Exhibit 4.2
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TRUST AGREEMENT
between
DDB XXXXXXX WORLDWIDE, INC.
and
THE BANK OF NEW YORK
Dated as of June 15, 1993
Account Numbers(s): 586460, 586461, 586462, 586463
586464, 586465, 586466
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TRUST AGREEMENT
1. Establishment of Master Trust ....................................... 1
1.1 The Master Trust .............................................. 1
1.2 Establishment of Separate Funds ............................... 1
1.3 Company as Agent .............................................. 2
1.4 Title to Assets ............................................... 2
1.5 Acceptance of Trust ........................................... 2
2. Investment of Master Fund ........................................... 2
2.1 Appointment of Investment Managers and
Investment Committee .......................................... 2
2.2 Discretionary Funds ........................................... 3
(a) Permitted Investments .................................... 3
(b) Brokerage Commissions .................................... 4
(c) Funding Policy ........................................... 4
2 3 Directed Funds ................................................ 4
(a) Permitted Investments .................................... 4
(b) Investment Instructions .................................. 4
2.4 Settlement of Securities Transactions ......................... 5
2.5 Cash Balances ................................................. 5
2.6 Transfers to Collective Trusts ................................ 6
2.7 Insurance Contracts ........................................... 6
(a) Procuring and Holding Contracts .......................... 6
(b) Exercising Rights under Contracts ........................ 7
(c) Payment of Premiums ...................................... 7
(d) Payments under Contracts ................................. 7
(e) Liability of Master Trustee; Indemnification ............. 7
3. Powers of Master Trustee ............................................ 8
3.1 In General .................................................... 8
3.2 At Direction of Named Fiduciary ............................... 9
3.3 Administrative Powers ......................................... 10
4. Registration of Company Securities .................................. 11
5. Accounts to be Maintained by the Master Trustee;
Payments from the Master Trust ...................................... 12
5.1 Accounts ...................................................... 12
5.2 No Separate Recordkeeping ..................................... 12
5.3 Payments; Disputes ............................................ 12
5.4 Direct Deposits of Payments ................................... 12
5.5 Administrative Committee's Responsibility ..................... 13
5.6 Returned and Uncashed Payments ................................ 13
5.7 No Liability for Contributions ................................ 13
6. Valuation of the Master Fund ........................................ 13
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7. Administrative Expenses, Taxes and
Master Trustee's Compensation ....................................... 14
7.1 In General .................................................... 14
7.2 Fees of Investment Managers ................................... 14
8. Master Trustee's Liability; No Duty
to Review; Indemnification .......................................... 14
8.1 Liability of Master Trustee ................................... 14
8.2 No Duty to Review ............................................. 15
8.3 Reliance on Certain Appraisals ................................ 15
8.4 Indemnification of Master Trustee ............................. 15
8.5 Limitation of Indemnity ....................................... 16
8.6 Indemnification of Successor Trustee .......................... 16
9. Settlement of Master Trustee's Accounts ............................. 16
9.1 Annual Accounting ............................................. 16
9.2 Other Accountings ............................................. 17
9.3 Settlement of Accounts ........................................ 17
10. Segregation of Parts of the Master Trust ............................ 17
10.1 Segregation ................................................... 17
10.2 Segregated Property ........................................... 18
11. Resignation and Removal of Master Trustee ........................... 18
12. Evidence of Action by Company, Investment Managers and
Investment and Administrative Committees, and of
Appointment of Named Fiduciary, Investment Managers and
Investment and Administrative Committees ............................ 19
13. Amendment of Agreement, Termination of Trust,
Termination of Plan ................................................. 20
13.1 Amendment of Agreement ........................................ 20
13.2 Termination of Master Trust ................................... 20
13.3 Termination of the Plan ....................................... 20
13.4 Exclusive Benefit ............................................. 20
14. Inalienability of Benefits and Interests ............................ 21
15. No Merger, Consolidation or Transfer of Plan
Assets or Liabilities ............................................... 21
16. Governing Law ....................................................... 21
Exhibit A. Master Trustee's Fees
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TRUST AGREEMENT
THIS AGREEMENT made as of June 15, 1993 by and between DDB Xxxxxxx
Worldwide, Inc., a New York corporation (hereinafter referred to as the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation
(hereinafter referred to as the "Master Trustee");
W I T N E S S E T H:
WHEREAS, the Company and certain of its subsidiaries and affiliates have
heretofore adopted or may hereafter adopt a qualified deferred compensation plan
for the benefit of its or their employees (such plan, as amended from time to
time, is referred to herein as the "Plan", and the company and any such
subsidiary or affiliate are referred to herein as the "Employer"); and
WHEREAS, the Plan provides, among other things, for the financing by means
of a trust fund of all or a part of the benefits to be paid pursuant to the Plan
to certain employees (herein called "Participants") of the Employer and their
beneficiaries (herein called "Beneficiaries"), and the Company wishes THE BANK
OF NEW YORK to serve as Trustee thereunder in accordance with the requirements
of the Employee Retirement Income Security Act of 1974, as amended (the "Act");
NOW, THEREFORE, the Company and the Master Trustee agree as follows:
SECTION 1. Establishment of Master Trust.
1.1 The Master Trust. The Company hereby establishes with the Master
Trustee a trust (hereinafter referred to as the "Master Trust") which shall
comprise all of the funds and other assets deposited herewith, together with
such other sums of money and such property acceptable to the Master Trustee as
shall from time to time be paid or delivered to the Master Trustee hereafter,
all investments made therewith and proceeds thereof and the earnings and profits
thereon. All such funds and property, together with such investments, proceeds,
earnings and profits, less the payments or other distributions which, at the
time of reference, shall have been made by the Master Trustee as authorized
herein, are referred to as the "Master Fund."
1.2 Establishment of Separate Funds. The Master Fund shall consist
initially of a single fund. At any time and from time to time the Master Trustee
shall, if so directed by DDB Xxxxxxx, Worldwide Inc., the party that under the
terms of the Plan
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is the named fiduciary with respect to control or management of the assets
thereof (hereinafter referred to as the "Named Fiduciary"), establish within the
Master Fund one or more investment funds, each of which shall be invested or
reinvested as provided in Section 2. The term "Fund", as used herein, shall mean
the initial fund or any other investment fund so established, depending upon the
fund to which such provision is being applied at the time, and the term "Master
Fund" shall refer to all such funds in the aggregate. The functions of the Named
Fiduciary may be divided among more than one person or persons (in which case
the term "Named Fiduciary" shall refer to any such person or persons, as the
context requires), and the same person or persons may serve as the Named
Fiduciary and the Investment Committee and/or the Administrative Committee as
hereinafter defined. The Master Trustee shall hold, manage, administer, value,
make purchases and sales for, distribute, account for, and otherwise deal with
each Fund separately.
