EXHIBIT 4.7
DREYFUS TRUST AGREEMENT
THIS TRUST AGREEMENT is made by and between the Employer whose name is set forth
on the attached adoption agreement (the "Adoption Agreement") and the person
designated as Trustee in the Adoption Agreement (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer has adopted the qualified employee retirement plan
described in the Adoption Agreement (the "Plan") for the exclusive benefit of
its employees who are participants in such Plan (collectively the "Participants"
and individually a "Participant") and their beneficiaries; and
WHEREAS, the Employer desires to appoint the Trustee as a "nondiscretionary
trustee" (within the meaning of Section VI(g) of Prohibited Transaction Class
Exemption 77-9 under Section 408(a) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")) for the limited purposes hereinafter set
forth; and
WHEREAS, the Trustee desires to act as such a nondiscretionary trustee of the
Plan for the limited purposes hereinafter set forth;
NOW, THEREFORE, the Employer hereby establishes a fund with the Trustee that
shall be held, managed and controlled by the Trustee without distinction between
principal and income (the "Trust Fund") upon the terms and conditions
hereinafter set forth:
ARTICLE 1
CONCERNING THE TRUST FUND
Section 1.1. The Plan, this Trust Agreement and the Trust Fund created hereunder
are intended to meet all the applicable requirements of Sections 401(a) and
501(a) of the Internal Revenue Code of 1986, as amended (the "Code") and ERISA.
The Employer assumes full responsibility to establish and maintain the Plan as a
plan meeting the qualification requirements of Section 401(a) of the Code and
hereby agrees to notify the Trustee promptly in the event of any change in such
qualified status. Copies of all documents related to the Plan including, without
limitation, the Plan, amendments to the Plan and the most recent determination
letter received from the Internal Revenue Service with respect to the Plan (or
an opinion of counsel satisfactory to the Trustee as to the plan's qualified
status), upon request will be provided to the Trustee by the Employer.
Section 1.2. The Employer certifies and represents to the Trustee that there are
no duties imposed on the Trustee under the terms of the Plan that are not
consistent with the provisions of this Trust Agreement.
Section 1.3. The Trustee agrees to accept contributions that are paid to it by
the Employer (as well as rollover contributions and transfers from other
qualified retirement plans) in accordance with the terms of the Plan. The
Trustee shall be entitled to rely upon the determination of the fiduciary named
in the Plan as having the authority to control and manage the administration of
the Plan and its delegates, designers, agents and employees (the "Committee")
that all assets received by the Trustee are properly contributed or transferred
in accordance with the terms of the Plan. Such contributions shall be in cash or
in such other form that may be acceptable to the Trustee. All contributions
received by the Trustee and all other receipts of the Trustee, whether by way of
dividends, interest or otherwise, for the account of the Trust Fund shall be
held, managed and controlled by the Trustee pursuant to the terms of this Trust
Agreement without distinction between principal and income and may be
commingled, and held and invested and, with all disbursements therefrom,
accounted for by the Trustee, as a single fund. The Employer hereby agrees that
the Employer and the Committee shall have the exclusive responsibility, and the
Trustee shall not have any responsibility or duty under this Trust Agreement, to
determine whether the amount, timing and type of any contribution by the
Employer or any Participant is in accordance with the terms of the Plan or
applicable law, or for the collection of any contributions under the Plan.
Section 1.4 The Trustee, solely from assets held in the Trust Fund, shall make
payments in such amounts and for such proper purposes as may be specified in the
Committee's Directions (as defined in Section 2.1 herein). The Employer hereby
agrees that the Committee shall have the exclusive responsibility, and the
Trustee shall not have any responsibility or duty, under this Trust Agreement
for determining that the Committee's Directions are in accordance with the terms
of the Plan and applicable law, including without limitation, determining the
amount, timing or method of payment or the identity of each person to whom such
payments shall be made. The Trustee shall have no responsibility or duty to
determine the tax effect of any payment or to see to the application of any
payment, but shall be responsible for the proper application of amounts withheld
from distributions for payment of taxes to the appropriate authorities.
Section 1.5. The Trustee shall have no duties or obligations with respect to the
Trust Fund unless such duties or obligations have been specifically undertaken
by the Trustee by the express terms of the Trust Agreement or except to the
extent such duties or obligations are required under applicable laws.
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ARTICLE II
INVESTMENT AND ADMINISTRATION OF THE FUND
Section 2.1.1. In accordance with the provisions of ERISA, the Trustee shall
have exclusive authority and discretion to manage and control the Trust Fund;
provided, however, that the Trustee's authority and discretion with respect to
the Trust Fund shall at all times, except to the extent that an Investment
Manager has been appointed pursuant to Section 2.5, be subject to the proper,
written directions of the Committee which are made in accordance with the terms
of the Plan and which are not contrary to ERISA (the "Committee's Directions").
The Trustee shall be entitled to rely entirely on the Committee's Directions,
shall be under no duty to determine or make inquiry whether the Committee's
Directions received by it are in accordance with the provisions of the Plan or
applicable law, and shall have no liability and shall be fully indemnified by
the Employer for any action taken in accordance with, or any failure to act in
the absence of, the Committee's Directions.
