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EXHIBIT 4.8
savings plan for employees of the fairchild corporation
TRUST AGREEMENT
This Agreement is made as of this 1st day of February, 2000, by and between The
Fairchild Corporation, a Delaware corporation having its principal office in
Dulles, Virginia (the "Company") and Putnam Fiduciary Trust Company, a
Massachusetts trust company having its principal office in Boston, Massachusetts
(the "Trustee").
WITNESSETH:
1. Establishment of Plan. The Savings Plan for Employees of the Fairchild
Corporation (the "Plan") has been adopted by the Company and is
intended to satisfy those provisions of the Internal Revenue Code of
1986, as the same may be amended from time to time (the "Code"),
relating to qualified employer plans.
2. Creation of Trust. There is hereby established a trust which shall
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be known as the "Savings Plan for Employees of The Fairchild
Corporation Trust" (the "Trust"). The provisions of this Agreement
shall supersede and take precedence over any provision of the Plan
or any prior trust agreement which deal with the Trustee's
responsibilities and/or which may conflict in any way with the Trust.
No amendment to the Plan which affects the responsibilities of the
Trustee shall be made without its consent. Notwithstanding the
foregoing, the Company shall provide the Trustee with any proposed
amendment to the Plan affecting the responsibilities of the Trustee,
within one hundred and eighty (180) days of its proposed effective date
by delivery of the proposed amendment to the Trustee as set forth in
the notice section of this Agreement. If the Trustee does not object
in writing within one hundred and eighty (180) days of receiving the
proposed amendment, it will be deemed to have consented to such
amendment. All money and such property as shall be acceptable to the
Trustee as shall from time to time be paid or delivered to the Trustee
in its capacity as such, all investments made therewith and proceeds
thereof and all earnings and profits thereon, less the payments which
at the time of reference shall have been made by the Trustee, as
authorized herein, are referred to herein as the Trust. The Trustee
hereby accepts the Trust created hereunder and agrees to perform the
provisions of this Agreement on its part to be performed. Subject to
the conditions and limitations set forth herein, the Trustee shall be
responsible for the property received by it as Trustee, but shall not
be responsible for the administration of the Plan or for those assets
of the Plan which have not been delivered to and accepted by the
Trustee. The Trustee shall not have any authority or obligation to
determine the adequacy of or to enforce the collection from the Company
of any contribution to the Trust. Certain other agreements and
obligations between the Company and the Trustee or its affiliates have
been set forth in a service agreement between such parties (the
"Service Agreement") effective as of February 1, 2000.
The establishment of the Trust created by this Agreement shall not be
considered as giving any Plan member or any other person any legal or
equitable rights as against the Company or the Trustee or the property,
whether corpus or income, of the Trust unless such right is
specifically provided for in this Agreement, the Plan, or by law, nor
shall it be considered as giving any Plan member or other employee the
right to continue in the service of the Company.
3. Purposes. The Plan and the Trust have been established for the
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exclusive benefit of the eligible employees and their beneficiaries.
This Agreement shall be interpreted in a manner consistent with the
intention of the Company that the Trust satisfy those provisions of the
Code relating to qualified employees' trusts exempt from taxation under
Section 501(a) of the Code. It is specifically intended that the
Company shall have sole responsibility for maintaining the
tax-qualified status of the Plan and Trust. No property of the Trust
or contributions made by the Company pursuant to the terms of the Plan
shall revert to the Company or be used for any purpose other than
providing benefits to eligible employees or their beneficiaries and
defraying the expenses of the Plan and the Trust, except that to the
extent provided by the Plan:
(a) Any amount contributed under the Plan by the Company by a
mistake of fact as determined by the Company may be returned
to the Company, upon its request, within one year after its
payment to the Trust.
(b) Any amount contributed under the Plan by the Company on the
condition of its deductibility under Section 404 of the Code
may be returned to the Company, upon its request, within one
year after the Internal Revenue Service disallows the
deduction in writing.
(c) Earnings attributable to contributions returnable under
paragraph (a) or (b) shall not be returned to the Company, and
any losses attributable to those contributions shall reduce
the amount returned.
4. Management of Trust. It shall be the duty of the Trustee:
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(a) to hold and, subject to the provisions of this Agreement, to
invest and to reinvest the assets of the Trust, and
(b) to make payments therefrom in accordance with the written
directions of the Plan Administrator (the "Administrator")
specified in the Plan or otherwise appointed by the Board of
Directors of the Company pursuant to the Plan to administer
the Plan. The Administrator shall be the "plan administrator"
of the Plan as defined in Section 3(16)(A) of the Employee
Retirement Income Security Act of 1974 ("ERISA"), and a "named
fiduciary" within the meaning of Section 402(a) of ERISA. The
Administrator may direct payments to be made from the Trust to
any person, including any member of the Administrator, or to
the Company, or to any paying agent designated by the
Administrator, and in such amounts as the Administrator may
direct. Each such direction of the Administrator shall be in
writing and shall be deemed to include a certification that
any payment directed thereby is one which the Administrator is
authorized to direct, and the Trustee may conclusively rely on
such certification without further investigation. Payments by
the Trustee may be made by its check to the order of the payee
and mailed to the payee at the address last furnished to the
Trustee by the Administrator or by the payee, or if no such
address has been furnished, to the payee in care of the
Company. 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 any 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.
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 not be
required to make any disbursement in cash unless the
Administrator has provided a written direction as to the
assets to be converted to cash for the purpose of making the
disbursement.
5. Investments. Except as otherwise provided in Sections 6, 7 and 8
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below, the Trustee shall invest and reinvest the assets of the Trust
and keep the same invested, without distinction between principal and
income, in stocks, bonds, stock options, option contracts of any type,
contracts for the immediate or future delivery of financial instruments
and other property, or other securities or certificates of
participation or shares of any mutual investment company, trust or fund
(including mutual funds which are sponsored, underwritten or managed by
affiliates of the Trustee), or deposits in the Trustee which bear a
reasonable rate of interest, or annuity or investment contracts issued
by an insurance company, or other property of any kind, real or
personal, tangible or intangible, as it may deem advisable, provided
that the Trustee may hold assets of the Trust uninvested from time to
time if and to the extent that it may deem such to be in the best
interests of the Trust. Notwithstanding the foregoing, unless an
Investment Manager is appointed in accordance with Section 8, or the
Service Agreement otherwise specifically provides, all of the assets of
the Trust shall be invested as the Administrator directs in investment
products sponsored, underwritten or managed by affiliates of the
Trustee, loans to Plan members or securities issued by the Company
satisfying the conditions of Section 7.
