Exhibit 4.4
-----------
FORT HOWARD
PROFIT SHARING RETIREMENT MASTER TRUST
(Effective January 1, 1996)
TABLE OF CONTENTS
-----------------
ARTICLE I 3
Title-Purpose-Policy-Effect 3
Name 3
Definitions 3
Purpose 7
Fiduciary Responsibility
Effect 8
Domestic Trust 8
Trustee Not Responsible for Enforcing
Contributions or for Sufficiency 8
ARTICLE II 9
Valuation and Records 9
Valuations 9
Participant Records and Accounts 9
ARTICLE III 10
Administration of Plans 10
Payment of Benefits 10
Reliance on Investment Advisory Board 10
Trustee Not Responsible for Plan Administration 10
ARTICLE IV 11
Relating to the Investment Advisory Board 11
The Investment Advisory Board 11
Investment Advisory Board's General Powers,
Rights and Duties 12
Manner of Action of Investment Advisory Board 14
Resignation or Removal of Investment Advisory
Board 15
ARTICLE V 15
Investment of Trust Assets 15
Asset Managers 15
Investment Powers 17
Custodians 18
ARTICLE VI 20
Investment Funds Within the Trust Fund 20
Investment Funds 20
Commingling 21
ARTICLE VII 22
Responsibility for Directed Funds 22
Responsibility for Selection of Agents 22
Trustee Not Responsible for Investments in
Directed Funds 23
Investment Vehicles 23
Reliance on Asset Manager 24
Merger of Funds 25
Notification of Named Fiduciary in Event of
Breach 25
Certain Duties 26
Duty to Enforce Claims 26
Restrictions on Transfer 26
ARTICLE VIII 27
Powers of Asset Managers and Trustee 27
General Powers 27
Additional Powers of Trustee 30
Limitation of Powers 35
ARTICLE IX 36
Records and Accounts of Trustee 36
Records 36
Annual Account 36
Periodic Account 36
Account Stated 37
Judicial Accountings 37
Necessary Parties 37
Retention of Records 37
ARTICLE X 38
Compensation, Taxes and Expenses 38
Compensation and Expenses 38
Taxes 39
Allocation 39
Agents, Attorneys, Accountants, Etc. 40
ARTICLE XI 41
Resignation or Removal of Trustee 41
Resignation or Removal 41
Designation of a Successor 41
Duties of Resigning or Removed Trustee and of
Successor Trustee 41
Reserve for Expenses 42
ARTICLE XII 43
Amendment or Termination 43
Amendment 43
Termination 43
Trustee's Authority to Survive Termination 43
Approvals 43
ARTICLE XIII 44
Authorities 44
Corporation 44
Form of Communications 44
Continuation of Authority 45
No Obligation to Act on Unsatisfactory Notice 45
ARTICLE XIV 45
General Provisions 45
Governing Law 45
Entire Agreement 45
Mistake 46
Reliance on Experts 46
Notices 46
Plan Documents 47
No Waiver; Reservation of Rights 47
Descriptive Headings 47
Spendthrift Provision 47
Waiver of Notice 48
Gender and Number 48
Counterparts 48
Severability 48
Scope of this Agreement 48
No Reversion in Companies 48
ARTICLE XV 49
Liabilities 49
Liabilities Mutually Exclusive 49
Limitation of Liability 49
Indemnification 50
ARTICLE XVI 52
Plans and Agreement 52
Adoption of Agreement by Subsidiaries
and Affiliates 52
Segregation from Further Participation 53
Segregation of Assets Allocable to Specific
Employees 54
ARTICLE XVII 55
Merger or Consolidation 55
Merger or Consolidation of Trustee 55
Merger or Consolidation of Corporation 55
Merger or Consolidation of Plan 56
Exhibit A 59
Appendix A - Investment Funds 60
Agreement and Declaration of Trust (hereinafter referred to as
"Agreement") made as of the first day of January, 1996, by and between FORT
HOWARD CORPORATION, a Delaware corporation, and BANKERS TRUST COMPANY, a New
York banking corporation,
W I T N E S S E T H:
WHEREAS, Fort Howard Corporation and certain of its subsidiaries and
affiliates (hereinafter referred to singularly as a "Company" and collectively
as the "Companies") have adopted employee benefit plans and may in the future
adopt additional employee benefit plans meeting the requirements of Section
401(a) of the Internal Revenue Code of 1986, as amended, and validly existing
regulations thereunder (hereinafter referred to in their entirety as the
"Code"), for the benefit of the employees therein described; and
WHEREAS, Fort Howard Corporation and Bankers Trust Company
(hereinafter referred to as the "Trustee") wish to establish a master trust,
pursuant to which assets will be held to provide for the funding of and
payment of benefits under such plans; and
WHEREAS, Fort Howard Corporation wishes to provide for the
diversification of management of the assets of the master trust by providing
for the appointment of various investment managers to manage separate portions
of such assets; and
WHEREAS, the Companies adopting this Agreement and the Trustee wish
both to amend and restate the trust agreement known as the Fort Howard Profit
Sharing Retirement Trust between Fort Howard Corporation and Mellon Bank, N.A.
(hereinafter referred to as the "Prior Trust Agreement") so that this
Agreement shall be deemed to supersede such Prior Trust Agreement and also to
adopt this Agreement and the master trust created hereby as the trust
agreement and trust for those plans referred to in Exhibit A (in each case
with separate accounting for the interests of each plan having assets in the
master trust, as more completely described herein);
NOW, THEREFORE, IT IS AGREED, that this Agreement shall be the
superseding trust agreement to the Prior Trust Agreement adopted by Fort
Howard Corporation, and further, that this Agreement and master trust shall
also be the trust agreement and trust for those plans referred to in Exhibit A
to this Agreement and such additional employee benefit plans as may be
designated by the Corporation or authorized pursuant to Section 16.1 hereof
with the prior written consent of Bankers (such plans are hereinafter referred
to individually as the "Plan" and collectively as the "Plans"), provided that
this Agreement shall be adopted only with respect to employee benefit plans
meeting the requirements of Section 401(a) of the Code.
IT IS FURTHER AGREED as follows:
ARTICLE I
Title-Purpose-Policy-Effect
---------------------------
1.1. Name. The master trust established hereunder shall be known as
the Fort Howard Profit Sharing Retirement Master Trust and is sometimes
hereinafter referred to as the "Trust."
1.2. Definitions. Where used in this Agreement, unless the context
otherwise requires or unless otherwise expressly provided:
(a) "Account Party" shall mean the Person designated by the
Corporation to represent the Corporation for this purpose, the Named
Fiduciary and any Person to whom the Trustee shall be instructed by the
Named Fiduciary to deliver its annual or other periodic account under
Section 9.2 or Section 9.3, except, that with respect to any filings,
notices, reports or accountings required to be given under the General
Trust, "Account Party" shall be limited to that officer designated
herein to represent the Corporation.
(b) "Accounting Period" shall mean either the twelve consecutive
month period coincident with the calendar year or the shorter period in
any year in which the Trustee accepts appointment as Trustee hereunder
or ceases to act as Trustee for any reason.
(c) "Agreement" shall mean all of the provisions of this
instrument and of all other written instruments amendatory hereof.
(d) "Asset Manager" shall mean the Trustee (other than for
purposes of Article VII), Named Fiduciary or Investment Manager,
individually or collectively as the context shall require, with respect
to those assets held in any Investment Fund established hereunder over
which it exercises, or to the extent it is authorized to exercise,
discretionary investment authority or control.
(e) "Bank business day" shall mean a day on which the Trustee is
open for business.
(f) "Bankers" shall mean Bankers Trust Company.
(g) "Board of Directors" shall mean the board of directors of
the Corporation.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(i) "Corporation" shall mean Fort Howard Corporation or any
successor thereto.
(j) "Directed Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of the
Named Fiduciary or any Investment Manager, other than the Trustee.
(k) "Discretionary Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of the
Trustee.
(l) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
(m) "General Trust" shall mean the BT Pyramid Trust created by
Bankers Trust Company under Declaration of Trust effective June 30,
1991, as heretofore or hereafter amended.
(n) "Investment Advisory Board" shall mean the entity described
in Article IV hereof. The Investment Advisory Board is the entity
responsible for benefit administration under the Plans.
(o) "Insurance Contract" shall mean any contract or policy
(including any annuity contract) of any kind issued by an insurance
company, whether or not providing for the allocation of amounts received
by the insurance company thereunder solely to the general account or
solely to one or more separate accounts (including separate accounts
maintained for the collective investment of qualified retirement plans),
or a combination thereof, and whether or not any such allocation may be
made in the discretion of the insurance company.
