TRUST AGREEMENT
UNDER THE
UNUM EMPLOYEES RETIREMENT SAVINGS PLAN AND TRUST
AND THE
DUNCANSON & HOLT, INC. EMPLOYEE PROFIT PARTICIPATION
AND SAVINGS PLAN
AS AMENDED AND RESTATED EFFECTIVE OCTOBER 1, 1995
TRUST AGREEMENT
UNDER THE
UNUM EMPLOYEES RETIREMENT SAVINGS PLAN AND TRUST
AND THE
DUNCANSON & HOLT, INC. EMPLOYEE PROFIT PARTICIPATION
AND SAVINGS PLAN
This Trust Agreement is made this ____ day of _________,
1995, but effective October 1, 1995, by and between UNUM
CORPORATION, a corporation organized and existing under the
laws of the State of Maine (hereinafter the "Company");
DUNCANSON & HOLT, INC., a corporation organized and existing
under the laws of the State of New York and a wholly-owned
subsidiary of the Company (hereinafter "Duncanson & Holt");
STATE STREET BANK AND TRUST COMPANY, a trust company
organized under the laws of the Commonwealth of
Massachusetts; KEVIN P. WALKER, of Bergen County in the State
of New Jersey; THOMAS G. BROWN, of Collier County in the
State of Florida; STEVEN BONVILLE, of Cumberland County in
the State of Maine; MICHAEL COWELL, of Cumberland County in
the State of Maine; MARGARET DOWNING, of Cumberland County in
the State of Maine; EILEEN FARRAR, of Cumberland County in
the State of Maine; RUTH GREENE, of Cumberland County in the
State of Maine; LINDA GUYDEN, of Bergen County in the State
of New Jersey; and EDWARD HILLMAN, of Westchester County in
the State of New York (hereinafter collectively the
"Trustees").
W I T N E S S E T H :
WHEREAS, the Company established, effective January 1,
1984, and maintains the UNUM Employees Retirement Savings
Plan and Trust for the exclusive benefit of certain of its
employees; and Duncanson & Holt established, effective
January 1, 1976, and maintains the Duncanson & Holt, Inc.
Employee Profit Participation and Savings Plan for the
exclusive benefit of certain of its employees (hereinafter
collectively the "Plans");
WHEREAS, in accordance with the provisions of their
respective Plans, the Company and Duncanson & Holt have
established trusts to serve as the funding vehicles for such
Plans;
WHEREAS, the Company has appointed State Street Bank and
Trust Company to serve as successor Trustee to Steven
Bonville, Michael Cowell, Margaret Downing, Eileen Farrar,
Ruth Greene, Linda Guyden and Edward Hillman with respect to
the property held in trust under the UNUM Employees
Retirement Savings Plan and Trust that is invested in the
UNUM stock fund and the fixed income fund, effective October
1, 1995; and to serve as custodian with respect to the
property held in trust under the Plan that is not invested in
the UNUM stock fund or the fixed income fund, for which
Steven Bonville, Michael Cowell, Margaret Downing, Eileen
Farrar, Ruth Greene, Linda Guyden and Edward Hillman serve as
Trustee, effective October 1, 1995;
WHEREAS, Duncanson & Holt has appointed State Street
Bank and Trust Company to serve as successor Trustee to Kevin
P. Walker and Thomas G. Brown with respect to the property
held in trust under the Duncanson & Holt, Inc. Employee
Profit Participation and Savings Plan that is invested in the
fixed income fund, effective October 1, 1995; to serve as
Trustee with respect to the property held in trust under the
Plan invested in the UNUM stock fund, effective December 4,
1995; and to serve as custodian with respect to the property
held in trust under the Plan that is not invested in the UNUM
stock fund or the fixed income fund, for which Kevin P.
Walker and Thomas G. Brown serve as Trustee, effective
October 1, 1995;
WHEREAS, UNUM, Duncanson & Holt, and State Street Bank &
Trust Company entered into a Master Trust Agreement for the
Plans to reflect the appointment of State Street Bank and
Trust Company as a trustee of each Plan, effective October 1,
1995;
WHEREAS, Section 14.1 of each of the Plans provides that
the Plan may be amended from time to time by the Board of
Directors of the Company or the Board of Directors of
Duncanson & Holt, as the case may be;
WHEREAS, UNUM, Duncanson & Holt, and the Trustees wish
to amend and restate the trust provisions appearing in the
respective Plan documents and the Master Trust Agreement in
their entirety; and
WHEREAS, the Trustees are willing to act as Trustees of
the Trust pursuant to the provisions of this amended and
restated Trust Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, when used herein, shall have the
meanings as hereinafter set forth, unless the context clearly
indicates otherwise:
1.1 "Administrator" means, in the case of the UNUM
Plan, the Benefits Committee appointed by the Board of
Directors and, in the case of the Duncanson & Holt Plan, the
Plan Administrator appointed by Duncanson & Holt, Inc..