6. Investment Funds. The Administrator from time to time may direct the
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Trustee to establish one or more separate investment accounts within
the Trust, each such separate account being hereinafter referred to as
an "Investment Fund." The Trustee shall transfer to each such
Investment Fund such portion of the assets of the Trust as the
Administrator or Plan members direct in accordance with the specific
provisions of the Plan and in the manner provided in the Service
Agreement. The Trustee shall invest and reinvest the assets which have
been allocated to an Investment Fund in accordance with the investment
guidelines, objectives and restrictions which have been established by
the Administrator for that Investment Fund and, in the case of an
Investment Fund for which an Investment Manager has been appointed or
an Investment Fund to be directed by the Administrator, the specific
investment directions of such Investment Manager or the Administrator,
as the case may be. If, and to the extent, specifically authorized by
the Plan, and provided in the Service Agreement, the Administrator may
direct the Trustee to establish an Investment Fund all, or
substantially all, of the assets of which shall be invested in shares
of stock of the Company, subject to the terms and conditions of
Section 7.
The Trustee shall be under no duty to question or review the investment
guidelines, objectives and restrictions established, or the specific
investment directions given, by the Administrator or the Plan members
for any Investment Fund or to make suggestions to the Administrator in
connection therewith. The Trustee shall not be liable for any loss
which arises from the Administrator's or Plan members' exercise or
non-exercise of rights under this Section 6, or from any direction of
the Administrator or Plan members, unless it is clear on the face of
the direction that the actions to be taken under the direction are
prohibited by the fiduciary duty rules of Section 404(a) of ERISA or
are not permitted by the Plan. The Trustee shall incur no liability on
account of investing the assets of the Trust in accordance with proper
investment elections or directions of the Administrator or Plan members
so delivered to the Trustee.
All interest, dividends and other income received with respect to, and
any proceeds received from the sale or other disposition of, securities
or other property held in an Investment Fund shall be credited to and
reinvested in such Investment Fund, and all expenses of the Trust which
are properly allocable to a particular Investment Fund shall be so
allocated and charged. The Administrator may at any time direct the
Trustee to eliminate any Investment Fund or Funds, and the Trustee
shall thereupon dispose of the assets of such Investment Fund and
reinvest the proceeds thereof in accordance with the directions of the
Administrator.
Pending investment in the Investment Funds in accordance with the
directions of the Administrator or the Plan members, the Trustee shall
invest assets of the Trust as provided in the Service Agreement, or if
there is no such provision, the Trustee may invest assets of the Trust,
in whole or in part, at any time or from time to time, in
interest-bearing accounts or certificates of deposit (including
deposits in the Trustee which bear a reasonable interest rate),
Treasury Bills, commercial paper, money market funds (including any
such fund sponsored, underwritten or managed by one of its affiliates),
short-term investment funds or other short-term obligations in its
discretion, and the investment return thereon shall be allocated among
the Plan members whose assets have been so invested and added to their
respective investments in the Investment Funds.
7 Trust Investments in Company Stock. Trust investments pursuant to this
Section 7 shall be made only in securities constituting "qualifying
employer securities" within the meaning of Section 407(d)(5) of ERISA.
Trust investments in such securities of the Company ("Company Stock")
shall be subject to the following terms and conditions:
(a) Acquisition Limit. Pursuant to the Plan, the Trust may be
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invested in Company Stock to the extent necessary to comply
with investment directions under Section 6 of this Agreement.
(b) Fiduciary Duties of Named Fiduciaries. The Administrator as
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named fiduciary shall continually monitor the suitability of
acquiring and holding Company Stock under the fiduciary duty
rules of Section 404(a)(1) of ERISA (as modified by Section
404(a)(2) of ERISA). The Trustee shall not be liable for any
loss, or by reason of any breach, which arises from a
direction of the Administrator with respect to the acquisition
and holding of Company Stock, unless it is clear on the face
of the direction that the actions to be taken under the
direction would be prohibited under ERISA. The Company hereby
appoints as named fiduciaries, solely with respect to the
voting of Company Stock held in the Trust in accordance with
Section 7(e) and the tender or retention of such Company Stock
in response to a tender offer in accordance with Section 7(f),
the eligible employees who are Plan members in the Plan at the
time in question. The Company shall be responsible for
determining whether, under the circumstances prevailing at a
given time, its fiduciary duty to Plan members and
beneficiaries under the Plan and ERISA requires that the
Company follow the advice of independent counsel as to the
voting and tender or retention of Company Stock.
(c) Execution of Purchases and Sales. To implement transactions
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regarding investments in Company Stock, including purchases,
redemptions and exchanges, the Trustee shall purchase or sell
Company Stock on the open market, as the case may be, as soon
as practicable on or following the date on which the Trustee
receives from the Company in good order all information and
documentation necessary to effect such purchase or sale.
However, the Trustee may accumulate all like purchases into a
single batch and may accumulate all like sales as a result of
receiving instructions for redemptions and exchanges out of
Company Stock into a single batch, but shall not be required
to do so.
The Trustee may purchase or sell Company Stock from or to the
Company if the purchase or sale is for no more than adequate
consideration (within the meaning of Section 3(18) of ERISA)
and no commission is charged. To the extent that Company
contributions under the Plan are to be invested in Company
Stock, the Company may transfer Company Stock to the Trust in
lieu of cash. The number of shares so transferred shall be
determined by dividing the amount of the contribution by the
closing price of Company Stock on any national securities
exchange on the trading day immediately preceding the date as
of which the contribution is made.
The Trustee and the Company may, in an appendix to this
Section 7, agree upon such prescribed dates for purchases and
sales of Company Stock and such rules and conventions in
connection with such purchases and sales as they may find
mutually acceptable.
