ALLERGAN, INC. SAVINGS AND INVESTMENT PLAN
TRUST AGREEMENT
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TABLE
ARTICLE
FIRST: Acceptance of Property...............................................2
SECOND: Investment Powers...................................................2
THIRD: Payments.............................................................7
FOURTH: Administrative Powers...............................................7
FIFTH: Insurance Company Contracts.........................................11
SIXTH: Fiduciary Standards.................................................11
SEVENTH: Prohibition of Diversion..........................................12
EIGHTH: Hold Harmless......................................................13
NINTH: Accounts............................................................13
TENTH: Committee...........................................................14
ELEVENTH: Compensation and Expenses........................................14
TWELFTH: Resignation of Trustee............................................14
THIRTEENTH: Amendment......................................................15
FOURTEENTH: Termination....................................................15
FIFTEENTH: Plan-to-Plan Transfers; Rollovers...............................15
SIXTEENTH: Adopting Employers..............................................16
SEVENTEENTH: Alienation....................................................16
EIGHTEENTH: Bond...........................................................17
NINETEENTH: Successors.....................................................17
TWENTIETH: Severability....................................................17
TWENTY-FIRST: Communications...............................................17
TWENTY-SECOND: Governing Law...............................................17
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TRUST AGREEMENT
WHEREAS, the Allergan, Inc. Savings and Investment Plan, hereinafter
referred to as the "Plan," and the Trust Agreement for Allergan, Inc. Savings
and Investment Plan was initially established with an effective date of July 27,
1989, by Allergan, Inc., hereinafter referred to as the "Sponsor," for the
purpose of providing retirement and related benefits to eligible employees of
the Sponsor and any Affiliated Company who adopts the Plan, hereinafter referred
to collectively as 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 provides for a trust to which contributions are to be
made by the Company to be held by a 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
that meet the applicable requirements of sections 401(a) and 501(a) of the
Internal Revenue Code of 1986, as amended, hereinafter referred to as the
"Code"; and
WHEREAS, the current trustee(s) of the trust have been removed as
trustee(s) effective June 30, 2000; and
WHEREAS, effective July 1, 2000, the Sponsor wishes to amend and
restate the existing agreement of trust, hereinafter referred to as the "Trust,"
in its entirety and appoint UMB Bank, N.A., a national banking association,
having its principal place of business at Kansas City, Missouri, hereinafter
referred to as the "Trustee"; and
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, the Sponsor and the Trustee do hereby covenant and
agree as follows:
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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
to contribute to the Trust Fund or to determine whether the amount of any
contribution 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 Sponsor, Committee, or Participants 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, hereinafter referred to as "Company Stock, " 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. If the Trustee properly carries out such
investment directions, the Trustee will have no liability for any loss or
diminution in value occasioned thereby.
To the maximum extent permitted by law, the Trustee shall not be liable
for 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
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 that 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
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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 ERISA, 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.
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 that 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 Agreement. 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.
The Trustee shall have no power or duty to sell, tender, exchange, or
otherwise dispose of any Company Stock held in the Fund, hereinafter referred to
as the "Company Stock Fund," except in the following circumstances: (i) in the
event of a tender or exchange offer as hereinafter provided, (ii) in the case of
fractional shares received in any stock dividend, stock split or other
recapitalization, (iii) as necessary to make any distribution or payment from
the Trust Fund, (iv) pursuant to the direction of the Sponsor, Committee, or a
Participant, or (v) where ERISA prohibits the limitation of the Trustee's power.
In the event that an offer (including but not limited to a tender offer or
exchange offer within the meaning of the Securities Exchange Act of 1934, as
from time to time amended and in effect) (the "Offer") is made for all or any
portion of the Company Stock held in the Company Stock Fund, and notwithstanding
any other provision of the Trust to the contrary, the Trustee's discretion or
authority to sell, exchange or transfer any of such Company Stock held in the
Company Stock Fund shall be determined in accordance with the following rules:
(1) The Trustee shall have no discretion or authority to sell,
exchange or transfer any Company Stock pursuant to an Offer except
to the extent, and only to the extent, that the Trustee is timely
directed to do so in writing by each Participant with respect to
shares of Company Stock that are allocated to such Participant's
accounts.
