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EXHIBIT 4.4
TRUST AGREEMENT
BETWEEN
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CALIFORNIA MICROWAVE, INC.
AND
FIDELITY MANAGEMENT TRUST COMPANY
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CALIFORNIA MICROWAVE TAX-DEFERRED SAVINGS AND
DEFERRED PROFIT SHARING PLAN
TRUST
DATED AS OF JANUARY 1, 1998
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TABLE OF CONTENTS
SECTION PAGE
1 TRUST..................................................................2
2 EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS ..............2
3 DISBURSEMENTS..........................................................2
(a) Administrator Directed Disbursements
(b) Participant Withdrawal Requests
(c) Limitations
4 INVESTMENT OF TRUST....................................................3
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
Participant Loans
Guaranteed Investment Contracts
Reliance of Trustee on Directions
Trustee Powers
5 RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED .............8
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 COMPENSATION AND EXPENSES..............................................9
7 DIRECTIONS AND INDEMNIFICATION.........................................9
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
8 RESIGNATION OR REMOVAL OF TRUSTEE......................................11
(a) Resignation
(b) Removal
9 SUCCESSOR TRUSTEE......................................................11
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 TERMINATION............................................................11
11 RESIGNATION, REMOVAL, AND TERMINATION NOTICES..........................12
12 DURATION...............................................................12
13 AMENDMENT OR MODIFICATION..............................................12
14 GENERAL................................................................12
(a) Performance by Trustee, its Agents or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
15 GOVERNING LAW..........................................................13
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
SCHEDULES
A. Administrative Services
B. Fee Schedule
C. Investment Options
D. Administrator's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Existing GICs
H. Telephone Exchange Guidelines
I. Operational Guidelines for Non-Fidelity Mutual Funds
J. Blended Fund Guidelines
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TRUST AGREEMENT, dated as of the first day of January, 1998, between
CALIFORNIA MICROWAVE, INC., a Delaware corporation, having an office at 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Sponsor"), and FIDELITY
MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the California Microwave
Tax-Deferred Savings and Deferred Profit Sharing Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish a trust to hold and invest Plan
assets under the Plan for the exclusive benefit of participants in the Plan and
their beneficiaries; and
WHEREAS, the Trustee will accept the assets held in the Morely Stable
Value Funds as of February 1, 1998, and this Agreement will be subsequently
amended to reflect the addition to the Trust of the fund and to add operational
guidelines within which the Trustee will administer the fund; and
WHEREAS, California Microwave, Inc. (the "Named Fiduciary") is the named
fiduciary of the Plan (within the meaning of section 402(a) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid Plan
assets in trust among several investment options selected by the Named
Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan; and
WHEREAS, the Administrative Committee (the "Administrator") is the
administrator of the Plan (within the meaning of section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
SECTION 1. TRUST. The Sponsor hereby establishes the California Microwave
Tax-Deferred Savings and Deferred Profit Sharing Plan Trust (the "Trust"), with
the Trustee. The Trust shall consist of an initial contribution of money or
other property acceptable to the Trustee in its sole discretion, made by the
Sponsor or transferred from a previous trustee under the Plan, such additional
sums of money as shall from time to time be delivered to the Trustee under the
Plan, all investments made therewith and proceeds thereof, and all earnings and
profits thereon, less the payments that are made by the Trustee as provided
herein. The Trustee hereby accepts the Trust on the terms and conditions set
forth in this Agreement. In accepting this Trust, the Trustee shall be
accountable for the assets received by it, subject to the terms and conditions
of this Agreement.
SECTION 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS. Except as
provided under applicable law, no part of the Trust may be used for, or diverted
to, purposes other than the exclusive benefit of the participants in the Plan or
their beneficiaries or the reasonable expenses of Plan administration.
SECTION 3. DISBURSEMENTS.
(a) Administrator-Directed Disbursements. The Trustee shall make
disbursements in the amounts and in the manner that the Administrator directs
from time to time in writing. The Trustee shall have no responsibility to
ascertain such direction's compliance with the terms of the Plan or of any
applicable law or the direction's effect for tax purposes or otherwise; nor
shall the Trustee have any responsibility to see to the application of any
disbursement.
(b) Participant Withdrawal Requests. The Sponsor hereby directs that,
pursuant to the Plan, a participant withdrawal request (in-service or full
withdrawal) may be made by the participant by telephone, or in such other manner
as may be agreed to from time to time by the Sponsor and Trustee, and the
Trustee shall process such request only after the identity of the participant is
verified by use of a personal identification number ("PIN") and social security
number. The Trustee shall process such withdrawal in accordance with written
guidelines provided by the Sponsor and documented in the Plan Administrative
Manual.
(c) Limitations. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. The Trustee shall
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make cash disbursements in accordance with the applicable source and fund
withdrawal hierarchy as documented in the Plan Administrative Manual, unless the
Administrator has provided a written direction to the contrary.
SECTION 4. INVESTMENT OF TRUST.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(b) Available Investment Options. The Named Fiduciary shall direct the
Trustee as to the investment options in which the Trust shall be invested during
the period beginning on the date of the initial transfer of assets to the Trust
and ending on the date of the completion of the reconciliation of participant
records ("recordkeeping reconciliation period"), and the investment options
which Plan participants may invest following the reconciliation period, subject
to the following limitations. The Named Fiduciary may determine to offer as
investment options only: (i) securities issued by the investment companies
advised by Fidelity Management & Research Company and certain securities issued
by investment companies not advised by Fidelity Management & Research Company
(collectively, "Mutual Funds"), (ii) notes evidencing loans to Plan participants
in accordance with the terms of the Plan, (iii) guaranteed investment contracts
heretofore entered into by the Sponsor or predecessor trustee and specifically
identified on Schedule "G" attached hereto ("Existing GICs"), and (iv)
collective investment funds maintained by the Trustee for qualified plans.
The Named Fiduciary hereby directs the Trustee to continue to hold such
Existing GICs until contract maturity or until the Named Fiduciary directs
otherwise, it being expressly understood that such direction is given in
accordance with Section 403(a) of ERISA. The Trustee shall be considered a
fiduciary with investment discretion only with respect to Plan assets (including
the proceeds from any existing GICs) that are invested in guaranteed investment
contracts chosen by the Trustee or in collective investment funds maintained by
the Trustee for qualified plans.
The investment options initially selected by the Named Fiduciary are
identified on Schedules "A" and "C" attached hereto. The Named Fiduciary may add
additional investment options with the consent of the Trustee and upon mutual
amendment of this Trust Agreement and the Schedules thereto to reflect such
additions.
(c) Participant Direction. As authorized under the Plan, each Plan
participant shall direct the Trustee in which investment option(s) to invest the
assets in the participant's individual accounts.
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Such directions may be made by Plan participants by use of the telephone
exchange system maintained for such purposes by the Trustee or its agent, in
accordance with written Telephone Exchange Guidelines attached hereto as
Schedule "H". In the event that the Trustee fails to receive a proper direction,
the assets shall be invested in the investment option set forth for such purpose
on Schedule "C", until the Trustee receives a proper direction.
(d) Mutual Funds. The Named Fiduciary hereby acknowledges that it has
received from the Trustee a copy of the prospectus for each Fidelity Mutual Fund
selected by the Named Fiduciary as a Plan investment option or short-term
investment fund. All transactions involving Mutual Funds not advised by Fidelity
Management & Research Company (Non-Fidelity Mutual Funds) shall be done in
accordance with the Operational Guidelines attached hereto as Schedule "I".
Trust investments in Mutual Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales
of Mutual Funds (other than for exchanges) shall be made on the date on which
the Trustee receives from the Administrator in good order all information,
documentation and wire transfer of funds (if applicable) necessary to accurately
effect such transactions. Exchanges of Mutual Funds shall be made in accordance
with the Telephone Exchange Guidelines attached hereto as Schedule "H".