(d) Securities Law Reports. The Administrator shall be responsible
for filing all reports required under federal or state
securities laws with respect to the Trust's ownership of
Company 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 Company Stock
pending the filing of any report. The Trustee shall provide to
the Administrator such information on the Trust's ownership of
Company Stock as the Administrator may reasonably request in
order to comply with federal or state securities laws.
(e) Voting. Notwithstanding any other provision of this
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Agreement, the provisions of this Section 7(e) shall govern
the voting of Company Stock. When the issuer of Company Stock
files preliminary proxy solicitation materials with the
Securities and Exchange Commission, the Company shall cause a
copy of all of the materials to simultaneously be sent to the
Trustee, and the Trustee shall prepare a voting instruction
form based on these materials. At the time of mailing of
notice of each annual or special stockholders' meeting of the
issuer of Company Stock, the Company shall cause a copy of the
notice and all proxy solicitation materials to be sent to each
Plan member, together with the foregoing voting instruction
form to be returned to the Trustee or its designee. The form
shall show the number of full and fractional shares of Company
Stock credited to the Plan member's accounts, whether or not
vested. For purposes of this Section 7(e), the number of
shares of Company Stock deemed credited to a Plan member's
accounts shall be determined as of the date of record
determined by the Company for which an allocation has been
completed and Company Stock has actually been credited to Plan
members' accounts. The Company shall provide the Trustee with
a copy of materials provided to Plan members and shall certify
to the Trustee that the materials have been mailed or
otherwise sent to Plan members.
Each Plan member shall have the right to direct the Trustee as
to the manner in which to vote that number of whole shares of
Company Stock credited to his accounts. Such direction shall
be communicated in writing or by facsimile or similar means
and shall be held in confidence by the Trustee and not
divulged to the Company, or an officer or employee thereof, or
any other person. Upon its receipt of directions, the Trustee
shall vote the whole shares of Company Stock credited to the
Plan member's accounts as directed by the Plan member. The
Trustee shall vote the fractional shares of Company Stock
credited to Plan members' accounts in proportion to how all of
the whole shares of Company Stock held in the Plan were voted.
Unless there is a proxy contest, or any other corporate matter
which involves the voting of shares with respect to the
approval or disapproval of any corporate merger or
consolidation, recapitalization, reclassification,
liquidation, dissolution, sale of substantially all of the
assets of a trade or business or similar transaction (a
"Corporate Event") and a Takeover Committee is appointed and
decides to vote, the Trustee shall vote those shares of
Company Stock not credited to Plan members' accounts, and
those shares of Company Stock credited to the accounts of Plan
members for which no voting directions are received, in the
same proportion on each issue as it votes those whole shares
of Company Stock credited to the Plan members' accounts for
which it receives voting direction from Plan members. If there
is a Corporate Event and a Takeover Committee is appointed and
decides to vote, the Trustee shall vote unallocated shares and
shares as to which no voting directions are received as
instructed by the Takeover Committee.
(f) Tender Offers. Upon commencement of a tender offer for any
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Company Stock, the Company shall notify each Plan member, and
use its best efforts to timely distribute or cause to be
distributed to Plan members the same information that is
distributed to shareholders of the issuer of Company Stock in
connection with the tender offer and, after consulting with
the Trustee, shall provide a means by which Plan members may
direct the Trustee whether or not to tender the whole shares
of Company Stock credited to their accounts (whether or not
vested). The Company shall provide to the Trustee a copy of
any material provided to Plan members and shall certify to the
Trustee that the materials have been mailed or otherwise sent
to Plan members.
Each Plan member shall have the right to direct the Trustee to
tender or not to tender some or all of the whole shares of
Company Stock credited to his accounts. Such direction shall
be communicated in writing or by facsimile or similar means as
agreed upon by the Trustee and the Company and shall be held
in confidence by the Trustee and not divulged to the Company,
or an officer or employee thereof, or any other person. The
Trustee shall tender or not tender whole shares of Company
Stock held in the accounts of Plan members as directed by the
Plan members. The Trustee shall tender or not tender
fractional shares of Company Stock held in the accounts of
Plan members in proportion to how all of the whole shares of
Company Stock held in the Plan are tendered.
Unless there is a Corporate Event and a Takeover Committee is appointed
and decides to make tender decisions, the Trustee shall tender those
shares of Company Stock not credited to Plan members' accounts, and
those shares of Company Stock credited to the accounts of Plan members
for which no tender directions are received, in the same proportion on
each issue as it tenders those shares credited to the Plan members'
accounts for which it receives tender direction from Plan members. If
there is a Corporate Event and a Takeover Committee is appointed and
decides to make tender decisions, the Trustee shall tender unallocated
shares and shares as to which no tender directions are received as
instructed by the Takeover Committee.
The Trustee shall credit to each account of the Plan member
from which the tendered shares were taken the proceeds
received by the Trustee in exchange for the shares of Company
Stock tendered from that account. Pending receipt of
directions through the Administrator from the Plan member as
to the investment of the proceeds of the tendered shares, the
Trustee shall invest the proceeds as the Administrator shall
direct.
(g) General. With respect to all rights other than the right to
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vote, the right to tender, and the right to withdraw shares
previously tendered, the Trustee shall follow the directions
of the Plan member as to Company Stock credited to his
accounts, and if no such directions are received, the
directions of the Administrator. The Trustee shall have no
duty to solicit directions from Plan members. With respect to
all rights other than the right to vote and the right to
tender, in the case of Company Stock not credited to Plan
members' accounts, the Trustee shall follow the directions of
the Administrator. All provisions of this Section 7 shall
apply to any securities received as a result of a conversion
of Company Stock.
8. Appointment of Investment Managers. The Administrator from time to
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time may appoint one or more Investment Managers (as that term is
defined in Section 3(38) of ERISA) to manage (including the power to
acquire and dispose of) all or any portion or portions of the Trust.
The Administrator may enter into such agreements setting forth the
terms and conditions of any such appointment as it determines to be
appropriate. The Administrator shall retain the right to remove and
discharge any Investment Manager. The compensation of such Investment
Managers shall be an expense payable in accordance with Section 14.