(p) "Investment Fund" shall mean each pool of assets established
for investment purposes pursuant to Section 6.1 of the Trust. The term
shall also include for all purposes hereof any sub-fund or account into
which an Investment Fund shall be divided from time to time at the
direction of the Named Fiduciary.
(q) "Investment Manager" shall mean a bank, insurance company or
investment advisor satisfying the requirements of Section 3(38) of
ERISA.
(r) "Investment Vehicle" shall mean any common, collective or
commingled trust (other than the General Trust or an Investment Fund),
investment company, corporation functioning as an investment
intermediary, Insurance Contract, partnership, joint venture or other
entity or arrangement to which, or pursuant to which, assets of an
Investment Fund within the Trust may be transferred or in which the
Trust has an interest, beneficial or otherwise (whether or not the
underlying assets thereof are deemed to constitute "plan assets" for any
purpose under ERISA).
(s) "Named Fiduciary" shall mean the Person or its designee,
who, within the meaning of Section 402(a), 402(c)(3) or 403(a)(1) of
ERISA, has the authority to perform the separate functions allocated to
that "Named Fiduciary" under this Agreement. Unless otherwise
specifically provided to the contrary, the Named Fiduciary shall mean the
investment Advisory Board appointed pursuant to the Plans.
(t) "Plan" or "Plans" shall mean those employee benefit plans
referred to in Exhibit A.
(u) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock company,
unincorporated organization, association, partnership, joint venture,
employee organization, committee, board participant, beneficiary,
trustee, partner, or venturer acting in an individual, fiduciary or
representative capacity, as the context may require.
(v) "Section" shall mean any Section of this Agreement.
(w) "Trust Fund" shall mean all cash and other property
contributed, paid or delivered to the Trustee hereunder, all investments
made therewith and proceeds thereof and all earnings and profits thereon,
less payments, transfers or other distributions which, at the time of
reference, shall have been made by the Trustee, as authorized herein.
The Trust Fund shall include each Investment Fund and all evidences of
ownership, interest or participation in an Investment Vehicle, but shall
not, solely by reason of the Trust Fund's investment therein, be deemed
to include any assets of such Investment Vehicle.
(x) "Trustee" shall mean Bankers Trust Company, as Trustee of the
Trust.
(y) "Valuation Date" shall mean the last day of each month until
April 1, 1996, and thereafter shall mean each Bank business day.
1.3. Purpose. The Trust is established to fund the benefits payable to
participants and their beneficiaries under the Plans.
1.4. Fiduciary Responsibility. The Trustee, the Investment Advisory
Board, any Asset Manager appointed hereunder, and any other fiduciary under
the Plans or Trust shall discharge their respective duties thereunder solely
in the interest of participants and their beneficiaries, for the exclusive
purpose of providing their benefits and defraying reasonable expenses of Plan
and Trust administration, with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims. No provision in the Plans or Trust is
intended to relieve a fiduciary from any duty or obligation imposed by
applicable law.
1.5. Effect. All Persons at any time interested in the Plans shall be
bound by the provisions of this Agreement and, in the event of any conflict
between this Agreement and the provisions of the Plans or any instrument or
agreement forming part of the Plans other than this Agreement, the provisions
of this Agreement shall control.
1.6. Domestic Trust. The Trust shall at all times be maintained as a
domestic trust in the United States.
1.7. Trustee Not Responsible for Enforcing Contributions or for
Sufficiency. The Trustee shall have no responsibility for enforcing payment
of any contribution to the Plans, for the timing or amount thereof, or for the
adequacy of the Trust Fund or the funding standards adopted for the Plans to
meet or discharge any pension or other liabilities of the Plans.
ARTICLE II
Valuation and Records
---------------------
2.1. Valuations. The Trustee shall determine the value of the assets
of the Trust Fund and each Investment Fund as of each Valuation Date. Except
in the case of an Investment Fund in which amortized cost is the valuation
method designated, assets will be valued at their market values at the close
of business on the Valuation Date, or, in the absence of readily ascertainable
market values, at such values as the Trustee shall determine in accordance
with methods consistently followed and uniformly applied. Anything in this
Agreement to the contrary notwithstanding, with respect to assets constituting
part of a Directed Fund, the Trustee may rely for all purposes of this
Agreement on the latest valuation and transaction information submitted to it
by the Person responsible for the investment of such assets even if such
information predates the Valuation Date. The Named Fiduciary will cause such
Person to provide the Trustee with all information needed by the Trustee to
discharge its obligations to value such assets and to account under this
Agreement.
2.2. Participant Records and Accounts. A description of the separate
records and accounts to be maintained by the Trustee with respect to each
participant in the Plans will be described in a separate recordkeeping
agreement.
ARTICLE III
Administration of Plans
-----------------------
3.1. Payment of Benefits. On the direction of the Investment Advisory
Board, the Trustee shall pay moneys out of the Plans directly to or for the
benefit of participants in the Plans and their beneficiaries, or to an
insurance company to provide for the payment of such benefits by the purchase
of an Insurance Contract, or to a paying or disbursing agent (which may be the
Investment Advisory Board). Any assets disbursed or paid over by the Trustee
pursuant to this Section 3.1 shall no longer be part of the Trust Fund.
3.2. Reliance on Investment Advisory Board. Any directions pursuant to
Section 3.1 may, but need not, specify the application to be made of moneys so
ordered. The Trustee shall charge such transfer against the Plans as the
Investment Advisory Board shall direct. The Trustee shall have no duty to
make any independent inquiry as to whether a payee or distributee is entitled
thereto or as to whether any such payment or distribution is proper, and the
Trustee shall not be liable for a payment or distribution made as directed by
the Investment Advisory Board. The Trustee shall notify the Investment
Advisory Board if a payment or distribution is returned to the Trustee.
3.3. Trustee Not Responsible for Plan Administration. The Trustee
shall not be held responsible for the form, terms or payment provisions of any
Insurance Contract which it is directed to purchase to provide for the payment
of benefits under the Plans, for performing any functions under any such
Insurance Contract which it may be directed to purchase and/or hold as
contract holder thereunder (other than the execution of any documents
incidental thereto and transfer or receipt of funds thereunder), or for any
other matter affecting the administration of the Plans, by the Corporation or
the Investment Advisory Board or any other Person to whom such responsibility
is allocated or delegated pursuant to the terms of the Plans.
ARTICLE IV
Relating to the Investment Advisory Board
-----------------------------------------
4.1. The Investment Advisory Board. The Chairman of the Board of the
Corporation shall appoint an Investment Advisory Board, which shall have the
powers, rights, duties and responsibilities described in Section 4.2 and
elsewhere in this Agreement; it being intended that the Investment Advisory
Board shall have the responsibility as to the investment and allocation of the
assets of this Trust Fund and any assets relating to the Plans. The Secretary
or Assistant Secretary of the Corporation shall certify to the Trustee each
appointment, resignation or removal of an Investment Advisory Board member and
the persons who are selected as chairman and secretary, respectively, of the
Investment Advisory Board. The Trustee may rely on the latest such
certificate received without further inquiry or verification. The Trustee
also may rely on an instrument signed by any member of the Investment Advisory
Board or any individual authorized to act on behalf of the Investment Advisory
Board as to any action or non-action by the Investment Advisory Board.
4.2. Investment Advisory Board's General Powers, Rights and Duties.
The Investment Advisory Board shall have the following powers, rights and
duties in connection with the investment of the Trust Fund in addition to
those vested in it elsewhere in this Agreement:
(a) To direct the Trustee from time to time to establish one or
more Investment Funds. At their discretion, and subject to the direction
of Plan participants to the extent provided under such Plans to specify
the investment of account balances, the Investment Advisory Board may
direct the Trustee to transfer assets from one Investment Fund to another
Investment Fund. The Investment Advisory Board may also direct the
Trustee to transfer assets held by the Trustee to a Custodian (as defined
in Section 5.3 hereof) of an Investment Fund and, if assets of an
Investment Fund are to be invested in an Insurance Contract, may direct
the Trustee to apply for such contract and to transfer assets to such
contract. The Investment Advisory Board may, in its discretion, direct
the Trustee to combine two or more Investment Funds for the purpose of
accounting for Plan assets.
(b) To direct the Trustee from time to time to effect
withdrawals from the Investment Funds and to distribute the proceeds.
(c) To appoint or remove Asset Managers pursuant to Section 5.1
and, at its discretion, to direct the Trustee to employ professional
investment advisors (any such advisor may be the bank acting as Trustee)
for the purpose of evaluation of the investment performance of any
Investment Fund or Funds on such terms and conditions as shall be
specified by the Investment Advisory Board.