1.2 "Beneficiary" means the person or persons
entitled to receive benefits payable under a Plan following
the death of a Participant.
1.3 "Board of Directors" means the Board of
Directors of UNUM Corporation or any person or persons to
whom the Board of Directors delegates all or a part of its
authority under this Trust Agreement.
1.4 "Code" means the Internal Revenue Code of 1986,
as from time to time amended.
1.5 "Company" means UNUM Corporation or any
corporation with or into which it may be merged or
consolidated and, with respect to the Duncanson & Holt Plan,
Duncanson & Holt, Inc..
1.6 "Company Stock Fund" means the Investment Fund
established by the Institutional Trustee in accordance with
Section 5.2.
1.7 "Duncanson & Holt Plan" means the Duncanson &
Holt, Inc. Employee Profit Participation and Savings Plan, as
from time to time amended.
1.8 "Employer" means UNUM Corporation, Duncanson &
Holt, Inc. or any other corporation or business organization
that has adopted a Plan with the consent of a Company, if the
Company and such other corporation or business organization
are members of a controlled group of corporations; trades or
businesses (whether or not incorporated) under common
control; or members of an affiliated service group, within
the meaning of Sections 414(b), (c), and (m) of the Code,
respectively.
1.9 "ERISA" means the Employee Retirement Income
Security Act of 1974, as it may from time to time be amended.
1.10 "Fixed Income Fund" means a fixed income
Investment Fund established by the Institutional Trustee in
accordance with Section 5.1.
1.11 "Individual Trustee" means a Trustee of a Plan
who is a natural person.
1.12 "Institutional Trustee" means State Street Bank
& Trust Company as trustee of the portion of the Trust Fund
that is invested in the Company Stock Fund or the Fixed
Income Fund.
1.13 "Investment Fund" means an investment fund
described in Section 5.1.
1.14 "Investment Manager" means any fiduciary (other
than a Trustee acting in such capacity or a named fiduciary
as defined in Section 402(a)(2) of ERISA):
(a) who is appointed by the Board of Directors
to manage, acquire, or dispose of all or any portion of the
Trust Fund;
(b) who is (i) registered as an investment
adviser under the Investment Advisers Act of 1940; (ii) a
bank, as defined in said Act; or (iii) an insurance company
qualified to manage, acquire, or dispose of all or any
portion of the Trust Fund under the laws of more than one
state; and
(c) who has acknowledged, in writing, that it
is a fiduciary with respect to the Plans and Trust.
1.15 "Participant" means an individual who is a
participant in a Plan, including any former employee of an
Employer who has an account balance under a Plan.
1.16 "Plan" means the UNUM Plan or the Duncanson &
Holt Plan, and "Plans" means the UNUM Plan or the Duncanson &
Holt Plan, as each may be from time to time amended.
1.17 "Recordkeeper" means any person or persons,
corporation, or business organization that is appointed by
the Company to perform recordkeeping and other administrative
services with respect to a Plan and the accounts of the
Participants and Beneficiaries thereunder. If State Street
Bank and Trust Company is not the Recordkeeper (pursuant to a
separate written agreement with the Company), then the
Company shall give prompt written notice of the appointment
of the Recordkeeper to the Trustee.
1.18 "Trust" means this Trust Agreement under the
UNUM Employees Retirement Savings Plan and Trust and the
Duncanson & Holt, Inc. Employee Profit Participation and
Savings Plan, as from time to time amended.
1.19 "Trust Fund" means the assets held by the
Trustee in trust pursuant to the provisions of this Trust
Agreement.
1.20 "Trustee" means:
(a) State Street Bank and Trust Company in its
role as Institutional Trustee and in its role as custodian of
the portion of the Trust Fund that is not invested in the
Company Stock Fund or the Fixed Income Fund;
(b) With respect to the portion of the Trust
Fund that is attributable to the UNUM Plan and which is not
invested in the Company Stock Fund or the Fixed Income Fund,
Steven Bonville, Michael Cowell, Margaret Downing, Eileen
Farrar, Ruth Greene, Linda Guyden, and Edward Hillman; and
(c) With respect to the portion of the Trust
Fund that is attributable to the Duncanson & Holt Plan and
which is not invested in the Company Stock Fund or the Fixed
Income Fund, Kevin P. Walker and Thomas G. Brown.