(2) To the extent there remains any residual fiduciary responsibility
with respect to Company Stock pursuant to an Offer after
application of subparagraph (1) above, the Trustee shall sell,
exchange or transfer such Company Stock as directed by the
Committee or as directed by an independent fiduciary if duly
appointed by the Sponsor.
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(3) Upon timely receipt of such instructions, the Trustee shall,
subject to the provisions of subparagraphs (5) and (15) of this
paragraph, sell, exchange or transfer pursuant to such Offer, only
such shares of Company Stock as to which such instructions were
given.
(4) In the event, under the terms of an Offer or otherwise, any shares
of Company Stock tendered for sale, exchange or transfer pursuant
to such Offer may be withdrawn from such Offer, the Trustee shall
follow such instructions respecting the withdrawal of such shares
from such Offer in the same manner and the same proportion as
shall be timely received by the Trustee from the Participants
entitled under this paragraph to give instructions as to the sale,
exchange or transfer of shares pursuant to such Offer.
(5) In the event that an Offer for fewer than all of the shares of
Company Stock held by the Trustee in the Trust shall be received
by the Trustee, each Participant shall be entitled to direct the
Trustee as to the acceptance or rejection of such Offer (as set
forth herein) with respect to the largest portion of such Company
Stock as may be possible given the total number or amount of
shares of Company Stock the Plan may sell, exchange or transfer
pursuant to the Offer based upon the instructions received by the
Trustee from all other Participants who shall timely instruct the
Trustee pursuant to this paragraph to sell, exchange or transfer
such shares pursuant to such Offer, each on a pro rata basis in
accordance with the maximum number of shares each such Participant
would have been permitted to direct under subparagraph (1) had the
Offer been for all shares of Company Stock held in the Trust.
(6) In the event an Offer is received by the Trustee and instructions
have been solicited from Participants regarding such Offer, and
prior to termination of such Offer, another Offer is received by
the Trustee for the Company Stock subject to the first Offer, the
Trustee shall inform the Committee of such other Offer and the
Committee shall use its best efforts under the circumstances to
solicit instructions from the Participants (i) with respect to
securities tendered for sale, exchange or transfer pursuant to the
first Offer, whether to withdraw such tender, if possible, and, if
withdrawn, whether to tender any Company Stock so withdrawn for
sale, exchange or transfer pursuant to the second Offer and (ii)
with respect to Company Stock not tendered for sale, exchange or
transfer pursuant to the first Offer, whether to tender or not to
tender such Company Stock for sale, exchange or transfer pursuant
to the second Offer. The Trustee shall follow all such
instructions received in a timely manner from Participants in the
same manner and in the same proportion as provided in subparagraph
(1). With respect to any further Offer for any Company Stock
received by the Trustee and subject to any earlier Offer
(including successive Offers from one or more existing offers),
the Trustee shall act in the same manner as described above.
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(7) With respect to any Offer received by the Trustee, the Trustee
shall inform the Sponsor of such Offer and the Sponsor shall
distribute, at its expense, copies of all relevant material
including but not limited to material filed with the Securities
and Exchange Commission with such Offer or regarding such Offer,
which shall seek confidential written instructions from each
Participant who is entitled to respond to such Offer pursuant to
subparagraph (1).
(8) The Sponsor shall distribute and/or make available to each
Participant who is entitled to respond to an Offer pursuant to
subparagraph (1), an instruction form to be used by each such
Participant who wishes to instruct the Trustee. The instruction
form shall state that (i) if the Participant fails to return an
instruction form to the Trustee by the indicated deadline, the
Company Stock with respect to which he or she is entitled to give
instructions shall not be sold, exchanged or transferred pursuant
to such Offer, (ii) the Participant shall be a named fiduciary (as
described in subparagraph (13) below) with respect to all shares
of Company Stock for which he or she is entitled to give
instructions, and (iii) the Company acknowledges and agrees to
honor the confidentiality of the Participant's instructions to the
Trustee.