(d) To direct the investment of one or more Investment Funds
upon notification to the Trustee that such investment shall be the
responsibility of the Investment Advisory Board and the Trustee shall
thereafter take direction for the investment of such Investment Fund(s)
from the Investment Advisory Board.
(e) To direct the Trustee to borrow amounts in accordance with
subparagraph 8.2(c) of this Agreement, and to direct the mortgage or
pledge of all or any part of the Trust Fund in connection with any such
borrowing, and to direct such other acts as specifically set forth in
Section 8.2.
(f) To determine, as Named Fiduciary, the diversification policy
(if required) of the Trust Fund, to monitor adherence by the Asset
Managers to such policy, and to advise the Asset Managers with respect to
limitations on employer or other securities or property contained in the
Plans or imposed on the Plans by applicable law or by it.
4.3. Manner of Action of Investment Advisory Board. During a period in
which two or more Investment Advisory Board members are acting, the following
provisions shall apply where the context admits:
(a) An Investment Advisory Board member, in writing, may
delegate any or all of his rights, powers, duties and discretions to any
other member, with the consent of the latter.
(b) The Investment Advisory Board members may act by meeting or
by writing signed without a meeting, and may sign any document by signing
one document or concurrent documents.
(c) An action or a decision of a majority of the members of the
Investment Advisory Board as to a matter shall be effective as if taken
or made by all members of the Investment Advisory Board.
(d) If, because of the number qualified to act, there is an even
division of opinion among the Investment Advisory Board members as to a
matter, a party selected by the Chairman of the Board of the Corporation
shall decide the matter and such party's decision shall control.
(e) Subject to applicable law, no member of the Investment
Advisory Board shall be liable or responsible for an act or omission of
the other Investment Advisory Board members in which the former has not
concurred, and the certificate of the chairman or secretary of the
Investment Advisory Board that the Investment Advisory Board has taken or
authorized any action shall be conclusive in favor of any person relying
on such certificate.
4.4. Resignation or Removal of Investment Advisory Board. A member of
the Investment Advisory Board may be removed by the Chairman of the Board of
the Corporation (or Company) at any time by written notice to him, and the
other members of the Investment Advisory Board. A member of the Investment
Advisory Board may resign at any time by giving prior written notice to the
Chairman of the Board of the Corporation and the other members of the
Investment Advisory Board. The Chairman of the Board of the Corporation may
fill any vacancy in the membership of the Investment Advisory Board. The
Chairman of the Board of the Corporation shall give prompt written notice
thereof to the successor Investment Advisory Board member. The Secretary or
Assistant Secretary of the Corporation shall give prompt written notice to the
Trustee of such removal or resignation. Until any such vacancy is filled, the
remaining members may exercise all of the powers, rights and duties conferred
on the Investment Advisory Board.
ARTICLE V
Investment of Trust Assets
--------------------------
5.1. Asset Managers. The Investment Advisory Board, as the Named
Fiduciary, at its sole discretion, may appoint a professional investment
manager as Asset Manager of all or any portion of any Investment Fund
established pursuant to the direction of the Investment Advisory Board. More
than one Asset Manager may be appointed for any single Investment Fund.
Appointment of an Asset Manager shall be made by written notice to the Asset
Manager and the Trustee, which notice shall specify that portion of the assets
of the Trust Fund subject to investment direction by that Asset Manager. An
Asset Manager so appointed pursuant to this paragraph shall be a registered
investment adviser under the Investment Advisers Act of 1940, or a bank
defined in said Act, or a legal reserve life insurance company qualified to
manage, acquire or dispose of assets of the Trust Fund under the laws of more
than one state, and shall acknowledge in writing to the Investment Advisory
Board and the Trustee that it accepts such appointment and is a fiduciary (as
defined in Section 3(21) of ERISA) with respect to this Trust Fund and the
related Plans insofar as the management and control of investments of the
Investment Fund and Plans are concerned. The Investment Advisory Board shall
promptly notify the Trustee in writing of such appointment and thereafter the
Trustee shall be subject to the direction of the Asset Manager as respects the
investment, retention or sale of the assets of the applicable Investment Fund,
including the receipt and delivery of assets purchased or sold by the Asset
Manager. The Trustee may assume that such appointment continues in effect
until it receives written notice to the contrary from the Investment Advisory
Board or such Asset Manager. An Asset Manager may resign at any time upon
prior written notice to the Investment Advisory Board and the Trustee. The
Investment Advisory Board may remove an Asset Manager at any time by prior
written notice to the Asset Manager and the Trustee. Subject to applicable
law, it is intended that an Asset Manager shall have full responsibility with
respect to the assets of the Investment Fund for which it has the power of
investment direction and that the Asset Manager shall have the powers, rights
and duties set forth in Section 8.1, and that the Trustee shall have no
obligation as to the investment of such assets as long as they are subject to
investment direction by that Asset Manager. Notwithstanding the foregoing,
with the prior approval of an Asset Manager, the Trustee shall have the power,
right and duty to invest cash balances held by it from time to time as a part
of an Investment Fund in short-term cash equivalents having ready
marketability, including, but not limited to, United States treasury bills,
commercial paper, certificates of deposits and similar types of securities,
and including investment in any appropriate common, commingled or collective
short-term investment fund maintained by Bankers as trustee, and the Trustee
also shall have the power, right and duty to sell such short-term investments
as may be necessary to carry out the instructions of the Asset Manager or the
Investment Advisory Board regarding that Investment Fund.
5.2. Investment Powers. Anything herein notwithstanding, the Trust
Fund shall be invested in such Investment Funds as the Investment Advisory
Board shall direct the Trustee in writing to establish. The Investment
Advisory Board shall direct the Trustee with respect to the allocation of
assets among the Investment Funds and shall adopt the investment policy to be
followed in investing the Investment Funds. Pending directions from the
Investment Advisory Board with respect to the allocation of contributions
among the Investment Funds, the Trustee shall hold the contributions for each
Plan in an account invested in short-term investments which may include
investment in its collective short-term investment fund. Cash held for a Plan
or in an Investment Fund pending investment or distribution shall be invested
in short-term investments which may include the collective short-term
investment fund of Bankers.
5.3. Custodians. If the Investment Advisory Board appoints a national
banking association or bank incorporated under state law (other than the
Trustee) as Asset Manager of any Investment Fund (the "Fund"), then,
notwithstanding any other provisions of this Agreement, the Investment
Advisory Board may, with the consent of the Trustee, also designate such bank
to be employed by the Trustee as "Custodian" of the assets from time to time
forming a part of that Fund, in which event the following shall apply:
(a) The Trustee shall enter into an agreement with the bank so
named employing it as agent of the Trustee and Custodian of that Fund and
delegating to the Custodian the same powers, rights and duties otherwise
reserved to the Trustee under this Agreement in regard to the retention
and administration of that Fund, it being intended that, except as
provided to the contrary in this Section, the conditions and limitations
of this Agreement otherwise applicable to the Trustee shall be applicable
to the Custodian, but only with respect to that Fund, and the Custodian
shall have responsibility for the holding and safekeeping of the assets
of that Fund, in addition to its duties as Asset Manager, and shall
maintain the records and accounts, and shall submit to the appropriate
party or parties the periodic reports, otherwise required of the Trustee
as to that Fund.
(b) The provisions of such agreement shall include the right
reserved to the Custodian to resign as such at any time by giving prior
written notice to the Investment Advisory Board and the Trustee and the
right reserved to the Trustee to terminate the employment of the
Custodian at any time by giving prior written notice to the Custodian and
the Investment Advisory Board.
(c) The Custodian shall be entitled to reasonable compensation
for its duties as such as may be agreed upon from time to time between
the Custodian and the Investment Advisory Board, which compensation may
be included in and paid pursuant to the Custodian's compensation
arrangement with the Investment Advisory Board for services rendered by
it as Asset Manager.
(d) The Trustee shall promptly transfer to the Custodian the
assets of that Fund and, until its employment as Custodian ends and all
assets held by it as to that Fund have been returned to the possession of
the Trustee, the Custodian shall hold and be responsible for the
retention and administration of the assets of that Fund as agent of the
Trustee.
If the Investment Advisory Board designates a legal reserve life insurance
company as Asset Manager of any Investment Fund pursuant to Section 5.1, then,
notwithstanding any other provisions of this Agreement, the Investment
Advisory Board shall direct the Trustee to execute an Insurance Contract with
the insurance company providing for the investment of the assets of that
Investment Fund by the insurance company and for purposes of this Agreement
the insurance company shall be deemed to be the Custodian of the assets which
are transferred from time to time to the insurance company as a part of the
Investment Fund.
