EXHIBIT 4.7
TRUST AGREEMENT
BETWEEN
PATHOGENESIS CORPORATION
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
(PathoGenesis Corporation 401(k) Profit Sharing Plan)
WTC Direction Trust/
Tax Qualified Plan/
Rev. 1/96 Permits Employer Securities
INDEX
Page
ARTICLE I DEFINITIONS ....................................................1
Section 1.1. Definitions.......................................1
ARTICLE II CREATION; PURPOSE; ETC..........................................2
Section 2.1. Creation .........................................2
Section 2.2. Purpose ..........................................2
Section 2.3. Exclusive Benefit ................................2
Section 2.4. Domestic Trust ...................................2
ARTICLE III ADMINISTRATION OF PLAN .........................................3
Section 3.1. Payment of Benefits ..............................3
Section 3.2. Participant Records and Accounts .................3
Section 3.3. Reliance on Administrator ........................3
Section 3.4. Trustee Not Responsible for
Plan Administration .........................3
Section 3.5. Trustee Not Responsible for Enforcing
Contributions or for Sufficiency of Trust Fund..3
ARTICLE IV INVESTMENT OF TRUST FUND .......................................3
Section 4.1. Named Fiduciary ..................................3
Section 4.2. Investment Managers ..............................3
Section 4.3. Individually Directed Accounts ...................4
Section 4.4. Reliance on Named Fiduciary, Investment
Managers, Participants .......................4
Section 4.5. Shareholder Communications Act ...................4
ARTICLE V POWERS OF TRUSTEE ..............................................5
Section 5.1. General Powers ...................................5
Section 5.2. Additional Powers ................................6
Section 5.3. Valuations .......................................7
ARTICLE VI RECORDS AND ACCOUNTS OF TRUSTEE ................................7
Section 6.1. Records ..........................................7
Section 6.2. Annual and Other Periodic Accounts ...............7
Section 6.3. Tax Returns ......................................8
ARTICLE VII TRUSTEE'S RIGHTS/LIMITATION OF TRUSTEE'S RESPONSIBILITY.........8
Section 7.1. No Implied Duties ................................8
Section 7.2. Evidence of Authority ............................8
Section 7.3. Reliance by Trustee ..............................8
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Continuation of Index Page
Section 7.4. Trustee May Employ Agents ........................8
Section 7.5. No Responsibility for Insurance Contracts ........9
Section 7.6. No Liability for Acts or Omissions of
Other Fiduciaries ...........................9
Section 7.7. No Obligation to Act on Unsatisfactory Notice ....9
ARTICLE VIII COMPENSATION, TAXES, EXPENSES, INDEMNITY .......................9
Section 8.1. Payment of Compensation and Expenses .............9
Section 8.2. Taxes ............................................9
Section 8.3. Indemnification by Employer .....................10
ARTICLE IX RESIGNATION OR REMOVAL OF TRUSTEE .............................10
Section 9.1. Removal or Resignation of Trustee ...............10
Section 9.2. Reserve for Expenses.............................10
ARTICLE X AMENDMENT OR TERMINATION OF AGREEMENT .........................10
Section 10.1. Amendment of Agreement .........................10
Section 10.2. Termination of Agreement .......................11
ARTICLE XI TERMINATION OR DISQUALIFICATION OF PLAN........................11
Section 11.1. Amendment or Termination of Plan ...............11
Section 11.2. Disqualification ...............................11
Section 11.3. Application of Funds on Termination ............11
ARTICLE XII GENERAL PROVISIONS ............................................11
Section 12.1. Governing Law ..................................11
Section 12.2. Entire Agreement ...............................11
Section 12.3. Notices ........................................11
Section 12.4. Plan Documents .................................12
Section 12.5. Spendthrift Provision ..........................12
Section 12.6 FDIC Insurance .................................12
Section 12.7. Effect .........................................12
Section 12.8. Severability ...................................12
Section 12.9. Headings and Titles ............................12
Section 12.10. Binding Agreement ..............................12
Section 12.11. Merger or Consolidation ........................12
Section 12.12. Force Majeure ..................................13
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TRUST AGREEMENT
THIS TRUST AGREEMENT (the "Agreement") is made as of this 1st day of
April, 1998, by and between PATHOGENESIS CORPORATION, a Delaware corporation
(the "Employer"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation
(the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer has adopted the PathoGenesis Corporation 401(k)
Profit Sharing Plan (the "Plan"), a tax-qualified retirement plan; and
WHEREAS, this Agreement is intended to implement the provisions of the
Plan by providing for the creation of a trust (the "Trust") satisfying the
requirements of the Employee Retirement Income Security Act of 1974, as amended;
and
WHEREAS, the authority to control and manage the operation and
administration of the Plan is vested in the Named Fiduciary or Fiduciaries
provided for in the Plan, which shall have the authorities and shall be subject
to the duties with respect to the Trust specified in this Agreement; and
WHEREAS, the Employer desires to appoint Wilmington Trust Company as
Trustee of the Trust, and Wilmington Trust Company is willing to serve as
Trustee in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Employer and the Trustee hereby mutually agree
as follows:
ARTICLE I - DEFINITIONS
Section 1.1. DEFINITIONS. Unless the context otherwise requires or
unless otherwise expressly provided, as used in this Agreement:
(a) "Administrator" means, with respect to the Plan, the organization,
entity, committee or other person responsible for benefit administration under
the Plan, including any representative or delegate thereof designated in
writing, authorized to act on behalf of such organization, entity, committee or
other person, and may include the Employer.