The Administrator shall notify the Trustee of the appointment of any
Investment Manager by delivering to the Trustee an executed copy of the
agreement under which such Investment Manager was appointed together
with a written acknowledgment by such Investment Manager that it is:
(a) a fiduciary with respect to the Plan,
(b) bonded as required by ERISA, and
(c) either
(i) registered as an investment advisor under the
Investment Advisers Act of 1940, or
(ii) a bank as defined in said Act, or
(iii) an insurance company qualified to perform investment
management services under the laws of more than one
state of the United States.
The Trustee shall be entitled to rely upon such notice until such time
as the Administrator shall notify and direct the Trustee in writing
that another Investment Manager has been appointed in the place and
stead of the first-named Investment Manager, or in the alternative,
that the Investment Manager has been removed. In each case where an
Investment Manager is appointed, the Administrator shall determine the
assets of the Trust to be allocated to the Investment Manager from time
to time and shall issue appropriate instructions to the Trustee with
respect thereto. The Trustee shall carry out the written instructions
of any Investment Manager with respect to the management and investment
of the assets then under control of such Investment Manager and shall
not incur any liability on account of its compliance with such
instructions. Purchase and sale orders may be placed without the
intervention of the Trustee and, in such event, the Trustee's sole
obligation shall be to make payment for purchased securities and
deliver those that have been sold when advised of the transaction. The
Trustee shall not incur any liability on account of its failure to
exercise any of the powers delegated to any Investment Manager because
of the failure of such Investment Manager to give instructions for the
management of the assets under the control of such Investment Manager.
The Trustee shall be under no duty to question any Investment Manager,
nor to review any securities or other property acquired or retained at
the direction of any Investment Manager, nor to make any suggestions to
any Investment Manager in connection therewith. The Trustee shall have
no obligation to vote upon any securities over which the Investment
Manager has investment management control unless the Trustee is
instructed in writing by the Investment Manager as to the voting of
such securities within a reasonable time before the time for voting
thereof expires.
Each Investment Manager shall have the authority to exercise all of the
powers of the Trustee hereunder with respect to assets under its
control but only to the extent that such powers relate to the
investment of such assets.
Notwithstanding any provision to the contrary elsewhere herein:
(i) The Administrator may retain and exercise the powers of an
Investment Manager with respect to all or any portion or
portions of the Trust. The Administrator shall notify the
Trustee in writing of any such reservation of powers and the
Trustee shall be entitled to rely upon any such notice. In
any such event, the Trustee shall carry out the written
instructions of the Administrator with respect to the
management and investment of the assets then under control of
the Administrator and shall not incur any liability on account
of its compliance with such instructions. The Trustee shall
not incur any liability on account of its failure to exercise
any of the powers retained by the Administrator because of the
failure of the Administrator to give instructions for the
management of the assets under the control of the
Administrator. The Trustee shall be under no duty to question
the Administrator, nor to review any securities or other
property acquired or retained at the direction of the
Administrator, nor to make any suggestions to the
Administrator in connection therewith; and
(ii) The Company may designate an Investment Manager as a named
fiduciary with respect to the management of certain assets of
the Trust, in which event such Investment Manager shall have
the authority to appoint pursuant to this Section 8 one or
more Investment Managers to manage (including the power to
acquire and dispose of) all or any portion or portions of such
assets, as if such named fiduciary were the Administrator. In
such event all of the provisions of this Section 8 shall apply
with such named fiduciary substituted for the Administrator.
9. Stable Value Contracts. If provided in the Service Agreement, the
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Administrator or, in the case of an Investment Fund for which an
Investment Manager has been appointed pursuant to Section 8, the
Investment Manager may direct the Trustee to receive and hold or apply
assets of the Trust to the purchase of (i) insurance, annuity or other
financial contracts issued by insurance companies, banks or other
financial institutions ("GICs") or (ii) securities wrapped by benefit
responsive wrap contracts issued by insurance companies, banks or other
financial institutions ("synthetic GICs"). Any such contracts shall be
in the form determined and approved by the Administrator or Investment
Manager, as the case may be, and the Trustee shall have no
responsibility for the selection of the issuer of any such contract,
for negotiating the terms of any such contract, for the administration,
monitoring or disposition of any such contract or for any other
decision relating to any such contract. In the case of a synthetic
GIC, the Trustee shall have no responsibility for selecting or managing
the assets which are to be wrapped, for selecting the Investment
Manager, if any, with respect to the such assets, for establishing any
investment guidelines applicable to such assets or for monitoring or
reviewing in any manner such assets, Investment Manager or investment
guidelines.
If such investments are to be made, the Administrator or Investment
Manager shall direct the Trustee to execute and deliver such
applications and other documents as are necessary to establish record
ownership, to value such investments under the method of valuation
selected by the Administrator or Investment Manager, and to record or
report such values to the Administrator or Investment Manager, in the
form and manner agreed to by the Administrator.
The Administrator or Investment Manager may direct the Trustee to
exercise or may exercise directly the powers of contract holder under
any GIC or synthetic GIC, and the Trustee shall exercise such powers
only upon direction of the Administrator or Investment Manager. The
Trustee shall have no authority to act in its own discretion, with
respect to the terms, acquisition, valuation, continued holding and/or
disposition of any such GIC or synthetic GIC or any asset held
thereunder. The Trustee shall be under no duty to question any
direction of the Administrator or Investment Manager or to review the
form of any such GIC or synthetic GIC or the selection of the issuer
thereof, or to make recommendations to the Administrator or Investment
Manager or to any issuer with respect to the form of any such GIC or
synthetic GIC.
The Trustee shall be fully protected in acting in accordance with
written directions of the Administrator or Investment Manager, and
shall be under no liability for any loss of any kind which may result
by reason of any action taken or omitted by it in accordance with any
direction of the Administrator or Investment Manager, or by reason of
inaction in the absence of written directions from the Administrator or
Investment Manager. In the event that the Administrator or Investment
Manager directs that any monies or property be paid or delivered to the
contract holder other than for the benefit of specific individual
beneficiaries, the Trustee agrees to accept such monies or property as
assets of the Trust subject to all the terms hereof.
For purposes of this Section 9, traditional forms of individual or
group insurance or annuity contracts issued by insurance companies
shall be deemed to be GICs.
