NATIONAL SANITARY SUPPLY COMPANY
COLLECTIVE THRIFT AND PROFIT SHARING PLAN
TRUST AGREEMENT
Trust Agreement, made as of the 1st day of October, 1994, by
and between National Sanitary Supply Company, a corporation
organized under the laws of the State of Delaware, (hereinafter
referred to as the "Company"), and PNC Bank, Ohio, National
Association (fka The Central Trust Company, N.A.), incorporated
under the laws of the State of Ohio (hereinafter also referred to
as the "Trustee").
WITNESSETH
WHEREAS, the Company adopted the "National Sanitary Supply
Company Savings and Investment Plan", effective July 1, 1987
(hereinafter referred to as the "Savings Plan"), for the benefit of
eligible employees of the Company and eligible employees of its
designated participating subsidiaries (hereinafter referred to as
"participating employees"), as defined in the Savings Plan; and
WHEREAS, pursuant to resolutions of its Board of Directors,
the Company appointed the Trustee as trustee of the trust for the
Savings Plan and entered into a trust agreement with the Trustee
therefor; and
WHEREAS, the Company adopted the "National Sanitary Supply
Company Profit Sharing Plan", effective February 1, 1966 (hereinafter
referred to as the "Profit Sharing Plan"), for the benefit of
eligible employees of the Company and eligible employees of its
designated participating subsidiaries (hereinafter referred to as
"participating employees"), as defined in the Profit Sharing Plan;
and
WHEREAS, the Company adopted the "Paul Koss Supply Co. Profit
Sharing Plan", effective June 1, 1970 (hereinafter referred to as
the "Paul Koss Plan"), for the benefit of eligible employees of the
Paul Koss Supply Co. (a subsidiary of the Company) and eligible
employees of its designated participating subsidiaries (hereinafter
referred to as "participating employees"), as defined in the Paul
Koss Plan; and
WHEREAS, pursuant to resolutions of its Board of Directors,
the Company appointed the Trustee as trustee of a collective trust
for the Profit Sharing Plan and Paul Koss Plan and entered into a
trust agreement with the Trustee therefor; and
WHEREAS, pursuant to resolutions of its Board of Directors
dated as of August 3, 1994, the Company merged the Profit Sharing
Plan into the Savings Plan effective as of October 1, 1994 and
renamed the Savings Plan to be the "National Sanitary Supply
Company Employees Thrift and Profit Sharing Plan" (hereinafter
referred to as the "Thrift/Profit Sharing Plan") for the benefit of
eligible employees of the Company and eligible employees of its
designated participating subsidiaries (hereinafter referred to as
"participating employees"), as defined in the Thrift/Profit Sharing
Plan; and
WHEREAS, pursuant to resolutions of its Board of Directors
dated as of August 3, 1994, the Company authorized participant
investment direction under the Thrift/Profit Sharing Plan and Paul
Koss Plan effective October 1, 1994 and the permitted investment of
employee contributions under the Thrift/Profit Sharing Plan in
shares of common stock of the Company effective October 1, 1994;
and
WHEREAS, the Thrift/Profit Sharing Plan and the Paul Koss Plan
(collectively, the "Plans") are themselves separate plans; and
WHEREAS, under the Plans, contributions will be made to the
Trustee, which contributions when received by the Trustee will
constitute a Trust Fund (hereinafter referred to as the "Trust")
for each of the Plans, to be held and applied for the benefit of
participating employees or their beneficiaries of the respective
Plans; and
WHEREAS, the Trust shall be a collective trust for the
Thrift/Profit Sharing Plan and the Paul Koss Plan, with separate
accounting of assets under each Plan as so provided under the terms
of this trust agreement,
NOW, THEREFORE, in consideration of the promises and of the
mutual covenants herein contained, the Company and the Trustee do
hereby declare and agree each with the other as follows:
SECTION 1. All sums of money and such property as shall from
time to time be paid or delivered to the Trustee pursuant to the
provisions of the Plans, 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".
No part of the corpus or income of the Trust shall be used for, or
diverted to, purposes other than (i) for the exclusive benefit of
participating employees or their beneficiaries and (ii) for the
payment of Plan administrative expenses.