(b) "Investment Manager" means a bank, insurance company or registered
investment adviser satisfying the requirements of Section 3(38) of ERISA
appointed by the Named Fiduciary to manage all or any portion of the Trust Fund
as designated by the Named Fiduciary.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and Regulations issued thereunder.
(d) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
(e) "Insurance Contract" means any contract or policy of any kind,
including any annuity contract, issued by an insurance company, whether or not
providing for the allocation of amounts received by the insurance company to its
general account or to one or more separate accounts, or a combination thereof,
and whether or not any such allocation may be made in the discretion of the
insurance company.
(f) "Named Fiduciary" means the organization, entity, committee or
other person or its representative or delegate with respect to the Plan, who,
within the meaning of ERISA, has the authority to perform the separate functions
allocated to that "Named Fiduciary" under this Agreement. Unless otherwise
specifically provided to the contrary, the Named Fiduciary shall mean the
Administrator.
(g) "Trust Fund" means all property, real, personal or mixed, of any
kind or nature, contributed, paid or delivered to the Trustee hereunder, and all
investments, reinvestments and proceeds thereof, and all gains, earnings and
profits thereon.
ARTICLE II - CREATION; PURPOSE; ETC.
Section 2.1. CREATION. The Employer hereby creates the PathoGenesis
Corporation 401(k) Profit Sharing Plan Trust. Under the terms of the Plan, the
Employer has the power to appoint and hereby appoints Wilmington Trust Company
to act as Trustee; and Wilmington Trust Company hereby accepts the appointment
to serve as Trustee.
Section 2.2. PURPOSE. The Trust is established to fund the benefits
payable to participants and their beneficiaries under the Plan.
Section 2.3. EXCLUSIVE BENEFIT. Except as otherwise permitted by law or
as set forth in Article XI of this Agreement, at no time prior to the
satisfaction of all liabilities with respect to participants and their
beneficiaries under the Plan shall any part of the Trust Fund be used for, or
diverted to, any purposes other than for the exclusive benefit of the
participants and their beneficiaries and for defraying the reasonable expenses
of administering such Plan.
Section 2.4. DOMESTIC TRUST. The Trust shall at all times be
maintained as a domestic trust in the United States.
ARTICLE III - ADMINISTRATION OF PLAN
Section 3.1. PAYMENT OF BENEFITS. At the direction of the
Administrator, the Trustee shall pay moneys or other property directly to or for
the benefit of participants and their beneficiaries, or to an insurance company
to provide for the payment of such benefits by the purchase of an Insurance
Contract, or to a paying or disbursing agent, which may be the Administrator.
Any moneys or other property disbursed or paid over by the Trustee pursuant to
this Section 3.1 shall no longer be part of the Trust Fund.
Section 3.2. PARTICIPANT RECORDS AND ACCOUNTS. Except as the parties
may otherwise agree in writing, the Trustee shall not be required to maintain
any participant records or accounts and shall not be responsible for the
allocation of contributions among participants.
Section 3.3. RELIANCE ON ADMINISTRATOR. Any directions pursuant to
Section 3.1 may, but need not, specify the application to be made of payments so
directed. Each direction to the Trustee under Section 3.1 shall constitute a
representation and warranty by the Administrator that such direction is in
accordance with this Agreement, the Plan and applicable law, and the Trustee
shall have no duty to make any independent inquiry or investigation before
acting upon such direction, or to see to the application of any moneys or other
property so paid.