10. Powers of Trustee. Subject to the foregoing provisions and limitations,
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the Trustee is authorized and empowered:
(a) to sell at public auction or by private contract, redeem,
convey, transfer, exchange, pledge, or otherwise realize upon,
any securities, investments or other property forming a part
of the Trust, and for such purposes may execute such
instruments and writings and do such things as it shall deem
proper;
(b) to keep any or all securities or other property in the name of
some other person, nominee, firm or corporation or in its own
name without disclosing its fiduciary capacity, but the books
and records of the Trustee shall at all times show that all
such securities and other property are part of the Trust;
(c) except as otherwise provided in Sections 7, 8 and 9 to the
extent that the Trustee receives direction from the
Administrator or the Plan members, as the case may be, to vote
upon any stock, bonds or other securities of any corporation,
association or trust at any time comprising the Trust, or
otherwise consent to or request any action on the part of such
corporation, association or trust, and to give general or
special proxies or powers of attorney, with or without power
of substitution, and to exercise any conversion privileges,
subscription rights or other options, to participate in
reorganizations, recapitalizations, consolidations, mergers
and similar transactions with respect to such securities; to
deposit such stocks or other securities in any voting trust,
or with any protective or like committee, or with a trustee,
or with depositories designated thereby; and generally to
exercise any of the powers of an owner with respect to stocks
or other securities or property comprising the Trust which the
Trustee deems to be for the best interests of the Trust. The
Trustee will not vote such stock or other securities as to
which it receives no written directions;
(d) when instructed or directed by the Administrator, to borrow
money for the purposes of this Trust in such amounts and upon
such terms and conditions as the Administrator, in its
discretion, may approve, and for any amount so borrowed to
issue the promissory note of the Trustee and to secure the
repayment thereof by pledge, mortgage, or hypothecation of all
or any part of the property of the Trust, and no person
loaning money to the Trustee shall be bound to see to the
application of the money loaned or to inquire into the
validity of any such borrowing;
(e) to make, execute, acknowledge and deliver any and all
instruments that it shall deem necessary or appropriate to
carry out the powers herein granted;
(f) to manage, administer, operate, lease for any number of years,
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, and to
cause to be formed a corporation or trust to hold title to any
such real property with the aforesaid powers, all upon such
terms and conditions as may be deemed advisable;
(g) to renew or extend or participate in the renewal or extension
of any mortgage, upon such terms as may be deemed advisable,
and to agree to a reduction in the rate of interest on any
mortgage or to any other modification or change in the terms
of any mortgage or of any guarantee pertaining thereto, in any
manner and to any extent that may be deemed advisable for the
protection of the Trust or the preservation of the value of
the investment, to waive any default whether in the
performance of any covenant or condition of any mortgage or in
the performance of any guarantee, or to enforce any such
default in such manner and to such extent as may be deemed
advisable, to exercise and enforce any and all rights of
foreclosure, to bid in property on foreclosure, to take a deed
in lieu of foreclosure with or without paying a consideration
therefor and in connection therewith to release the obligation
on the bond secured by such mortgage; and to exercise and
enforce in any action, suit or proceedings at law or in equity
any rights or remedies in respect to any such mortgage or
guarantee;
(h) upon express direction by the Administrator or the Investment
Manager, as the case may be, to transfer all or part of the
assets of the Trust in accordance with such investment
instructions, without restriction, to investments authorized
for fiduciaries, including without limitation any common,
collective or commingled trust fund maintained by the Trustee
(or any other such fund acceptable to the Trustee) that
qualifies for exemption from federal income tax pursuant to
Revenue Ruling 81-100. Any investment in, and any terms and
conditions of, any such common, collective or commingled trust
fund available only to employee trusts which meet the
requirements of the Code, or corresponding provisions of
subsequent income tax laws of the United States, shall
constitute an integral part of this Agreement;
(i) when instructed or directed by the Administrator, to settle,
compromise or submit to arbitration any claims, debts, or
damages, due or owing to or from the Trust, to commence or
defend suits or legal proceedings and to represent the Trust
in all suits or legal proceedings in any court of law or
before any other body or tribunal; provided, however, that the
Trustee shall have no obligation to take any legal action for
the benefit of the Trust unless it shall have first been
indemnified for all expenses in connection therewith,
including counsel fees;
(j) if applicable, to lend to Plan members such amount or amounts,
and upon such terms and conditions, as the Administrator may
direct in accordance with the provisions of the Plan;
(k) to employ such agents, consultants, custodians, depositories,
advisors, and legal counsel as may be reasonably necessary or
desirable in the Trustee's judgment in managing and protecting
the Trust and, subject to the provisions of Section 14, to pay
them reasonable compensation out of the Trust;
(l) to cause any securities or other property which may at any
time form a part of the Trust to be issued, held or registered
in the individual name of the Trustee, or in the name of its
nominee (including any custodian employed by the Trustee, any
nominee of such a custodian, and any depository, clearing
corporation or other similar system), or in such form that
title will pass by delivery;
(m) to transfer any assets of the Trust to a custodian or
sub-custodian employed by the Trustee;
(n) to pay any of the following expenses or liabilities incurred
by the Plan: interest; taxes; transfer fees; and management,
accounting, transfer agent and legal fees, including the
Trustee's fee and operating expenses of the Plan; and
(o) to do all other acts in its judgment necessary or desirable
for the proper administration of the Trust in accordance with
the provisions of the Plan and this Agreement, although the
power to do such acts is not specifically set forth herein.
No person dealing with the Trustee shall be required to take any notice
of this Agreement, but all persons so dealing shall be protected in
treating the Trustee as the absolute owner with full power of
disposition of all the monies, securities and other property of the
Trust, and all persons dealing with the Trustee are released from
inquiry into the decision or authority of the Trustee and from seeing
to the application of monies, securities or other property paid or
delivered to the Trustee.
11. Liquidation of Assets. Upon termination of the Trust as provided
---------------------
herein, the Trustee shall not be required to make any payments
hereunder until it has received such documentation as it shall consider
necessary to establish that the termination complies with applicable
law, or to make any payments in excess of the net realizable value of
the assets of the Trust at the time of such payment. The Trustee shall
not be required to make any payments in cash unless there shall be in
the Trust at the time an amount of cash sufficient for the purpose. In
case of a deficiency in cash, the Trustee shall take such action as to
the disposition of securities or other property forming a part of the
Trust as will provide the amount of cash for such payments. The
Trustee shall not be required to make any payment in cash until the
Administrator has provided direction as to the assets to be converted
to cash for the purpose of making such payment.