Section 2.1.2. If the Committee advises the Trustee that the Plan provides for
individual accounts and permits each Participant to direct the investment of the
assets in the Participant's account, then, pursuant to the Committee's
Directions, the Trustee shall invest the assets in such account among the
investment options established pursuant to Section 2.3 as directed by each such
Participant in accordance with such procedures as are acceptable to the Trustee.
If such procedures include the effecting of exchanges among the investment
options established pursuant to Section 2.3 or otherwise directing the
investment of the assets allocated to a Participant's account by use of the
telephone system maintained for such purpose by the trustee or its agent, the
Trustee shall be entitled to rely on any telephonic direction reasonably
believed by it to be genuine from any person representing himself or herself to
be a Participant directing the investment of assets in his or her account,
provided that the Trustee employs reasonable procedures for processing such
directions, such as requiring a form of personal identification, to confirm that
telephonic directions are genuine. If the Trustee does not follow such
procedures, it may be liable for any losses due to processing unauthorized or
fraudulent directions. Subject to the foregoing, the Trustee shall be entitled
to rely entirely on Participants' directions, shall be under no duty to
determine or make inquiry whether Participants' directions are in accordance
with the provisions of the Plan or applicable law, and shall have no liability
and shall be fully indemnified by the Employer for any action taken in
accordance with, or any failure to act in the absence of, Participants'
directions.
Section 2.2 Except to the extent an Investment Manager has been appointed
pursuant to Section 2.5, the Committee shall have authority and discretion to
select the nature and amount of the investments to be made under the Plan.
Subject to Section 2.5, the Trustee shall invest, reinvest and dispose of the
assets comprising the Trust Fund in accordance with the Committee's Directions.
The Committee shall exercise such authority and discretion solely in the
interest of the Participants and their beneficiaries and (1) for the exclusive
purpose of (a) providing benefits to the Participants and their beneficiaries
and (b) defraying reasonable expenses of administering the Plan, (2) with the
care, skill, prudence and diligence under the circumstances then prevailing
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that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims, (3) by diversifying the investments of the Plan so as to minimize the risk
of large losses, unless under the circumstances it is clearly prudent not to do
so and (4) in accordance with the terms of the Plan and with applicable law. The
Trustee shall have no duty hereunder to review the investments held in the Trust
Fund. The Trustee shall not make suggestions or otherwise render investment
advice to the Committee or any Participant with respect to investment,
reinvestment, or disposition of assets held in the Trust Fund.
Section 2.3. Except to the extent required under applicable law, the authority
and discretion of the Trustee with respect to the Trust Fund shall be limited to
the following nondiscretionary powers which, with the exception of those powers
set forth in Section 2.3(0), shall be exercised solely in accordance with the
Committee's Directions or, to the extent provided in Section 2.1.2, the
directions of Participants or, to the extent provided in Section 2.5, the
directions of an Investment Manager:
(a) To open and maintain accounts for the Plan, and to the extent
that the Plan is a "defined contribution plan" (within the
meaning of Section 3(34) of ERISA), individual accounts for
each of the Participants.
(b) To receive contributions from the Employer and to credit
contributions made by the Employer to the individual accounts
of Participants established pursuant to paragraph (a) above.
(c) To invest contributions made by the Employer and other assets
of the Plan in shares of any investment company sponsored,
managed, advised, administered or distributed by The Dreyfus
Corporation or any of its affiliates (the "Dreyfus Funds"), in
equity securities issued by the Employer or an affiliate which
are publicly traded and which are "qualifying employer
securities" within the meaning of Section 407(d)(5) of ERISA
("Employer Stock"), in any collective investment fund
maintained by a bank or trust company as a "group trust" for
the collective investment of employee benefit plans qualified
under Section 401(a) of the Code, and such other investments
as may be acceptable to the Trustee and as agreed to in
writing by The Dreyfus Corporation ("Sponsor") and the
Committee (the Dreyfus Funds and such other investments shall
be collectively referred to as the "Investments"); and to
reinvest dividends and other distributions in the Dreyfus
Funds or other Investments provided, however, that if the Plan
is established pursuant to one of the Sponsor's prototype plan
documents, investments shall be subject to such investment
limitations or minimum requirements for investments in Dreyfus
Funds as may be imposed by the Sponsor. The Employer hereby
agrees that the Trustee shall not be restricted in making such
investments to investments that are authorized by governing
state laws (as determined under Section 9.5) for the
investment of trust funds. If Plan assets are invested in any
group trust, the
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terms of the group trust agreement or other governing document
are hereby incorporated by reference and made a part of the
Trust Agreement as long as the group trust remains exempt from
taxation under Section 501(a) of the Code. The Trustee shall
not be responsible in any way respecting the form, terms,
payment provisions or issuer of any insurance contract which
it is directed to purchase and/or hold to provide for the
payment of benefits, or for performing any functions under any
such insurance contract which it may be directed to purchase
and/or hold as contract holder thereunder (other than the
execution of any documents incidental thereto and transfer or
receipt of funds thereunder in accordance with the Committee's
Directions).