Section 3.4. TRUSTEE NOT RESPONSIBLE FOR PLAN ADMINISTRATION. The
Trustee shall not be responsible in any way for the determination, computation,
payment or application of any benefit, for the form, terms, payment provisions
or issuer of any Insurance Contract, or for any other matter affecting the
administration of the Plan by the Employer or the Administrator or any
organization, entity, committee or other person to whom such responsibility is
delegated under the Plan.
Section 3.5. TRUSTEE NOT RESPONSIBLE FOR ENFORCING CONTRIBUTIONS OR FOR
SUFFICIENCY OF TRUST FUND. The Trustee shall not be responsible for enforcing
payment of any contribution to the Trust, for the timing or amount thereof, or
for the adequacy of the Trust Fund or any part thereof or the funding standards
adopted for the Plan to meet or discharge any liabilities of the Plan or the
Trust.
ARTICLE IV - INVESTMENT OF TRUST FUND
Section 4.1. NAMED FIDUCIARY. Except as otherwise provided in Section
4.2 or 4.3, the Named Fiduciary shall possess all discretionary authority for
the management and control of the Trust Fund. The Named Fiduciary shall be
responsible for determining the diversification policy (if and to the extent
required), and for monitoring adherence by the Investment Manager or Investment
Managers to such policy.
Section 4.2. INVESTMENT MANAGERS. Discretionary authority for the
management and control of all or any portion of the Trust Fund may be delegated
by the Named Fiduciary, in its absolute discretion, to one or more Investment
Managers. The terms and conditions of
appointment, authority and retention of any Investment Manager shall be the
sole responsibility of the Named Fiduciary. The Named Fiduciary shall promptly
notify the Trustee in writing of the appointment or removal of any Investment
Manager and the portion of the Trust Fund over which such Investment Manager
shall have authority. Any notice of appointment pursuant to this Section 4.2
shall constitute a representation and warranty that the Investment Manager has
been appointed in accordance with the Plan and that any Investment Manager is an
Investment Manager as defined in this Agreement. The Named Fiduciary may limit,
restrict or impose guidelines affecting the exercise of the discretion conferred
on any Investment Manager, and shall be responsible for communicating, and
monitoring adherence to, any such limitations, restrictions or guidelines.
Section 4.3. INDIVIDUALLY DIRECTED ACCOUNTS. As to each individually
directed account, if any, permitted by the Plan, the applicable participant
shall possess all of the investment and investment-related authority held by the
Named Fiduciary hereunder, and the Trustee shall invest and reinvest such assets
pursuant to the directions of the participant, as communicated in writing to the
Trustee by the Administrator or its delegate. The Trustee shall be fully
protected in relying upon the written instructions of the Administrator or its
delegate as to the participant's directions. Neither the Trustee, nor the
Employer, nor any fiduciary of the Plan shall be liable to the participant or
any of his or her beneficiaries for any loss resulting from any action taken at
the direction of the participant.
Section 4.4. RELIANCE ON NAMED FIDUCIARY, INVESTMENT MANAGERS,
PARTICIPANTS. The Trustee shall invest and reinvest the Trust Fund pursuant to
the written directions of the Named Fiduciary or the Investment Manager or
Investment Managers, as the case may be. The Trustee shall have no investment
responsibility with respect to the Trust Fund, and shall have no duty to inquire
into the directions of the Named Fiduciary, any Investment Manager, as the case
may be, to solicit such directions, or to review and follow the investments made
pursuant to any such directions, other than to the extent required by law. Any
investment direction by the Named Fiduciary or any Investment Manager shall
constitute a representation and warranty that the transaction will not
constitute a prohibited transaction under ERISA or the Code and that the
investment is authorized under this Agreement, the Plan and any other agreement
affecting the Named Fiduciary's or Investment Manager's authority.
Section 4.5. SHAREHOLDER COMMUNICATIONS ACT. Unless otherwise directed
in writing, the Trustee is:
[Check One]
_______ authorized _______ not authorized
to disclose the name, address and share positions of the Named Fiduciary and/or
any person or organization designated to give instructions under this Agreement
to companies over whose securities the Named Fiduciary or such person or
organization exercises voting authority or to others upon request by such
companies.