(ii) Voting. At the time of mailing of notice of each
annual or special stockholders' meeting of any Mutual Fund, the Trustee shall
send a copy of the notice and all proxy solicitation materials to each Plan
participant who has shares of the Mutual Fund credited to the participant's
accounts, together with a voting direction form for return to the Trustee or its
designee. The participant shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote the shares credited to the participant's
accounts (both vested and unvested). The Trustee shall vote the shares as
directed by the participant. The Trustee shall not vote shares for which it has
received no directions from the participant.
During the Recordkeeping Reconciliation Period, the Named Fiduciary
shall have the right to direct the Trustee as to the manner in which the Trustee
is to vote the shares of the Mutual Funds in the Trust. Following the
Recordkeeping Reconciliation Period the Named Fiduciary shall continue to have
the right to direct the Trustee as to the manner in which the Trustee is to vote
the Mutual Fund shares held in a short-term liquidity reserve for a unitized
investment option.
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With respect to all rights other than the right to vote, the Trustee
shall follow the directions of the participant and if no such directions are
received, the directions of the Named Fiduciary. The Trustee shall have no
further duty to solicit directions from participants or the Named Fiduciary.
(e) (i) Participant Loans. (General Purpose) The Administrator shall act
as the Trustee's agent for participant loan notes and as such shall (i)
separately account for repayments of such loans and clearly identify such assets
as Plan assets and (ii) collect and remit all principal and interest payments to
the Trustee. To originate a participant loan, the Plan participant shall direct
the Trustee as to the term and amount of the loan to be made from the
participant's individual account. Such directions shall be made by Plan
participants by use of the telephone exchange system maintained for such purpose
by the Trustee or its agent. The Trustee shall determine, based on the current
value of the participant's account on the date of the request and any guidelines
provided by the Sponsor, the amount available for the loan. Based on the
interest rate supplied by the Sponsor in accordance with the terms of the Plan,
the Trustee shall advise the participant of such interest rate, as well as the
installment payment amounts. The Trustee shall distribute the loan agreement and
truth-in-lending disclosure with the proceeds check to the participant. To
facilitate recordkeeping, the Trustee may destroy the original of any promissory
note made in connection with a loan to a participant under the Plan, provided
that the Trustee first creates a duplicate by a photographic or optical scanning
or other process yielding a reasonable facsimile of the promissory note and the
Plan participant's signature thereon, which duplicate may be reduced or enlarged
in size from the actual size of the original promissory note.
(e)(ii) Participant Loans. (Primary Residence) The Administrator shall
act as the Trustee's agent for the purpose of holding all trust investments in
participant loan notes and related documentation and as such shall (i) hold
physical custody of and keep safe the notes and other loan documents, (ii)
separately account for repayments of such loans and clearly identify such assets
as Plan assets, (iii) collect and remit all principal and interest payments to
the Trustee, and (iv) cancel and surrender the notes and other loan
documentation when a loan has been paid in full. To originate a participant
loan, the Plan participant shall direct the Trustee as to the type of loan to be
made from the participant's individual account. Such directions shall be made by
Plan participants by use of the telephone exchange system maintained for such
purpose by the Trustee or its agent. The Trustee shall determine, based on the
current value of the participant's account, the amount available for the loan.
Based on the interest rate supplied by the Sponsor in accordance with the terms
of the Plan, the Trustee shall advise the participant of such interest rate, as
well as the installment payment amounts. The Trustee shall forward the loan
document to the participant for execution and submission for approval to
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the Administrator. The Administrator shall have the responsibility for approving
the loan and instructing the Trustee to send the loan proceeds to the
Administrator or to the participant if so directed by the Administrator. In all
cases, approval or disapproval by the Administrator shall be made within thirty
(30) days of the participant's initial request (the origination date).
(f) Guaranteed Investment Contracts. Trust investments in guaranteed
investment contracts ("GICs") shall be subject to the following limitations:
(i) Collective Investment Funds. To the extent that the Named
Fiduciary selects as an investment option the Managed Income Portfolio of the
Fidelity Group Trust for Employee Benefit Plans (the "Group Trust"), the Sponsor
hereby (A) agrees to the terms of the Group Trust and adopts said terms as a
part of this Agreement and (B) acknowledges that it has received from the
Trustee a copy of the Group Trust, the Declaration of Separate Fund for the
Managed Income Portfolio of the Group Trust, and the Circular for the Managed
Income Portfolio.
(ii) Existing GICs blended with MIP. The funds shall
consist of existing GICs and the Managed Income Portfolio. All transactions
involving the "Blended Fund" shall be done in accordance with the Operating
Procedures attached hereto as Schedule "J".
(g) Reliance of Trustee on Directions.
(i) The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from any participant's exercise or
non-exercise of rights under this Section 4 over the assets in the participant's
accounts.
(ii) The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the Named Fiduciary's exercise or
non-exercise of rights under this Section 4, unless it was clear on their face
that the actions to be taken under the Named Fiduciary's directions were
prohibited by the fiduciary duty rules of section 404(a) of ERISA or were
contrary to the terms of the Plan or this Agreement.
(h) Trustee Powers. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b) and (c) of this Section 4,
to sell, exchange, convey, transfer, or otherwise dispose of any property held
in the Trust, by private contract or at public auction. No person dealing with
the Trustee shall be bound to see to the application of the purchase
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money or other property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4,
to invest in Investment Contracts and short term investments (including interest
bearing accounts with the Trustee or money market mutual funds advised by
affiliates of the Trustee) and in collective investment funds maintained by the
Trustee for qualified plans, in which case the provisions of each collective
investment fund in which the Trust is invested shall be deemed adopted by the
Sponsor and the provisions thereof incorporated as a part of this Trust as long
as the fund remains exempt from taxation under Sections 401(a) and 501(a) of the
Internal Revenue Code of 1986, as amended.
(iii) To cause any securities or other property held as
part of the Trust to be registered in the Trustee's own name, in the name of one
or more of its nominees, or in the Trustee's account with the Depository Trust
Company of New York and to hold any investments in bearer form, but the books
and records of the Trustee shall at all times show that all such investments are
part of the Trust.
(iv) To keep that portion of the Trust in cash or cash
balances as the Named Fiduciary or Administrator may, from time to time, deem to
be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein granted.
(vi) To borrow funds from a bank not affiliated with the
Trustee in order to provide sufficient liquidity to process Plan transactions in
a timely fashion; provided that the cost of such borrowing shall be allocated in
a reasonable fashion to the investment fund(s) in need of liquidity.
(vii) To settle, compromise, or submit to arbitration any
claims, debts, or damages due to or arising from the Trust; to commence or
defend suits or legal or administrative proceedings; to represent the Trust in
all suits and legal and administrative hearings; and to pay all reasonable
expenses arising from any such action, from the Trust if not paid by the
Sponsor.
(viii) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of this Agreement
and to pay their reasonable expenses and compensation from the Trust if not paid
by the Sponsor.
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(ix) To invest all of any part of the assets of the Trust
in any collective investment trust or group trust which then provides for the
pooling of the assets of plans described in Section 401(a) and exempt from tax
under Section 501(a) of the Internal Revenue Code ("Code"), or any comparable
provisions of any future legislation that amends, supplements, or supersedes
those sections, provided that such collective investment trust or group trust is
exempt from tax under the Code or regulations or rulings issued by the Internal
Revue Service: the provisions of the document governing such collective
investment trusts or group trusts, as it may be amended from time to time, shall
govern any investment therein and are hereby made a part of this Trust
Agreement.