1.3 Company as Agent. Each subsidiary or affiliate of the Company adopting
the Plan appoints the Company as its agent for purposes of this Agreement and
agrees that it shall be bound by the decisions, actions and directions of the
Company and any Investment Manager or Investment Committee (as hereinafter
defined) hereunder and that the Master Trustee shall be fully protected in
relying upon such decisions, actions and directions and shall in no event be
required to give notice to or otherwise deal with such subsidiary or affiliate
except by dealing with the Company as agent of such subsidiary or affiliate.
1.4 Title to Assets. Neither the Plan nor the participants or their
Beneficiaries shall have any right, title or interest in or to any specific
assets of the Master Fund, but shall have an undivided beneficial interest in
the Master Fund valued in accordance with Section 6 hereof. Ownership of all the
individual assets of the Master Fund shall be by the Master Trustee. The Master
Trustee shall not issue any certificate or other documentation representing any
interest in the Master Fund or part hereof.
1.5 Acceptance of Trust. The Master Trustee hereby accepts the Master
Trust created by this Agreement on the terms and conditions herein set forth.
SECTION 2. Investment of Master Fund.
2.1 Appointment of Investment Managers and Investment Committee. At the
time each Fund is established, and from time to time thereafter, the Company
shall determine and advise the Master Trustee whether the investment of such
Fund is to be managed (a) by the Master Trustee in its sole discretion, (b) by
an investment manager who (i) is duly appointed by the Named Fiduciary, and (ii)
qualifies as an investment manager under Section 3(38)(B) of the Act (an
"Investment Manager"), or (c) by
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an Investment Committee appointed by the Named Fiduciary (the "Investment
Committee"). Any Fund that is managed by the Master Trustee is hereinafter
referred to as a "Discretionary Fund", and any Fund that is managed by an
Investment Manager or Investment Committee is hereinafter referred to as a
"Directed Fund".
In the event the Investment Manager of any Directed Fund resigns or is
removed, the Named Fiduciary shall promptly notify the Master Trustee of such
resignation or removal and of the appointment of a successor to such Investment
Manager. Upon resignation or removal of an Investment Manager the Master Trustee
shall not have or be deemed to have any responsibility to manage and control any
asset held in the Directed Fund of such former Investment Manager, except as set
out in the sentence immediately following. If an Investment Committee has been
appointed, the Master Trustee shall treat such Fund as managed by the Investment
Committee pending notification from the Named Fiduciary of the appointment of a
different successor to the former Investment Manager; if no Investment Committee
has been appointed and if no notification of the appointment of such a successor
is received within seven days of notification to the Master Trustee of the
former Investment Manager's resignation or removal, the Master Trustee shall
thereafter treat such Directed Fund as a Discretionary Fund unless and until it
receives other instructions from the Named Fiduciary as to the investment of
such Fund.
2.2 Discretionary Funds.
(a) Permitted Investments. The Master Trustee shall invest and
reinvest any Discretionary Fund, without distinction between principal and
income, in such property (real, personal or mixed) as the Master Trustee, in its
sole discretion, shall deem suitable for such Fund, including without
limitation: any and all common stocks, preferred stocks, bonds, debentures,
mortgages on real or personal property wherever situated, equipment trust
certificates, notes or other evidence of indebtedness, or any other securities,
certificates of deposit, demand or time deposits (including any such deposits,
demand or time deposits with The Bank of New York), shares of investment
companies and mutual funds (irrespective of whether The Bank of New York is
performing services therefor), interests in partnerships and trusts, insurance
policies and contracts, repurchase agreements, and any other property or joint
or other part interest in property (including, without limitation, part
interests in bonds and mortgages or notes and mortgages), United States or
foreign, whether situated within or outside the United States (provided that,
except as provided in Section 3.3 hereof, the indicia of ownership thereof are
not maintained outside the jurisdiction of the district courts of the United
States), and of any kind, class or character, and irrespective in any case of
whether The Bank of New York or another, individually or as trustee or agent, is
acting as participator of any part interest
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in property that may be acquired. Such investment and reinvestment shall not be
restricted to property authorized for investment by trustees under any present
or future law. A Discretionary Fund may be invested and reinvested whether or
not the property acquired is productive of income, is marketable or constitutes
a wasting asset. Without limiting the generality of the foregoing, a
Discretionary Fund may be invested in stocks of any classification, bonds or
other securities issued or guaranteed by the Company, or by any subsidiary or
affiliate thereof, or in real property which is owned by or leased to the
Company, or any subsidiary or affiliate thereof. Nothing herein contained,
however, shall be deemed to purport to authorize any investment or reinvestment
in violation of the requirements of the Act.
(b) Brokerage Commissions. In placing securities transactions for a
Discretionary Fund, the Master Trustee's primary objective will be to obtain the
most favorable net results, taking into account such factors as the best net
price available, the size of and difficulty in executing the order, and the
reliability, efficiency and financial responsibility of the broker or dealer.
When it can be done consistently with this goal, the Master Trustee may allocate
orders to brokers or dealers who also provide brokerage or research services (as
defined in Section 28(e) of the Securities Exchange Act of 1934). The Company
understands that such brokerage and research services may be useful to other
accounts managed by the Master Trustee and, similarly, research generated
through commissions paid by such other accounts may be useful in connection
with a Discretionary Fund.
(c) Funding Policy. The Named Fiduciary shall advise the Master
Trustee in writing of any funding policy and method or investment guidelines
which have been established to carry out the objectives of the Plan, and shall
promptly advise the Master Trustee of any changes therein.
2.3 Directed Funds.
(a) Permitted Investments. Each Directed Fund shall be invested and
reinvested, without distinction between principal and income, in any property
authorized in Section 2.2(a) above as the Master Trustee may be directed by an
Investment Manager or the Investment Committee.
(b) Investment Instructions. An Investment Manager or the Investment
Committee at any time and from time to time may issue orders directly to a
broker for the purchase or sale of securities for any Directed Fund that it
manages. The Investment Manager or Investment Committee will promptly give or
cause to be given to the Master Trustee notice of the issuance of such order and
the broker will confirm such order or cause it to be confirmed to the Master
Trustee. Such notice and confirmation may be given in writing, by telecopy or by
any other electronic
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means using a code for the authentication of messages, and may include Trade
Reports issued by the Institutional Delivery System of Depository Trust Company.
Receipt of a matching notice and confirmation or of such a Trade Report shall be
authority for the Master Trustee to settle such trade. Except as provided in
Section 2.1, in the absence of directions or authorization from the Investment
Manager or Investment Committee, the Master Trustee shall have no power, duty or
authority to invest any Directed Fund.