ARTICLE VI
Investment Funds Within the Trust Fund
--------------------------------------
6.1. Investment Funds. Concurrent with the establishment of this
Trust, and from time to time thereafter, the Investment Advisory Board shall
direct the Trustee to establish and maintain one or more Investment Funds for
the purpose of investing the deposits of the Plans. As of the date hereof,
the Trust Fund shall be held and invested in the Investment Funds listed and
described in Appendix A attached hereto. The investment of the assets of each
Investment Fund or part thereof that is a Discretionary Fund shall be the
responsibility of the Trustee unless otherwise directed by the Investment
Advisory Board as provided in Section 4.2; the investment of the assets of
each Investment Fund or part thereof that is a Directed Fund shall be the
responsibility of the Asset Manager appointed pursuant to Section 5.1.
Investment of the assets of an Investment Fund shall be made pursuant to
investment guidelines promulgated by the Investment Advisory Board for that
Investment Fund, which guidelines shall be furnished in writing by the
Investment Advisory Board to the Trustee and the Asset Manager appointed for
that Investment Fund. The investment guidelines for any Investment Fund may
be modified by the Investment Advisory Board from time to time but such
revised guidelines shall be promptly furnished in writing to the Trustee and
the Asset Manager, if any, for that Investment Fund. The Trustee shall have
no authority or obligation to invest or reinvest cash balances of any Directed
Fund in the General Trust or otherwise pursuant to this Agreement unless and
until it receives appropriate directions from the Asset Manager. The Trustee
also shall have no responsibility with respect to the formulation of any
funding policy or any investment or diversification policies embodied therein.
Any investment limitation affecting employer securities shall not be
applicable to the extent any Investment Fund is invested in units of the
General Trust.
6.2. Commingling. The Trustee may commingle the assets attributable to
the Plans for which contributions are made under this Agreement if this
Agreement is applicable to more than one Plan, and may commingle the Trust
Fund with funds of other trusts of similar nature created by the Companies for
the exclusive benefit of their employees. The Trustee shall maintain such
records as are necessary in order to maintain a separation of the Trust Fund
from the funds of the other trusts maintained by the Companies and to separate
the assets attributable to each of the Plans for which contributions are made
under this Agreement. The Companies shall be responsible for causing
sufficient records to be maintained to ensure that benefits and liabilities
payable with respect to each Plan shall be paid from the assets allocable to
each such Plan. Should separation be required, either of the Trust Fund from
other trusts maintained by the Companies or of any Plan for which
contributions are made under this Agreement from the Trust Fund, the Trustee
shall make such separation in accordance with generally accepted accounting
principles and, where applicable, upon the certification of an enrolled
actuary.
ARTICLE VII
Responsibility for Directed Funds
---------------------------------
7.1. Responsibility for Selection of Agents. All transactions of any
kind or nature in or from a Directed Fund shall be made upon such terms and
conditions and from or through such brokers, dealers and principals and other
agents as the Asset Manager shall direct. No such transactions shall be
executed through the facilities of the Trustee except where the Trustee shall
make available its facilities solely for the purpose of temporary investment
of cash reserves of a Directed Fund. However, nothing in the preceding
sentence shall confer any authority upon the Trustee to invest the cash
balances of any Directed Fund unless and until it receives directions from the
Asset Manager.
7.2. Trustee Not Responsible for Investments in Directed Funds. The
Trustee shall be under no duty or obligation to review or to question any
direction of any Asset Manager, or to review securities or any other property
held in any Directed Fund with respect to prudence or proper diversification
or compliance with any limitation on the Asset Manager's authority under this
Agreement or the terms of the Plans, any agreement entered into between the
Corporation or the Investment Advisory Board and the Asset Manager or imposed
by applicable law, or to make any suggestions or recommendation to the
Corporation, the Investment Advisory Board or the Asset Manager with respect
to the retention or investment of any assets of any Directed Fund, and shall
have no authority to take any action or to refrain from taking any action with
respect to any asset of a Directed Fund unless and until it is directed to do
so by the Asset Manager.
7.3. Investment Vehicles. Any Investment Vehicle, or interest therein,
acquired by or transferred to the Trustee upon the directions of the Asset
Manager shall be allocated to a designated Directed Fund, and the Trustee's
duties and responsibilities under this Agreement shall not be increased or
otherwise affected thereby. The Trustee shall be responsible solely for the
safekeeping of the physical evidence, if any, of the Trust's ownership of or
interest or participation in such Investment Vehicle.
7.4. Reliance on Asset Manager. The Trustee shall be required under
this Agreement to execute documents, to settle transactions, to take action on
behalf of or in the name of the Trust and to make and receive payments on the
direction of an Asset Manager. Any direction of an Asset Manager shall
constitute a representation to the Trustee (i) that any agreement, deed,
assignment or other document which the Trustee is requested or required to
execute to effectuate a transaction has been reviewed by the Asset Manager,
(ii) that such instrument or document is in proper form for execution by the
Trustee, and (iii) that, where appropriate, insurance protecting the Trust
against loss or liability has been or will be maintained in the name of or for
the benefit of the Trustee. The Trustee shall have no duty to make any
independent inquiry or investigation as to any direction before acting upon
such direction. In addition, the Trustee shall not be liable for the default
of any Person with respect to any Investment Vehicle or any investment in a
Directed Fund or for the form, genuineness, validity, sufficiency or effect of
any document executed by, delivered to or held by it for any Directed Fund on
account of such investment, or if, for any reason (other than the negligence
or willful misconduct of the Trustee) any rights of the Trust therein shall
lapse or shall become unenforceable or worthless.
7.5. Merger of Funds. The Trustee shall not have any discretionary
responsibility or authority to manage or control any asset held in a Directed
Fund upon the resignation or removal of an Asset Manager unless and until it
has been notified in writing by the Named Fiduciary that the Asset Manager's
authority has terminated and that such Directed Fund's assets are to be
integrated with the Discretionary Fund. Such notice shall not be deemed
effective until two bank business days after it has been received by the
Trustee. The Trustee shall not be liable for any losses to the Trust Fund
resulting from the disposition of any investment made by the Asset Manager or
for the retention of any illiquid or unmarketable investment or any investment
which is not widely publicly traded or for the holding of any other investment
acquired by the Asset Manager if the Trustee is unable to dispose of such
investment because of any restrictions imposed by the Securities Act of 1933
or other Federal or state law, or if an orderly liquidation of such investment
is impractical under prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 6.1, or for any other
violation of the terms of this Agreement, the Plans or applicable law as a
result of the addition of Directed Fund assets to the Discretionary Fund.
7.6. Notification of Named Fiduciary in Event of Breach. If the
Trustee has knowledge of a breach committed by an Asset Manager, it shall
notify the Investment Advisory Board thereof, and, to the extent permitted by
applicable law, the Investment Advisory Board and the Asset Manager shall
thereafter assume full responsibility to all Persons interested in the Plan to
remedy such breach.
7.7. Certain Duties. The parties hereto acknowledge that while the
Trustee will perform certain duties (such as custodial, reporting, recording,
valuation and bookkeeping functions) with respect to Directed Funds, such
duties will not involve the exercise of any discretionary authority to manage
or control the assets of the Directed Funds and will be the responsibility of
officers or other employees of the Trustee who are unfamiliar with and have no
responsibility for investment management.
7.8. Duty to Enforce Claims. The Trustee shall have no duty to
commence or maintain any action, suit or legal proceeding on behalf of the
Trust on account of or growing out of an investment made in or for a Directed
Fund unless the Trustee has been directed to do so by the Asset Manager or the
Investment Advisory Board and unless the Trustee is either in possession of
funds sufficient for such purpose or has been indemnified to its satisfaction
for counsel fees, costs and other expenses and liabilities to which it, in it
sole judgment, may be subjected by beginning or maintaining such action, suit
or legal proceeding.
7.9. Restrictions on Transfer. Nothing herein shall be deemed to
empower any Asset Manager to direct the Trustee to transfer any asset of a
Directed Fund to itself except for purposes enumerated in paragraphs (j), (l)
or (m) of Section 8.1.