(x) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out any of the
foregoing powers and the purposes of the Trust.
SECTION 5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of the last day of
each fiscal quarter of the Plan and, if not on the last day of a fiscal quarter,
the date on which the Trustee resigns or is removed as provided in Section 8 of
this Agreement or is terminated as provided in Section 10 (the "Reporting
Date"). Within thirty (30) days following each Reporting Date or within sixty
(60) days in the case of a Reporting Date caused by the resignation or removal
of the Trustee, or the termination of this Agreement, the Trustee shall file
with the Administrator a written account setting forth all investments,
receipts, disbursements, and other transactions effected by the Trustee between
the Reporting Date and the prior Reporting Date, and setting forth the value of
the Trust as of the Reporting Date. Except as otherwise required under ERISA,
upon the expiration of six (6) months from the date of filing such account with
the Administrator, the Trustee shall have no liability or further accountability
to anyone with respect to the propriety of its acts or transactions shown in
such account, except with respect to such acts or transactions as to which the
Sponsor shall within such six (6) month period file with the Trustee written
objections.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours
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prior to the termination of this Agreement, by the Administrator or any person
designated by the Administrator. Upon the resignation or removal of the Trustee
or the termination of this Agreement, the Trustee shall provide to the
Administrator, at no expense to the Sponsor, in the format regularly provided to
the Administrator, a statement of each participant's accounts as of the
resignation, removal, or termination, and the Trustee shall provide to the
Administrator or the Plan's new recordkeeper such further records as are
reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. A confirmation of the current qualified
status of the Plan is attached hereto as Schedule "F". The Trustee's provision
of the recordkeeping and administrative services set forth in this Section 5
shall be conditioned on the Sponsor delivering to the Trustee a copy of any
amendment to the Plan as soon as administratively feasible following the
amendment's adoption, with, if requested, an IRS determination letter or an
opinion of counsel substantially in the form of Schedule "F" covering such
amendment, and on the Administrator providing the Trustee on a timely basis with
all the information the Administrator deems necessary for the Trustee to perform
the recordkeeping and administrative services and such other information as the
Trustee may reasonably request.
(e) Returns, Reports and Information. The Administrator shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide the
Administrator with such information as the Administrator may reasonably request
to make these filings. The Administrator shall also be responsible for making
any disclosures to Participants required by law, except such disclosure as may
be required under federal or state truth-in-lending laws with regard to
Participant loans, which shall be provided by the Trustee.
SECTION 6. COMPENSATION AND EXPENSES. Within thirty (30) days of receipt of the
Trustee's xxxx, which shall be computed and billed in accordance with Schedule
"B" attached hereto and made a part hereof, as amended from time to time, the
Sponsor shall send to the Trustee a payment in such amount or the Sponsor may
direct the Trustee to deduct such amount from participants' accounts. All
expenses of the Trustee relating directly to the acquisition and disposition of
investments constituting part of the Trust, and all taxes of any kind whatsoever
that may be levied or assessed under existing or future laws upon or in respect
of the Trust or the income thereof, shall be a charge against and paid from the
appropriate Plan participants' accounts.
SECTION 7. DIRECTIONS AND INDEMNIFICATION.
(a) Identity of Administrator and Named Fiduciary. The Trustee shall be
fully protected in relying on the fact that the Named Fiduciary and the
Administrator under the Plan are the individuals or persons named as such above
or such other individuals
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or persons as the Sponsor may notify the Trustee in writing.
(b) Directions from Administrator. Whenever the Administrator provides a
direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction (i) if the direction is
contained in a writing (or is oral and immediately confirmed in a writing)
signed by any individual whose name and signature have been submitted (and not
withdrawn) in writing to the Trustee by the Administrator in the form attached
hereto as Schedule "D", and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear on the direction's
face that the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of Section 404(a) of ERISA or would be contrary to the
terms of this Agreement. For purposes of this Section, such direction may also
be made via electronic data transfer (EDT) in accordance with procedures agreed
to by the Administrator and the Trustee; provided, however, that the Trustee
shall be fully protected in relying on such direction as if it were a direction
made in writing by the Administrator.
(c) Directions from Named Fiduciary. Whenever the Named Fiduciary or
Sponsor provides a direction to the Trustee, the Trustee shall not be liable for
any loss, or by reason of any breach, arising from the direction (i) if the
direction is contained in a writing (or is oral and immediately confirmed in a
writing) signed by any individual whose name and signature have been submitted
(and not withdrawn) in writing to the Trustee by the Named Fiduciary in the form
attached hereto as Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear on the direction's
face that the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of Section 404(a) of ERISA or would be contrary to the
terms of this Agreement. Such direction may also be made via electronic EDT in
accordance with procedures agreed to by the Named Fiduciary and the Trustee;
provided, however, that the Trustee shall be fully protected in relying on such
direction as if it were a direction made in writing by the Named Fiduciary.
(d) Co-Fiduciary Liability. In any other case, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided in section
405(a) of ERISA.
(e) Indemnification. The Sponsor shall indemnify the Trustee against,
and hold the Trustee harmless from, any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
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asserted against the Trustee by reason of any claim, regulatory proceeding, or
litigation arising from any act done or omitted to be done by any individual or
person with respect to the Plan or Trust, excepting only any and all loss, etc.,
arising from the Trustee's negligence or bad faith.
(f) Survival. The provisions of this Section 7 shall survive the
termination of this Agreement.
SECTION 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Resignation. The Trustee may resign at any time upon thirty (30)
days' notice in writing to the Sponsor, unless a shorter period of notice is
agreed upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time upon sixty
(60) days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
SECTION 9. SUCCESSOR TRUSTEE.
(a) Appointment. If the office of Trustee becomes vacant for any reason,
the Sponsor may in writing appoint a successor trustee under this Agreement. The
successor trustee shall have all of the rights, powers, privileges, obligations,
duties, liabilities, and immunities granted to the Trustee under this Agreement.
The successor trustee and predecessor trustee shall not be liable for the acts
or omissions of the other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its appointment under
this Agreement, the predecessor trustee shall execute all instruments and do all
acts that reasonably may be necessary or reasonably may be requested in writing
by the Sponsor or the successor trustee to vest title to all Trust assets in the
successor trustee or to deliver all Trust assets to the successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor trustee,
through sale or transfer of the business or trust department of the Trustee or
successor trustee, or through reorganization, consolidation, or merger, or any
similar transaction, shall, upon consummation of the transaction, become the
successor trustee under this Agreement.
SECTION 10. TERMINATION. This Agreement may be terminated at any time by the
Sponsor upon sixty (60) days' notice in writing to the Trustee. On the date of
the termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate, all cash
and assets then constituting the Trust. If, by the termination date, the Sponsor
has not notified the Trustee in writing as to whom the assets and cash are to be
transferred and delivered, the Trustee
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may bring an appropriate action or proceeding for leave to deposit the assets
and cash in a court of competent jurisdiction. The Trustee shall be reimbursed
by the Sponsor for all costs and expenses of the action or proceeding including,
without limitation, reasonable attorneys' fees and disbursements.
SECTION 11. RESIGNATION, REMOVAL, AND TERMINATION NOTICES. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Xxxxx Xxxxxxx,
California Microwave, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, and to
the Trustee c/o Xxxx X. Xxxxxx, Fidelity Investments, 00 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses as the parties have
notified each other of in the foregoing manner.
SECTION 12. DURATION. This Trust shall continue in effect without limit as to
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
SECTION 13. AMENDMENT OR MODIFICATION. This Agreement may be amended or modified
at any time and from time to time only by an instrument executed by both the
Sponsor and the Trustee. Notwithstanding the foregoing, to reflect increased
operating costs the Trustee may once each calendar year amend Schedule "B"
without the Sponsor's consent upon seventy-five (75) days written notice to the
Sponsor.