(d) To redeem, transfer or exchange shares of the Dreyfus Funds,
to sell, exchange, convey, transfer or otherwise dispose of
any other Investments; and to make, execute and deliver to the
purchasers thereof good and sufficient legal documents of
conveyance therefor, and all assignments, transfers and other
legal instruments, either necessary or convenient for passing
the title and ownership of the Investments, and no person
dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the
validity, expediency or propriety of any such sale or
disposition.
(e) To make distributions from the Trust Fund to Participants and
their beneficiaries.
(f) To deliver notices, prospectuses and proxy statements to
Participants or to the Employer, and to vote in person or by
proxy with respect to any securities held by the Trust Fund in
accordance with the written directions of the Committee or of
the Participants, as the case may be; and in accordance with
such power, to exercise subscription, conversion and other
rights and options and to take action or refrain from taking
any action with respect to any reorganization, consolidation,
merger, dissolution or other recapitalization or refinancing
to the extent that the exercise of such rights and options or
the taking or refraining from such actions may be deemed by
the Trustee to be necessary or proper to protect the best
interests of the Trust Fund.
(g) To maintain records of contributions, investments,
distributions and other transactions, and to report such
transactions to the Employer or such other persons as may be
designated by the Employer.
(h) To make necessary filings with the Internal Revenue Service,
the Department of Labor and other governmental agencies.
(i) To hold any part of the Trust Fund in cash or cash balances.
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(j) To hold custody of the assets of the Plan; and with respect to
any such assets held in custody by the Trustee, to cause any
investment of the Trust Fund to be registered in the name of
the Trustee or the name of its nominee or nominees or to
retain such investment unregistered or in a form permitting
transfer by delivery, provided that the books and records of
the Trustee shall at all times show that all such investments
are part of the Trust Fund.
(k) To apply for, purchase, hold or transfer any life insurance,
retirement income, endowment or annuity contract.
(l) To consult and employ any suitable agent(s) to act on behalf
of the Trustee and to contract for legal, accounting, clerical
and other services deemed necessary by the Trustee to
administer the Trust Fund according to the terms of this Trust
Agreement and the instructions of the Committee.
(m) To make loans from the Trust Fund to Participants in amounts
and on terms approved by the Committee; and Employer hereby
agrees that the Committee shall have the sole responsibility,
and the Trustee shall not have any duty or responsibility, for
computing and collecting any loan repayments required to be
made under the Plan.
(n) To pay from the Trust Fund all taxes imposed or levied with
respect to the Trust Fund or any part thereof under existing
or future laws, and to contest the validity or amount of any
tax, assessment, claim or demand respecting the Trust Fund or
any part thereof.
(o) To pay out of the Trust Fund (i) all brokerage fees and
transfer tax expenses and other expenses incurred in
connection with the sale or purchase of investments, (ii) the
Trustee's compensation and (iii) all other expenses of
administering the Plan and the Trust Fund including, without
limitation, any payments authorized by Section 1.4 of this
Agreement, unless promptly paid to the Trustee, or otherwise,
by the Employer. The Trustee shall have the authority to pay
all fees and expenses described in this Section 2.3(0) out of
the Trust Fund in the event such fees and expenses are not
promptly paid by the Employer and the Trustee is not in
receipt of Committee Direction to make such payments.
(p) To do all such acts, and to exercise all such rights and
privileges, although not specifically mentioned herein, as the
Trustee may deem necessary or proper to carry out any of the
nondiscretionary powers set forth herein or otherwise in the
best interests of the Trust Fund and required by applicable
law.
Section 2.4. Investments in Employer Stock shall be subject to the following
notwithstanding any other provision in this Trust Agreement:
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(a) In accordance with the Committee's Directions, the Trust Fund
may be invested in Employer Stock without regard to the ten
percent (10%) limitation with respect to the acquisition and
holding of employer securities set forth in Section 407(a)(2)
of ERISA if the Plan qualifies as an "eligible individual
account plan" under Section 407(d)(3) of ERISA.
(b) The Committee shall be responsible for determining the
appropriateness under the fiduciary responsibility and other
applicable provisions of ERISA of acquiring and holding
Employer Stock. The Trustee shall not be liable for any loss,
or by reason of any breach, which arises from following
directions with respect to the acquisition and holding of
Employer Stock.
(c) Subject to the provisions of Section 2.4(d), the Trustee shall
purchase and sell Employer Stock in accordance with such
procedures and guidelines as annexed hereto as Schedule A.
(d) At the Committee's Directions, the Trustee shall purchase or
sell Employer Stock on the open market or from or to the
Employer. In addition, the Employer may contribute Employer
Stock in lieu of cash to the Trust Fund. In the event the
Trustee uses one of its affiliates to effect the purchase or
sale of Employer Stock, the Trustee and such affiliate shall
comply with the provisions of Prohibited Transaction Class
Exemption 86-128. In the event that the Committee directs the
Trustee to use a particular broker or dealer to effect the
purchase or sale of Employer Stock, the Committee shall
represent to the Trustee that such direction (i) is for the
exclusive benefit of Participants and Beneficiaries of the
Plan, and (ii) shall not constitute, or cause the Trust Fund
to be engaged in, a "prohibited transaction" as defined in
Section 406 of ERISA. In the event the Trustee purchases or
sells Employer Stock from or to the Employer, such purchase or
sale shall be for "adequate consideration" as defined in
Section 3(18) of ERISA and no commission shall be charged. In
the event that the Employer contributes Employer Stock in lieu
of cash to the Trust Fund, such transfer shall be for
"adequate consideration" as defined in Section 3(18) of ERISA
and no commission shall be charged.