SECTION 2. Subject to the conditions of Section 1 hereof, the
Trustee shall from time to time on the directions of the
Administrative Committees provided for in the Plans (hereinafter
referred to as the "Committee" or "Committees") make cash payments
and distributions of NSS Stock (as defined below) out of the Trust
to such persons, including members of the Committees, in such
manner, in such amounts, for such purposes, and from such Fund of
the Trust (as described in Section 4 hereof) as may be specified in
the directions of the respective Committee.
SECTION 3. It shall be the duty of the Trustee (a) to hold,
administer and invest the Trust as hereinafter provided, and (b) to
pay moneys and to distribute shares of NSS Stock on orders
certified by the Committees as being in accordance with the Plans.
Such orders need not specify the application to be made of moneys
and NSS Stock so ordered, and the Trustee shall not be responsible
in any way respecting such application or for such administration
of the Plans.
The Trustee shall have no responsibility or authority in
connection with the determination of the amounts to be transferred
to it from time to time on behalf of participating employees, nor
shall the Trustee have any authority to bring any action or
proceeding to enforce the collection of any such amount.
SECTION 4. The Trustee shall invest and reinvest the
principal and income of the Trust, and keep the Trust invested
without distinction between principal and income, in the following
manner:
A. Investment Funds - The Trustee shall invest in the
General Funds (as such term is provided under the definition of
Investment Fund in the Plans) as selected from time to time by the
Investment Committee as provided for in the Plans. The General
Funds of the Trust held by the Trustee shall be invested, managed
and administered as directed by the Investment Committee, and any
applicable investment direction instructions of participants and
beneficiaries under the terms of the Plans, and not in conjunction
with or jointly with or requiring the approval of or acquiescence
in or any other action or inaction by the Trustee.
B. NSS Stock Fund - The NSS Stock Fund shall be invested
in the common stock, par value $1.00 per share, of the Company
("NSS Stock"). The NSS Stock Fund of the Trust held by the Trustee
shall be invested, managed and administered as directed by the
Investment Committee, and any applicable investment direction
instructions of participants and beneficiaries under the terms of
the Plans, and not in conjunction with or jointly with or requiring
the approval of or acquiescence in or any other action or inaction
by the Trustee. The NSS Stock Fund shall be allocated between the
Thrift/Profit Sharing Plan and the Paul Koss Plan as the Investment
Committees shall direct.
The Trustee shall purchase NSS Stock on the principal stock
exchange on which NSS is listed, or, if such stock is not then
listed on a stock exchange, in the over the counter market at a
price not exceeding the prevailing market "asked" price through
brokers selected by the Trustee, or, at a price not greater than
the then prevailing market "asked" price through private
transactions. Such purchase or purchases shall be made as soon as
reasonably practicable after receipt of funds by the Trustee. The
NSS Stock purchased by the Trustee shall be registered in its name
or in the name of its nominee, as the Trustee shall elect.
In lieu of making purchases, as above, and/or sales of NSS
Stock in the open market, the Trustee may, in its discretion, match
purchases and sales of NSS Stock to be made at substantially the
same time. In such event, the price at which such NSS Stock shall
be considered to have been purchased and sold shall be determined
by the Trustee based upon the then prevailing market price for NSS
Stock.
In lieu of purchases of NSS Stock in the open market or
matched purchases and sales of NSS Stock by the Trustee, the
Company may directly sell or contribute shares of NSS Stock to the
Trust. In that event, the price at which the NSS Stock shall be
purchased (if sold), or shall be considered to be purchased (if
contributed), shall be determined by the Trustee based upon a price
which is not less favorable to the Plan than the Adequate
Consideration Price of NSS Stock determined under Section 3(18) of
ERISA (as provided below) and consistent with the exemption under
Section 408(e) of ERISA.
The term "Adequate Consideration Price" shall have the
following meanings (as applicable), as determined consistent with
Section 3(18) of ERISA:
(a) In the case of a security for which there is a
generally recognized market (within the meaning of Section 3(18) of
ERISA), the Adequate Consideration Price shall mean the price of
the security prevailing on a national security exchange which is
registered under Section 6 of the Securities Exchange Act of 1934.
(b) In the case of a security for which there is a
generally recognized market (within the meaning of Section 3(18) of
ERISA), but is not traded on a national security exchange which is
registered under Section 6 of the Securities Exchange Act of 1934,
the Adequate Consideration Price shall mean the price determined
pursuant and subject to the following provisions:
(1) The price shall be the weighted average of
the closing completed trade prices of the security over the 20
trading days preceding the date of the transaction, determined by
taking the sum of the closing completed trade prices in effect on
each of such 20 preceding trading days divided by 20.