SECTION 14. GENERAL.
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, including
Fidelity Investments Institutional Operations Company, Inc. or its successor,
and that certain of such services may be provided pursuant to one or more other
contractual agreements or relationships.
(b) Entire Agreement. This Agreement together with the schedules
attached hereto, which are hereby incorporated herein contains all of the terms
agreed upon between the parties with respect to the subject matter hereof.
(c) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
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(d) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(f) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
SECTION 15. GOVERNING LAW.
(a) Massachusetts Law Controls. This Agreement is being made in the
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration of
this Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under Section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan,
and in the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
CALIFORNIA MICROWAVE, INC.
Attest: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- -------------------------------------
Secretary
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Director, Benefits & Compensation
----------------------------------
Date: 12/30/97
-----------------------------------
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FIDELITY MANAGEMENT TRUST
COMPANY
Attest: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------- ---------------------------------
Secretary
Name: Xxxxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
Date: 1/6/98
-------------------------------
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SCHEDULE "A"
ADMINISTRATIVE SERVICES
Administration
* Establishment and maintenance of participant account and election
percentages.
* Maintenance of the following Plan investment options:
- Managed Income Fund/Blended with Existing GICs
- Fidelity Puritan Fund
- Fidelity Magellan Fund
- Strong Opportunity Fund
* Maintenance of the following money classifications:
- Salary Deferral
- Basic Match
- Profit Sharing
- Rollover
The Trustee will provide the recordkeeping and administrative services
set forth on this Schedule "A" and as detailed in the Plan
Administrative Manual and no others.
A) Provide Participant Telephone Services
1. Fidelity registered representatives are available from 8:30 a.m. -
8:00 p.m. ET to provide toll free telephone service for participant
inquiries and transactions. Additionally, participants have 24 hour
account balance and transaction inquiry access utilizing our automated
voice response system and the internet.
2. For security purposes, all calls are recorded. In addition, several
levels of security are available including the verification of a
Personal Identification Number (PIN) and/or any other indicative data
resident on the system.
3. Through our telephone services, Fidelity provides the following
services:
- Provide Plan investment option information.
- Maintain Plan specific provisions.
- Process exchanges (transfers) between investment options on a
daily basis.
- Maintain and process changes to participants' contribution
allocations for all money sources.
- Allow participants to change their deferral and provide updates
via EDT for customer to apply to its payrolls accordingly.
- Consult with participants in various loan scenarios and generate
all documentation.
- Process all participant loan and withdrawal requests via
Fidelity's toll-free telephone service according to Plan
provisions on a daily basis.
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- In-service withdrawals via telephone due to certain circumstances
previously approved by the Sponsor.
- Hardship withdrawals via telephone as directed and approved by
the Sponsor.
- Enroll new participants via telephone; provide confirmation of
enrollment within five (5) days of the request.
B) PLAN ACCOUNTING
1. Process payroll contributions according to payroll frequency via
electronic data transfer (EDT), consolidated magnetic tape or diskette.
The data format will be provided by Fidelity.
2. Provide Plan and participant level accounting for up to nine (9)
money classifications for the Plan.
3. Audit and reconcile the Plan and participant accounts daily.
4. Provide daily Plan and participant level accounting for the Plan
investment options.
5. Reconcile and process participant withdrawal requests as approved and
directed by the Sponsor. All requests are paid based on the current
market values of participants' accounts, not advanced or estimated
values. A distribution report will accompany each check.
6. Track individual participant loans; process loan withdrawals;
re-invest loan repayments; and prepare and deliver comprehensive reports
to the Sponsor to assist in the administration of participant loans.
7. Maintain and process changes to participants' prospective and
existing investment mix elections via Fidelity's toll-free telephone
service.
C) PARTICIPANT REPORTING
1. Mail confirmation to participants of all transactions initiated via
Fidelity Telephone Services within three (3) calendar days of the
transaction.
2. Prepare and mail via first class to each Plan participant a quarterly
detailed participant statement reflecting all activity for the period.
Statements will be mailed no later than twenty (20) calendar days after
each quarter end.
3. Mail required 402(f) notification for distribution from the Plan.
This notice advises participants of the tax consequences of their Plan
distributions.
D) PLAN REPORTING
1. Prepare, reconcile and deliver a monthly Trial Balance Report
presenting all money classes and investments. This report is based on
the market value as of the last business day of the month. The report
will be delivered not later than twenty (20) days after the end of each
month in the absence of unusual circumstances.
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2. Prepare, reconcile and deliver a Quarterly Administrative Report
presenting both on a participant and a total Plan basis all money
classes, investment positions and a summary of all activity of the
participant and Plan as of the last business day of the quarter. The
report will be delivered not later than twenty (20) days after the end
of each quarter in the absence of unusual circumstances.
E) GOVERNMENT REPORTING
1. Process year-end tax reports for participants - 1099R, as well as
financial reporting to assist in the preparation of Form 5500.
F) COMMUNICATION SERVICES
1. Employee communications describing available investment options,
including multimedia informational materials and group presentations.
G) OTHER
1. Performance of non-discrimination limitation testing upon request. In
order to obtain this service, the client shall be required to provide
the information identified in the Fidelity Discrimination Testing
Package Guidelines.
2. Monitor and process required minimum distribution amounts (MRD) as
follows: the Trustee will notify the MRD participant and, upon
notification from the MRD participant, will use the MRD participant's
information to process their distributions. If the MRD participant does
not respond to the Trustee's notification, the Sponsor directs the
Trustee to automatically begin the required distributions for the
participant.
CALIFORNIA MICROWAVE, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Xxxxx X. Xxxxxxx, 12/30/97 By: /s/ Xxxxxx X. Xxxxxxxxx, 1/6/98
------------------------------- --------------------------------
Date Vice President Date
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SCHEDULE "B"
FEE SCHEDULE
Annual Participant Fee: $8.00 per participant*, subject to a
$15,000 per year minimum, billed and
payable quarterly.
Enrollments by Phone: $5.00 per non-active employee residing
on Fidelity's participant recordkeeping
system.
Loan Fee: Establishment fee of $35.00 per loan
account; annual fee of $15.00 per loan
account.
Minimum Required Distribution: $25.00 per participant per MRD
withdrawal.
In-Service Withdrawals by Phone: $20.00 per withdrawal.
Plan Sponsor Workstation (PSW): $2,500 per year for the first PSW. Each
additional PSW $1,500 per year. $5.00
per hour per PSW for online usage (no
charge if accessed via another internet
service provider.)
Return of Excess Contribution Fee: $25.00 per participant, one-time charge
per calculation and check generation.
Non-Fidelity Mutual Funds: .35% trust administration fee on all
Non-Fidelity Mutual Fund assets (to
be paid by the Non-Fidelity Mutual Fund
vendor.)
* Other Fees: separate charges for optional non-discrimination testing,
extraordinary expenses resulting from large numbers of simultaneous
manual transactions or from errors not caused by Fidelity, or for
reports not contemplated in this Agreement. The Administrator may
withdraw reasonable administrative fees from the Trust by written
direction to the Trustee.
* This fee will be imposed pro rata for each calendar quarter, or any part
thereof, that it remains necessary to keep a participant's account(s) as
part of the Plan's records, e.g., vested, deferred, forfeiture,
top-heavy and terminated participants who must remain on file through
calendar year-end for 1099-R reporting purposes.