(9) Each Participant may choose to instruct the Trustee in one of the
following two ways: (i) not to sell, exchange or transfer any
shares of Company Stock for which he or she is entitled to give
instructions, or (ii) to sell, exchange or transfer all Company
Stock for which he or she is entitled to give instructions. The
Sponsor shall follow up with additional mailings and postings of
bulletins, as reasonable under the time constraints then
prevailing, to obtain instructions from Participants not otherwise
responding to such requests for instructions. Subject to
subparagraph (4), the Trustee shall then sell, exchange or
transfer shares of Company Stock according to instructions from
Participants, except that shares for which no instructions are
received shall not be sold, exchanged or transferred unless
directed otherwise as provided in subparagraph (2) above.
(10) The Sponsor shall furnish former Participants who have received
distributions of Company Stock so recently as to not be
shareholders of record with the information given to Participants
pursuant to subparagraphs (7), (8), and (9). The Trustee shall
then sell, exchange or transfer shares according to instructions
from such former Participants, except that shares for which no
instructions are received shall not be sold, exchanged or
transferred.
(11) Neither the Company, the Committee nor the Trustee shall express
any opinion or give any advice or recommendation to any
Participant concerning the Offer, nor shall they have any
authority or responsibility to do so.
(12) The Trustee shall not reveal or release a Participant's
instructions to the Company, its officers, directors, employees,
or representatives. If some but not all Company Stock held by the
Trust is sold, exchanged, or transferred pursuant to an Offer, the
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Company, with the Trustee's cooperation, shall take such action as
is necessary to maintain the confidentiality of Participant's
records including, without limitation, establishment of a security
system and procedures which restrict access to Participant records
and retention of an independent agent to maintain such records. If
an independent record keeping agent is retained, such agent must
agree, as a condition of its retention by the Sponsor, not to
disclose the composition of any Participant Accounts to the
Company, its officers, directors, employees, or representatives.
The Company acknowledges and agrees to honor the confidentiality
of Participants' instructions to the Trustee.
(13) Each Participant shall be a named fiduciary (as that term is
defined in section 402(a)(2) of ERISA) with respect to Company
Stock allocated to his or her accounts under the Plan solely for
purposes of exercising the rights of a shareholder with respect to
an Offer pursuant to this paragraph.
(14) To the extent that an Offer results in the sale of Company Stock
in the Trust, the Committee or the Participants, if so permitted
under the terms of the Plan, shall instruct the Trustee as to the
investment of the proceeds of such sale.
(15) In the event a court of competent jurisdiction shall issue to the
Plan, the Committee, the Sponsor or the Trustee an opinion or
order, which shall, in the opinion of counsel to the Committee,
the Sponsor or the Trustee, invalidate, in all circumstances or in
any particular circumstances, any provision or provisions of this
paragraph regarding the determination to be made as to whether or
not Company Stock held by the Trustee shall be sold, exchanged or
transferred pursuant to an Offer or cause any such provision or
provisions to conflict with securities laws, then, upon notice
thereof to the Committee, the Sponsor or the Trustee, as the case
may be, such invalid or conflicting provisions of this paragraph
shall be given no further force or effect. In such circumstances,
the Trustee shall continue to follow instructions received from
Participants, to the extent such instructions have not been
invalidated by such order or opinion. To the extent the Trustee is
required by such opinion or order to exercise any residual
fiduciary responsibility with respect to such Offer, the Sponsor
shall appoint an independent fiduciary who shall direct the
Trustee as to whether or not Company Stock held by the Trustee
shall be sold, exchanged or transferred pursuant to such Offer.
All property received in exchange for such Company 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 this Agreement shall
hereby be deemed amended to permit the holding of such property within said Fund
and the property shall thereafter be administered, invested, reinvested and
distributed in accordance with the applicable terms of the Plan and Trust.