(e) The Employer represents and warrants that it has filed and
will file with the Securities and Exchange Commission and with
all applicable state agencies or authorities all required
registration statements relating to shares of Employer Stock
and other interests which may be issued under the Plan. The
Employer acknowledges that it is and shall be responsible for,
and that the Trustee shall not be responsible for, preparing
or filing such registration statements or for the accuracy of
statements contained therein, or for preparing or filing any
other reports, statements or filings required under federal or
state securities laws with respect to the Trust Fund's
investment in Employer Stock.
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(f) The Employer shall provide the Trustee with a copy of all
proxy solicitation materials proposed to be sent to
stockholders at least (7) days before the materials are sent
to stockholders or if the issuer of Employer Stock held in the
Trust Fund files preliminary proxy solicitation materials with
the Securities and Exchange Commission, the Employer shall
cause a copy of all materials to be simultaneously sent the
Trustee. The Trustee, in its discretion, may prepare or amend
any proxy voting form sent to Participants. The Trustee shall
determine which of the procedures set forth in subparagraph
(f)(i) or subparagraph (f)(ii) are to be followed in sending
proxy solicitation materials, including any amended or
supplemental materials, to Participants.
(i) The Trustee shall provide the Employer or its
designee with mailing labels and proxy labels for
each Participant to whose account shares of Employer
Stock (both vested and non-vested) are credited.
Proxy labels so provided shall indicate the number of
shares (including fractional interests in shares) of
Employer Stock credited to each Participant's account
(both vested and non-vested). At the time of mailing
of notice of each annual or special stockholders'
meeting of the issuer of Employer Stock, the Employer
or its designee shall cause a copy of the notice, all
proxy solicitation materials, and all other materials
to be sent to stockholders to be sent to each
affected Participant. The Employer shall provide the
Trustee with a copy of all materials provided to
Participants and shall certify to the Trustee that
the materials have been mailed or otherwise sent to
each affected Participant.
(ii) The Employer shall provide the Trustee with such
quantities of the notice of meeting, all proxy
solicitation materials and all other materials to be
sent to stockholders as may be requested by the
Trustee. At the time of mailing of notice of each
annual or special stockholders' meeting of the issuer
of the Employer Stock, the Trustee or its designee
shall send a copy of such materials and a voting
instruction form prepared by the Trustee to each
affected Participant.
The proxy voting form shall be returnable to the Trustee or
its designee. Each Participant shall be entitled to direct the
Trustee by means of the proxy voting form as to the voting of
shares (including fractional interests in shares) of Employer
Stock credited to such Participant's account (both vested and
non-vested). Upon timely receipt of the proxy voting form, the
Trustee shall vote the shares of Employer Stock as instructed.
Instructions received by the Trustee from Participants shall
be held by the Trustee in strict confidence and shall not,
except as may be required by law, be divulged or released to
any person including officers or employees of the Employer or
members of the Committee; provided, however, that the Trustee
may advise the Employer, upon request, of the total number of
votes that have been cast with respect to a particular issue.
The Trustee shall not make recommendations to Participants on
whether to vote or how to vote shares of Employer Stock. The
Trustee shall not
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vote shares of Employer Stock credited to a Participant's
account for which it has not received instructions from the
Participant. The Trustee shall not be obligated to solicit a
response from Participants from whom it has not received
instructions. The Trustee shall vote shares of Employer Stock
not credited to Participants' accounts in the same proportion
on each issue as it votes those shares credited to
Participants' accounts for which it received voting
instructions from Participants.
(g) In the event of a tender or exchange offer for any Employer
Stock held in the Trust Fund, the Trustee shall use its best
efforts to distribute or cause to be distributed to each
affected Participant in a timely manner all information and
materials that are distributed to the stockholders of the
issuer of the Employer Stock in connection with the offer and
directions as to how the Participant may instruct the Trustee
whether or not to tender or exchange the Employer Stock
credited to the Participant's account (both vested and
non-vested). Alternatively, the Trustee may agree that the
notification of Participants and distribution of the
information, materials and directions described above are to
be effected by the Employer or its designee. In such event,
the Employer shall provide the Trustee with a copy of all
information, materials and directions provided to Participants
and shall certify to the Trustee that the information,
materials and directions have been mailed or otherwise sent to
each affected Participant. The Trustee, in its discretion, may
prepare or amend any instruction form sent to Participants.