12. Direction by Company or Administrator. The Company shall certify to
-------------------------------------
the Trustee the names and specimen signatures of the Administrator.
The Company shall give prompt notice to the Trustee of changes in the
Administrator, and until such notice is received by the Trustee, the
Trustee shall be fully protected in assuming that the Administrator is
unchanged and in acting accordingly. The Administrator may certify to
the Trustee the names of persons authorized to act for it in relation
to the Trustee and may designate a person, corporation or other entity,
whether or not affiliated with the Company, to so act. Whenever the
Trustee is required or authorized to take any action hereunder pursuant
to any written direction or determination of the Company or the
Administrator, such direction or determination shall be sufficient
protection to the Trustee if contained in a writing signed by any one
or more of the persons authorized to execute documents on behalf of the
Company or the Administrator, as the case may be, pursuant to the Plan.
The Trustee shall act, and shall be fully protected in acting, in
accordance with such orders, requests and instructions of the Company
or the Administrator. By such a writing the Company or the
Administrator, as the case may be, may ratify, approve or confirm any
action taken by the Trustee, and upon such ratification, approval or
confirmation the Trustee shall be protected as though authorization or
determination by the Company or the Administrator had preceded such
action. In the absence of direction by the Company or the
Administrator as to any matter provided in this Agreement or the Plan,
the Trustee may in its discretion take such action as it deems fit and
proper with respect thereto after reasonable attempts to secure Company
or Administrator direction, provided, however, that the Trustee shall
not be obligated to take any such action. The Trustee may deliver
documents to the Company or the Administrator by delivering the same,
or by mailing the same, postage prepaid, addressed to the Company or
the Administrator, as the case may be, at its principal place of
business.
13. Records and Accounting. The Trustee shall keep adequate and accurate
----------------------
accounts of investments, receipts, disbursements and other transactions
hereunder, and all accounts, books and records relating thereto shall
be open at all reasonable times to inspection and audit by the
Administrator and its authorized representatives. The Trustee shall
render to the Company and the Administrator in writing, at least once
each twelve (12) months and at such times as required by the Plan and,
in any event, within ninety (90) days after its removal or resignation
as provided in Section 16 hereof, accounts of its transactions under
this Agreement, and the Administrator may approve such accounts of the
Trustee by an instrument in writing delivered to the Trustee. In the
absence of the filing in writing with the Trustee by the Administrator
of exceptions or objections to any such account within six years after
the receipt thereof, the Administrator shall be deemed to have approved
such account; and in such case, or upon the written approval of the
Administrator of any such account, the Trustee, to the extent permitted
by applicable law, shall be released, relieved and discharged with
respect to all matters and things set forth in such account. The
Trustee shall from time to time make such other reports and furnish
such other information concerning the Trust (including valuations of
each Investment Fund established pursuant to Section 6) to the
Administrator as the Administrator may reasonably request or as may be
required by the Plan. The Administrator shall arrange for each
Investment Manager appointed pursuant to Section 8, and each insurance
company, bank or other financial institution issuing contracts held by
the Trustee pursuant to Section 9, to furnish the Trustee with such
valuations and reports as are necessary to enable the Trustee to
fulfill its obligations under this Section 13, and the Trustee shall be
fully protected in relying upon such valuations and reports. In any
proceeding instituted by the Trustee, the Company or the Administrator
or all of them with respect to any account of the Trustee, only the
Company, the Administrator and the Trustee shall be necessary parties.
14. Trustee's Compensation and Expenses. The Trustee shall be paid such
-----------------------------------
reasonable compensation as provided in the Fee Schedule attached to
this Agreement. The compensation of the Trustee and any reasonable
expenses which are authorized and referenced herein, including
reasonable attorneys' fees and the cost of any bond, surety or other
security which may be required of the Trustee by ERISA, incurred by the
Trustee in the performance of its duties, and all other proper charges
and disbursements of the Trustee may be paid by the Company within
thirty (30) days after so billed, and will automatically be deducted
from the Trust if, upon the expiration of thirty (30) days, such fees
are not separately paid by the Company. With respect to any expenses
not referenced herein, the Trustee shall promptly notify the Company of
the need for such expenses and shall request authorization from the
Company to incur such expenses and receive reimbursement thereof in the
manner described above. Notwithstanding the foregoing, if it is not
reasonably possible for the Trustee to notify the Company prior to
incurring any expenses not referenced herein, the Trustee is hereby
authorized to incur such expenses and request reimbursement thereof,
in accordance with the procedures set forth in this section, provided
that the Trustee notifies the Company of the incurrance of such
expenses as soon as reasonably practicable thereafter. All expenses
(including taxes pursuant to Section 22) of the Trust, other than those
expenses which are paid by the Company, which are allocable to an
Investment Fund established pursuant to Section 6 shall be charged to
such Investment Fund. All such expenses which are not so allocable
shall be charged against each of the Investment Funds in the same
proportion as the value of the assets held in such Investment Fund
bears to the value of the total assets held in all of the Investment
Funds. Any account maintenance or administration fees applicable to any
Plan member's account which are not paid hereunder by the Company shall
be charged against the interest of the Plan member and, in the case of
a loan of a Plan member, if applicable, all expenses (including taxes
pursuant to Section 22) of the Trust, other than those expenses which
are paid by the Company, which are allocable to such loan, shall be
charged against the interest of such Plan member under the Plan.
15. Litigation Involving Trust Assets. If any asset of the Trust is, or
---------------------------------
while this Agreement is in effect becomes, subject to any claims or
litigation (other than a routine claim for benefits brought by a
Participant or Beneficiary against the Trust generally or a claim by
the Company or the Administrator against the Trustee), the
Administrator shall direct the Trustee to execute and deliver on behalf
of the Trust such forms, pleadings, agreements or other documents
necessary to the prosecution or defense of such claims or litigation.