All dividends paid to the Trustee with respect to the Company Stock
Fund shall be held in the Trust by the Trustee as directed by the Committee.
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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 no 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:
(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 as and when directed to do so
by the Committee (or by Participants pursuant to Article Second).
No purchaser shall be bound to see to or be liable for the
application of the proceeds of any such sale;
(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 connection therewith as and when directed
to do so by the Committee (or by Participants pursuant to Article
Second);
(3) power to vote in person or by proxy at corporate or other meetings
and to participate in or consent to any voting trust,
reorganization, dissolution, merger or other action affecting
securities in its possession or the issuers thereof; except,
notwithstanding any other provision of the Trust to the contrary,
the Trustee's discretion and authority to vote the Company Stock
Fund, shall be determined as provided herein.
(4) 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 ERISA, 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 as and when directed to do so by the
Committee (or by Participants pursuant to Article Second);
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(5) power to compromise and adjust all debts or claims due to or made
against it, to participate in any plan of 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
upon the written direction of the Committee;
(6) 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 upon the written
direction of the Committee unless the Trustee is so ordered to do
so by a court or governmental agency of competent jurisdiction;
(7) 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 upon the written direction of the Committee;
(8) 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 upon the written direction of the
Committee (or by Participants but subject to the provisions of the
Plan);
(9) 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 duties of the Trustee hereunder following
written consent of the Committee;
(10) 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 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 Sponsor
before settling, compromising or submitting to binding arbitration
any claim, suit or legal proceeding of any nature whatsoever;
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(11) power 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 upon the written direction of the Committee;
(12) 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;
(13) power to transfer assets of the Trust Fund to a successor trustee
as provided in Article TWELFTH; and
(14) power to appoint custodians or subcustodians to hold any or all of
the Trust Fund upon the written direction or consent of the
Committee;
(15) power to appoint ministerial agents to perform various functions
of the Trustee upon the written direction or consent of the
Committee; and
(16) power to exercise, subject to the terms and restrictions set forth
in Article Fourth and the provisions of the Plan, generally, any
of the powers that 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 FOURTH or otherwise in the best interests of the
Trust Fund.
Notwithstanding any other provision of the Trust to the contrary, the
Trustee shall have no discretion or authority to vote Company Stock held in the
Trust on any matter presented for a vote by the stockholders of the Company
except in accordance with timely directions received by the Trustee from either
the Committee or Participants, depending on who has the right to direct the
voting of such Company Stock as provided in the following subparagraphs:
(1) All Company Stock held in the Trust Fund shall be voted by the
Trustee as the Committee directs in its absolute discretion,
except as provided in this subparagraph (1).
(i) If the Sponsor has a registration-type class of securities
(as defined in section 409(e)(4) of the Code), then with
respect to all corporate matters, each Participant shall be
entitled to direct the Trustee as to the voting of all
Company Stock allocated and credited to his or her accounts.
(ii) If the Sponsor does not have a registration-type class of
securities, then only with respect to such matters as the
approval or disapproval of any
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corporate merger or consolidation, recapitalization,
reclassification, liquidation, dissolution, sale of
substantially all assets of trade or business, or such
similar transactions as may be prescribed in regulations
under section 409(e)(4) of the Code, each Participant shall
be entitled to direct the Trustee as to the voting of all
Company Stock allocated and credited to the his or her
accounts.
(2) To the extent there remains any residual fiduciary responsibility
with respect to the voting of Company Stock after application of
subparagraph (1) above, the Trustee shall vote such Company Stock
as directed by the Committee or as directed by an independent
fiduciary if duly appointed by the Sponsor.
(3) All Participants entitled to direct such voting shall be notified
by the Sponsor, pursuant to its normal communications with
shareholders, of each occasion for the exercise of such voting
rights within a reasonable time before such rights are to be
exercised. Such notification shall include all information
distributed to shareholders either by the Company or any other
party regarding the exercise of such rights. Such Participants
shall be so entitled to direct the voting of fractional shares (or
fractional interests in shares), provided, however, that the
Trustee may, to the extent possible, vote the combined fractional
shares (or fractional interests in shares) so as to reflect the
aggregate direction of all Participants giving directions with
respect to fractional shares (or fractional interests in shares).