ARTICLE V - POWERS OF TRUSTEE
Section 5.1. GENERAL POWERS. Upon the directions of the Named
Fiduciary, the Investment Manager(s), or the Administrator or its delegate on
behalf of the participants with respect to individually directed accounts, as
the case may be, the Trustee shall be authorized and empowered to exercise any
and all of the following rights, powers and privileges with respect to the Trust
Fund:
(a) To invest and reinvest the principal and income of the Trust Fund,
without distinction between principal and income, in such securities (including,
without limitation, securities of the Employer or its affiliates constituting
"qualifying employer securities" as defined in Section 407 of ERISA and
hereafter referred to as Employer Securities) as, but not limited to, common
stocks, preferred stocks, bonds, bills, notes, commercial paper, debentures,
mortgages, equipment trust certificates, investment trust certificates,
partnership interests and also in other investments, whether real, personal or
mixed property.
(b) To sell, exchange, convey, transfer or otherwise dispose of any
such property at public or private sale, for cash or credit, or partly for cash
and partly for credit, and with or without notice or advertisement of any kind.
(c) To purchase whole or part interests in real property or in
mortgages on real property, wherever situated, directly or through financial
intermediaries or entities, such as, but not limited to, partnerships, and to
mortgage or lease for any term any real property or part interest in real
property; and to delegate to a manager the management and operation of any
interest in such property or properties.
(d) To purchase or sell, write or issue, puts, calls or other options,
covered or uncovered, to enter into financial futures contracts, forward
placement contracts and standby contracts, and in connection therewith, to
deposit, hold or pledge assets of the Trust Fund.
(e) To exercise all voting rights pertaining to any securities; and to
consent to or request any action on the part of the issuer of any such
securities, and to give general or special proxies and or powers of attorneys
with or without powers of substitution; to consent to or participate in
amalgamation, reorganizations, recapitalizations, consolidations, mergers,
liquidations, or similar transactions with respect to any securities, and to
accept and to hold any other securities issued in connection therewith; and to
exercise any subscription rights or conversion privileges with respect to any
securities held in the Trust Fund. Notwithstanding the foregoing, the Trustee
shall exercise all voting rights relating to any Employer Securities at the
direction of the participants, as communicated to the Trustee by the
Administrator, provided that in the event any Employer Securities are
unallocated among the participants or unvoted by the participants, or in the
event that the voting rights with respect to such securities do not pass through
to the participants under the Plan, then the Trustee shall exercise all voting
rights relating to such Employer Securities as the Trustee, in its sole
discretion, deems appropriate.
(f) To collect and receive any and all money and other property of
whatsoever kind or nature due or owing or belonging to the Trust Fund and to
give full discharge and acquittance therefor; and to extend the time of payment
of any obligation at any time owing to the Trust Fund.
(g) To transfer money or other property to an insurance company issuing
an Insurance Contract.
(h) To settle, compromise, or submit to arbitration any claims, debts
or damages due or owing to or from the Trust Fund; to commence or defend suits
or legal proceedings; and to represent the Trust Fund in all suits or legal
proceedings in any court of law or equity or before any other body or tribunal,
insofar as such suits or proceedings relate to any part of the Trust Fund or the
administration thereof.
(i) To borrow money from any source as may be necessary or advisable to
effectuate the purposes of the Trust.
(j) To deposit funds in interest bearing account deposits or savings
certificates issued by the Trustee or any other banking institution affiliated
with the Trustee.
(k) To transfer, from time to time, all or any part of the Trust Fund
to any common, collective or commingled trust fund exempt from taxation under
the Code, including any such fund maintained by Wilmington Trust Company, to be
held and administered subject to the terms and provisions of the relevant trust
agreement, and such trust agreement shall be deemed adopted as part of this
Agreement and the Plan to the extent that any portion of the Trust Fund is
invested therein.
(l) Generally to take all actions, execute all instruments, and
exercise all rights and privileges with relation to the Trust Fund, whether or
not expressly authorized, as the Trustee is directed or in its sole discretion
deems necessary or desirable.