Instructions shall be returnable to the Trustee or its
designee. Each Participant shall be entitled to direct the
Trustee to tender or exchange shares (including fractional
interest in shares) of Employer Stock credited to such
Participant's account (both vested and non-vested). Upon
timely receipt of instructions, the Trustee shall act with
respect to Employer Stock as instructed. Instructions received
by the Trustee from Participants shall be held by the Trustee
in strict confidence and shall not, except as may be required
by law, be divulged or released to any person including
officers or employees of the Employer or members of the
Committee; provided, however, that the Trustee may advise the
Employer, upon request, of the total number of shares of
Employer Stock that have been tendered or exchanged. The
Trustee shall not make recommendations to Participants on
whether to tender or exchange. The Trustee shall not tender or
exchange shares of Employer Stock credited to a Participant's
account for which it has not received instructions from the
Participant. The Trustee shall not be obligated to solicit a
response from Participants from whom it has not received
instructions. The Trustee shall tender or exchange that number
of shares of Employer Stock not credited to Participants'
accounts which is determined (after giving effect to the
withdrawal of any shares of Employer Stock before the
expiration of the offer or any earlier date set by the
Trustee) by multiplying the total number of shares of Employer
Stock not credited to Participants' accounts by a fraction of
which the numerator is the number of shares of Employer Stock
credited to Participants' accounts for which the Trustee has
received instructions from Participants to tender or exchange
and of which the denominator is the total number of shares
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of Employer Stock credited to Participants' accounts. A
Participant who has instructed the Trustee to tender or
exchange shares of Employer Stock credited to such
Participant's account may, at any time prior to the expiration
of the offer or any earlier date set by the Trustee, instruct
the Trustee to withdraw a specified number of shares from the
offer. A Participant shall not be limited as to the number of
instructions that the Participant may give to the Trustee. If
a Participant instructs the Trustee to tender or exchange
shares of Employer Stock credited to the Participant's
account, the Trustee shall credit to each account of such
Participant from which the shares were taken the consideration
received by the Trustee for the shares of Employer Stock
tendered or exchanged from that account. Pending receipt of
Committee Directions or, to the extent provided in Section
2.1.2 of the Trust Agreement, instructions from the
Participant as to the investment of such proceeds, the Trustee
shall invest any cash consideration in such money market
mutual fund as is designated in writing by the Committee.
(h) For purposes of this Section 2.4, the number of shares of
Employer Stock deemed "credited" to a Participant's account
shall be determined as of the last preceding valuation date
for which an allocation has been completed and Employer Stock
has actually been credited to Participants' accounts. The
Trustee may, in its discretion, require a special valuation of
Participant accounts and crediting of Employer Stock.
(i) In the event that the Trustee, in its discretion, determines
that time constraints make it unlikely that Participant voting
or tender or exchange instructions can be received in a timely
fashion, the Trustee shall notify the Committee and the
Committee or its designee shall be responsible for such
matter, and the Trustee shall vote proxies or respond to a
tender or exchange offer in accordance with the Committee's
Directions.
(j) All costs incurred by the Trustee in handling proxy and tender
or exchange offer matters, including without limitation all
costs associated with the printing and mailing of Participant
instruction forms and other materials and attorneys' fees,
shall be expenses of the Trust Fund within the meaning of
Section 6.1 of the Trust Agreement.
Section 2.5. If permitted by the Plan, the Employer or the Committee may appoint
one or more investment managers within the meaning of Section 3(38) of ERISA
("Investment Manager") to direct investments with respect to all or part of the
Trust Fund. Any Investment Manager so appointed shall be (i) an investment
adviser registered as such under the Investment Advisers Act of 1940, or (ii) a
bank, as defined in that Act, or (iii) any insurance company qualified to
perform investment management services under the laws of more than one state.
Any Investment Manager
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so appointed shall, in writing, certify to the Employer that it is qualified to
act in such capacity under clause (i), (ii) or (iii) of the preceding sentence,
accept its appointment as Investment Manager, acknowledge that it is a fiduciary
with respect to the Plan, and certify the identity of the person or persons
authorized to give instructions or directions on its behalf. The Employer shall
certify to the Trustee that it has appointed each Investment Manager in
accordance with the provisions of the Plan and ERISA, and instruct the Trustee
as to the portion of the Plan that is to be managed by each Investment Manager.
The Trustee may continue to rely upon all certifications and agreements made
under this Section 2.5 unless otherwise notified in writing by the Employer or
the Investment Manager, as the case may be. The Trustee shall be entitled to
rely entirely on an Investment Manager's directions, shall be under no duty to
determine or make inquiry whether an Investment Manager's directions received by
it are in accordance with the provisions of the Plan or applicable law, and
shall have no duty to review or recommend the sale, retention, or other
disposition of any asset purchased or retained in accordance with an Investment
Manager's directions. The Trustee shall have no liability for any loss to the
Trust Fund resulting from the purchase, sale, or retention of any asset in
accordance with an Investment Manager's directions, or resulting from not having
sold such assets so purchased or retained in the absence of an Investment
Manager's directions, to make such sale or take any other action. The Trustee
shall be fully indemnified by the Employer for any action taken in accordance
with, or any failure to act in the absence of, an Investment Manager's
directions.
ARTICLE III
DUTIES AND RESPONSIBILITIES
Section 3.1.1. The Trustee shall discharge its duties and responsibilities under
this Trust Agreement solely in the interest of Participants and their
beneficiaries, and
(a) for the exclusive purpose of providing benefits to the
Participants and their beneficiaries and defraying the
reasonable expenses of administering the Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in
a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like
aims.