(2) In no event shall the price exceed the
lesser of the following prices: (A) the lowest completed trade
price of the security on the date of the transaction; or (B) the
average of the bid and asked prices quoted for the security on the
date of the transaction.
(3) The only closing completed trade prices,
lowest completed trade prices and quoted bid and asked prices to be
considered for purposes of the foregoing provisions shall be those
such prices reported by NASDAQ and by persons independent of the
issuer and of any party in interest or disqualified person with
respect to the Plans (as such terms are defined in Section 3(14) of
ERISA or Section 4975(d) of the Code, respectively).
(4) In no event shall a transaction of NSS Stock
occur, when using the foregoing methodology, unless there have been
seven completed trades between independent persons in the 20
trading days preceding the date of the transaction.
(c) In the case of an asset other than a security for
which there is a generally recognized market (within the meaning of
Section 3(18) of ERISA), the Adequate Consideration Price shall
mean the fair market value of the asset as determined in good faith
by the trustee or named fiduciary pursuant to the terms of the plan
and in accordance with the regulations promulgated by the Secretary
of Labor.
Before each annual or special meeting of the stockholders of
the Company, the Company shall cause to be sent to each
participating employee having vested shares of NSS Stock allocated
or allocable to his account in this Fund a copy of the proxy
solicitation material therefor, together with a form requesting
confidential instructions to the Trustee on how to vote such vested
shares. Upon receipt of such instructions, the Trustee shall vote
the shares of NSS Stock as instructed. Instructions received from
individual participating employees shall not be divulged or
released to any person, including officers or employees of the
Company or Chemed. The Trustee shall have the right to vote, in
person or by proxy, at its discretion any shares of NSS Stock for
which voting instructions shall not have been received and all
shares of NSS Stock in which participating employees shall not have
any vested interest.
In the event (a) any recapitalization of the Company or
reclassification, split-up, combination or consolidation of shares
of NSS Stock shall be effected, or (b) the outstanding shares of
NSS Stock shall, in connection with a reorganization or
consolidation of the Company be exchanged for a different number or
class of shares of the common stock or other securities of the
Company, then upon written direction from the Secretary of the
Company pursuant to order of the Company's Board of Directors
acting upon and in accordance with the recommendations of the
Incentive Committee designated by the Board of Directors
(hereinafter referred to as the "Incentive Committee"), the Trustee
shall take such action as shall be ordered by the Company's Board
of Directors and to the extent that NSS Stock is to be exchanged
for a different number or class of the common stock or other
securities of the Company pursuant to such order, as aforesaid,
then such different number or class of shares of the common stock
or other securities of NSS shall be exchanged for NSS Stock by the
Trustee, and the name and class of such shares of common stock or
other securities of the Company received in exchange for NSS Stock
shall be substituted in all respects for all references to NSS
Stock as presently stated in this Trust Agreement.
In the event there shall be extended to the stockholders of
the Company generally an offer to exchange or purchase all or a
portion of the issued and outstanding shares of NSS Stock for cash
and/or other consideration, then upon written direction from the
Secretary of the Company pursuant to order of the Company's Board
of Directors acting upon and in accordance with the recommendations
of the Incentive Committee, the Trustee shall take such action as
shall be ordered by the Company's Board of Directors.
The Trustee will prepare and file such reports and information
with the Securities and Exchange Commission as may be required
under Section 16(a) of the Securities Exchange Act of 1934 and
Section (d) of the Securities and Exchange Commission's Rule 16A-8
or which the Securities and Exchange Commission may now or
hereafter otherwise request or require be filed in connection with
the Trustee's holdings of NSS Stock or transactions in NSS Stock,
or allocations or distributions of NSS Stock to or for the accounts
of officers and directors of the Company.
The Trustee shall treat each of the General Funds and the NSS
Stock Fund separately and the income of each such Fund shall be
accumulated and invested in such Fund. The Trustee may keep any
portion of the assets of the NSS Stock Fund of the Trust in interest
bearing cash or in short term obligations of the United States
Government or agencies thereof or in other types of short term
investments, including commercial paper (other than obligations of the
Company or of Chemed and their respective subsidiaries) as the Trustee
may from time to time deem to be in the best interests of the
participating employees or other beneficiaries of the Plans.