2.4 Settlement of Securities Transactions. When the Master Trustee is
instructed to deliver property against payment, delivery of the property and
receipt of payment may not be simultaneous. The risk of non-receipt of payment
shall be the Master Trust's and the Master Trustee shall have no liability
therefor. All credits to the Master Trust of the anticipated proceeds of sales
and redemptions of property and of anticipated income from property shall be
conditional upon receipt by the Master Trustee of final payment and may be
reversed to the extent final payment is not received. At the discretion of the
Master Trustee, the Master Trust may make use of such conditional credits. To
the extent such credits do not become unconditional by receipt of final
payment, the Master Trust shall reimburse the Master Trustee upon demand for the
amount of such conditional credits so used. When the Master Trustee is
instructed to receive property, it is authorized to accept documents in lieu of
such property as long as such documents contain the agreement of the issuer
thereof to hold such property subject to the Master Trustee's sole order. The
Master Trustee may, in its discretion, advance funds to the Master Trust to
facilitate the settlement of any trade. In the event of such an advance, the
Master Trust shall immediately reimburse the Master Trustee for the amount
thereof.
2.5 Cash Balances. The Master Trustee may invest all or any portion of any
cash balances in any Discretionary Fund, and an Investment Manager or the
Investment Committee may, with the prior acceptance of the Master Trustee, by
written authorization delegate to the Master Trustee authority to invest all or
any portion of any cash balances in any Directed Fund, in the Master Trustee's
sole discretion, including, without limitation, investments in part interests in
obligations, irrespective of whether The Bank of New York or another,
individually or as trustee or agent, is acting as a participator. The Master
Trustee shall not be liable for interest on any cash balances in any Directed
Fund that it holds uninvested pending receipt of directions from the Investment
Manager or the Investment Committee, in the absence of authorization from the
latter to invest the same in the Master Trustee's sole discretion, nor liable
for interest on any cash balances it may be authorized to invest in its sole
discretion, and may hold uninvested as it deems to be in the best interests of
the Master Fund.
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2.6 Transfers to Collective Trusts. Notwithstanding any provision of the
Plan or of this Agreement to the contrary, the Master Trustee may, in its sole
discretion with respect to any Discretionary Fund and, if authorized or directed
by the Investment Manager or Investment Committee of any Directed Fund, with
respect to such Directed Fund, transfer all or any part of the assets of such
Fund to, or withdraw the same from, any collective investment trust that shall
be or shall have been created and administered by The Bank of New York or, if
such Investment Manager is a bank, by such Investment Manager, for the
collective investment of the property of employee benefit trusts of which The
Bank of New York or such Investment Manager is trustee or agent, provided that
such trust is qualified under the provisions of Section 401(a) of the Internal
Revenue Code (the "Code") and exempt under the provisions of Section 501(a) of
the Code. To that end, the Master Trustee is hereby expressly authorized to
permit the commingling of any or all of the assets of such Fund with the assets
of other trusts eligible to participate in such collective investment trusts.
Any Investment Manger holding such trust funds shall have with respect to such
funds the powers of the Master Trustee set forth in Sections 2.2(a), 3.1, 3.2
and 3.3. The Master Trustee shall have no responsibility for the custody or
safekeeping of assets so transferred. To the extent that property of the Master
Fund is invested in any such collective investment trust, the declaration of
trust pertaining thereto, as amended from time to time, and the trust thereby
created, shall be a part of this Agreement and of the Plan. The Master Trustee
shall have, with respect to the interest of such Fund in such collective
investment trust, the powers conferred by this Agreement to the extent that such
powers are not inconsistent with the provisions of such declaration of trust.
For purposes of any valuation of the Master Fund or any valuation of the
interest or of the account of any Participant or Beneficiary under the Plan, the
interest of the Master Trust in such collective investment trust shall be valued
at the times and in the manner prescribed by the declaration by which such trust
was created. A copy of the declaration of trust as presently in effect of any
collective investment trust to which the assets of the Plan are transferred
pursuant to this Section 2.6 shall be provided to the Named Fiduciary and copies
of amendments thereto shall be forwarded to the Named Fiduciary promptly after
their adoption.
2.7 Insurance Contracts.
(a) Procuring and Holding Contracts. The Master Trustee, upon
written direction of the Named Fiduciary, shall pay from the Master Trust such
sums to such insurance company or companies as the Named Fiduciary may direct
for the purpose of procuring individual or group annuity contracts or other
insurance contracts (hereinafter referred to as "Contracts"). The Named
Fiduciary shall prepare, or cause to be prepared in such form as it shall
prescribe, the application for any Contract to be applied for. The Master
Trustee shall receive and hold in
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the Master Trust, subject to the provisions, hereinafter set forth in this
Section, all Contracts obtained, the proceeds of any sale, assignment or
surrender of any such Contract and any and all dividends and other payments of
any kind received with respect to any such Contract.
(b) Exercising Rights under Contracts. The Master Trustee shall be
the complete and absolute owner of Contracts held in the Master Trust, provided
that the Named Fiduciary shall have power, without the consent of any other
person, to exercise any and all of the rights, options or privileges that belong
to the Master Trustee as such absolute owner or that are granted by the terms of
any such Contract or by the terms of this Agreement, and the Master Trustee
shall not exercise any of the foregoing powers or take any other action
permitted by any such Contract other than upon the written direction of the
Named Fiduciary. The Master Trustee shall have no duty to exercise any of such
powers or to take any such action unless and until it shall have received such
direction. The Master Trustee, upon the written direction of the Named
Fiduciary, shall deliver any Contract held in the Master Trust to such person or
persons as may be specified in the direction.
(c) Payment of Premiums. Upon the written direction of the Named
Fiduciary, the Master Trustee shall pay from the Master Trust premiums,
assessments, dues, charges and interest, if any, upon any Contract held in the
Master Trust. The Master Trustee shall have no duty to make any such payment
unless and until it shall have received such direction.
(d) Parents under Contracts. Any sums paid out by any insurance
company under the terms of a Contract held in the Master Trust either to the
Master Trustee, or, in accordance with its direction, to any other person or
persons designated as payees in such Contract shall be a full and complete
discharge of the liability to pay such sums, and the insurance company shall
have no obligation to look to the disposition of any sums so paid. No insurance
company shall be required to look into the terms of this Agreement, or to
question any action of the Master Trustee or to see that any action of the
Master Trustee is authorized by the terms of this Agreement.