Section 3.1.2. In the event that the Employer designates The Dreyfus Trust
Company ("The Trust Company") as the Trustee in the Adoption Agreement hereto,
and the Trustee has been designated as an additional Trustee for the Plan, The
Trust Company as Trustee shall have no responsibilities other than as set forth
herein, and this Trust Agreement shall constitute a supplemental trust
agreement. The duties of The Trust Company shall be limited to assets held in
the Trust Fund, and The Trust Company shall have no duties with respect to
assets held by any other person including, without limitation, any other trustee
for the Plan. The Employer hereby agrees that The
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Trust Company shall not serve as, and shall not be deemed to be, a co-trustee
under any circumstances.
Section 3.1.3. Subject to the limitations set forth in Section 3.1.2 herein,
in the event that more than one individual Trustee has been designated in
the Adoption Agreement, the action of such individual Trustees shall be
determined by vote of the majority of such individual Trustees; provided,
however, that any one of such individual Trustees may execute any applications
for insurance or annuity contracts provided for herein and documents necessary
for the exercise of ownership rights thereunder and may perform other such
ministerial acts; and further provided, that the Trustees may enter into an
agreement allocating among themselves specific responsibilities, obligations
and duties.
Section 3.1.4. The Trustee shall be solely responsible for its own acts and
omissions. The Trustee shall have no duty to question, or otherwise inquire
into, the performance of another fiduciary with respect to duties allocated to
such other fiduciary under the Plan. The Trustee shall not be responsible for
the breach of any other such fiduciary unless the Trustee (i) participates
knowingly in, or knowingly undertakes to conceal, an act or omission of such
other fiduciary, knowing such act or omission is a breach, (ii) has actual
knowledge of a breach by such other fiduciary and fails to make reasonable
effort under the circumstances to remedy the breach or (iii) has failed to
perform its own specific fiduciary duties and thereby has enabled another
fiduciary to commit a breach.
Section 3.2. The Trustee shall keep full and accurate records of all receipts,
investments, disbursements and other transactions hereunder, including such
specific records as may be agreed upon in writing between the Company, the
Committee and the Trustee. All such records shall be open to inspection during
the Trustee's normal business hours by any authorized representative of the
Employer or the Committee upon reasonable prior notice to the Trustee.
Section 3.3. Within 90 days after the end of each Plan Year, as that term is
defined in the Plan, or within 90 days after its removal or resignation, or the
termination of the Plan or this Trust Agreement, the Trustee shall file with the
Committee a written account of the administration of the Trust Fund showing all
transactions effected by the Trustee subsequent to the period covered by the
last such accounting, if any, to the end of such Plan Year or date of such
removal or resignation, or the termination of the Plan or this Trust Agreement,
and all property held at its fair market value at the end of the accounting
period. Upon approval of such accounting by the Committee, neither the Employer
nor the Committee shall be entitled to any further accounting by the Trustee.
The Committee shall approve such accounting by written notice of approval
delivered to the Trustee or by failure to express objection to such accounting
in writing delivered to the Trustee within 60 days from the date on which the
accounting is mailed to the Committee and, in either case, the Trustee shall be
forever released and discharged from all liability and accountability with
respect to the propriety of its acts and transactions as to which the Committee
shall within such 60 day period file with the Trustee no such written
objections.
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Section 3.4. The Trustee may from time to time consult with counsel and shall be
entitled to rely entirely upon the advice of counsel with respect to any act or
omission.
Section 3.5. In the event of any disagreement resulting in conflicting
instructions to, or adverse claims or demands upon, the Trustee with respect to
payments or instructions, the Trustee shall be entitled, at its option, to
refuse to comply with any such instruction, claim or demand so long as such
disagreement shall continue, and in the exercise of such refusal, the Trustee
may elect not to make any payment or other disposition of assets held pursuant
to this Trust Agreement. The Trustee shall not be or become liable in any way
for its failure or refusal to comply with any such conflicting instructions or
adverse claims or demands, and it shall be entitled to continue to refrain from
acting until such conflicting or adverse instructions, claims or demands (a)
shall have been adjusted by agreement and it shall have been notified in writing
therefor or (b) shall have been finally determined in a court of competent
jurisdiction.
Section 3.6. The Trustee shall not, by act, delay, omission or otherwise, be
deemed to have waived any right or remedy it may have either under this Trust
Agreement or generally, and no waiver shall be valid unless it is contained in a
written instrument signed by the Trustee and only to the extent expressly set
forth therein. A waiver by the Trustee under the terms of this Trust Agreement
shall not be construed as a bar to, or waiver of, the same or any other such
right or remedy that it would otherwise have on any other occasion.
Section 3.7. The Trustee will not be compelled to do any act under this Trust
Agreement or to take any action toward the execution or enforcement of the Trust
Fund created hereunder or to prosecute or defend any suit in respect thereof,
unless indemnified by the Employer to its satisfaction against any loss, costs,
liability and expense; and the Trustee will be fully indemnified by the Employer
for any liability or obligation to any person that results from any failure on
the part of the Employer or the Committee to perform any of their respective
obligations under the Plan or under the terms of this Trust Agreement, or for
any error or omission whatsoever on the part of the Committee or the Employer.
Section 3.8. Unless resulting from the Trustee's own gross negligence or willful
misconduct, the Employer shall indemnify the Trustee and save it harmless from,
against, for and in respect of any and all damages, losses, obligations,
liabilities, liens, deficiencies, costs and expenses (including, without
limitation, attorney's fees and other costs and expenses incident to any suit,
action, investigation, claim or proceedings) suffered, sustained, incurred or
required to be paid by the Trustee in connection with the Plan or this Trust
Agreement. The provisions of this Section 3.8 shall survive termination of this
Trust Agreement.