The Trustee shall have the power and authority at any time and
from time to time to transfer such portion or all of the Trust
invested by it to another Trustee upon the direction of the
Administrative Committee acting upon and in accordance with
recommendations of, or pursuant to authority granted it by, the
Board of Directors of the Company.
SECTION 5. In accordance with and subject to the provisions
of Section 1 and Section 4 hereof, the Trustee shall have the
following powers and authority in the investment and administration
of the assets of the Trust:
(a) to sell, exchange, convey, transfer or dispose of
and also to grant options (including covered call options) with
respect to, any property, whether real or personal, at any time
held by it, and any sale may be made by private contract or by
public auction, and for cash or upon credit, or partly for cash and
partly upon credit, as the Trustee may deem best, and no person
dealing with the Trustee shall be bound to see to the application
of the purchase money or to inquire into the validity, expediency
or propriety of any such sales or other transaction;
(b) to purchase, sell, hold and generally deal in and
with contracts for the immediate or future delivery of financial
instruments, including without limitation U.S. government agency
obligations, Government National Mortgage Association certificates,
Federal National Mortgage Association certificates, United States
Treasury bills, United States Treasury bonds, United States
Treasury notes and commercial paper, and in connection therewith to
deposit any property as collateral with any agent, all on such
terms and conditions as the Trustee shall determine;
(c) to retain, manage, operate, repair, improve,
develop, preserve, mortgage or lease for any period any real
property or any oil, mineral or gas properties, interests or rights
held by the Trustee or by any corporation organized by the Trustee
pursuant to this Agreement, upon such terms and conditions as the
Trustee deems proper, either alone or by joining with others, using
other trust assets for any of such purposes, if by the Trustee
deemed advisable; to modify, extend, renew or otherwise adjust any
or all of the provisions of any such mortgage or lease, including
the waiver of rentals, if by the Trustee deemed advisable; and to
make provision for the amortization of the investment in or
depreciation of the value of such property as the Trustee may deem
advisable.
(d) to compromise, compound and settle any debt or
obligations due from third persons to the Trustee or to third
persons from the Trustee, as the Trustee hereunder, and to reduce
the rate of interest on, to extend or otherwise modify, or to
foreclose upon default or otherwise enforce, any such obligation;
(e) to vote in person or by proxy on any stocks, bonds
or other securities held by the Trustee, and to appoint one or more
individuals or corporations as voting trustees under voting trust
arrangements and to delegate to such voting trustees discretion to
vote;
(f) to exercise any rights appurtenant to any stocks,
bonds or other securities held by the Trustee for the conversion
thereof into other stocks, bonds or securities, or to exercise any
rights or options held by them to subscribe for or purchase
additional stocks, bonds or other securities, and to make any and
all necessary payments with respect to any such conversion or
exercise;
(g) to join in, dissent from, or oppose, the
reorganization, recapitalization, consolidation, sale or merger of
corporations or properties of which the Trustee may hold stocks,
bonds or other securities or in which the Trustee may be
interested, upon such terms and conditions as the Trustee may deem
wise, to pay any expenses, assessments or subscriptions in
connection therewith and to accept any securities or property which
may be issued upon any such reorganization, recapitalization,
consolidation, sale or merger;
(h) to make, execute, acknowledge and deliver any and
all deeds, leases, mortgages, assignments, documents of transfer
and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers herein granted;
(i) to enforce any right, obligation or claim in its
absolute discretion and in general to protect in any way the
interest of the Trust, either before or after default with respect
to any such right, obligation or claim, and, in case the Trustee
shall consider such action for the best interests of the trust, in
its absolute discretion to abstain from the enforcement of any
right, obligation or claim and to abandon any property, whether
real or personal, which at any time may be held by the Trustee;
(j) to cause or authorize any investment in the Trust
to be registered in, or transferred into its name as Trustee, or
the name of its nominee, or in the name of any other nominee, or to
retain any such investment unregistered or in form permitting
transferability by delivery; and to deposit any investment of the
Trust in any depository, clearing corporation, or any central
system for handling of investments, or any nominee thereof;
provided that the books and records of the Trustee shall at all
times show that all such investments are part of the Trust;
(k) from time to time, to employ suitable agents and
counsel and to pay them reasonable expenses and compensation;
(l) in the acquisition, disposition and management of
investments for or under the Trust to acquire and hold any
securities or other property even though the Trustee, in its
individual or any other capacity, shall have invested or may