GIC Fees
*Existing GIC Recordkeeping Fee .05% on all existing GIC assets
Note: These fees have been negotiated and accepted based on the following Plan
characteristics: current plan assets of $48.2 million, current participation of
1,750 participants, current GIC assets of $11 million, total Fidelity managed
Mutual Fund assets of $24.3 and projected net cash flows of $3.5
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million per year. Fees will be subject to revision if these Plan characteristics
change significantly by either falling below or exceeding current or projected
levels.
CALIFORNIA MICROWAVE INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Xxxxx X. Xxxxxxx, 12/30/97 By: /s/ Xxxxxx X. Xxxxxxxxx, 1/6/98
------------------------------- --------------------------------
Date Vice President Date
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SCHEDULE "C"
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary hereby directs the
Trustee that participants' individual accounts may be invested in the following
investment options:
-Managed Income Fund/Blended with Existing GICs
-Fidelity Puritan Fund
-Fidelity Magellan Fund
-Strong Opportunity Fund
The investment option referred to in Section 4(c) shall be Fidelity
Retirement Money Market Portfolio.
CALIFORNIA MICROWAVE, INC.
By: /s/ Xxxxx X. Xxxxxxx, 12/30/97
-------------------------------
Date
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SCHEDULE "D"
[ADMINISTRATOR'S LETTERHEAD]
[DATE]
Xx. Xxxxxxx Xxxxxx
Fidelity Investments Institutional Operations Company, Inc.
00 Xxxxxxxxxx Xxxxxx- XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
[NAME OF PLAN]
*** NOTE: This schedule should contain names and signatures for ALL
individuals who will be providing directions to Fidelity representatives
in connection with the Plan.
Fidelity representatives will be unable to accept directions from any
individual whose name does not appear on this schedule.***
Dear Xx. Xxxxxx:
This letter is sent to you in accordance with Section 7(b) of the Trust
Agreement, dated as of [date], between [name of Plan Sponsor] and Fidelity
Management Trust Company. [I or We] hereby designate [name of individual], [name
of individual], and [name of individual], as the individuals who may provide
directions upon which Fidelity Management Trust Company shall be fully protected
in relying. Only one such individual need provide any direction. The signature
of each designated individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until [I or we] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[ADMINISTRATOR]
By
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
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SCHEDULE "E"
[NAMED FIDUCIARY'S LETTERHEAD]
[DATE]
Xx. Xxxxxxx Xxxxxx
Fidelity Investments Institutional Operations Company, Inc.
00 Xxxxxxxxxx Xxxxxx - XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
[NAME OF PLAN]
Dear Xx. Xxxxxx:
This letter is sent to you in accordance with Section 7(c) of the Trust
Agreement, dated as of [date], between [name of Plan Sponsor] and Fidelity
Management Trust Company. [I or We] hereby designate [name of individual], [name
of individual], and [name of individual], as the individuals who may provide
directions upon which Fidelity Management Trust Company shall be fully protected
in relying. Only one such individual need provide any direction. The signature
of each designated individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until [I or we] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[NAMED FIDUCIARY]
By
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
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SCHEDULE "F"
[LAW FIRM LETTERHEAD]
**NOTE: MAY SUBSTITUTE THE PLAN'S IRS DETERMINATION LETTER IF THE LETTER IS NO
MORE THAN TWO YEARS OLD.
Xxxxxxx Xxxxxx
Fidelity Institutional Retirement
Services Company
00 Xxxxxxxxxx Xxxxxx - XX0X
Xxxxxx, XX 00000
[NAME OF PLAN]
Dear Xx. Xxxxxx
In accordance with your request, this letter sets forth our opinion with
respect to the qualified status under section 401(a) of the Internal Revenue
Code of 1986 (including amendments made by the Employee Retirement Income
Security Act of 1974) (the "Code"), of the [name of plan], as amended to the
date of this letter (the "Plan").
The material facts regarding the Plan as we understand them are as
follows. The most recent favorable determination letter as to the Plan's
qualified status under section 401(a) of the Code was issued by the [location of
Key District] District Director of the Internal Revenue Service and was dated
[date] (copy enclosed). The version of the Plan submitted by [name of company]
(the "Company") for the District Director's review in connection with this
determination letter did not contain amendments made effective as of [date].
These amendments, among other matters, [brief description of amendments].
[Subsequent amendments were made on [date] to amend the provisions dealing with
[brief description of amendments].]
The Company has informed us that it intends to submit the Plan to the
[location of Key District] District Director of the Internal Revenue Service and
to request from him a favorable determination letter as to the Plan's qualified
status under section 401(a) of the Code. The Company may have to make some
modifications to the Plan at the request of the Internal Revenue Service in
order to obtain this favorable determination letter, but we do not expect any of
these modifications to be material. The Company has informed us that it will
make these modifications.
Based on the foregoing statements of the Company and our review of the
provisions of the Plan, it is our opinion that the Internal Revenue Service will
issue a favorable determination letter as to the qualified status of the Plan,
as modified at the request of the Internal Revenue Service, under section 401(a)
of the Code, subject to the customary condition that continued qualification of
the Plan, as modified, will depend on its effect in operation.
[Furthermore, in that the assets are in part invested in common stock
issued by the Company or an affiliate, it is our opinion that the Plan is an
"eligible individual account plan" (as defined under Section 407(d)(3) of ERISA)
and that the shares of common stock of the Company held and to be purchased
under the Plan are "qualifying employer securities" (as
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defined under Section 407(d)(5) of ERISA). Finally, it is our opinion that
interests in the Plan are not required to be registered under the Securities Act
of 1933, as amended, or, if such registration is required, that such interests
are effectively registered under said Act.]
Sincerely,
[name of law firm]
By [signature]
---------------------------------
[name of partner]
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SCHEDULE "G"
EXISTING GICS
In accordance with Section 4(b), the Named Fiduciary hereby directs the Trustee
to continue to hold the following Existing GICs until such time as the Named
Fiduciary directs otherwise:
CONTRACT ISSUER: ITT HARTFORD GA-42001
EFFECTIVE DATE: 7/1/93
MATURITY DATE: 12/31/98
CONTRACT ISSUER: CONTINENTAL ASSURANCE COMPANY GP-12985
EFFECTIVE DATE: 7/5/94
MATURITY DATE: 6/30/99
CONTRACT ISSUER: NEW YORK LIFE INSURANCE COMPANY GA-30298
EFFECTIVE DATE: 7/1/95
MATURITY DATE: 6/30/2000
CONTRACT ISSUER: METROPOLITAN LIFE INSURANCE CO. GA-20267
EFFECTIVE DATE: 7/1/96
MATURITY DATE: 6/30/2001
CALIFORNIA MICROWAVE, INC.
By: /s/ Xxxxx X. Xxxxxxx, 12/30/97
-------------------------------
Date
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SCHEDULE "H"
TELEPHONE EXCHANGE GUIDELINES
The following telephone exchange procedures are currently employed by Fidelity
Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (ET) to 8:00 p.m. (ET) on each business
day. A "business day" is any day on which the New York Stock Exchange is open.
FIRSCO reserves the right to change these telephone exchange guidelines at its
discretion.
EXCHANGES BETWEEN INVESTMENT OPTIONS
Participants may call on any business day to exchange between investment
options. If the request is received before 4:00 p.m. (ET), it will receive that
day's trade date. Calls received after 4:00 p.m. (ET) will be processed on a
next business day basis.
CALIFORNIA MICROWAVE, INC.