Section 5.2. ADDITIONAL POWERS. With respect to the Trust Fund, the
Trustee is hereby authorized and empowered, in its sole judgment:
(a) To hold uninvested from time to time, without liability for
interest thereon, such sum of money as is necessary for the cash requirements of
the Plan or as the Trustee may from time to time deem to be in the best
interests of the Trust Fund, notwithstanding the Trustee's receipt of "float"
from such uninvested cash; and whenever the Trustee receives cash or cash
equivalents, but no investment directions hereunder, to invest the same in
authorized deposit accounts, savings certificates, short-term investment funds,
including any such fund managed by the Trustee, or other short-term investment
vehicle pending receipt of investment directions.
(b) To cause any securities or other property to be registered in, or
transferred to, the name of the Trustee or the name of its nominee or nominees,
or to deposit or arrange for the
deposit of such securities in a securities depository or with a Federal Reserve
Bank, or to retain such securities unregistered and in form permitting
transferability by delivery, but the books and records of the Trustee shall at
all times show that all such securities and other property are part of the
Trust Fund.
Section 5.3. VALUATIONS. The Trustee shall periodically determine the
market value of the assets of the Trust Fund or, in the absence of readily
ascertainable market values, at such values as the Trustee shall determine in
accordance with methods consistently followed and uniformly applied. With
respect to assets without readily ascertainable market values, the Trustee may
rely for all purposes of this Agreement on the latest valuation and transaction
information submitted to it by the person responsible for the investment. The
Named Fiduciary shall cause such person to provide the Trustee with all
information needed by the Trustee to discharge its obligations to value such
assets and to account under this Agreement.
ARTICLE VI - RECORDS AND ACCOUNTS OF TRUSTEE
Section 6.1. RECORDS. The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other transactions in
the Trust Fund and all accounts, books and records relating thereto shall be
open to inspection and audit at reasonable times during normal business hours by
any person designated by the Named Fiduciary.
Section 6.2. ANNUAL AND OTHER PERIODIC ACCOUNTS. Within ninety (90)
days following the close of each Plan year, and within sixty (60) days following
the close of each Plan quarter, the Trustee shall file with the Employer or the
Administrator a written account setting forth the receipts and disbursements and
the investments and other transactions effected by it with respect to the Trust
Fund during such Plan year or quarter, as the case may be. Upon the expiration
of ninety (90) days from the date of filing of its annual or quarterly account,
the Trustee shall be forever released and discharged from all liability and
further accountability to the Employer, the Administrator or any other person
with respect to the accuracy of such accounting and all acts and failures to act
of the Trustee reflected in such account, except to the extent that the Employer
or the Administrator shall, within such 90-day period, file with the Trustee
specific written objections to the account. Neither the Employer, the
Administrator, any participant nor any other person shall be entitled to any
additional or different accounting by the Trustee and the Trustee shall not be
compelled to file in any court any additional or different accounting. For
purposes of regulations promulgated by the Federal Deposit Insurance Corporation
("FDIC"), The Trustee's account statements shall be sufficient information
concerning securities transactions effected for the Trust Fund; provided that
the Employer or the Named Fiduciary, upon written request, shall have the right
to receive at no additional cost written confirmations of such securities
transactions, which shall be mailed or otherwise furnished by the Trustee within
five business days after the date of the transaction, or if a broker/dealer is
utilized, within five business days after the date of the Trustee's receipt of
the broker/dealer confirmations thereof.
Section 6.3. TAX RETURNS. The Trustee shall prepare tax returns or
other filings with respect to the Trust Fund only if such returns or filings
must be filed by the Trustee rather than by the Administrator, the Named
Fiduciary, or the Employer. Unless otherwise agreed in writing by the Trustee,
the Trustee shall not be responsible for filing any information or other returns
with respect to payments to any participants or their beneficiaries.
ARTICLE VII - TRUSTEE'S RIGHTS/LIMITATION OF TRUSTEE'S
RESPONSIBILITY
Section 7.1. NO IMPLIED DUTIES. The duties and responsibilities of the
Trustee shall be as set forth in this Agreement and no other or further duties
or responsibilities shall be implied against or imposed on the Trustee.
Section 7.2. EVIDENCE OF AUTHORITY. The Employer shall furnish the
Trustee from time to time with certified copies of the resolutions of the Board
of Directors evidencing the name, title and specimen signature of any person
authorized to give instructions to the Trustee on behalf of the Employer
hereunder. The Employer shall also furnish the Trustee from time to time or
cause the Trustee to be furnished from time to time with certified lists of the
names and signatures of all other organizations, entities, committees or other
persons authorized to act as the Administrator, a Named Fiduciary, or in any
manner authorized to issue notices, requests, directions, instructions or other
communications to the Trustee pursuant to this Agreement. The Named Fiduciary
shall cause each Investment Manager to furnish the Trustee from time to time
with the names and signatures of the persons authorized to direct the Trustee on
its behalf hereunder. The Trustee shall be entitled to rely upon each such
evidence of authority until it is revoked in writing.