The Trustee shall have no authority to act on its own discretion with
respect to such claim or litigation and shall have no duty to question
any direction of the Administrator relating thereto. Except as may
otherwise be provided under ERISA, the Trustee shall be fully protected
in acting in accordance with written directions of the Administrator,
and shall be under no liability for any loss of any kind which may
result by reason of any action taken or omitted by it in accordance
with any direction of the Administrator, or by reason of inaction in
the absence of written directions from the Administrator. The
Trustee's retention of counsel in order to monitor the progress of such
claim or litigation (including, but not limited to, review of all
pertinent documents), shall be separate from the counsel representing
the Company or any other party in respect of such claim or litigation.
The cost of such counsel shall be an expense of the Trust and shall be
charged to the Trust as provided in Section 14 unless paid by the
Company.
16. Resignation or Removal of Trustee. The Trustee may resign at any time
---------------------------------
upon one hundred and twenty (120) days' written notice to the Company,
and the Company may remove the Trustee at any time upon one hundred
and twenty (120) days' written notice to the Trustee; provided,
however, that the parties may by written instrument waive such notice.
The Trustee reserves the right at any time to resign immediately if the
Company transfers the Plan's administration to a recordkeeper other
than the recordkeeper designated in the Service Agreement, without the
Trustee's prior written consent, by delivering to the Company a notice
of resignation certified by the Trustee. The Trustee further reserves
the right at any time to resign immediately by delivering to the
Company a notice of resignation certified by the Trustee if the assets
of the Trust are not invested in investment products which are
sponsored, underwritten or managed by affiliates of the Trustee,
unless the Service Agreement allows such other products. If the
Trustee shall resign, be removed or for any other reason cease to be
Trustee, the Company shall appoint a successor Trustee or Trustees to
whom the Trustee, upon receipt of acceptance by such successor, shall
promptly deliver all of the assets of the Trust less any unpaid fees
or expenses. Subject to the foregoing provisions, any resignation or
removal of the Trustee or appointment of a new Trustee shall be by
instrument in writing and shall become effective on the date therein
specified. Any successor Trustee shall have the same powers and duties
as the succeeded Trustee, subject to such changes as the Company may
then determine. Upon request of such successor Trustee or Trustees,
the Company and the Trustee ceasing to act shall execute and deliver
such instruments of conveyance and further assurance and do such things
as may reasonably be required for more fully and certainly vesting and
confirming in such successor Trustee or Trustees all the right, title
and interest of the retiring Trustee in and to the assets of the Trust.
The Trustee is authorized, however, to reserve such sums of money as
may be reasonable for payment of its compensation and expenses
(including legal fees) in connection with the settlement of its account
or otherwise, and any balance of such reserve remaining after payment
of such compensation and expenses shall be promptly paid over to the
successor Trustee or Trustees.
17. Duties of Trustee. The Trustee shall discharge its duties with respect
-----------------
to the Trust solely in the interests of the Plan members and their
beneficiaries and 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 like character and with like aims. The duties of the
Trustee shall be only those specifically undertaken by the Trustee
pursuant to this Trust Agreement. Otherwise, the Trustee shall have no
responsibility for the administration of the Plan (including, but not
limited to, the determination of Plan participation rights of employees
of the Company, the determination of benefits of members of the Plan
and the maintenance of individual accounts of members of the Plan).
Except as otherwise provided by ERISA, in no event shall the Trustee be
responsible for any act or omission of any other fiduciary of the Plan.
The Trustee shall have no liability for the acts or omissions of any
predecessors and successors in office.
18. Indemnification. The Company hereby agrees to indemnify and hold
---------------
harmless the Trustee from and against any losses, damages, liabilities,
claims, costs or expenses (including attorneys' fees) which the Trustee
may incur by reason of this Trust Agreement, (including, without
limitation, by reason of the Trustee's making benefit payments pursuant
to fraudulent or unauthorized instructions) excepting only losses,
damages, liabilities, claims, costs or expenses arising from the
Trustee's negligence, willful misconduct, breach of this Agreement or
violation of the Code, ERISA, other applicable federal law or
Massachusetts law. A waiver by the Trustee of any signature guarantee
requirement relating to the investments held hereunder, or the
provision of services through the Internet or other electronic means,
shall not, in and of itself, be construed as negligence or willful
misconduct on the part of the Trustee. The Trustee shall indemnify
and hold harmless the Company from and against any losses, damages,
liabilities, claims, costs or expenses (including attorneys' fees)
which the Company may incur by reason of the Trustee's negligence,
willful misconduct, breach of this Agreement or violation of the Code,
ERISA, other applicable federal law or Massachusetts law. The
provisions of this Section 18 shall survive the termination of this
Agreement.
19. Amendment or Termination. The Company reserves the right at any time
------------------------
and from time to time to amend, in whole or in part, any or all of the
provisions of, or to terminate, this Agreement by delivering to the
Trustee a copy of an amendment or a notice of termination certified by
an officer of the Company; provided, that no such amendment which
affects the rights, duties or responsibilities of the Trustee may be
made without its consent, and provided further that no such amendment
shall authorize or permit any part of the corpus or income of the
Trust to be used for or diverted to purposes other than those set forth
in Section 3. Any such amendment shall be effective upon delivery to
the Trustee unless a different effective date is specifically stated
and any such amendment may be made retroactively as shall be permitted
under applicable law. Upon termination of this Agreement, the Trustee,
upon direction of the Administrator shall liquidate the Trust to the
extent required for distribution and, after the final account of the
Trustee has been approved and settled, shall distribute the balance of
the Trust remaining in its hands as directed by the Administrator or in
the absence of such direction, as may be directed by a judgment or
decree of a court of competent jurisdiction. Following any such
termination the powers of the Trustee hereunder shall continue as long
as any of the assets of the Trust remain in its hands, but only as to
those assets which during such time remain in the Trust.
20. Additional Participating Companies. Any affiliate or subsidiary of the
----------------------------------
Company may, with the consent of the Company, become a participating
employer by action of the board of directors of such affiliate or
subsidiary to adopt the Trust as a trust for the benefit of its
employees. Each such additional participating employer shall be deemed
the "Company" hereunder and shall have and exercise all the rights,
powers, and duties thereof with respect to the Trust as applied to
itself and its employees and that part of the Trust which represents
the interest of members employed by it; provided, however, that each
such additional participating employer hereby delegates all such
rights, powers, and duties, including amendment or termination of the
Trust, to The Fairchild Corporation acting alone, except as such
additional participating employer may exercise the same for itself
with the written approval of The Fairchild Corporation provided to the
Trustee.