To the extent that a Participant shall fail to direct the Trustee
as to the exercise of voting rights arising under Company Stock
credited to his or her account, such Company Stock shall not be
voted unless the Trustee is directed otherwise as provided in
subparagraph (2) above. The Trustee shall maintain confidentiality
with respect to the voting directions of all Participants.
(4) Each Participant shall be a named fiduciary (as that term is
defined in section 402(a)(2) of ERISA) with respect to Company
Stock for which he or she has the right to direct the voting under
the Plan but solely for the purpose of exercising voting rights
pursuant to this paragraph.
(5) In the event a court of competent jurisdiction shall issue an
opinion or order to the Plan, the Committee, the Sponsor or the
Trustee, which shall, in the opinion of counsel to the Committee,
the Sponsor or the Trustee, invalidate under ERISA, in all
circumstances or in any particular circumstances, any provision or
provisions of this paragraph regarding the manner in which Company
Stock held in the Trust shall be voted or cause any such provision
or provisions to conflict with ERISA, then, upon notice thereof to
the Committee, the Sponsor or the Trustee, as the case may be,
such invalid or conflicting provisions of this paragraph shall be
given no further force or effect. In such circumstances the
Trustee shall continue to follow instructions received from
Participants, to the extent such instructions have not been
invalidated by such order or opinion. To the extent the Trustee is
required by such opinion or order to exercise any residual
fiduciary responsibility with
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respect to voting, the Sponsor shall appoint an independent
fiduciary who shall direct the Trustee as to the manner in which
Company Stock held by the Trustee shall be voted.
Notwithstanding the foregoing paragraphs, 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 terms 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
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 any direction of the Committee, and in the absence
of any direction from the Committee, the Trustee shall incur no liability for
failing to take any action. 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 such contracts. Any such insurance company may accept and rely
upon any communication from the Trustee that 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
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; (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
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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 that 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.
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.
(1) 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
subparagraphs (2), (3) and (4) below, and Article THIRTEENTH, or
as otherwise permitted under the provisions of the Plan, 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.
(2) In the case of a contribution that is made by the Company by a
mistake of fact, subparagraph (1) 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.
(3) 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 subparagraph (1) 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
ERISA and the Code.
(4) If a contribution by the Company is expressly conditioned upon the
deductibility of the contribution under section 404 of the Code,
then to the extent such deduction is disallowed, subparagraph (1)
above shall not prohibit the return to
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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 reasonable attorney's fees and expenses in defending against
such liabilities and claims) against the Trustee, arising from the Trustee's
performance of its duties 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
negligent, reckless, or willful acts of commission or omission by the Trustee or
results from the Trustee's violation of ERISA or other applicable laws. To the
maximum extent permitted by ERISA 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 indemnifications 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
breach, (ii) has enabled such fiduciary to commit such breach by its failure to
exercise its fiduciary duties 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 the Committee, persons designated by the Board of Directors of the
Sponsor 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 which shall be in
a form sufficient to produce financial statements and to conduct an audit as
required by ERISA and the Code. 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
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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 any other person or persons.
TENTH: COMMITTEE.
The Sponsor shall certify to the Trustee the name of the entity,
person, or 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. The Committee shall in its sole discretion have the
right to appoint such agents as it may deem necessary to carry out its duties
pursuant to the provisions of the Plan and this Trust. If necessary or
appropriate the Committee shall notify the Trustee in writing as to the identity
and authority of any such agent, which notice shall be effective upon receipt by
the Trustee and shall remain effective until notice of the termination of any
such agent's authority is given to the Trustee.