Section 7.3. RELIANCE BY TRUSTEE. The Trustee shall be entitled to rely
upon each representation, information, notice, direction, certificate and other
communication furnished by or on behalf of the Employer, the Administrator, each
Named Fiduciary and each Investment Manager; and the Trustee shall be protected
to the extent the law permits in acting in accordance with and relying upon such
representations, information, notices, directions, certificates and other
communications; and the Trustee shall be under no duty to make any inquiry or
investigation in connection therewith.
Section 7.4. TRUSTEE MAY EMPLOY AGENTS. The Trustee may from time to
time employ and consult with counsel (who may also serve as counsel for the
Employer or the Trustee) and shall be protected to the extent the law permits in
acting upon such advice of counsel. The Trustee may also from time to time
employ accountants and other agents as may be reasonably necessary in
administering and protecting the Trust Fund, and the Trustee may pay such
counsel, accountants and other agents reasonable compensation, which shall be
reimbursed to the Trustee in accordance with Section 8.1. The Trustee shall at
no time be obligated to institute any legal action or to become a party to any
legal action unless the Trustee shall have been indemnified to its satisfaction
for any fees, costs and expenses to be incurred in connection with such legal
action.
Section 7.5. NO RESPONSIBILITY FOR INSURANCE CONTRACTS. The Trustee
shall have no obligation to pay any premium on any Insurance Contract or to take
any action with respect to any Insurance Contract, except upon instructions from
the person authorized to direct the Trustee with respect to such Insurance
Contracts. The Trustee shall be entitled to rely on information furnished by the
Employer as to the amount of any contribution to be applied to the purchase or
carrying of Insurance Contracts, the amount and type of Insurance Contracts to
be purchased, the selection of the insurance company or companies, the
designation of beneficiaries, and the election of any right or option under any
Insurance Contract or with respect to any participant. The Trustee may rely on
information furnished by the Employer as to the accuracy and completeness of any
information contained in any application for any Insurance Contract, or any
other information given to the insurer in connection with any Insurance
Contract, and shall have no responsibility to the insurer with respect to any
such application or other information. The Trustee shall have no responsibility
to any participant or the Employer for the invalidity or unenforceability of any
Insurance Contract, or for the failure of any Insurance Contract to meet any
requirements of the Plan.
Section 7.6. NO LIABILITY FOR ACTS OR OMISSIONS OF OTHER FIDUCIARIES.
The Trustee shall not be liable for the acts or omissions of other fiduciaries
unless (a) the Trustee knowingly participates in, or knowingly attempts to
conceal the act or omission of another fiduciary, and the Trustee knows the act
or omission is a breach of a fiduciary responsibility by the other fiduciary; or
(b) the Trustee has knowledge of a breach by the other fiduciary and does not
make reasonable efforts to remedy the breach; or (c) the Trustee's breach of its
own fiduciary responsibility permits the other fiduciary to commit a breach.
Section 7.7. NO OBLIGATION TO ACT ON UNSATISFACTORY NOTICE. The Trustee
shall not be liable for any failure to act pursuant to any notice, direction or
any other communication from the Employer, the Administrator, the Named
Fiduciary, any Investment Manager or any other person or delegate of any of them
unless and until it shall have received directions in the form specified in this
Article VII.
ARTICLE VIII - COMPENSATION, TAXES, EXPENSES, INDEMNITY
Section 8.1. PAYMENT OF COMPENSATION AND EXPENSES. The Trustee shall be
entitled to receive from the Employer compensation for its services and all
reasonable costs and expenses incurred in connection with the administration of
the Trust Fund. The compensation of the Trustee shall be as agreed upon from
time to time by the Trustee and the Employer; and in the event that Trustee
shall be called upon to render any extraordinary services, it shall be entitled
to additional compensation. If such compensation, costs and expenses are not
paid by the Employer, they shall be paid from the Trust Fund.