thereafter invest its own or other funds in the same securities or
related property or related securities or other property the
interest, principal or other avails of which may be payable at
different rates or different times or may have a different rank or
priority; and to acquire and hold any securities or other property
even though in connection therewith the Trustee, in its individual
or any other capacity, may receive compensation reasonably and
customarily due in the course of its regular activities;
(m) for the purpose of investing in and holding title
to real or personal property or part interests therein, wherever
situate, to appoint one or more individuals or corporations as a
co-trustee or sub-trustee or to join with one or more individuals
or corporations (including itself) acting as trustees of other
pension trusts, profit sharing trusts or employee benefit trusts in
the establishment of one or more sub-trusts; such co-trustees or
sub-trustees upon being appointed shall act with such one or more
than one or all of the powers, authorities, discretion, duties and
functions of the Trustee under this Section 5 as shall be
designated in the instrument establishing such sub-trust including
without limitation by the reference thereto power to receive and
hold property, real or personal, or part interest therein, oil,
mineral or gas properties, royalty interests or rights, including
equipment pertaining thereto, leaseholds, mortgages and other
interests in realty, situated in any State in which the co-trustee
or sub-trustee is authorized to act as trustee of pension trusts,
profit sharing trusts or other employee benefit trusts; and to pay
the reasonable expenses and compensation of such co-trustee or sub-
trustee;
(n) to grant options for the sale of any property
held by it;
(o) to do all acts which the Trustee may deem
necessary or proper and to exercise any and all powers of the
Trustee under this Agreement under such terms and conditions as it
may deem to be for the best interests of the Trust;
(p) to invest all or any of the funds received by it
in one or more common trust or collective investment funds
maintained by the Trustee or any affiliate of the Trustee within
the meaning of Section 1504 of the Internal Revenue Code of 1986,
as amended (the "Code"), provided any collective investment fund is
limited to investment by tax qualified retirement plans. The
trustee of any such fund must acknowledge in its governing
instrument that it is a fiduciary to any plan whose assets are
invested therein; and
(q) to invest all or any portion of the Trust Fund in
interests in open-end investment management companies, including
those for which the Trustee or any affiliate of the Trustee
receives compensation for providing investment advisory, custodial,
transfer agency or other services, the Company acknowledging and
understanding that the services provided and the fees charged
therefore are set forth in the prospectuses for such registered
investment companies, and that such prospectuses have been
received, reviewed and approved by the Company prior to investment
in such shares, and hereby acknowledging that such shares are not
bank deposits and are not insured by, guaranteed by, obligation of,
or otherwise supported by the United States of America, the Federal
Deposit Insurance Corporation, PNC Bank, or any bank.
SECTION 6. The expenses incurred in administering the Plans
shall be paid out of the assets of the Trust as the Investment and
Administrative Committees shall determine appropriate. The
expenses incurred by the Trustee in the performance of its duties,
including fees for legal services rendered to the Trustee, such
compensation to the Trustee as may be agreed upon in writing from
time to time between the Trustee and an officer of the Company, and
all other proper charges and disbursements of the Trustee shall be
paid out of the assets of the Trust, but if not so paid, then by
the Company. Brokerage fees, transfer taxes and other expenses
incident to the purchase or sale of securities by the Trustee shall
be deemed to be a part of the cost of such securities, or deducted
in computing the proceeds therefrom as the case may be.
SECTION 7. The Trustee shall discharge its duties and powers
with respect to the Plan and the Trust solely in the interest of
the participants in the Plans 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. Notwithstanding
the foregoing, the Trustee shall be fully protected in acting in
accordance with written certifications, orders, requests and
instructions of the Administrative Committee or Investment
Committee signed by the Secretary of such Committee or of the
Company's Board of Directors when signed by the Secretary of the
Company.
SECTION 8. The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other
transactions hereunder; and all accounts, books and records
relating thereto shall be open to inspection and audit at all
reasonable times by any person designated by either the Investment
or Administrative Committees. Within ninety days following the
close of each Plan Year, as defined in the Plans, and within ninety
days after the removal or resignation of the Trustee as provided in
Section 10 hereof, the Trustee shall file with the Investment and
Administrative Committees a written account setting forth all
investments, receipts, disbursements and other transactions
effected during such Plan Year or during the period from the close
of the last Plan Year to the date of such removal or resignation.