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ARTICLE IV
PROHIBITION OF DIVERSION
Section 4.1. Except as provided in Section 4.2 herein, at no time prior to the
satisfaction of all liabilities with respect to Participants and their
beneficiaries under the Plan shall any part of the corpus or income of the Fund
be used for, or diverted to, purposes other than for the exclusive benefit of
Participants or their beneficiaries, or for defraying reasonable expenses of
administering the Plan.
Section 4.2.1. Notwithstanding the provisions of Section 4.1, but subject to the
provisions of Section 4.2.2 herein, contributions made by the Employer under the
Plan shall be returned to the Employer under the following conditions and only
as the Trustee is instructed in writing by the Committee:
(a) If a contribution is made by mistake of fact, such
contribution shall be returned to the Employer within one year
of the payment of such contributions;
(b) To the extent that contributions to the Plan are specifically
conditioned upon their deductibility under the Code, and a
deduction is disallowed for any such contribution, it shall be
returned to the Employer within one year after the
disallowance of the deduction; and
(c) To the extent that contributions to the Plan are specifically
conditioned on initial qualification of the Plan under the
Code, and the Plan is determined to be disqualified,
contributions and the earnings thereon made in respect of any
period subsequent to the effective date of such
disqualification shall be returned to the Employer within one
year after the date of denial of qualification, provided that
the Employer makes timely application to the Internal Revenue
Service for a determination of the qualified status of the
Plan.
Section 4.2.2 Earnings attributable to any contributions returned to the
Employer under Sections 4.2.1(a) and 4.2.1 (b) shall not be returned to the
Employer. Losses attributable to any contributions returned to Employer under
Section 4.2.1 shall reduce the amount to be so returned.
ARTICLE V
COMMUNICATION WITH COMMITTEE AND THE EMPLOYER
Section 5.1. Except as otherwise specifically provided herein, any action by an
Employer that is a corporation pursuant to any of the provisions of this Trust
Agreement shall be evidenced by (1) a resolution of its board of directors (the
"Board") certified to the Trustee over the signature of its Secretary or
Assistant Secretary or other duly authorized agent under the corporate seal, if
any, or (2) by appropriate written authorization of any person or committee to
which the Board has
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delegated the authority to take such action. Any action by an Employer that is a
partnership or a sole proprietorship shall be evidenced by a written
certification of a general partner of the partnership or the sole proprietor, as
the case may be. The Trustee shall be entitled to rely entirely on, and shall be
fully indemnified by the Employer for acting in accordance with, any such
resolution, certification or other authorization.
Section 5.2. The Employer shall provide to the Trustee a certificate, signed by
an authorized officer of the Employer, that contains (a) the name, (b) specimen
signature and (c) a description of the specific powers and duties, of each
member of the Committee. The Employer shall give prompt written notice of any
change in the identity, powers or duties of any member of the Committee, and the
Trustee shall be entitled to rely entirely on its failure to receive such notice
as a certification of the Employer that a designated member of the Committee and
such member's duties and powers have not been changed. The Trustee shall have no
duty to inquire into the qualifications of any member of the Committee.
Section 5.3. The Committee's Directions shall be communicated to the Trustee in
a certificate that sets forth the action of the Committee, signed by the person
then acting as Chairman or Secretary of the Committee, or in a written statement
signed by any two or more members of the Committee or any person or agent
designated to act on behalf of the Committee. Such person or agent shall be so
designated either under the provisions of the Plan or in a certificate by the
Committee that contains (a) the name, (b) specimen signature and (c) a
description of the specific powers and duties of each such person or agent. The
Committee shall give prompt written notice of any change in the identity, powers
and duties of any such person or agent, and the Trustee shall be entitled to
rely entirely on its failure to receive such notice as a certification of the
Committee that the identity, powers and duties of such person or agent have not
been changed.
Section 5.4. The Trustee shall have no liability hereunder for any action taken
in good faith in reliance upon any instructions, directions, certifications and
communications believed by the Trustee to be genuine and to have been signed or
communicated by the proper person.
ARTICLE VI
TRUSTEE'S COMPENSATION; EXPENSES
Section 6.1. The Trustee shall receive reasonable compensation for its services
in accordance with its schedule of compensation in effect when such services are
rendered. The Trustee may amend the schedule from time to time, which amendment
shall become effective no earlier than 30 days after written notice is sent to
the Employer. The Trustee shall also be entitled to reimbursement for all
reasonable expenses incurred by it in the performance of its duties hereunder
including, without limitation, any expenses incurred in the consultation or
employment of any agent pursuant to Section 2.3(l). Any such compensation or
expenses and any income or other taxes which may be levied against the Trust
Fund shall be paid out of the Trust Fund, unless paid directly by the Employer.
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ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1. The Trustee may resign at any time by written notice to the
Employer which shall be effective 30 days after delivery to the Employer of such
notice, provided that a successor Trustee shall have been appointed by the
Employer; provided, however, that such notice may be waived by the Employer.