Section 8.2. TAXES. All income or other taxes of any kind whatsoever
which may be properly levied or assessed under existing or future laws upon, or
in respect of, the Trust Fund
shall be paid by the Trustee out of the Trust Fund, and, until paid, shall
constitute a charge upon the Trust Fund.
Section 8.3. INDEMNIFICATION BY EMPLOYER. The Employer shall, to the
maximum extent permitted by ERISA, indemnify the Trustee and the Trustee's
officers, employees and agents from and against any and all damages, losses,
costs, judgments, fines and expenses (including attorney's fees and
disbursements) of any kind or nature (collectively, "Losses") imposed on or
incurred by the Trustee, its officers, employees or agents by reason of its or
their service pursuant to this Agreement, including any Losses arising out of
any threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative (including any such action by
or in the right of the Employer), except to the extent such Losses were caused
by the negligence or willful misconduct of the Trustee. Reasonable expenses
incurred in defending any such claim, action, suit or proceeding shall be paid
by the Employer in advance of a final disposition of such claim, action, suit,
or proceeding, upon presentation of statements therefor by the Trustee. The
provisions of this Article VIII shall survive termination of this Agreement.
ARTICLE IX - RESIGNATION OR REMOVAL OF TRUSTEE
Section 9.1. REMOVAL OR RESIGNATION OF TRUSTEE. The Trustee may resign
at any time by written notice to the Employer. The Trustee may be removed by the
Employer at any time by written notice to the Trustee. Any such notice shall be
effective sixty (60) days after receipt by the party to whom notice is given or
such later date as shall be specified therein. Upon the effective date of the
removal or resignation of the Trustee, the Trustee shall deliver the Trust Fund
to a successor trustee or custodian designated by the Employer. If, for any
reason, the Employer cannot or does not act promptly to appoint a successor
trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee. Any expenses incurred by the Trustee in
connection therewith shall be charged to and paid from the Trust Fund as an
expense of administration.
Section 9.2. RESERVE FOR EXPENSES. The Trustee is authorized to reserve
such sum of money (and for that purpose to liquidate property to produce such
sum) as it may deem advisable for payment of all proper charges against the
Trust Fund, including expenses in connection with such resignation or removal,
and any balance of such reserve remaining after the payment of such charges
shall be paid over to the successor trustee or custodian.
ARTICLE X - AMENDMENT OR TERMINATION OF AGREEMENT
Section 10.1. AMENDMENT OF AGREEMENT. Subject to Section 2.3, the
Employer may at any time alter, modify or amend this Agreement in whole or in
part by notice thereof in writing delivered to the Trustee; provided that no
such alteration, modification or amendment shall alter the rights, duties, or
responsibilities of the Trustee without its prior written consent.
Section 10.2. TERMINATION OF AGREEMENT. Subject to Section 2.3, the
Employer may at any time terminate this Agreement by written notice given to the
Trustee. Such notice of termination shall be accompanied by a certified copy of
a resolution of the Board of Directors of the Employer approving such
termination. In the event of the termination of this Agreement, the Trust Fund
shall be distributed pursuant to Article IX or XI hereof.
ARTICLE XI - TERMINATION OR DISQUALIFICATION OF PLAN
Section 11.1. AMENDMENT OR TERMINATION OF PLAN. Subject to Section 2.3,
the Employer may at any time alter, modify, amend or terminate the Plan in whole
or in part by written notice given to the Trustee; provided that no such
alteration, modification or amendment shall alter the rights, duties, or
responsibilities of the Trustee without its prior written consent; and further
provided that notice of termination shall be accompanied by a certified copy of
a resolution of the Board of Directors of the Employer approving such
termination.
Section 11.2. DISQUALIFICATION. The Employer shall promptly notify
the Trustee if the Plan has been or is likely to be disqualified under Section
401 of the Code. In that event, the Plan shall be treated as terminated.
Section 11.3. APPLICATION OF FUNDS ON TERMINATION. In the event of
termination of the Plan, the interests of the Plan participants shall vest and
be processed in accordance with the written directions of the Employer,
accompanied by a certificate that such disposition is in accordance with the
terms of the Plan.
ARTICLE XII - GENERAL PROVISIONS
Section 12.1. GOVERNING LAW. To the extent not preempted by the
provisions of ERISA, this Agreement shall be administered, construed and
enforced according to the laws of the State of Delaware.