The Trustee shall also furnish such other reports and information
concerning the trust to either the Administrative or Investment
Committees as either such Committee may from time to time in
writing request.
SECTION 9. All certifications, orders, requests, instructions
and objections of the Administrative Committee or the Investment
Committee to the Trustee shall be in writing signed by the
Secretary of such Committee, or by such other person or persons as
may be designated from time to time by such Committee and the
Trustee shall act and shall be fully protected in acting in
accordance with such certifications, orders, requests, and
instructions. The Secretary or an Assistant Secretary of the
Company shall furnish the Trustee from time to time with certified
copies of extracts from the minutes of its Board of Directors
evidencing the appointment and termination of office of any members
of the Administrative or Investment Committees and the appointment
of successors thereto, and with certified copies of resolutions of
such Committees evidencing the appointment and termination of
office of a Secretary and the appointment of successors thereto.
Any action by the Company may be evidenced by a resolution of
its Board of Directors certified to the Trustee over the signature
of its Secretary or Assistant Secretary and the Trustee shall be
fully protected in acting in accordance with such resolution so
certified to it.
SECTION 10. The Trustee may be removed by the Company at any
time upon thirty days' notice in writing to the Trustee. The
Trustee may resign at any time upon sixty days' notice in writing
to the Company. Upon such removal or resignation of the Trustee
the Company shall appoint and designate a successor trustee who
shall have the same powers and duties under the Agreement 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 to such successor trustee the funds and
properties then constituting the Trust or the portion thereof held
by it pursuant to this Agreement.
SECTION 11. The Company shall have authority to direct that
there shall be more than one trustee under this Agreement and to
designate such additional trustee or trustees. In the event that
there shall be two or more trustees acting hereunder, the Company
may but shall not be required to direct that a portion of the Trust
shall be held by each of said trustees. If such a direction is
given, each trustee shall individually invest and keep invested the
portion of the Trust held by or from time to time paid over to it,
all upon the conditions set forth in this Agreement, and each
trustee shall be subject to the same duties and responsibilities
and shall have the same powers and rights with respect to the
investment of the portion of the Trust held by it as a single
trustee would have with respect to the entire Trust, and each
trustee shall have no duties or responsibilities and shall have no
powers or rights with respect to the investment of the portion of
the trust held not by it but by another such trustee. When the
context so requires, the term "Trustee" shall include any such
additional trustee or trustees.
SECTION 12. Except insofar as applicable law may otherwise
require, no right or interest of any participating employee shall
be assignable or transferable as a whole or in part either directly
or by operation of law or otherwise including, but not by way of
limitation, execution, levy garnishment, attachment, pledge,
bankruptcy or in any other manner, but excluding, however,
devolution by death or mental incompetency. Except insofar as
applicable law may otherwise require, no right or interest of any
participating employee shall be liable for or subject to any
obligation or liability of such participating employee.
SECTION 13. The Company reserves the right at any time and
from time to time to modify or 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 that no modification or
amendment which affects the rights, duties or responsibilities of
the Trustee shall be made without its consent and provided further
that no modification or 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 (i) for the exclusive benefit of
the participating employees or their beneficiaries and (ii) for the
payment of Plan administrative expenses. In the event of
termination of the Trust created by this Agreement, all cash,
securities and other property then constituting the Trust, less any
amounts constituting charges and expenses payable from the Trust
pursuant to the provisions of the Plans, shall be paid over or
delivered by the Trustee to or on order of the Administrative
Committee, subject to the provisions of the Employee Retirement
Income Security Act of 1974, as amended. If the Plans are amended,
the Company shall promptly furnish to the Trustee a copy of the
amendment, duly certified by its Secretary or an Assistant
Secretary, and references herein to the Plans shall thereafter mean
the Plans as so amended.
SECTION 14. Any subsidiary of the Company which has been
authorized by the Board of Directors of the Company to participate
in the Plans with respect to its employees may hereafter become a
party to this Agreement by delivering to the Trustee a certified
Board of Directors resolution evidencing its acceptance and
adoption of the provisions of this Agreement and the Plans on
behalf of such subsidiary. No consent of any subsidiary of the
Company shall be necessary to the inclusion of any other
subsidiary.