(e) Liability of Master Trustee; Indemnification. Anything contained
herein to the contrary notwithstanding, to the extent permitted by law, the
Master Trustee shall not be liable for the refusal of any insurance company to
issue or change any Contract or take any other action requested by the Master
Trustee; for any assets invested in a Contract at the direction of the Named
Fiduciary; for the form, terms, genuineness, validity, sufficiency or effect of
any contract held in the Master Trust; for the act of any person or persons that
may render any such Contract null and void; for the failure of any insurance
company to pay the proceeds of any such Contract as and when the same shall
become due and payable; for any delay in
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payment resulting from any provision contained in any such Contract nor for the
fact that for any reason whatsoever (other than the Master Trustee's own
negligence or willful misconduct) any Contract shall lapse or otherwise become
uncollectible. The Company hereby agrees to indemnify the Master Trustee and to
hold it harmless from and against any claim, liability, loss, damage or expense
that may be asserted against the Master Trustee by reason of any action taken or
omitted by the Master Trustee in connection with any Contract at the direction
of the Named Fiduciary.
Section 3. Powers of Master Trustee.
3.1 In General. The Master Trustee is authorized and empowered, in its
discretion with respect to a Discretionary Fund and at the direction of an
Investment Manager or the Investment Committee with respect to a Directed Fund:
(1) to sell, exchange, convey, transfer or otherwise dispose of any
property, real or personal, at any time held by the Master Trustee, by private
contract or at public auction, for cash or on credit, (in the case of a Directed
Fund, upon such conditions, at such prices and in such manner as the Investment
Manager or Investment Committee shall direct), and no person dealing with the
Master 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 other
disposition;
(2) to grant options to purchase securities held in the Fund
("covered call options") and other property held in the Fund and options to sell
securities and other property to the Fund, as well as combinations of such
options to purchase and such options to sell; and to acquire options to purchase
securities and other property for the Fund and options to sell securities and
other property held in the Fund, as well as combinations of such options to
purchase and such options to sell;
(3) to sell or exercise any conversion privileges, subscription
rights, warrants or other options and to make any payments incidental thereto,
and to consent to or otherwise participate in corporate reorganizations,
mergers, consolidations or other changes affecting corporate securities and to
delegate discretionary powers and to pay any assessments or charges in
connection therewith; but the Company understands that, where warrants, options,
tenders or other rights have fixed expiration dates, in order for the Master
Trustee to act with respect to a Directed Fund, it must receive instructions at
its offices, addressed as the Master Trustee may from time to time request, by
no later than noon (N.Y. City time) at least one business day prior to the last
scheduled date to act with respect thereto (or such earlier date or time as the
Master Trustee may direct);
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(4) to compromise, compound, settle or arbitrate any claim, debt or
obligation due to or from it as Master Trustee and to reduce the rate of
interest on, extend or otherwise modify, or to foreclose upon default or
otherwise enforce any such obligation; to bid in property on foreclosure or to
take a deed in lieu of foreclosure with or without paying consideration therefor
and in connection therewith to release the obligation on the bond secured by the
mortgage, and, in the case of a Discretionary Fund, to abandon any property
determined by it to be worthless;
(5) to vote upon any stocks, bonds or other securities and to give
general or special proxies or powers of attorney with or without power of
substitution, provided that, in the case of a Directed Fund, unless the Master
Trustee is instructed otherwise, all proxies and proxy materials relating to
securities held in the Master Fund shall be signed by the Master Trustee without
indication of voting preference, and forwarded to the Investment Manager or
Investment Committee for the making of all decisions with respect thereto; and
to enter into any voting trust or similar agreement;
(6) to manage, administer, operate, lease for any period of years,
regardless of any restrictions on leases made by fiduciaries, develop, improve,
repair, alter, demolish, mortgage, pledge, grant options with respect to or
otherwise deal with any real property or interest therein at any time held by
it;
(7) for the purposes of the Master Trust, to engage in transactions
involving financial futures, including but not limited to stock index futures,
and options on financial futures; and in carrying out such transactions to open
accounts to trade in and to make or take delivery of financial futures, to
provide original, variation, maintenance and other required margin in the form
of moneys, securities, or otherwise, and to exercise options; and
(8) generally to exercise any of the powers of an owner with respect
to stocks, bonds, securities or other property held in any Fund.
3.2 At Direction of Named Fiduciary. The Master Trustee is authorized and
empowered, with the approval of the Named Fiduciary with respect to any Fund:
(1) for the purposes of the Master Trust, to borrow money from any
person or persons, including The Bank of New York, to issue the Master Trust's
promissory note or notes therefor, and to secure the repayment thereof by
pledging, mortgaging or otherwise encumbering any property in its possession;
and
(2) to designate The Bank of New York to act on its behalf in
lending securities held in the Master Fund to brokers,
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dealers, banks or other financial institutions, on such terms as are consistent
with the Act.
3.3 Administrative Powers. The Master Trustee is authorized and empowered
in its sole administrative discretion with respect to both Discretionary and
Directed Funds:
(1) to make, execute, acknowledge and deliver any and all documents
of transfer and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers granted herein;
(2) to collect all interest, dividends and other income payable with
respect to property in the Master Fund, and to surrender securities at maturity
or when advised of earlier call for redemption, provided that the Master Trustee
shall not be liable for failure to surrender any security in a Directed Fund for
redemption prior to maturity or take other action if notice of such redemption
or other action was not provided to the Master Trustee, by the issuer, the
Investment Manager, the Investment Committee or one of the nationally recognized
bond or corporate action services to which the Master Trustee subscribes;
(3) to exchange securities in temporary form for securities in
definitive form, and to effect an exchange of shares where the par value of
stock is changed;
(4) to hold property in its vaults, at a domestic or (to the extent
permitted by regulations issued by the Secretary of Labor under Section 404(b)
of the Act) foreign central depository or clearing corporation, in
non-certificated form with the issuer, on Federal Book Entry at the Federal
Reserve Bank of New York, with a custodian appointed pursuant to clause (5)
below, or, with the approval of the Named Fiduciary, at any other location;
(5) to appoint any other bank as custodian for any foreign
securities or other foreign assets constituting part of the Master Fund, and to
arrange for the custody of such securities or assets and the indicia of
ownership thereof to be held outside the jurisdiction of the district courts of
the United States by such other bank and/or its agents, to the extent permitted
by regulations issued by the Secretary of Labor under Section 404(b) of the Act,
and to pay the reasonable expenses and compensation of such bank from the Master
Fund;
(6) to hold property of the Master Trust in its own name or in the
name of a nominee, including the nominee of any central depository, clearing
corporation or custodian with which securities of the Master Trust may be
deposited (and the Company agrees to hold the Master Trustee and any such
nominee harmless from any liability as a holder of record), and to hold any
investment in bearer form, but the books and records of the
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Master Trustee shall at all times show that all such investments are part of
the Master Trust;
(7) to form corporations and to create trusts under the laws of any
state for the purpose of acquiring and holding title to any securities or other
property, all on such terms and conditions as it deems advisable;
(8) to employ suitable agents, including auditors and legal counsel
(who may be counsel to the Company or to the Master Trustee in its corporate
capacity) or other advisers, without liability for any loss occasioned by any
such agent selected with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character with like aims, and to pay their reasonable expenses and compensation
from the Master Fund; and
(9) to take any action with respect to the Master Fund that it deems
necessary in carrying out the purposes of this Agreement.