ARTICLE VIII
Powers of Asset Managers and Trustee
------------------------------------
8.1. General Powers. Without limiting the powers and discretions
conferred upon the Trustee or the Asset Managers by the other provisions of
this Agreement, the Asset Managers and the Trustee shall have the following
powers, rights and duties with respect to the assets of the Investment Fund
subject to their management and control, and, upon the directions of an Asset
Manager of a Directed Fund, the Trustee shall make, execute, acknowledge and
deliver any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to enable the Asset Managers
to carry out such powers:
(a) to manage, sell, contract to sell, grant options to
purchase, convey, exchange, transfer, abandon, improve, repair, insure,
lease for any term (even though commencing in the future or extending
beyond the term of the trust) and otherwise deal with all property, real
or personal, in such manner, for such considerations, and on such terms
and conditions as the Trustee or Asset Manager, as the case may be, shall
decide, and no person dealing with the Trustee or Asset Manager shall be
bound to see to the application of the purchase money or to inquire into
the validity, expediency or propriety of any such sale or other
disposition;
(b) to temporarily retain in cash so much of the Trust Fund as
it deems advisable;
(c) to invest in any shares of stock, bonds, mortgages, notes,
or other property of any kind, real or personal, and, with the consent of
the Investment Advisory Board, to purchase or sell, write or issue, puts,
calls or other options, covered or uncovered, to enter into financial
futures contracts, forward placement contracts and standby contracts, and
in connection therewith, to deposit, hold (or direct Bankers, as Trustee
or in its individual capacity, to deposit or hold) or pledge assets of
the Trust Fund;
(d) to purchase part interests in real property or in mortgages
on real property, wherever such real property may be situated;
(e) to lease to others for any term without regard to the
duration of the Trust any real property or part interest in real
property;
(f) to delegate to a manager or the holder or holders of a
majority interest in any real property or mortgage on real property or in
any oil, mineral or gas properties, the management and operation of any
part interest in such property or properties (including the authority to
sell such part interests or otherwise carry out the decisions of such
manager or the holder or holders of such majority interest);
(g) to vote upon any stocks, bond, or other securities (but
subject to the suspension of any voting rights as a result of any broker
loan or similar agreement); to give general or special proxies or powers
of attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options and to make
any payments incidental thereto; to consent to or otherwise participate
in corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to exercise
any of the powers of an owner with respect to stocks, bonds, securities
or other property;
(h) to organize corporations under the laws of any state for the
purpose of acquiring or holding title to property (or, in the case of a
Directed Fund, to direct the Trustee to organize such corporations or to
appoint an ancillary trustee acceptable to the Trustee for such purpose);
(i) to invest in a fund consisting of securities issued by
corporations and selected and retained solely because of their inclusion
in, and in accordance with, one or more commonly used indices of such
securities, with the objective of providing investment results for the
fund which approximate the overall performance of such designated index;
(j) to enter into any partnership, as a general or limited
partner, or joint venture;
(k) to purchase units or certificates issued by an investment
company or pooled trust or comparable entity;
(l) to transfer money or other property to an insurance company
issuing an Insurance Contract;
(m) as authorized by the Investment Advisory Board, to transfer
assets of a Discretionary or Directed Fund to a common, collective or
commingled trust fund exempt from tax under the Code, to be held and
invested subject to all of the terms and conditions thereof, and such
trust shall be deemed adopted as part of the Trust and the Plans to the
extent that assets of the Trust are invested therein; provided, however,
that any transfer from a Directed Fund to the General Trust may be made
only with the prior approval of the Trustee and shall be invested only in
one or more short-term investment funds or other special purpose funds
established from time to time thereunder; and
(n) to be reimbursed for the expenses incurred in exercising any
of the foregoing powers and to pay the reasonable expenses incurred by
any agent, manager or trustee appointed pursuant hereto.
8.2. Additional Powers of Trustee. In addition, the Trustee is hereby
authorized:
(a) to register any securities held in the Trust Fund in its own
name or in the name of a nominee and to hold any securities in bearer
form, and to combine certificates representing such securities with
certificates of the same issue held by the Trustee in other fiduciary or
representative capacities or as agent for customers, or to deposit or to
arrange for the deposit of such securities in any qualified central
depository even though, when so deposited, such securities may be merged
and held in bulk in the name of the nominee of such depository with other
securities deposited therein by other depositors, or to deposit or
arrange for the deposit of any securities issued by the United States
Government, or any agency or instrumentality thereof, with a Federal
Reserve Bank, but the books and records of the Trustee shall at all times
show that all such investments are part of the Trust Fund;
(b) to employ suitable agents, depositories and counsel,
domestic or foreign, and to charge their reasonable expenses and
compensation against the Trust Fund, and to confer upon any such
depository the powers conferred upon the Trustee by paragraph (a) of this
Section 8.2 as well as the power to appoint subagents and depositories,
wherever situated, in connection with the retention of securities or
other property;
(c) at the direction of the Investment Advisory Board, to borrow
money from any source as may be necessary or advisable to effectuate the
purposes of the Trust on such terms and conditions as the Trustee, in its
absolute discretion, may deem advisable;
(d) as directed by the Investment Advisory Board, to deposit any
funds of the Trust in accounts deposits or savings certificates, which
bear a reasonable rate of interest, issued and maintained by Bankers
Trust Company, in its separate corporate capacity, or in any other
institution affiliated with Bankers Trust Company;
(e) to compromise, compound, submit to arbitration or settle any
debt or obligation owing to or from or otherwise adjust all claims in
favor of or against the Trust Fund other than claims solely affecting the
right of any Person to benefits under the Plans; to reduce or increase
the rate of interest or extend, or otherwise modify, foreclose upon
default, or enforce any such debt or obligation; at the direction of the
Investment Advisory Board, to sue or defend suits or legal proceedings to
protect any interest in the Trust and to represent the Trust in all suits
or legal proceedings in any court or before any other administrative
agency, body or tribunal;
(f) to make any distribution or transfer of assets as of a
Valuation Date or to effectuate participants' rights under the Plans in
cash, and, in furtherance thereof, to value such assets, which valuation
shall be conclusive and binding on all Persons;
(g) upon the direction of the Investment Advisory Board, to
maintain and operate one or more market inventory funds as a vehicle to
exchange securities among Discretionary and Directed Funds without
alienating the property from the Trust;
(h) with the consent of the Investment Advisory Board, to loan
securities held in the Trust Fund to brokers or dealers or other
borrowers under such terms and conditions as the Trustee, in its absolute
discretion, deems advisable, to secure the same in any manner permitted
by law and the provisions of this Agreement, and during the term of any
such loan, to permit the loaned securities to be transferred into the
name of and voted by the borrowers or others, and, in connection with the
exercise of the powers hereinabove granted, to hold any property
deposited as collateral by the borrower pursuant to any master loan
agreement in bulk, either as provided in paragraph (a) of this Section
8.2 or otherwise, together with the unallocated interests of other
lenders, and to retain any such property upon the default of the
borrower, whether or not investment in such property is authorized under
this Agreement, and to receive compensation therefor out of any amounts
paid by or charged to the account of the borrower;
(i) to hold uninvested cash awaiting investment and such
additional cash balances as it shall deem reasonable or necessary,
without incurring any liability for the payment of interest thereon;
(j) to furnish the Investment Advisory Board with such
information in the Trustee's possession as the Investment Advisory Board
may reasonably need for tax or other purposes;
(k) at the direction of the Investment Advisory Board, to
receive, hold and invest any funds or other property transferred to the
Trustee from:
(i) any other trust forming a part of a plan meeting the
requirements of Section 401(a) of the Code;
(ii) an employee of a Company if such funds or property
qualify as a rollover described in Section 402(c) of
the Code; or
(iii) an individual retirement account or individual
retirement annuity maintained by an employee of a
Company, if such funds or property qualify as a
rollover contribution described in Section 408(d)(3)
of the Code;
and to allocate, credit and distribute any such funds and other property
so transferred in accordance with the direction of the Investment
Advisory Board;
(l) to transfer all or any portion of the Trust Fund to another
trust or trusts forming a part of a plan or plans that meet the
requirements of Section 401(a) of the Code, as directed by the Investment
Advisory Board;
(m) to transfer an eligible rollover distribution described in
Section 402(c)(4) of the Code directly to an eligible retirement plan
described in Section 402(c)(8)(B) of the Code, as directed by the
Investment Advisory Board; and
(n) generally, consistent with the provisions of this Agreement
to perform all acts (whether or not expressly authorized herein) which it
may deem necessary and prudent for the protection of the assets of the
Trust.
8.3. Limitation of Powers. The foregoing provisions of this Article
VIII shall not be deemed to expand the permissible investments for any
Investment Fund under Section 6.1 or to limit the Investment Advisory Board's
power to restrict the exercise of the powers of an Asset Manager as provided
in this Agreement. In addition, any powers conferred on the Trustee or any
other Asset Manager hereunder may be suspended or revoked at any time by the
Investment Advisory Board upon notice to the Asset Manager or the Trustee, as
the case may be. Any oral notice hereunder shall be promptly confirmed in
writing to the Trustee and the Asset Manager, but the Trustee shall have no
responsibility hereunder unless and until it has received notice in accordance
with Section 14.5.
ARTICLE IX
Records and Accounts of Trustee
-------------------------------
9.1. Records. The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other transactions in the Trust
Fund and all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times during normal business hours by
any Person designated by the Named Fiduciary.