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 Sponsor and the
Trustee. Unless paid by the Company, such compensation, attorneys' fees that
were incurred with the Committee's approval 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 Sponsor. An authorized officer of the Sponsor may remove the
Trustee at any time by giving thirty (30) days written notice to the Trustee
unless the Trustee shall accept as adequate a shorter notice. In the case of the
resignation or removal of the Trustee, an authorized officer of the Sponsor
shall appoint a successor trustee who shall have the same powers and duties as
those conferred upon the Trustee. Upon the resignation 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
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the Trustee may, in its sole discretion, transfer such assets prior to the
completion of such accounting if the Sponsor 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
An authorized officer of the Sponsor 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, other charges as
provided in Article ELEVENTH, or as otherwise permitted by the Plan.
FOURTEENTH: TERMINATION.
This Agreement and the Trust Fund hereby created may be terminated at
any time by the Board of Directors of the Sponsor by written notice delivered to
the Trustee. Upon receipt of such notice of termination, the Trustee shall,
after payment of all expenses incurred in the administration of the Trust Fund
and such compensation as the Trustee may be entitled to, and upon approval of
the appropriate governmental or quasi-governmental authorities (if such approval
shall be required under applicable law or desired by the Committee), then
distribute the Trust Fund in cash or in kind to such persons or entities,
including the Company, at such time and in such amounts as the Committee shall
direct, which direction shall be in conformity 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 or to an individual retirement
account. 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 that represents a Participant's retirement benefits
transferred from a trust qualified under
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section 401(a) of the Code or transferred from the Participant or an individual
retirement account as a permissible rollover under section 402(c) or 408(d)(3)
of the Code. The Trustee may accept 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 or her retirement benefits under the
applicable provisions of the Plan.
SIXTEENTH: ADOPTING EMPLOYERS.
An affiliated entity of the Sponsor that has adopted the Plan in
accordance with its terms shall become a party to this Agreement by delivering
to the Sponsor and the Trustee a certified copy of a resolution of its board of
directors or governing body to the effect that it agrees to adopt the 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 Sponsor shall have the sole
authority to enforce this Agreement on behalf of any such affiliated entity and
the Trustee shall in no event be required to deal with any such affiliated
entity except by dealing with the Company as its agent. Irrespective of the
number of affiliated entities 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 Sponsor and any such affiliated entity.
An affiliated entity that has adopted the Plan shall cease to be a
party to this Agreement upon the Sponsor delivering to the Trustee a certified
copy of a resolution of such affiliated entity's board of directors or governing
body 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 Sponsor or of any such affiliated entity,
or in the event of the establishment, modification or continuance of any other
retirement plan that 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 that 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, garnishment, 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 Committee 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 that shall, by merger,
consolidation, 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: SEVERABILITY.
If any provision of this Agreement is held to be invalid, such
invalidity shall not affect the remaining provisions of the Agreement and they
shall be construed and enforced as if such invalid provisions had never been
inserted therein.
TWENTY-FIRST: COMMUNICATIONS.
Communications to the Sponsor or the Committee shall be addressed to
the Sponsor, or to the Committee in care of the Sponsor, as the case may be, Mr.
Xxxxx Xxxxxx, Director, Corporate Employee Benefits, Allergan, Inc., 0000 Xxxxxx
Xxxxx, Xxxxxx, XX 00000-0000 (or his/her successor); provided, however, that
upon the Sponsor's written request such communications shall be sent to such
other address as the Sponsor may specify.
Communications to the Trustee shall be addressed to: UMB Bank, N.A.,
Employee Benefit Division, 0000 Xxxxx Xxxxxx, X.X. Xxx 000000, Xxxxxx Xxxx, XX
00000-0000; 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.
TWENTY-SECOND: GOVERNING LAW.
This Agreement shall be construed in accordance with ERISA and, to the
extent not preempted by ERISA, the laws of the State of Missouri.
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IN WITNESS WHEREOF, the Sponsor and the Trustee have executed this
instrument as of July 1, 2000.
ALLERGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: Corporate Vice President--
Administration, General Counsel and
Secretary
ATTEST:
Title:
------------------------
(Corporate Seal)
UMB BANK, N.A.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Title: Senior Vice President
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