SECTION 4. Registration of Company Securities.
In the event that the property initially delivered to the Master Trustee
hereunder includes any stocks of any classification, bonds or other securities
issued or guaranteed by the Company, or by any subsidiary or affiliate thereof,
or that the Master Trustee purchases for any Discretionary Fund or an Investment
Manager or the Investment Committee directs the purchase for any Directed Fund
of any such securities, and the Master Trustee should thereafter determine (with
respect to a Discretionary Fund) or the Investment Manager or Investment
Committee should thereafter direct the Master Trustee (with respect to a
Directed Fund) to dispose of any such securities under circumstances which, in
the opinion of the Master Trustee, require registration of such securities under
the Securities Act of 1933 and/or qualification of such securities under the
Blue Sky laws of any state or states, then the Company, at its own expense, will
promptly take or cause to be taken any and all action necessary or appropriate
to effect such registration and/or qualification; in such event, the Master
Trustee shall not be required to dispose of such securities until such
registration and/or qualification are complete and effective, and the Master
Trustee shall not be liable for any loss or depreciation of the Fund resulting
from any delay attributable thereto. The Company will indemnify and hold the
Master Trustee and its officers and directors harmless with respect to any
claim, liability, loss, damage or expense incurred as a result of such
registration or qualification or as a result of any information in connection
therewith furnished by the Company or as a result of any failure by the Company
to furnish any such information.
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SECTION 5. Accounts to be Maintained by the Master Trustee; Payments from
the Master Trust.
5.1 Accounts. The Master Trustee may maintain one or more accounts for the
purpose of making disbursements at the direction of the named fiduciary
authorized to direct and make payments from the Plan (the "Administrative
Committee") and such other purposes, if any, as may be reasonably required for
the convenient administration of the Plan or of the Master Trust.
5.2 No Separate Recordkeeping. The Master Trustee shall not be required to
maintain any separate records or accounts with respect to the Participants (or
their Beneficiaries), and any such records or accounts required to be maintained
pursuant to the terms of the Plan shall be maintained by the Employer or by the
Administrative Committee.
5.3 Payments; Disputes. The Master Trustee, from time to time, upon
receipt of a written order from the Administrative Committee, shall make
payments from the Master Fund to such persons (including the Administrative
Committee or any member of such Committee), and in such amounts as the Committee
shall direct, and amounts paid pursuant to such direction thereafter no longer
shall constitute a part of the Master Trust. Orders from the Administrative
Committee need not specify the purpose of the payments so ordered, and, except
as provided by law, the Master Trustee shall not be responsible in any way
respecting the purpose or propriety of such payments or for the administration
of the Plan. Any such order shall constitute a certification that the payment
directed is one which the Administrative Committee is authorized to direct, and
the Master Trustee need make no further investigation. Payments by the Master
Trustee may be made (i) by its check to the order of the payee and mailed to
the payee at the address last furnished to the Master Trustee by the
Administrative Committee or by the payee, or if no such address has been so
furnished, to the payee in care of the Company, or (ii) by direct deposit to an
account of the payee in accordance with Section 5.4. If a dispute arises as to
who is entitled to or should receive any benefit or payment, the Master Trustee
may withhold or cause to be withheld such payment until the dispute has been
resolved.
5.4 Direct Deposit of Payments. At the request of any Participant or
Beneficiary, the Master Trustee shall deposit periodic payments directly into
the bank account of such person, provided that such person and its depository
bank shall have entered into a depository agreement with the Master Trustee that
is satisfactory to the Master Trustee. The Company hereby agrees to indemnify
the Master Trustee and to hold it harmless from and against any claim,
liability, loss, damage or expense that may be asserted against it as a result
of making any such deposit.
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5.5 Administrative Committee's Responsibility. In directing the Master
Trustee to make payments out of the Master Trust, the Administrative Committee
shall follow the provisions of the Plan, so that it shall be impossible, either
during the existence or upon the discontinuance of the Plan, for any part of the
Master Fund to be used for or diverted to purposes other than for the exclusive
benefit of the Participants or their Beneficiaries, at any time prior to the
satisfaction of all liabilities with respect to the Participants and their
Beneficiaries, or for any part thereof to be paid or applied to the use of any
Employer except, upon the termination of the Plan, to the extent of any surplus
resulting from an actuarial error.
5.6 Returned and Uncashed Payments. In the event that any payment ordered
by the Administrative Committee shall be distributed by the Master Trustee in
accordance with Section 5.3 or Section 5.4 and (i) such payment shall be
returned to the Master Trustee because the payee or the payee's account cannot
be located at such address, or (ii) any check so mailed shall not be presented
for payment within six months of the date thereof, the Master Trustee shall
promptly notify the Committee of such return or failure to present. Upon the
expiration of 60 days after such notification such payment order shall become
void, and unless and until a further order of such Committee is received by the
Master Trustee with respect to such payment, the Master Trustee shall return
such payment to the Master Trust and continue to administer the Master Trust as
if such order had not been made. The Master Trustee shall not be obligated to
search for or ascertain the whereabouts of any such person (or his duly
appointed representative).
5.7 No Liability for Contributions. The Master Trustee shall be under no
duty to enforce payment of any contribution and shall not be responsible for the
adequacy of the Master Trust to meet and discharge any liabilities under the
Plan.
SECTION 6. Valuation of the Master Fund.
As of the inception of the Master Fund and at such other times as may be
agreed upon by the Master Trustee and the Named Fiduciary or as the Master
Trustee may deem appropriate (the "Valuation Date"), the Master Trustee shall
determine the market value of the Master Fund. Such determination may be made
either by the Master Trustee itself or by such person or persons believed by the
Master Trustee to be competent to make such determination as the Master Trustee
may select, but in accordance with a method consistently followed and uniformly
applied. The Master Trustee's determination of the value of the Master Fund
shall be conclusive and binding upon the Plan, each Employer, the Named
Fiduciary, the Administrative Committee, and the Participants and their
Beneficiaries.
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SECTION 7. Administrative Expenses, Taxes and Master Trustee's
Compensation.