By: /s/ Xxxxx X. Xxxxxxx, 12/30/97
-------------------------------
Date
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SCHEDULE "I"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
PRICING
By 7:00 p.m. Eastern Time ("ET") each Business Day, the Non-Fidelity Mutual Fund
Vendor (Fund Vendor) will input the following information ("Price Information")
into the Fidelity Participant Recordkeeping System ("FPRS") via the remote
access price screen that Fidelity Investments Institutional Operations Company,
Inc. ("FIIOC"), an affiliate of the Trustee, has provided to the Fund Vendor:
(1) the net asset value for each Fund at the Close of Trading, (2) the change in
each Fund's net asset value from the Close of Trading on the prior Business Day,
and (3) in the case of an income fund or funds, the daily accrual for interest
rate factor ("mil rate"). FIIOC must receive Price Information each Business Day
(a "Business Day" is any day the New York Stock Exchange is open). If on any
Business Day the Fund Vendor does not provide such Price Information to FIIOC,
FIIOC shall pend all associated transaction activity in the Fidelity Participant
Recordkeeping System ("FPRS") until the relevant Price Information is made
available by Fund Vendor.
TRADE ACTIVITY AND WIRE TRANSFERS
By 7:00 a.m. ET each Business Day following Trade Date ("Trade Date plus One"),
FIIOC will provide, via facsimile, to the Fund Vendor a consolidated report of
net purchase or net redemption activity that occurred in each of the Funds up to
4:00 p.m. ET on the prior Business Day. The report will reflect the dollar
amount of assets and shares to be invested or withdrawn for each Fund. FIIOC
will transmit this report to the Fund Vendor each Business Day, regardless of
processing activity. In the event that data contained in the 7:00 a.m. ET
facsimile transmission represents estimated trade activity, FIIOC shall provide
a final facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any
resulting adjustments shall be processed by the Fund Vendor at the net asset
value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC transaction confirms for
all daily activity in each of the Funds. The Fund Vendor shall also send via
regular mail to FIIOC, by no later than the fifth Business Day following
calendar month close, a monthly statement for each Fund. FIIOC agrees to notify
the Fund Vendor of any balance discrepancies within twenty (20) Business Days of
receipt of the monthly statement.
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For purposes of wire transfers, FIIOC shall transmit a daily wire for aggregate
purchase activity and the Fund Vendor shall transmit a daily wire for aggregate
redemption activity, in each case including all activity across all Funds
occurring on the same day.
PROSPECTUS DELIVERY
FIIOC shall be responsible for the timely delivery of Fund prospectuses and
periodic Fund reports ("Required Materials") to Plan participants, and shall
retain the services of a third-party vendor to handle such mailings. The Fund
Vendor shall be responsible for all materials and production costs, and hereby
agrees to provide the Required Materials to the third-party vendor selected by
FIIOC. The Fund Vendor shall bear the costs of mailing annual Fund reports to
Plan participants. FIIOC shall bear the costs of mailing prospectuses to Plan
participants.
PROXIES
Participants shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote the shares of the Non-Fidelity Mutual Funds
credited to the participant's accounts (both vested and unvested). The Trustee
shall vote the shares as directed by the participant. The Trustee shall not vote
shares for which it has received no directions from the participant. During the
participant recordkeeping reconciliation period, the Sponsor shall have the
right to direct the Trustee as to the manner in which the Trustee is to vote the
shares of the Non-Fidelity Mutual Funds in the Trust. With respect to all rights
other than the right to vote, the Trustee shall follow the directions of the
participant and if no such directions are received, the directions of the Named
Fiduciary. The Trustee shall have no further duty to solicit directions from
participants or the Sponsor.
The Fund Vendor shall be responsible for all costs associated with the
production of proxy materials. FIIOC shall retain the services of a third-party
vendor to handle proxy solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly to the Fund Vendor by the
third-party vendor.
PARTICIPANT COMMUNICATIONS
The Fund Vendor shall provide internally-prepared fund descriptive information
approved by the Funds' legal counsel for use by FIIOC in its written participant
communication materials. FIIOC
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shall utilize historical performance data obtained from third-party vendors
(currently Morningstar, Inc., FACTSET Research Systems and Lipper Analytical
Services) in telephone conversations with plan participants and in quarterly
participant statements. The Sponsor hereby consents to FIIOC's use of such
materials and acknowledges that FIIOC is not responsible for the accuracy of
such third-party information. FIIOC shall seek the approval of the Fund Vendor
prior to retaining any other third-party vendor to render such data or materials
under this Agreement.
COMPENSATION
FIIOC shall be entitled to fees as set forth in a separate agency agreement with
the Fund Vendor.
INDEMNIFICATION
The Fund Vendor shall be responsible for compensating participants and/or FIIOC
in the event that losses occur as a result of (1) the Fund Vendor's failure to
provide FIIOC with Price Information or (2) providing FIIOC with incorrect Price
Information.
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SCHEDULE "J"
OPERATING PROCEDURES
FOR THE MANAGED INCOME FUND
I. DESCRIPTION OF INVESTMENT OPTION
The Managed Income Fund will be comprised of units in the Fidelity
Institutional Cash Portfolio: Money Market Portfolio ("STIF"), units in
the Fidelity Group Trust for Employee Benefits Plan Managed Income
Portfolio ("MIP") and the existing Investment Contracts listed on
Schedule "G" purchased prior to the effective date of the Trust
Agreement between the Trustee and the Sponsor.
II. INVESTMENT OPTION TRANSACTIONS
All transactions for the Managed Income Fund will be coordinated by the
Trustee based on the procedures outlined in this document.
III. VALUATION
The Trustee will value the Managed Income Fund on a daily basis and
produce a blended mil rate to reflect the net income earned by the
Managed Income Fund.
IV. MONEY MOVEMENT
All money transfers to and from the Managed Income Fund will be made
through the STIF portion of the Managed Income Fund. Plan level
transactions representing cumulative participant level transactions will
update nightly to the STIF portion to ensure "same day" settlement of
all transactions.
V. CASH MANAGEMENT
The Sponsor will maintain 3% of the Managed Income Fund in STIF. The
Trustee will monitor the cashflows and the balance of the STIF portion.
If the STIF balance exceeds 3%, the Trustee will transfer the excess to
the MIP. If the STIF balance falls below 3%, the Trustee will request
money from the Investment Contract carriers and/or the MIP on a Prorata
basis to replenish the balance to 3%.
VI. INVESTMENT CONTRACT MATURITIES
The proceeds from a maturing Investment Contract will be transferred to
the STIF portion for subsequent reinvestment in the MIP. The Trustee
will provide wiring instructions to the Investment Contract carrier.
VII. RECONCILIATION
The Fidelity Participant Recordkeeping System (FPRS) will be reconciled
to the Managed Income Portfolio Accounting System (GUIDE) on a daily and
monthly basis. The Investment Contract portion will be reconciled to the
carrier balances on a monthly basis.
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VIII. FEE COLLECTION FOR ACCOUNTING SERVICES
The Trustee will accrue its fee for Accounting services on a daily
basis, and will deduct the fee monthly from the earnings of the Managed
Income Fund.
IX. CHANGES TO THE SCHEDULE
This Schedule may be amended or modified at any time and from time to
time only by an instrument executed by both the Trustee and the Sponsor.
X. DISCONTINUANCE OF ACCOUNTING SERVICES
The Trustee will discontinue accounting services for the Managed Income
Fund once all the Investment Contracts have matured.
California Microwave Fidelity Management Trust Company
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------- --------------------------------
Date Vice President Date
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FIRST AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
CALIFORNIA MICROWAVE, INC.
THIS FIRST AMENDMENT, dated as of the first day of April, 1998, by and
between Fidelity Management Trust Company (the "Trustee") and California
Microwave, Inc. (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated January 1, 1998, with regard to the California Microwave
Tax-Deferred Savings and Deferred Profit Sharing Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and
the Sponsor hereby amend the Trust Agreement by:
(1) Amending the "investment options" section of Schedules "A"
and "C" to add the following:
- Fidelity Low-Priced Stock Fund
- Spartan U.S. Equity Index Fund
- Fidelity Diversified International Fund
- Fidelity U.S. Bond Index Fund
- Franklin Small Cap Growth Fund I
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this First
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
CALIFORNIA MICROWAVE, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Vice President
------------------------------- --------------------------------
Date Vice President Date
36
SECOND AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
CALIFORNIA MICROWAVE, INC.