9.2. Annual Account. Within ninety (90) days following the close of
each Accounting Period, the Trustee shall file with the Account Party, in
accordance with Section 14.5, a written account setting forth the receipts and
disbursements of the Trust Fund and the investments and other transactions
effected by it upon its own authority or pursuant to the directions of any
Person as herein provided during the Accounting Period.
9.3. Periodic Account. If so required by the terms of the Plans and
agreed to by the Trustee, within thirty (30) days following the close of each
calendar month, calendar quarter or other time period (but not more frequently
than monthly) the Trustee shall provide the Account Party with, in accordance
with Section 14.5, a written account for the Plans, setting forth the receipts
and disbursements of the Trust Fund (and each of the Plans thereunder) and the
investments and other transactions effected by it upon its own authority or
pursuant to the directions of any Person as herein provided during such
period; provided, however, that such written account shall be limited to an
accounting of investments and transactions in the Trust Fund (and each of the
Plans thereunder) and shall not affect the responsibilities of the parties
under Section 2.2 herein.
9.4. Account Stated. Upon the expiration of one hundred twenty (120)
days from the date of filing its annual account with the Account Party, the
Trustee shall be forever released and discharged from all liability and
further accountability to the Companies, the Account Party or any other Person
with respect to the accuracy of such accounting and the propriety of all acts
and failures to act of the Trustee reflected in such account, except with
respect to any such acts or transactions as to which the Account Party shall,
within such 120-day period, file with the Trustee specific written objections.
9.5. Judicial Accountings. Nothing herein shall in any way limit the
Trustee's right to bring any action or proceeding in a court of competent
jurisdiction to settle its account or for such other relief as it may deem
appropriate.
9.6. Necessary Parties. Except to the extent that Sections 502 and 504
of ERISA may provide otherwise, in order to protect the Trust Fund from the
expense of litigation, no Person other than the Corporation shall be a
necessary party in any proceeding under Section 9.5 or may require the Trustee
to account or may institute any other action or proceeding against the Trustee
or the Trust.
9.7. Retention of Records. All records and accounts maintained by the
Trustee with respect to the Trust Fund shall be preserved for a period of
seven years. Upon the expiration of any such required retention period, the
Trustee shall have the right to destroy such records and accounts after first
transferring to the Corporation any records and accounts requested. The
Trustee shall have the right to preserve all records and accounts in original
form, or on any microfilm, magnetic tape, or other similar process allowable
under law to be admissible into evidence.
ARTICLE X
Compensation, Taxes and Expenses
--------------------------------
10.1. Compensation and Expenses. A reasonable compensation as may be
agreed upon from time to time between the Corporation and the Trustee and
between the Investment Advisory Board and any Asset Manager, Custodian or
insurance company, and all costs, disbursements, charges and expenses (except
those specifically described in the next sentence) reasonably incurred by the
Trustee and the members of the Investment Advisory Board in the administration
of this Trust Fund, including any compensation to, and expenses of, agents,
attorneys, accountants and other persons employed by the Trustee or the
Investment Advisory Board, as certified by the Trustee or a majority of the
members of the Investment Advisory Board, will be paid from the Trust Fund,
but only to the extent they are not paid by the Companies in such proportions
as the Investment Advisory Board shall direct. Expenses solely attributable
to the investment of the assets of an Investment Fund (such as brokerage,
postage, express, or insurance charges and stock transfer stamps expense),
other than compensation payable directly by the Companies or the Trust Fund,
shall be paid from that Investment Fund. The Trustee's entitlement to
reimbursement thereunder shall not be affected by the resignation or removal
of the Trustee or by the termination of the Trust. Unless prohibited by law,
and at the discretion of the Corporation, compensation may be paid by the
Companies to any member or members of the Investment Advisory Board for
services rendered as such.
10.2. Taxes. All taxes of any and all kinds whatsoever that may be
levied or assessed under existing or future laws, domestic or foreign, upon
the Trust Fund or the income thereof shall be paid from the Trust Fund.
The Trustee shall notify the Named Fiduciary of any taxes that may be
assessed. In the event that the Named Fiduciary shall determine that the
taxes are not lawfully assessed, it may elect to direct the Trustee at the
expense of the Trust, or may itself, contest such assessment.
10.3. Allocation. Any tax or expense paid from the Trust Fund hereunder
which is determined by the Named Fiduciary to be specifically allocable to one
or more Investment Funds shall be charged against such Investment Fund in such
proportions as the Named Fiduciary shall direct the Trustee. Any expense
which is allocable to all of the Investment Funds shall be charged against the
Trust Fund as a whole.
10.4. Agents, Attorneys, Accountants, Etc.. The Investment Advisory
Board and the Trustee, individually, may employ such agents, attorneys,
accountants, and other persons (who may be employed by the Corporation) as in
its opinion may be necessary or desirable for the proper administration of the
Plan(s) and this Trust Fund and to advise the Investment Advisory Board or the
Trustee, as the case may be, and pay them a reasonable compensation. The
Investment Advisory Board may delegate in writing to any agent, attorney,
accountant, or other person selected by them, and the Trustee, by writing and
with the approval of the Investment Advisory Board in any case in which the
Trustee is not specifically authorized elsewhere in this Agreement or the
Plans to do so, may delegate to any agent, attorney, accountant, or other
person selected by it, any specifically described power or duty (except the
Trustee may not delegate powers of management or control over Trust assets)
vested in, imposed upon, or granted to it by this Agreement or the Plans, as
the case may be; and the Investment Advisory Board and the Trustee may act or
refrain from acting on the advice or opinion of reputable agents, attorneys,
accountants, or other persons selected as above with reasonable diligence,
without liability for so doing and without court action, except as otherwise
provided by applicable law. The Investment Advisory Board and the Trustee
shall give notice to the other of any delegation made pursuant to this
Section.
ARTICLE XI
Resignation or Removal of Trustee
---------------------------------
11.1. Resignation or Removal. The Trustee may be removed by the
Corporation at any time upon sixty (60) days' notice in writing to the
Trustee. The Trustee may resign at any time upon sixty (60) days' notice in
writing to the Corporation.
11.2. Designation of a Successor. Upon the removal or resignation of
the Trustee, the Corporation shall either appoint a successor trustee who
shall have the same powers and duties as those conferred upon the Trustee
hereunder, and upon acceptance of such appointment by the successor trustee,
the Trustee shall assign, transfer and pay over the Trust Fund to such
successor trustee, or the Corporation shall direct the Trustee to assign,
transfer and pay over the Trust Fund to one or more insurance companies
pursuant to Insurance Contracts issued to the Plans. If, for any reason, the
Corporation cannot or does not act promptly to appoint a successor trustee or
designate an insurance company in the event of the resignation or removal of
the Trustee, the Trustee may apply to a court of competent jurisdiction for
the appointment of a successor trustee. Any expenses incurred by the Trustee
in connection therewith shall be charged to and paid from the Trust Fund as an
expense of administration.
11.3. Duties of Resigning or Removed Trustee and of Successor Trustee.
A trustee that resigns or is removed shall promptly furnish to the Investment
Advisory Board and the successor trustee an account of its administration of
the Trust from the date of its last account. Each successor trustee shall
succeed to the title to the Trust Fund vested in its predecessor without the
signing or filing of any further instrument, but each resigning or removed
trustee shall execute all documents and do all acts necessary to vest such
title of record in the successor trustee. Each successor trustee shall have
and enjoy all of the powers conferred by this Agreement as if originally named
trustee. Subject to applicable law, no successor trustee shall be personally
liable for any act or failure to act of any predecessor trustee and with the
approval of the Investment Advisory Board a successor trustee may accept the
account rendered and the property delivered to it by a predecessor trustee as
a full and complete discharge to the predecessor trustee without incurring any
liability or responsibility for so doing.
11.4. Reserve for Expenses. The Trustee may reserve such amount as it
may, in good faith, deem necessary for payment of its fees and expenses in
connection with the settlement of its account or otherwise, and any balance of
such reserve remaining after the payment of such fees and expenses shall be
paid over in accordance with the directions of the Corporation under Section
11.2. The Trustee is authorized to invest such reserves in any investment
authorized under the terms of this Agreement appropriate for the temporary
investment of cash reserves of trusts.
ARTICLE XII
Amendment or Termination
------------------------
12.1. Amendment. Subject to Section 1.4, the Corporation 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 this Agreement by notice thereof in writing delivered
to the Trustee; provided, however, no amendment which affects the rights,
duties or responsibilities of the Trustee may be made without its prior
written consent.