7.1 In General. All brokerage costs and transfer taxes incurred in
connection with the investment and reinvestment of any Fund, all income taxes or
other taxes of any kind whatsoever which may be levied or assessed under
existing or future laws upon or in respect of such Fund, all expenses incurred
in connection with the acquisition or holding of real or personal property, any
interest therein or mortgage thereon, all other administrative expenses incurred
by the Master Trustee in the performance of its duties, including fees for legal
services rendered to the Master Trustee, the compensation of the Master Trustee
set forth on Exhibit A attached hereto, as the same may be amended from time to
time as provided in this Section, including without limitation any management
fees charged in respect of assets of a Directed Fund that are invested pursuant
to Section 2.5 at the discretion of the Master Trustee, and all other proper
charges and disbursements of the Master Trustee, shall be paid by the Fund, and,
until paid, shall constitute a charge upon the Fund. From time to time the
Master Trustee may provide the Company with written notice of an amendment to
Exhibit A. Such amendment shall become effective on the 60th day after the
Master Trustee mails it to the Company unless the Company shall have provided
the Master Trustee with written notice of objection thereto.
7.2 Fees of Investment Managers. The Named Fiduciary may direct the Master
Trustee to pay from the Master Fund the fees of any Investment Manager and the
administrative expenses of the Plan, including but not limited to actuarial
fees.
SECTION 8. Master Trustee's Liability; No Duty to Review; Indemnification.
8.1 Liability of Master Trustee. With respect to a Discretionary Fund, the
Master Trustee shall not be liable for any loss to or diminution of the
Discretionary Fund resulting from any action taken or omitted by the Master
Trustee except if due to any failure of the Master Trustee to act in accordance
with the requirements of Part 4 of Title I of the Act. With respect to any
Directed Fund hereunder, the Master Trustee shall not be liable for the making,
retention or sale of any investment or reinvestment made or received by it at
the direction of an Investment Manager or the Investment Committee, as herein
provided, nor for any loss to or diminution of the Fund resulting from any
action taken, or from any act omitted, by the Master Trustee at the direction of
an Investment Manager or the Investment Committee as herein provided. The Master
Trustee shall not be responsible for the adequacy of any funding policy of the
Plan of which it is advised pursuant to Section 2.2(c) or the diversification of
the investments of the Plan. Responsibility for monitoring adherence to funding
policies and
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for investment diversification, and for advising the Master Trustee accordingly
with respect to any Discretionary Fund and advising the Investment Manager or
Investment Committee accordingly with respect to any Directed Fund, shall rest
solely with the Named Fiduciary.
The Master Trustee may from time to time consult with legal counsel, who
may be counsel to the Company or to the Master Trustee in its corporate
capacity, and shall be fully protected in acting upon the advice of counsel.
To protect the Master Trust from expenses which might otherwise be
incurred, the Company shall have sole authority to enforce this Agreement on
behalf of all persons claiming any interest in the Master Trust or under the
Plan, and no other person may institute or maintain any action or proceeding
against the Master Trustee or the Master Trust in the absence of written
authority from the Company or a judgment of a court of competent jurisdiction
that in refusing authority the Company acted fraudulently or in bad faith.
8.2 No Duty to Review. Supervision of Investment Managers and the
Investment Committee shall be the exclusive responsibility of the Named
Fiduciary. The Master Trustee shall be under no duty or obligation to review any
investment or reinvestment made or received at the direction of an Investment
Manager or the Investment Committee nor to make any recommendation as to the
disposition or continued retention thereof. Without limiting the generality of
the foregoing, in the case of any transaction which is both directed by and
executed by or through an Investment Manager or the Investment Committee, the
Investment Manager or Investment Committee shall have entire responsibility for
assuring that the transaction does not violate the prohibitions of any
applicable state or federal law, including Sections 406 and 407 of the Act.
8.3 Reliance on Certain Appraisals. To the extent that the Master Trustee
shall be required to value the assets of the Master Fund for any purpose,
including without limitation any valuation pursuant to Section 6, any accounting
pursuant to Section 9 and any segregation of assets pursuant to Section 10
hereof, the Master Trustee may rely for all purposes of this Agreement upon any
certified appraisal or other form of valuation submitted to it by any Investment
Manager or the Investment Committee and, with respect to any insurance contract
referred to in Section 2.7 hereof, by the insurance company issuing such
contract, and, with respect to an interest in any venture capital organization,
the manager of such organization.
8.4 Indemnification of Master Trustee. The Company recognizes that a
burden of litigation may be imposed upon the Master Trustee, as the result of
some act or transaction for which it has no responsibility or over which it has
no control under this Agreement. Accordingly, the Company hereby agrees to
-16-
indemnify the Master Trustee, individually and as Master Trustee under this
Agreement, and its directors, officers and employees, and to hold it and them
harmless from and against any claim, liability, loss, damage or expense which
may be asserted against it or them by reason of any action taken or omitted by
or on behalf of the Master Trustee at the direction of any Investment Manager or
Investment Committee, the Named Fiduciary or the Administrative Committee, or by
virtue of being the holder of the Master Trust.
8.5 Limitation of Indemnity. Nothing herein is intended to or shall be
construed to relieve the Master Trustee from any responsibility or liability it
may have under Part 4 of Title I of the Act.
8.6 Indemnification of Successor-Trustee. If The Bank of New York is
acting as a successor trustee or succeeds to responsibility hereunder for
management of plan assets with respect to the Master Fund (or any portion
thereof), the Company hereby agrees to hold The Bank of New York harmless from
and against any tax, claim, liability, loss, damage or expense incurred by or
assessed against it as such successor as a direct or indirect result of any act
or omission of a predecessor trustee or any other person charged under any
agreement affecting Master Fund assets with investment responsibility with'
respect to such assets.
SECTION 9. Settlement of Master Trustee's Accounts.
9.1 Annual Accounting. The Master Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other transactions
hereunder, accounting separately for each Fund, and all accounts, books and
records relating thereto shall be open to inspection and audit at all reasonable
times by any person designated by the Company or the Named Fiduciary. Within 90
days after the close of each fiscal year of the Master Trust (or such other date
as may be agreed upon in writing between the Company and the Master Trustee),
and within 120 days after the effective date of the removal or resignation of
the Master Trustee as provided in Section 11 hereof, the Master Trustee shall
file with the Company a written account, setting forth all investments,
receipts, disbursements and other transactions effected by it during the year
ending on such date (but not including any part of such year for which such an
account has previously been filed) and certified as to the accuracy of the
information set forth therein. Such account may incorporate by reference any and
all schedules and other statements setting forth investments, receipts,
disbursements and other transactions effected during the period for which such
account is rendered which the Master Trustee has furnished to the Company prior
to the filing of such account. Each account so filed (and copies of any
schedules and statements incorporated therein by reference as aforesaid) shall
be open to inspection at
-17-
the offices of the Company and the Master Trustee during their respective
regular business hours by the Named Fiduciary, by any person designated by the
Company or the Named Fiduciary, by Participants and Beneficiaries of the Plan,
and by any Administrative Committee, Investment Manager or Investment Committee
affected thereby, for a period of 60 days immediately following the date on
which the account is filed with the Company. If for any reason an account
required of the Master Trustee hereunder shall not be filed within the
applicable time specified in the preceding sentence, such account may be filed
by the Master Trustee after the expiration of such time, provided such account
otherwise complies with the requirements of this Agreement, and such account so
filed shall be open to inspection as aforesaid by any of the parties
aforementioned for a period of 90 days immediately following the date on which
the account is filed. In the event that any assets of the Fund have been
transferred to a collective investment trust pursuant to Section 2.6 hereof,
such account shall include a copy of the latest annual written account of such
collective investment trust.