Section 12.2. ENTIRE AGREEMENT. The Trustee's duties and
responsibilities to the Plan or any person interested therein shall be limited
to those specifically set forth in this Agreement. No amendment to the Plan or
any other document affecting the Plan shall affect the Trustee's duties or
responsibilities hereunder without its prior written consent.
Section 12.3. NOTICES. Except as otherwise provided in writing and
agreed to by the Trustee, all notices, reports, accounts and other
communications from the Trustee to the Employer, the Named Fiduciary, the
Administrator, the Investment Manager(s) or any other person shall be in writing
and deemed to have been duly given if mailed, postage prepaid or delivered by
hand to such person at its address appearing on the records of the Trustee.
Except as otherwise provided in writing and agreed by the Trustee, all
directions, notices, objections and other communications to the Trustee shall be
in writing or in such other form,
including transmission by electronic means through the facilities of third
parties or otherwise, specifically agreed to in writing by the Trustee and
shall be deemed to have been given when received by the Trustee at its offices.
Section 12.4. PLAN DOCUMENTS. The Named Fiduciary shall provide the
Trustee with complete, current copies of the Plan and the most recent tax
qualification letters relating thereto. The Trustee shall be entitled to rely
upon the Named Fiduciary's attention to this obligation and shall be under no
duty to inquire of any person as to the existence of any documents not provided
hereunder.
Section 12.5. SPENDTHRIFT PROVISION. Except as may be required by law,
no interest or claim of interest of any kind of any participant under the
provisions of this Trust is assignable, nor may any such interest or claim be
subject to garnishment, attachment, execution or levy of any kind, and no
attempt to transfer, assign, pledge or otherwise encumber or dispose of such
interest by act of the person involved or by operation of law will be
recognized.
Section 12.6 FDIC INSURANCE. The Trustee represents that it
qualifies for Federal Deposit Insurance Corporation ("FDIC") pro rata worth
pass-through insurance coverage in accordance with the standards set forth in
applicable federal law and FDIC insurance regulations. If the Trustee fails at
any time in the future to so qualify for pro rata worth pass-through insurance
coverage, it will promptly notify the Employer.
Section 12.7. EFFECT. All persons at any time interested in the Plan
shall be bound by the provisions of this Agreement and, in the event of any
conflict between this Agreement and the provisions of the Plan or any instrument
or agreement forming part of the Plan, the provisions of this Agreement shall
control.
Section 12.8. SEVERABILITY. The illegality or unenforceability of any
provisions of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
Section 12.9. HEADINGS AND TITLES. The titles of the Articles and
headings of Sections in this Trust Agreement are for convenience of reference
only and in case of conflict the text of this Trust Agreement rather than such
titles or headings shall control.
Section 12.10. BINDING AGREEMENT. This Agreement shall be binding upon
the Trustee and the Employer their successors and assigns, and upon the
participants and their beneficiaries, heirs, executors, administrators and
assigns.
Section 12.11. MERGER OR CONSOLIDATION. Any corporation into which the
Trustee may be merged, or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Trustee may be a party,
or any corporation succeeding to the business of the Trustee or to which
substantially all of the assets of the Trustee may be transferred, shall be the
successor of the Trustee hereunder without the execution or filing of
any paper and without any further action on the part of the parties hereto,
with like effect as if such successor trustee had originally been named
trustee herein.
Section 12.12. FORCE MAJEURE. The Trustee shall have no liability for
any losses arising out of delays in performing the services which it renders
under this Agreement which result from events beyond its control, including
without limitation, interruption of the business of the Trustee due to acts of
God, acts of governmental authority, acts of war, riots, civil commotions,
insurrections, labor difficulties (including, but not limited to, strikes and
other work slippages due to slow-downs), or any action of any courier or
utility, mechanical or other malfunction, or electronic interruption.
IN WITNESS WHEREOF, the Employer and the Trustee have caused this
Agreement to be executed and their corporate seals to be attested by their
respective duly authorized officers, all as of the day and year first above
written.
[Corporate Seal] PATHOGENESIS CORPORATION
Attest: /S/ XXXXXXX X. XXXXX By: /S/ XXXX X. XXXXXXXXX
---------------------------- ---------------------------------
(Assistant) Secretary Title: Vice President
Human Resources
[Corporate Seal] WILMINGTON TRUST COMPANY,
AS TRUSTEE
Attest: /S/ XXXXXXXX XXXX By: XXXX XXXXXXXX
---------------------------- ---------------------------------
Financial Services Officer Vice President