THIS SECOND AMENDMENT, dated as of the fourth day of January, 1999, by
and between Fidelity Management Trust Company (the "Trustee") and California
Microwave, Inc. (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated January 1, 1998, with regard to the California Microwave
Tax-Deferred Savings and Deferred Profit Sharing Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and
the Sponsor hereby amend the Trust Agreement by:
(1) Amending Section 4(b), Available Investment Options, by adding
the following new subsection (v), as follows:
(v) equity securities issued by the Sponsor or an affiliate
which are publicly-traded and which are "qualifying employer
securities" within the meaning of section 407(d)(5) of ERISA
("Sponsor Stock"),
(2) Amending Section 4, Investment of Trust, by adding the following
new subsection:
(i) Sponsor Stock. Trust investments in Sponsor Stock shall be
made via the California Microwave Stock Fund (the "Stock Fund").
Investments in the Stock Fund shall consist primarily of shares
of Sponsor Stock. In order to satisfy daily participant exchange
or withdrawal requests for transfers and payments, the Stock Fund
shall also include cash or short-term liquid investments in
accordance with this paragraph. Such holdings will include
Fidelity Institutional Cash Portfolios: Money Market Portfolio:
Class I or such other Mutual Fund or commingled money market pool
as agreed to by the Sponsor and Trustee. The Named Fiduciary
shall, after consultation with the Trustee, establish and
communicate to the Trustee in writing a target percentage and
drift allowance for such short-term liquid investments. The
Trustee shall be responsible for ensuring that the actual cash
held in the Stock Fund falls within the agreed upon range over
time. Each participant's proportional interest in the Stock Fund
shall be measured in units of participation, rather than shares
of Sponsor Stock. Such units shall represent a proportionate
interest in all of the assets of the Stock Fund, which includes
shares of Sponsor Stock, short-term investments and at times,
receivables for dividends and/or Sponsor Stock sold and payables
for Sponsor Stock purchased. The Trustee shall determine a daily
net asset value ("NAV") for each unit outstanding of the Stock
Fund. Valuation of the Stock Fund shall be based upon the 4:00
p.m. New York Stock Exchange ("NYSE") closing price of the stock,
or if unavailable, the latest available price as reported by the
principal national securities
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exchange on which the Sponsor Stock is traded. The NAV shall be
adjusted by dividends paid on the shares of Sponsor Stock held
by the Stock Fund, gains or losses realized on sales of Sponsor
Stock, appreciation or depreciation in the market price of those
shares owned, and interest on the short-term investments held by
the Stock Fund, expenses that, pursuant to Sponsor direction,
the Trustee accrues from the Stock Fund, and commissions on
purchases and sales of Sponsor Stock. Investments in Sponsor
Stock shall be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust
may be invested in Sponsor Stock to the extent necessary to
comply with investment directions in accordance with this
Agreement.
(ii) Fiduciary Duty of Named Fiduciary. The Named
Fiduciary shall continually monitor the suitability under the
fiduciary duty rules of section 404(a)(1) of ERISA (as modified
by section 404(a)(2) of ERISA) of acquiring and holding Sponsor
Stock. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the directions of the
Named Fiduciary with respect to the acquisition and holding of
Sponsor Stock, unless it is clear on their face that the actions
to be taken under those directions would be prohibited by the
foregoing fiduciary duty rules or would be contrary to the terms
of this Agreement.
(iii) Purchase and sales of Sponsor Stock shall be made
on the open market as necessary to maintain the target cash
percentage and drift allowance for the Stock Fund, provided
that:
(1) If the Trustee is unable to purchase or sell
the total number of shares required to be purchased or sold on
such day as a result of market conditions; or
(2) If the Trustee is prohibited by the
Securities and Exchange Commission, the New York Stock Exchange,
or any other regulatory body from purchasing or selling any or
all of the shares required to be purchased or sold on such day,
then the Trustee shall purchase or sell such shares as soon as
possible thereafter. The Trustee may follow directions from the
Administrator or Named Fiduciary to deviate from the above
purchase and sale procedures provided that such direction is
made in writing by the Administrator or Named Fiduciary.
(iv) Execution of Purchases and Sales.
(A) Purchases and sales of units in the Stock Fund
(other than for exchanges) shall be made on the date on which
the Trustee receives from the Administrator in good order all
information, documentation, and wire transfers of funds (if
applicable), necessary to accurately effect such transactions.
Exchanges of units in the Stock Fund shall be made in accordance
with the Telephone Exchange Guidelines attached hereto as
Schedule "H". The Trustee may follow directions from the
Administrator or Named Fiduciary to deviate from the above
purchase and sale procedures provided that such direction is
made in writing by the Administrator or Named Fiduciary.
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(B) Purchases and Sales from or to Sponsor. If directed
by the Sponsor in writing prior to the trading date, the Trustee
may purchase or sell Sponsor Stock from or to the Sponsor if the
purchase or sale is for adequate consideration (within the
meaning of section 3(18) of ERISA) and no commission is charged.
If Sponsor contributions (employer) or contributions made by the
Sponsor on behalf of the participants (employee) under the Plan
are to be invested in Sponsor Stock, the Sponsor may transfer
Sponsor Stock in lieu of cash to the Trust. In either case, the
number of shares to be transferred will be determined by
dividing the total amount of Sponsor Stock to be purchased or
sold by the 4:00 p.m. NYSE closing price of the Sponsor Stock on
the trading date.
(C) Use of an Affiliated Broker. The Sponsor hereby
directs the Trustee to use Fidelity Capital Markets, Inc.
("Capital Markets") to provide brokerage services in connection
with any purchase or sale of Sponsor Stock in accordance with
directions from Plan participants. Capital Markets shall execute
such directions directly or through its affiliate, National
Financial Services Company ("NFSC"). The provision of brokerage
services shall be subject to the following:
(1) As consideration for such brokerage
services, the Sponsor agrees that Capital Markets shall be
entitled to remuneration under this direction provision in the
amount of three and one-half cents ($.035) commission on each
share of Sponsor Stock. Any change in such remuneration may be
made only by a signed agreement between Sponsor and Trustee.
(2) The Trustee will provide the Sponsor with a
description of Capital Markets' brokerage placement practices
and a form by which the Sponsor may terminate this direction to
use a broker affiliated with the Trustee. The Trustee will
provide the Sponsor with this termination form annually, as well
as quarterly and annual reports which summarize all securities
transaction-related charges incurred by the Plan.
(3) Any successor organization of Capital
Markets, through reorganization, consolidation, merger or
similar transactions, shall, upon consummation of such
transaction, become the successor broker in accordance with the
terms of this direction provision.
(4) The Trustee and Capital Markets shall
continue to rely on this direction provision until notified to
the contrary. The Sponsor reserves the right to terminate this
direction upon written notice to Capital Markets (or its
successor) and the Trustee, in accordance with Section 11 of
this Agreement.
(v) Securities Law Reports. The Named Fiduciary shall be
responsible for filing all reports required under Federal or
state securities laws with respect to the Trust's ownership of
Sponsor Stock, including, without limitation, any reports
required under section 13 or 16 of the Securities Exchange Act of
1934, and shall immediately notify the Trustee in writing of any
requirement to stop purchases or sales of Sponsor Stock pending
the filing of any report. The Trustee shall provide to the Named
Fiduciary such information on the Trust's ownership of Sponsor
Stock as the Named
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Fiduciary may reasonably request in order to comply with Federal
or state securities laws.