9.2 Other Accountings. The Master Trustee shall provide to the Company
from time to time such other reports as may be agreed upon between the Master
Trustee and the Company. The Company agrees to examine each such report promptly
and to file any exceptions thereto within 90 days of the date thereof.
9.3 Settlement of Accounts. Upon the expiration of the 60-day or 90-day
period referred to in Section 9.1 or 9.2, as the case may be, the Master Trustee
shall be forever released and discharged from all liability and accountability
to anyone with respect to the account or report, including, without limitation,
all acts and omissions of the Master Trustee shown or reflected in such account
or report, except with respect to any acts or omissions as to which the Company,
the Named Fiduciary or the Administrative Committee shall have filed written
objections with the Master Trustee within such 60-day or 90-day period. Nothing
herein contained shall impair the right of the Master Trustee to a judicial
settlement of any account of proceedings rendered by it. In any proceeding for
such judicial settlement the only necessary parties shall be the Master Trustee,
the Company, the Named Fiduciary, the Administrative Committee and any other
party or parties whose participation is required by law, and any judgment,
decree or final order entered therein shall be conclusive on all persons having
or claiming an interest in the Master Trust or the Plan.
SECTION 10. Segregation of Parts of the Master Trust.
10.1 Segregation. The equitable share in the Master Trust of any part of
the Plan or the proportionate share of any Participant or group of Participants
and their Beneficiaries may be segregated and withdrawn from the Master Trust
upon the direction of the Named Fiduciary setting forth the portion of the
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Plan's equitable share to be so treated or the Participants and Beneficiaries
for whose accounts such segregation and withdrawal are to be carried out. The
Master Trustee may condition its transfer or distribution of any assets upon the
Master Trustee's receiving assurances satisfactory to it that the approval of
appropriate governmental or other authorities has been secured and that all
notice and other procedures required by applicable law have been complied with.
Unless otherwise directed by the Named Fiduciary pursuant to the
preceding paragraph, the Master Trustee shall hold, invest and administer the
Master Trust as a single fund without identification of any part of the Master
Fund with or allocation of any part of the Master Fund to the Company or to any
subsidiary or affiliate of the Company designated by it as a participating
company under the Plan or to any Participant or group of Participants or their
Beneficiaries.
10.2 Segregated Property. Segregation and withdrawal of the equitable
share of a Participant or group of Participants shall be made as of the
Valuation Date immediately following the date of the notice or instruction
referred to in Section 10.1. The selection of the particular assets to be
segregated pursuant to Section 10.1 shall be made by the Named Fiduciary. Such
property shall be held as a separate trust fund for the exclusive benefit of the
withdrawing Participant or group of Participants and their Beneficiaries, under
a separate agreement of trust substantially identical to this Agreement.
SECTION 11. Resignation and Removal of Master Trustee. The Master Trustee
may resign at any time upon 60 days' notice in writing to the Company and the
Named Fiduciary. The Master Trustee may be removed by the Company at any time
upon 60 days' notice in writing to the Master Trustee and the Named Fiduciary.
If within such 60-day period a successor to the Master Trustee shall not have
been appointed, the resigning or removed Master Trustee may apply to any court
of competent jurisdiction for the appointment of such successor. Any successor
trustee shall have the same powers and duties as those conferred upon the Master
Trustee hereunder (other than those relating to the collective investment trust
of The Bank of New York) and subject to receipt by the Master Trustee of written
acceptance of such appointment by the successor trustee, the Master Trustee
shall assign, transfer and pay over to such successor trustee the moneys and
properties then constituting the Master Fund, withdrawing any part of any Fund
then held in any collective investment trust of The Bank of New York. The Master
Trustee may reserve such sum of money as it may deem advisable for payment of
its reasonable fees and expenses in connection with the settlement of its
account or otherwise. Payment of such fees and expenses may be withdrawn from
such reserve. Any balance of such reserve remaining after the payment of such
fees and expenses shall be paid over to the successor trustee. If such reserve
shall be insufficient to pay
-19-
such charges, such resigning or removed Master Trustee shall be entitled to
recover the amount of any deficiency from the Company or from the successor
trustee or from both the Company and the successor trustee. All provisions of
this Agreement shall apply to any successor trustee appointed as aforesaid with
the same force and effect as if such successor had been originally named herein
as the Master Trustee.
SECTION 12. Evidence of Action by Company. Investment Managers and
Investment and Administrative Committees, and of Appointment of Named Fiduciary,
Investment Managers and Investment and Administrative Committees. Except as
otherwise herein provided, any action by the Company pursuant to any of the
provisions of this Agreement shall be evidenced by a resolution of its Board of
Directors (which may include a resolution authorizing one or more officers or
the Administrative Committee to act on its behalf) certified by the Secretary or
any Assistant Secretary of the Company, and the Master Trustee shall be fully
protected in acting in accordance with such resolution so certified to it. The
Company shall furnish the Master Trustee from time to time with certified copies
of resolutions of its Board of Directors or of other corporate action appointing
and terminating the office of the Named Fiduciary and the Administrative
Committee, and appointing successors. The Named Fiduciary shall furnish the
Master Trustee with a copy of the instrument duly appointing and terminating any
Investment Committee and appointing and terminating successors thereto. The
Named Fiduciary shall file with the Master Trustee a copy of the instrument duly
appointing each Investment Manager, who shall file with the Master Trustee a
copy of his written acceptance of his appointment and acknowledgment that he is
a "fiduciary" with respect to the Plan within the meaning of Section 3(21) of
the Act and due evidence of his qualification under Section 3(38)(B) of the Act.
Any such appointment shall continue to be effective until receipt by the Master
Trustee of written notice to the contrary from the Named Fiduciary. Each
Investment Manager and the Investment Committee shall furnish the Master Trustee
from time to time with a certificate setting forth the name and specimen
signature of each person authorized to act on its behalf. Unless otherwise
provided in a certificate from the Named Fiduciary, all orders, requests and
instructions to the Master Trustee from the Named Fiduciary or the
Administrative Committee shall be in writing or by telecopy signed by two
authorized persons, and all orders, requests and instructions to the Master
Trustee from an Investment Manager or the Investment Committee shall be in
writing, by telecopy or by any other electronic means using a code for the
authentication of messages, and signed or transmitted by an authorized
representative of the Investment Manager or Investment Committee, and the Master
Trustee shall be fully protected in acting in accordance with any such order,
request, or instruction. The Master Trustee shall have the right to rely on and
shall be fully protected in acting in accordance with any resolution, order,
request or instruction
-20-
which it believes to be genuine and which purports to have been signed or
transmitted in accordance with this section.