12.2. Termination. Subject to Section 1.4, the Corporation reserves the
right to terminate this Agreement by notice in writing thereof delivered to
the Trustee. In the event of termination, the Trustee shall dispose of the
Trust Fund, after the payment of, or other provision for, all of its expenses
(including any compensation to which the Trustee may be entitled), all in
accordance with the written directions of the Corporation.
12.3. Trustee's Authority to Survive Termination. Until the final
distribution of the Trust Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this
Agreement.
12.4. Approvals. In the event that this Trust Fund does not form a part
of a plan subject to the jurisdiction of the Pension Benefit Guaranty
Corporation, the Trustee shall distribute all cash, securities and other
property then constituting the Trust Fund, less any amounts constituting
charges and expenses payable from the Trust Fund, on the date or dates
specified by the Investment Advisory Board to such persons and in such manner
as the Investment Advisory Board shall direct. In making such distributions,
the Trustee shall be entitled to assume that such distributions are in full
compliance with and are not in violation of any applicable law regulating the
termination of retirement plans such as the Plans.
ARTICLE XIII
Authorities
-----------
13.1. Corporation. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by the Corporation, such
action must be by resolution of its Board of Directors or by a person
authorized by resolution of its Board of Directors.
13.2. Form of Communications. Any agreement or understanding between
the Corporation and any Person (including an Asset Manager) or any other
provision of this Agreement to the contrary notwithstanding, all notices,
directions and other communications to the Trustee shall be in writing or in
such other form, including transmission by electronic means through the
facilities of third parties or otherwise, specifically agreed to in writing by
the Trustee. The Trustee shall be fully protected in acting in accordance
therewith, but shall not thereby assume responsibility for the failure or
breakdown of any such means of communication not due to its own negligence or
willful misconduct.
13.3. Continuation of Authority. The Trustee shall have the right to
assume, in the absence of written notice to the contrary, that no event
constituting a change in the composition or authority of the Named Fiduciary
or membership of the Investment Advisory Board or terminating the authority of
any Person, including any Asset Manager, has occurred.
13.4. No Obligation to Act on Unsatisfactory Notice. The Trustee shall
incur no liability under this Agreement for any failure to act pursuant to any
notice, direction or any other communication from any Asset Manager, the
Corporation, the Named Fiduciary, the Investment Advisory Board, or any other
Person or the designee of any of them unless and until it shall have received
instructions in a form specified in this Agreement.
ARTICLE XIV
General Provisions
------------------
14.1. Governing Law. To the extent that state law shall not have been
preempted by the provisions of ERISA or any other law of the United States
heretofore or hereafter enacted, this Agreement shall be administered,
construed and enforced according to the laws of the State of New York.
14.2. Entire Agreement. The Trustee's duties and responsibilities to
the Plans or any Person interested therein shall be limited to those
specifically set forth in this Agreement. No amendment to the Plans or
agreement or instrument affecting the Plans or any other document shall affect
the Trustee's duties or responsibilities hereunder without its prior written
consent.
14.3. Mistake. No mistake made in good faith and in the exercise of due
care in connection with the administration of the Trust Fund shall be deemed
to be a breach of the Trustee's duties if, promptly after discovery of the
mistake, the Trustee takes whatever action may be practicable in the
circumstances to remedy the mistake. Any misstatement or any mistake of fact
in any certificate, notice or other document filed with the Corporation, the
Investment Advisory Board, the Trustee or any Asset Manager shall be corrected
when it becomes known and the Corporation, the Investment Advisory Board, the
Trustee or the Asset Manager, as the case may be, shall make such adjustment
on account thereof as it considers equitable and practicable.
14.4. Reliance on Experts. The Trustee may consult with experts (who
may be experts employed by the Corporation) including legal counsel,
appraisers, pricing services, accountants or actuaries, selected by it with
due care with respect to the meaning and construction of this Agreement or any
provision hereof, or concerning its powers and duties hereunder, and shall be
protected for any action taken or omitted by it in good faith pursuant to or
on the basis of the opinion of any such expert.
14.5. Notices. All notices, reports, annual accounts and other
communications from the Trustee to the Corporation, the Named Fiduciary, the
Investment Advisory Board, an Asset Manager, or any other Person shall be
deemed to have been duly given if mailed, postage prepaid, or delivered in
hand to such Person at its address appearing on the records of the Trustee,
which address shall be filed with the Trustee at the time of the establishment
of the Trust and shall be kept current thereafter by the Named Fiduciary. All
directions, notices, statements, objections and other communications to the
Trustee shall be deemed to have been given when received by the Trustee at its
offices in the form provided in Article XIII.
14.6. Plan Documents. The Named Fiduciary shall provide the Trustee
with complete, current copies of the Plans and the most recent tax
qualification letters relative thereto. The Trustee shall be entitled to rely
upon the Named Fiduciary's attention to this obligation and shall be under no
duty to inquire of any Person as to the existence of any documents not
provided hereunder.
14.7. No Waiver; Reservation of Rights. The rights, remedies,
privileges and immunities expressed herein are cumulative and are not
exclusive, and the Trustee shall be entitled to claim all other rights,
remedies, privileges and immunities to which it may be entitled under
applicable law.
14.8. Descriptive Headings. The captions in this Agreement are solely
for convenience of reference and shall not define or limit the provisions
hereof.
14.9. Spendthrift Provision. Except as may be required by law, no
interest or claim of interest of any kind of any participant in the Plans
under the provisions of this Trust is assignable, nor may any such interest or
claim be subject to garnishment, attachment, execution or levy of any kind,
and no attempt to transfer, assign, pledge or otherwise encumber or dispose of
such interest by act of the Person involved or by operation of law will be
recognized.
14.10. Waiver of Notice. Any notice required under this Agreement may
be waived by the Person entitled to such notice.
14.11. Gender and Number. Where the context admits, words in the
masculine gender shall include the feminine and neuter genders, the plural
shall include the singular, and the singular shall include the plural.
14.12. Counterparts. This Agreement may be executed in two or more
counterparts, any one of which shall constitute an original without reference
to the others.
14.13. Severability. In case any provisions of this Agreement shall be
held illegal or invalid for any reason, such illegality or invalidity shall
not affect the remaining provisions of this Agreement and this Agreement shall
be construed and enforced as if such illegal or invalid provision had never
been set forth in this Agreement.
14.14. Scope of this Agreement. To the extent the parties are permitted
to assign any rights or duties under this Agreement, this Agreement shall be
binding upon the Corporation, the Companies, their successors and assigns, and
upon the Trustee, the Investment Advisory Board, the Asset Managers,
Custodians and their successors and assigns.
14.15. No Reversion in Companies. The Companies shall have no right,
title or interest in the Trust Fund, nor shall any part of the Trust Fund
revert or be repaid to a Company, directly or indirectly, unless:
(a) a contribution is made by such Company by mistake of fact
and such contribution is returned to the Company within one year after
payment to the Trustee; or
(b) a contribution conditioned on the deductibility thereof is
disallowed as an expense for federal income tax purposes and such
contribution (to the extent disallowed) is returned to the Company within
one year after the disallowance of the deduction.
The amount of any contribution that may be returned to a Company must be
reduced by any portion thereof previously distributed from the Trust Fund and
by any losses of the Trust Fund allocable thereto, and in no event may the
return of such contribution cause any Plan participant's account balances to
be less than the amount of such balances had the contribution not been made
under the applicable Plan.
ARTICLE XV
Liabilities
-----------
15.1. Liabilities Mutually Exclusive. The Trustee, the Corporation,
each member of the Investment Advisory Board, each Company, and each Asset
Manager, Custodian and insurance company shall be responsible only for its or
his own acts or omissions.
15.2. Limitation of Liability. To the extent permitted by law, no
member of the Investment Advisory Board, no person to whom the Investment
Advisory Board properly delegates any portion of its responsibilities under
the Trust Fund, and no person who was, is or becomes a director, officer or
employee of the Corporation or any of its subsidiaries or affiliates, shall
have any personal liability of any nature for any act done or omitted to be
done in good faith under or in connection with the Trust Fund.