21. Spendthrift Provision. Except as otherwise provided in the Plan, to
---------------------
the maximum extent permitted by law, beneficial interests in the Trust
of members under the Plan shall not be assignable nor subject to
alienation, sale, transfer, pledge, encumbrance, mortgage, attachment,
execution, levy or receivership, nor shall they pass to any trustee in
bankruptcy or be reached or applied by any legal process for the
payment of any obligations of any such person; provided, however, that
nothing herein shall prevent a member from assigning his interest in
the Trust as security for the repayment of any loan made to him from
the Trust pursuant to the Plan, and further provided that nothing
herein shall prevent the Trustee from making payments, as directed by
the Administrator, in accordance with a Qualified Domestic Relations
Order, as that term is defined in Section 414(p) of the Code. Any
attempt at any other assignment, alienation, sale, transfer, pledge,
encumbrance, mortgage, attachment, execution or levy shall be void and
unenforceable.
22. Payment of Taxes. The Trustee may pay out of the Trust (or the
----------------
appropriate Investment Fund or Funds) any and all taxes of any and all
kinds, including without limitation property taxes and income taxes
levied or assessed under existing or future laws upon or in respect of
the Trust or any monies, securities or other property forming a part
thereof or the income therefrom subject to the terms of any agreements
or contracts made with respect to trust investments which make other
provision for such tax payments. The Trustee may assume that any taxes
assessed on or in respect of the Trust or its income are lawfully
assessed unless the Administrator shall in writing advise the Trustee
that in the opinion of counsel for the Company such taxes are or may be
unlawfully assessed. In the event that the Administrator shall so
advise the Trustee, the Trustee will, if so requested in writing by the
Administrator contest the validity of such taxes in any manner deemed
appropriate by the Company or its counsel but at the expense of the
Trust; or the Company may contest the validity of any such taxes at
the expense of the Trust and in the name of the Trustee; and the
Trustee agrees to execute all documents, instruments, claims, and
petitions necessary or advisable in the opinion of the Company or its
counsel for the refund, abatement, reduction or elimination of any such
taxes. At the direction of the Administrator, the Trustee shall
collect all income tax to be withheld from any benefit payments from
the Trust and shall report and pay over such taxes to the Internal
Revenue Service and any applicable state taxing authorities, except for
payments made directly by an insurer to a Plan member or beneficiary
under an annuity or insurance contract, if applicable.
23. Successor to Company or Trustee. Any successor to all or a major part
of the business of the Trustee, by whatever form or manner resulting,
shall succeed to all the rights, powers and duties hereunder of the
Trustee. The Trustee shall timely notify the Company of any such
successor not under common control with Putnam. Any successor to all or
a major part of the business of the Company, by whatever form or manner
resulting, may continue the Plan and Trust by executing any required
amendments thereto, and thereupon such successor shall succeed to all
the rights, powers and duties hereunder of the Company.
24. Construction. In any question of interpretation or other matter of
doubt, the Trustee, the Administrator and the Company may rely upon the
opinion of counsel for the Company or any other attorney at law
designated by the Company with the approval of the Trustee. The
provisions of this Agreement shall be construed, administered and
enforced according to the laws of the United States and, to the extent
permitted by such laws, by the laws of The Commonwealth of
Massachusetts. All contributions to the Trust shall be deemed to be
made in The Commonwealth of Massachusetts.
25. Impossibility of Performance. In case it becomes impossible for the
Company, the Administrator or the Trustee to perform any act under this
Agreement, that act shall be performed which in the judgment of the
Administrator will most nearly carry out the intent and purpose of the
Plan and Trust. All parties to this Agreement or in any way interested
in the Trust shall be bound by any acts performed under such condition.
26. Definition of Words. Feminine or neuter pronouns shall be substituted
-------------------
for those of the masculine form, and the plural shall be substituted
for the singular, in any place or places herein where the context may
require such substitution or substitutions.
27. Titles. The titles of Sections are included only for convenience and
------
shall not be construed as part of this Agreement or in any respect
affecting or modifying its provisions.
28. Notice of Plan Amendment. Notices to Putnam Fiduciary Trust Company
------------------------
regarding Plan amendments should be addressed to:
Cynthia O. Parr
Senior Vice President/Senior Counsel
Putnam Fiduciary Trust Company
One Post Office Square
Boston, MA 02109
29. Execution of Agreement. This Agreement may be executed in any number
----------------------
of counterparts and each fully executed counterpart shall be deemed an
original.
IN WITNESS WHEREOF these presents have been signed and sealed for and in behalf
of the Company and the Trustee by their duly authorized officers as of the
___28th____ day of _______January______________, 2000_____.
the fairchild corporation
Marla DeCrisco By: /s/ John L. Flynn
- --------------- -----------------
Witness Title: Senior Vice President, Tax
PUTNAM FIDUCIARY TRUST COMPANY
By: /s/ Tina Campbell
Lori Serghilli
Witness Title: Vice President
savings plan for employees of the fairchild corporation
TRUST AGREEMENT FEE SCHEDULE
The following services associated with the Trust Agreement are subject to the
fees specified below. The Company agrees to pay the Trustee fees and expenses as
follows:
1. Trust Distributions:
This fee is waived.
2. Trustee Services:
The annual fee is waived for trustee services provided by Putnam
Fiduciary Trust Company on those assets of the Trust which are Outside
Assets, except for Company Stock.
The Company agrees to pay the Trustee for trustee services provided by
Putnam Fiduciary Trust Company for Company Stock held in the Trust as
follows:
.05% on stock up to $50 Million .025% on stock from $50 to $100 Million
.01% on stock over $100 Million
Fees for Trustee services will be billed quarterly based upon the value
of the assets as determined on the last business day of each month (not
applicable for flat fees).
3. Company Stock:
$18.00 per stock certificate issued. This fee includes the preparation
and mailing of IRS Form 1099-R.
Maximum of $.03 per share, with $5.00 minimum per trade settlement of
buy and sell trades in Company Stock.
$.50 per Participant for proxy solicitation cost plus out of pocket
expenses.