SECTION 13. Amendment of Agreement, Termination of Trust, Termination of
Plan.
13.1 Amendment of Agreement. Subject to the restrictions set forth below,
the Company reserves the right at any time and from time to time to modify,
amend or terminate, in whole or in part, any or all of the provisions of this
Agreement; provided, however, that no such modification or amendment which
affects the rights, duties or responsibilities of the Master Trustee may be
made without its consent in writing.
13.2Termination of Master Trust. In the event of the termination of the
Master Trust, the Master Trustee shall continue to administer the Master Trust
as hereinabove provided until all of the purposes for which it has been
established have been accomplished or the Master Trustee has disposed of the
Master Fund after the payment of or other provision for all expenses incurred in
the administration of the Master Trust (including any compensation to which the
Master Trustee may be entitled), all in accordance with the written order of the
Company or any successor thereto. Until the final distribution of the Master
Fund, the Master Trustee shall continue to have and may exercise all of the
powers and discretions conferred upon it by this Agreement. Upon any such
termination, or the resignation or removal of the Master Trustee under Section
11 hereof, Section 7.1 and all indemnities herein, including without limitation
those set forth in Sections 2.7(e), 3.3(6),4, 5.4, 8.4 and 8.6 hereof, shall
remain in full force and effect.
13.3 Termination of the Plan. Upon receipt of notice from the Company that
the Plan is terminated in whole or in part, with respect to all or any group of
Participants and their Beneficiaries, the Master Fund, or the portion thereof
with respect to which the Plan is terminated, shall, subject to the provisions
of Section 7 hereof, be segregated in accordance with Section 10 and held and/or
disposed of by the Master Trustee in accordance with the written order of the
Administrative Committee. The Master Trustee may condition its delivery,
transfer or distribution of any assets upon the Master Trustee's receiving
assurances reasonably satisfactory to it that the approval of appropriate
governmental or other authorities has been secured and that all notice and other
procedures required by applicable law have been complied with.
13.4 Exclusive Benefit. Anything in this Agreement to the contrary
notwithstanding, at no time prior to the satisfaction of all liabilities with
respect to the participants and their Beneficiaries shall any part of the Master
Fund be used for or diverted to purposes other than for the exclusive benefit of
the Participants and their Beneficiaries and defraying
-21-
reasonable expenses of administering the Plan; provided, however, that nothing
herein contained shall preclude the return to an Employer of any contribution
whose return is permitted by Section 403(c) of the Act or successor legislation.
SECTION 14. Inalienability of Benefits and Interests.
No distribution or payment under this Agreement to any Participant or
Beneficiary shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, whether voluntary or
involuntary, and no attempt so to anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall be valid or recognized by the Master
Trustee, nor shall any such distribution or payment be in any way liable for or
subject to the debts, contracts, liabilities, engagements or torts of any person
entitled to such distribution or payment, except in the case of any voluntary
and revocable assignment of any benefit payment permitted by law and except to
such extent as may otherwise be required by law. If the Master Trustee is
notified by the Administrative Committee that any such Participant or
Beneficiary has been adjudicated bankrupt or has purported to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge any such
distribution or payment, voluntarily or involuntarily, the Master Trustee shall,
if so directed by the Committee, hold or apply such distribution or payment or
any part thereof to or for the benefit of such Participant or Beneficiary in
such manner as the Committee shall direct.
SECTION 15. No Merger, Consolidation or Transfer of Plan Assets or
Liabilities.
Anything herein to the contrary notwithstanding, the Master Trust shall
under no circumstances be so operated as to permit, and nothing herein contained
shall be deemed to authorize, any merger, consolidation, or transfer of the
assets or liabilities of the Plan with or to any other plan except in compliance
with the provisions of the Act and the Code which are applicable to such
mergers, consolidations, or transfers, including without limitation Sections 208
and 4043(b)(8) of the Act and Sections 401(a)(12), 414(1), and 6058(b) of the
Code, and Regulations promulgated pursuant to the foregoing Sections.
SECTION 16. Governing Law.
This Agreement shall be administered and construed according to the
internal substantive laws (and not the choice of law provisions) of the State of
New York, except as may otherwise be required by Section 514 of the Act. The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability
-22-
of any other provision. The Master Trust shall at all times be maintained as a
domestic trust in the United States.
IN WITNESS WHEREOF, this Agreement has been executed, attested and sealed,
as of the date first above written, by the duly authorized officers of the
Company and THE BANK OF NEW YORK.
DDB XXXXXXX WORLDWIDE, INC.
JOINT SAVINGS PLAN
By /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice Chairman
(Corporate Seal)
Attest:
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
Counsel
(Corporate Seal) THE BANK OF NEW YORK
Attest:
/s/ Xxxxxxx X. Xxxxxxx Xx. By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxxx Xx. Xxxxxxx X. Xxxxxxxxx
Assistant Vice President Vice President
EXHIBIT A
EMPLOYEE BENEFIT TRUST FEE SCHEDULE
The annual fee is computed and billed on the basis of the market value of the
total fund at the end of each quarter and covers general administrative
services including the custody of the assets.
0.03 of 1% on the first $15,000,000
0.01 of 1% on the balance
Employee Benefit Trust Administration and Accounting/Reporting services provide
FORM 5500/ERISA information for an annual fee of $5,000 per Actively Managed
Investment account; $2,500 per Special Asset account; and $1,250 per Cash
Disbursement account. Special Asset accounts include G.I.C. funds, participant
loan accounts, and commingled funds. The accounting fee includes combinations of
accounts into composite structures.
Lump-sum checks will be charged at $5.00 each plus postage for those processed
using the Bank's pre-printed form, or $7.50 each plus postage for other
direction. Tax information forms will be charged at $1.50 each plus postage.
Transactions initiated by the client or qualified investment managers other than
The Bank of New York will be charged $25.00 per purchase or sale (excluding cash
management operations). Money wire transfers from The Bank of New York, Common
Stock Distributions, and Participant Loan activation and paydown transactions
(waived for first three years of loans) will be charged at $15.00 each
occurrence.
The fee proposal is subject to joint review by The Bank of New York and the
client upon completion of three years.
Actual fees are billed on the market value at calendar quarter end, and the
activity of the fund during the invoice period.