15.3. Indemnification. To the extent permitted by law, any member or
former member of the Investment Advisory Board, any person who was, is or
becomes an officer or director of the Corporation or any of its subsidiaries
or affiliates to whom the Investment Advisory Board or the Corporation has
delegated any portion of its responsibilities under this Trust Fund, and each
of them, shall be indemnified and saved harmless by the Corporation (to the
extent not indemnified or saved harmless under any liability insurance or
other indemnification arrangement with respect to the Trust Fund) from and
against any and all liability to which such persons may be subjected to by
reason of any act done or omitted to be done in good faith with respect to the
administration of this Trust Fund or the investment of the Trust Fund,
including all expenses reasonably incurred in their defense in the event that
the Corporation failed to provide such defense after having been requested in
writing to do so. In consideration of Bankers' agreeing to enter into this
Agreement, the Corporation hereby agrees to hold harmless Bankers,
individually and as Trustee, and Bankers' directors, officers, and employees,
from and against all amounts, including without limitation taxes, expenses
(including reasonable counsel fees), liabilities, claims, damages, actions,
suits or other charges, incurred by or assessed against Bankers, individually
or as Trustee, or its directors, officers or employees (i) as a direct or
indirect result of any act or omission of any predecessor trustee or fiduciary
appointed under the Plans; (ii) as a direct or indirect result of anything
done in good faith, or alleged to have been done, by Bankers in reliance upon
the directions of any Investment Manager (other than Bankers acting as
Investment Manager), the Investment Advisory Board, the Corporation, or the
Named Fiduciary, or anything omitted to be done in good faith, or alleged to
have been omitted, in the absence of such directions, or (iii) as a direct or
indirect result of the failure of the Corporation, the Investment Advisory
Board, or the Named Fiduciary, to discharge its fiduciary responsibilities
with respect to the Plans. Anything hereinabove to the contrary
notwithstanding, the Corporation shall have no responsibility to Bankers under
subsections (ii) or (iii) of the preceding sentence if Bankers knowingly
participated in or knowingly concealed any act or omission of any Person
described therein knowing that such act or omission constituted a breach of
such Person's fiduciary responsibilities, or if Bankers fails to perform any
of the duties specifically undertaken by it under the provisions of this
Agreement in the manner herein provided, and in accordance with Section 1.4,
or if Bankers fails to act in conformity with duly given and authorized
directions hereunder. The Corporation further agrees that the undertaking
made in the second sentence of this Section shall be binding on its successors
or assigns, and shall survive termination, amendment or restatement of this
Agreement, or the resignation or removal of the Trustee, and that this Article
shall be construed as a contract between the Corporation and the Trustee
according to the laws of the state of New York in effect from time to time.
ARTICLE XVI
Plans and Agreement
-------------------
16.1. Adoption of Agreement by Subsidiaries and Affiliates. Any Company
which is a subsidiary of the Corporation or which may be affiliated with the
Corporation in any way and which is now or may hereafter be organized under
the laws of the United States of America, or of any state or Territory
thereof, with the approval of the Corporation, and by resolution of its own
Board of Directors, may adopt this Agreement, if such subsidiary or affiliate
shall have adopted one or more plans qualified under Section 401(a) of the
Code, as amended. If any such subsidiary or affiliate so adopts this
Agreement, this Agreement shall establish the trust for such plans as are
specified by such subsidiary or affiliate and shall constitute a continuation,
amendment and restatement of any prior trust for any such plans. Furthermore,
the assets of any such plans may be commingled with the assets of other plans
held in the Trust Fund pursuant to Section 6.2 hereof. However, the assets of
any plan so held in the Trust Fund shall not be subject to any claim arising
under any other plan, the assets of which are commingled therewith by the
Trustee for investment purposes, and under no circumstances shall any of the
assets of one plan be available to provide the benefits under another plan. A
separate trust shall be deemed to have been created with respect to each plan
of such subsidiary or affiliate.
16.2. Segregation from Further Participation. The Corporation or any
Company may, at any time, segregate a Plan's trust from further participation
in this Agreement. In such event, the Investment Advisory Board shall file
with the Trustee a document evidencing the Company's or the Corporation's
segregation of a Plan from the Trust Fund and its continuance of a separate
trust in accordance with the provisions of this Agreement as though such
Company or Corporation were the sole creator thereof. In such event, the
Trustee shall deliver to itself as Trustee of such separate trust such share
of the Trust Fund as may be determined by the Trustee to constitute the
appropriate share of the Trust Fund, as confirmed by the Company or the
Corporation, then held in respect of the participating employees of such
subsidiary or affiliate, and such share shall be governed by a separate trust
agreement containing such terms and conditions as are agreed to between the
Company or the Corporation and the Trustee. Such Company or the Corporation
may thereafter exercise, in respect of such separate trust, all of the rights
and powers reserved to the Corporation under the provisions of this Agreement.
The equitable share of any Plan participating in the Trust Fund shall be
immediately segregated and withdrawn from the Trust Fund if the Plan ceases to
be qualified under Section 401(a) of the Code and the Corporation shall
promptly notify the Trustee of any determination by the Internal Revenue
Service that any Plan has ceased to be so qualified.
16.3. Segregation of Assets Allocable to Specific Employees. The
Investment Advisory Board may at any time direct the Trustee to segregate and
withdraw the equitable share of any Plan, or that portion of such equitable
share as may be certified to the Trustee by the Investment Advisory Board as
allocable to any specified group or groups of employees or beneficiaries.
Whenever segregation is required, the Trustee shall withdraw from the Trust
Fund such assets as it shall deem to be equal in value to the equitable share
to be segregated. Such withdrawal from the Trust Fund shall be in cash or in
any property held in such Trust Fund, or in a combination of both, as directed
by the Investment Advisory Board. The Trustee shall thereafter hold the
assets so withdrawn as a separate trust fund in accordance with the provisions
of this Agreement, which shall be construed in respect of such assets as if
the Company or the Corporation maintaining such Plan (determined without
regard to whether any subsidiaries or affiliates of such employer have joined
in such Plan) has been named as the Corporation hereunder. Such segregation
shall not preclude later readmission to the Trust Fund.
ARTICLE XVII
Merger or Consolidation
-----------------------
17.1. Merger or Consolidation of Trustee. Any corporation, or national
association, into which the Trustee may be merged or with which it may be
consolidated, or any corporation, or national association, resulting from any
merger or consolidation to which the Trustee is a party, or any corporation,
or national association, succeeding to the trust business of the Trustee
hereunder, shall become the successor of the Trustee hereunder, without the
execution or filing of any instrument or the performance of any further act on
the part of the parties hereto.
17.2. Merger or Consolidation of Corporation. Any corporation into
which the Corporation or any Company may be merged or with which it may be
consolidated, or any corporation succeeding to all or a substantial part of
the business interests of the Corporation may become the Corporation or
Company hereunder by expressly adopting and agreeing to be bound by the terms
and conditions of the Plans and this Agreement and so notifying the Trustee to
such effect by submission to the Trustee of an appropriate written document.
17.3. Merger or Consolidation of Plan. In the event that the Investment
Advisory Board or the Corporation authorizes and directs that the assets of
another plan be merged or consolidated with or transferred to a Plan partici-
pating in this Trust Fund, the Trustee shall take no action with regard to
such merger, consolidation or transfer until it has been notified in writing
that each participant covered under the plan the assets of which are to be
merged, consolidated or transferred will immediately after such merger,
consolidation or transfer be entitled to a benefit either equal to or then
greater than the benefit he would have been entitled to had the plan been
terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and their
corporate seals to be hereunto affixed and attested to as of the day and year
first above written.
(Corporate Seal) FORT HOWARD CORPORATION
Attest: By /s/ James W. Nellen II
----------------------
Title: Vice President
/s/ Cheryl A. Thomson
- -------------------------------------
Title: Assistant Corporate Secretary
(Corporate Seal) BANKERS TRUST COMPANY
Attest: By /s/ Gary Cohen
----------------------
Title: Vice President
/s/ Robert M. Bynke
- --------------------------------------
Title: Managing Director
STATE OF WI )
) ss.:
COUNTY OF BROWN )
On the 29th day of December, 1995, before me personally came
James W. Nellen II to me known, who being by me duly sworn, did depose and
say: that he/she resides in Green Bay, Wisconsin; that he/she is the Vice
President of FORT HOWARD CORPORATION, the corporation described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by order of the Board of Directors of said corporation, and that
he/she signed his/her name thereto by like order.
/s/Jean M. Ehren
----------------------
Notary Public
Commission Expires 3/23/97
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of December, 1995, before me personally came Gary Cohen
to me known, who being by me duly sworn, did depose and say: that he/she
resides in New York, New York; that he/she is the Vice President of BANKERS
TRUST COMPANY, the corporation described in and which executed the above
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like order.
/s/Richard Corazza
----------------------
Richard Corazza
Notary Public, State of New York
No. 31-4638819
Qualified in New York County
Commission Expires 7/31/96
Exhibit A
---------
Fort Howard Corporation Profit Sharing Retirement Plan
Harmon Assoc., Corp. Profit Sharing Plan
Appendix A
----------
Investment Funds
----------------
"Conservative" Balanced Investment Fund
"Original" Balanced Investment Fund
"Aggressive" Balanced Investment Fund
Short-Term Investment Fund
Fort Howard Common Stock Fund