(vi) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement the provisions of this Section shall
govern the voting and tendering of Sponsor Stock. The Sponsor,
after consultation with the Trustee, shall provide and pay for
all printing, mailing, tabulation and other costs associated
with the voting and tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of Sponsor Stock
prepares for any annual or special meeting, the Sponsor shall
timely notify the Trustee in advance of the intended record date
and shall cause a copy of all proxy solicitation materials to be
sent to the Trustee. If requested by the Trustee, the Sponsor
shall certify to the Trustee that the aforementioned materials
represents the same information that is distributed to
shareholders of Sponsor Stock. Based on these materials the
Trustee shall prepare a voting instruction form and shall
provide a copy of all proxy solicitation materials to be sent to
each Plan participant with an interest in Sponsor Stock held in
the Trust, together with the foregoing voting instruction form
to be returned to the Trustee or its designee. The form shall
show the proportional interest in the number of full and
fractional shares of Sponsor Stock credited to the participant's
accounts held in the Stock Fund.
(2) Each participant with an interest in
the Stock Fund shall have the right to direct the Trustee as to
the manner in which the Trustee is to vote (including not to
vote) that number of shares of Sponsor Stock reflecting such
participant's proportional interest in the Stock Fund (both
vested and unvested). Directions from a participant to the
Trustee concerning the voting of Sponsor Stock shall be
communicated in writing, or by mailgram or similar means as is
agreed upon by the Trustee and the Sponsor. These directions
shall be held in confidence by the Trustee and shall not be
divulged to the Sponsor, or any officer or employee thereof, or
any other person except to the extent that the consequences of
such directions are reflected in reports regularly communicated
to any such persons in the ordinary course of the performance of
the Trustee's services hereunder. Upon its receipt of the
directions, the Trustee shall vote the shares of Sponsor Stock
reflecting the participant's proportional interest in the Stock
Fund as directed by the participant. Except as otherwise
required by law, the Trustee shall not vote shares of Sponsor
Stock reflecting a participant's proportional interest in the
Stock Fund for which it has received no direction from the
participant.
(3) The Trustee shall vote that number
of shares of Sponsor 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 directions from participants.
(B) Tender Offers.
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(1) Upon commencement of a tender offer
for any securities held in the Trust that are Sponsor Stock, the
Sponsor shall timely notify the Trustee in advance of the
intended tender date and shall cause a copy of all materials to
be sent to the Trustee. The Sponsor shall certify to the Trustee
that the aforementioned materials represent the same information
distributed to shareholders of Sponsor Stock. Based on these
materials and after consultation with the Sponsor the Trustee
shall prepare a tender instruction form and shall provide a copy
of all tender materials to be sent to each plan participant,
together with the foregoing tender instruction form, to be
returned to the Trustee or its designee. The tender instruction
form shall show the number of full and fractional shares of
Sponsor Stock that reflect the participants proportional
interest in the Stock Fund (both vested and unvested).
(2) Each participant shall have the
right to direct the Trustee to tender or not to tender some or
all of the shares of Sponsor Stock reflecting such participant's
proportional interest in the Stock Fund (both vested and
unvested). Directions from a participant to the Trustee
concerning the tender of Sponsor Stock shall be communicated in
writing, or by mailgram or such similar means as is agreed upon
by the Trustee and the Sponsor. These directions shall be held
in confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other person
except to the extent that the consequences of such directions
are reflected in reports regularly communicated to any such
persons in the ordinary course of the performance of the
Trustee's services hereunder. The Trustee shall tender or not
tender shares of Sponsor Stock as directed by the participant.
Except as otherwise required by law, the Trustee shall not
tender shares of Sponsor Stock reflecting a participant's
proportional interest in the Stock Fund for which it has
received no direction from the participant.
(3) Except as otherwise required by law,
the Trustee shall tender that number of shares of Sponsor Stock
not credited to participants' accounts in the same proportion as
the total number of shares of Sponsor Stock credited to
participants' accounts for which it has received instructions
from Participants.
(4) A participant who has directed the
Trustee to tender some or all of the shares of Sponsor Stock
reflecting the participant's proportional interest in the Stock
Fund may, at any time prior to the tender offer withdrawal date,
direct the Trustee to withdraw some or all of the tendered
shares reflecting the participant's proportional interest, and
the Trustee shall withdraw the directed number of shares from
the tender offer prior to the tender offer withdrawal deadline.
Prior to the withdrawal deadline, if any shares of Sponsor Stock
not credited to participants' accounts have been tendered, the
Trustee shall redetermine the number of shares of Sponsor Stock
that would be tendered under Section 4(i)(vi)(B)(3) if the date
of the foregoing withdrawal were the date of determination, and
withdraw from the tender offer the number of shares of Sponsor
Stock not credited to participants' accounts necessary to reduce
the amount of tendered Sponsor Stock not credited to
participants' accounts to the amount so redetermined. A
participant shall not be limited as to the number of directions
to tender or withdraw that the participant may give to the
Trustee.
(5) A direction by a participant to the
Trustee to tender shares of Sponsor Stock reflecting the
participant's proportional interest in the Stock Fund
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shall not be considered a written election under the Plan by the
participant to withdraw, or have distributed, any or all of his
withdrawable shares. The Trustee shall credit to each
proportional interest of the participant from which the tendered
shares were taken the proceeds received by the Trustee in
exchange for the shares of Sponsor Stock tendered from that
interest. Pending receipt of directions (through the
Administrator) from the participant or the Named Fiduciary, as
provided in the Plan, as to which of the remaining investment
options the proceeds should be invested in, the Trustee shall
invest the proceeds in the investment option described in
Schedule "C".
(vii) General. With respect to all rights other than the
right to vote, the right to tender, and the right to withdraw
shares previously tendered, in the case of Sponsor Stock
credited to a participant's proportional interest in the Stock
Fund, the Trustee shall follow the directions of the participant
and if no such directions are received, the directions of the
Named Fiduciary. The Trustee shall have no duty to solicit
directions from participants. With respect to all rights other
than the right to vote and the right to tender, in the case of
Sponsor Stock not credited to participants' accounts, the
Trustee shall follow the directions of the Named Fiduciary.
(viii) Conversion. All provisions in this Section 4(i)
shall also apply to any securities received as a result of a
conversion of Sponsor Stock.
(3) Amending the "investment options" section of Schedules "A" and
"C" to add the following:
- California Microwave Stock Fund
(4) Amending the "Trustee Fees" section of Schedule "B" to add the
following:
- To the extent that assets are invested in Sponsor stock,
.10% of such assets in the Trust payable pro rata
quarterly on the bases of such assets as of the calendar
quarter's last valuation date, but no less than $10,000
nor more than $35,000 per year.
(5) Amending Schedule "H" Telephone Exchange Procedures, by adding
the following section:
EXCHANGE RESTRICTIONS
Investments in the Stock Fund will consist primarily of shares
of Sponsor Stock. However, in order to satisfy daily participant
requests for exchanges, loans and withdrawals, the Stock Fund
will also hold cash or other short-term liquid investments in an
amount that has been agreed to in writing by the Sponsor and the
Trustee. The Trustee will be responsible for ensuring that the
percentage of these investments falls within the agreed upon
range over time. However, if there is insufficient liquidity in
the Sponsor Stock Fund to allow for such activity, the Trustee
will sell shares of Sponsor Stock in the open market. Exchange
and redemption transactions will be processed as soon as
proceeds from the sale of Sponsor Stock are received.
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IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Second
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
CALIFORNIA MICROWAVE, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Harriot Puviance By: /s/ Vice President
------------------------------- --------------------------------
Date Vice President Date
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