In the event that any division, department or subsidiary of
the Company elects to withdraw from the Plans or to terminate the
Plans as therein provided with respect to its employees and so
notified the Trustee, the Trustee shall upon receipt of (a)
certification by the Administrative Committee setting forth the
share of the assets of the trust allocable to the covered
employees, retired employees and their beneficiaries of such
division, department or subsidiary and (b) certified copies of the
resolutions of the board of Directors of the Company approving the
withdrawal or termination of such division, department or
subsidiary and approving the instructions of the Administrative
Committee with regard to the segregation of the assets of the
Trust, segregate such assets and, on receipt of written directions
of the Administrative Committee make disposition thereof in
accordance with Section 13 hereof or hold such segregated assets in
a separate trust governed by the same provisions as this Agreement,
except that the Board of Directors of a withdrawing subsidiary
company shall thereafter have all the powers and duties theretofore
held by the Board of Directors of the Company.
SECTION 15. Any corporation into which a Trustee hereunder
may merge or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which such Trustee
may be a party, or any corporation to which all or substantially
all the trust business of such Trustee may be transferred, shall be
the successor of such trust hereunder, without the execution or
filing of any instrument, or the performance of any further act.
SECTION 16. The Trustee accepts the trust created hereunder
and agrees to be bound by the terms of this Agreement.
SECTION 17. This Agreement and the Trust created hereby shall
be construed, regulated and administered under the laws of the
State of Ohio, except as such laws are superseded by the Employee
Retirement Income Security Act of 1974, as amended, and the Trustee
shall be liable to account only in the State of Ohio. The Trustee
may at any time initiate an action or proceeding for the settlement
of its accounts or for the determination of any question of
construction which may arise or for instructions, and the only
necessary defendant to such action or proceeding shall be the
Company and the Administrative Committee, except that such Trustee
may, if it so elects, bring in as parties defendant any other
person or persons.
SECTION 18. The Trust created by this Agreement shall
constitute both (i) an individual trust for the Thrift/Profit
Sharing Plan and the Paul Koss Plan, respectively, as separate
plans and (ii) a group trust described in Revenue Ruling 81-100 so
as to accommodate the commingled investment of the assets of the
Plans as separate plans of the Trust Fund. This Agreement and each
separate trust through which a Plan is funded shall individually
qualify as a tax-exempt trust under Section 501(a) of the Code
which participates in such group trust. In compliance with Revenue
Ruling 81-100, the group trust herein shall meet the following
requirements: (a) the group trust is hereby adopted as a part of
each Plan; (b) the participation in the group trust is expressly
limited to the Plans which are pension trusts exempt under Section
501(a) of the Code by qualifying under Section 401(a) of the Code;
(c) no part of the corpus or income which equitably belongs to any
Plan's trust shall be used for or diverted to any purposes other
than for the exclusive benefit for the individuals or employees,
respectively, or their beneficiaries who are entitled to benefits
under such Plan's trust; (d) no assignment shall be made by a
participating Plan's trust of any part of its equity or interest in
the group trust; and (e) the group trust is expressly created and
organized in the United States and shall at all times be maintained
as domestic trust in the United States.
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 as of the day and year first above written.
NATIONAL SANITARY SUPPLY COMPANY
[Corporate Seal]
Attest:
/s/ Naomi C. Dallob /s/ Gary H. Sander
______________________________ By:___________________________
Naomi Dallob Gary H. Sander
PNC BANK, OHIO, N.A.
[Corporate Seal]
Attest:
/s/ Rebecca Bomkamp /s/ Rebecca A. Thornton
______________________________ By:____________________________
Rebecca Bomkamp Rebecca A. Thornton
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
On this 28th day of September, 1994 before me personally came
Gary H. Sander, to me known, who, being by me duly sworn, said that
he resides at [notary address]; that he is Vice President, Chief
Financial Officer and Treasurer of National Sanitary Supply
Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of the said
corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of the said corporation, and that he signed his name
thereto by like authority.
/s/ Joyce A. Lawrence
______________________________
Joyce A. Lawrence
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
On this 28th day of September, 1994 before me personally came
Rebecca A. Thornton, to me known, who, being by me duly sworn, said
that she resides at [notary address]; that she is Vice President of
PNC Bank, Ohio, N.A, one of the corporations described in and which
executed the foregoing instrument; that she knows the seal of the
said corporation; that the seal affixed to the said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of the said corporation, and that she signed her
name thereto by like authority.
/s/ Mary S. Dowers
______________________________
Mary S. Dowers