Section 7.2. The Trustee may be removed by the Employer at any time upon 30
days' prior written notice to the Trustee, provided that a successor Trustee
shall have been appointed by the Employer; provided, however, that such notice
may be waived by the Trustee.
Section 7.3. The appointment of a successor Trustee hereunder shall be
accomplished by and shall take effect upon the delivery to the resigning or
removed Trustee, as the case may be, of written notice from the Employer
appointing such successor Trustee, and an acceptance in writing of the successor
Trustee. Any successor Trustee may be either a corporation authorized and
empowered to exercise trust powers or one or more individuals. All of the
provisions set forth herein with respect to the Trustee shall relate to each
successor Trustee so appointed with the same force and effect as if such
successor Trustee had been originally named herein as the Trustee hereunder. If
a successor Trustee shall not have been appointed within 30 days after delivery
to the Employer of notice of the Trustee's resignation pursuant to Section 7.1,
the resigning Trustee may apply to a court of competent jurisdiction for the
appointment of a successor Trustee.
Section 7.4. Upon the appointment of a successor Trustee, the resigning or
removed Trustee shall transfer and deliver the Trust Fund to such successor
Trustee, after reserving such reasonable amounts as are necessary to provide for
its reasonable expenses in the settlement of its account, the amount of any
compensation due to it and any sums chargeable against the Trust Fund for which
it may be liable. If the sums so reserved are not sufficient for such purposes,
the resigning or removed Trustee shall be entitled to reimbursement for any
deficiency from the Employer or out of the Trust Fund.
Section 7.5. At the time the Trust Fund shall have been transferred and
delivered to a successor trustee and the accounts of the Trustee have been
approved pursuant to Section 3.3 herein, the Trustee shall be released and
discharged from all further accountability or liability for the Trust Fund and
shall not be responsible in any way for the further disposition of the Trust
Fund or any part thereof.
ARTICLE VIII
AMENDMENT AND TERMINATION OF THE TRUST AND PLAN
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Section 8.1. The Employer may terminate this Agreement at any time upon 30 days'
prior written notice delivered to the Trustee; provided that such termination by
the Employer is subject to the condition that a new trustee assumes the
responsibilities and functions of the Trustee as set forth herein; and provided,
further, that the trusteeship shall, if terminated by the Employer, continue
thereafter for such period as may be necessary for the complete divestiture to a
newly appointed trustee of all assets held in the Trust Fund.
Section 8.2. If the Plan is terminated in whole or in part, or if the Employer
permanently discontinues its contributions to the Plan, the Trustee shall
distribute the Fund or any part thereof in accordance with the Committee's
Directions. Upon the Employer's termination of the Plan in whole or in part or
the revocation or termination of this Trust Agreement, the Trustee shall have
the right to have its accounts approved. When the Trust Fund shall have been so
applied or distributed, and the accounts of the Trustee shall have been approved
pursuant to Section 3.3 herein, the Trustee shall not be responsible in any way
for the further disposition of the Trust Fund (or that part thereof so applied
or distributed, if the Plan is terminated only in part). The Trustee shall have
the right to withhold distribution or application of any part of the Trust Fund
unless and until written approval of any such termination has been granted by
the Internal Revenue Service and, if the Plan is subject to the jurisdiction of
the Pension Benefit Guaranty Corporation (the "PBGC"), (a) the period of time
set forth in Section 4041(b)(2)(C) of ERISA has elapsed and the PBGC has not
issued any notice of noncompliance or (b) the PBGC has notified the Plan
Administrator that the requirements or a distress termination have been met
pursuant to Section 4041(c)(3)(A) of ERISA. Assets of the Trust Fund shall not
be returned to the Employer unless and until the Employer has delivered to the
Trustee (a) a certification of an enrolled actuary stating that there is an
amount remaining in the Trust Fund that is not required for the payment of the
benefits provided under the Plan for participants or their beneficiaries and (b)
an opinion of counsel satisfactory to the Trustee, stating that such return of
assets is permitted under the terms of the Plan and applicable law.
Section 8.3. This Trust Agreement may be amended or modified by a written
agreement signed by the parties hereto or by the Trustee upon 60 days' prior
written notice to the Employer.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 9.1. This Trust Agreement shall be adopted by execution of the Adoption
Agreement.
Section 9.2. In the event that any provision of this Trust Agreement is deemed
or held to be unlawful or invalid for any reason, such event shall not adversely
affect any other provision contained herein unless such illegality shall make
impossible or impracticable the functioning of this Trust Agreement, and in such
case, the appropriate parties shall immediately amend this Trust Agreement.
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Section 9.3. The titles and headings of the Sections in this instrument are
placed herein for convenience of reference only. In the event of any conflict,
the text of this instrument, rather than such titles or headings, shall control
the interpretation of any of the terms and provisions contained herein.
Section 9.4. Except as otherwise specifically provided herein, all notices or
other communications required or permitted to be given pursuant to this
Agreement shall be given in writing and delivered by personal delivery or sent
by U.S. first class mail, postage prepaid, addressed to their last respective
address of record.
Section 9.5. The construction, validity and administration of this Trust
Agreement shall be governed by the laws of the state where the Trustee has its
principal place of business, except to the extent that such laws are preempted
by ERISA.
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