1.21 "UNUM Plan" means the UNUM Employees Retirement
Savings Plan and Trust, as from time to time amended.
ARTICLE II
CREATION OF TRUST
2.1 ACCEPTANCE OF TRUSTEE. The Trustee hereby
accepts the Trust established hereunder and agrees to perform
the respective duties of the Trustee set forth herein.
2.2 EFFECTIVE DATE. This Trust Agreement is an
amendment and restatement of the original trust provisions of
the Plans, initially effective January 1, 1984, in the case
of the UNUM Plan, and initially effective January 1, 1976, in
the case of the Duncanson & Holt Plan, and as thereafter
amended and restated from time to time, and of the Master
Trust Agreement effective October 1, 1995. The effective
date of this amendment and restatement is October 1, 1995.
ARTICLE III
TRUSTEE PROVISIONS
3.1 ALLOCATION OF TRUSTEE RESPONSIBILITIES. The
Institutional Trustee and the Individual Trustees, and each
of them, shall be required to meet the fiduciary
responsibilities described in Article VI and by applicable
law to the extent such requirements and responsibilities
apply to them, provided each Trustee shall be responsible for
carrying out only the requirements, responsibilities and
duties placed upon such Trustee by this Trust Agreement.
(a) The Institutional Trustee shall serve as
sole Trustee with respect to those assets of the Trust
comprising the Company Stock Fund and the Fixed Income Fund.
(b) Steven Bonville, Michael Cowell, Margaret
Downing, Eileen Farrar, Ruth Greene, Linda Guyden and Edward
Hillman shall serve as Trustee with respect to the property
held in trust under the UNUM Plan that is not invested in the
Company Stock Fund or the Fixed Income Fund, provided that
the Institutional Trustee shall serve solely as custodian
with respect to such assets.
(c) Kevin P. Walker and Thomas G. Brown shall
serve as Trustee with respect to the property held in trust
under the Duncanson & Holt Plan that is not invested in the
Company Stock Fund or the Fixed Income Fund, provided that
the Institutional Trustee shall serve solely as custodian
with respect to such assets.
3.2 GENERAL POWERS AND DUTIES. Except as otherwise
provided in this Agreement, the Trustees shall have, in
addition to the other powers and duties conferred upon them
elsewhere in this Agreement, the following general powers and
duties, provided that the Institutional Trustee shall
exercise such powers and duties subject to the direction of
the fiduciary having full investment responsibility with
respect to any portion of the assets of the Trust Fund,
except with respect to assets of the Trust Fund for which the
Institutional Trustee serves as Investment Manager pursuant
to Section 4.2.
(a) To invest and reinvest the Trust Fund,
without distinction between principal and income, in stocks,
bonds or other securities, mortgages, notes, mutual fund
shares, certificates of deposit, deposit administration,
investment or group annuity contracts issued by a legal
reserve life insurance company, qualifying employer
securities as defined in Section 407(d)(4) of ERISA, or other
property of any kind, real or personal, including any common,
commingled or collective trust fund or pooled investment fund
maintained by the Institutional Trustee or any Investment
Manager which provides for the pooling of assets of plans
which are described in Section 401(a) of the Code and exempt
from taxation under Section 501(a) of the Code.
(b) To maintain one or more checking accounts
in the name of the Trust at a bank designated by the Trustee
as a depository of the Trust and to make deposits thereto and
to designate one or more individuals who shall have the right
to draw checks thereon to make distributions or loans
directed by the Administrator.
(c) To establish one or more Investment Funds,
to monitor the performance of each Investment Fund, and to
change or eliminate any such Investment Fund as the Company
may from time to time direct in accordance with Article V.
(d) To transfer assets invested in an
Investment Fund to one or more other Investment Funds as from
time to time directed by the Administrator.
(e) To invest the assets of an Investment Fund,
when directed by the Company, in a deposit administration,
investment or group annuity contract issued by a legal
reserve life insurance company pursuant to an agreement
between the Trustee, as contractholder, and such insurance
company.
(f) To invest the assets of an Investment Fund,
when directed by the Company, in mutual fund shares or in
such other investments as the Company may specify.
(g) To establish one or more separate interest-
bearing accounts and to segregate such amount or amounts
therein as the Administrator may direct pending the
determination of whether a domestic relations order with
respect to a Participant is a qualified domestic relations
order within the meaning of Section 414(p)(1)(A) of the Code.
(h) To sell, exchange, mortgage, lease and to
make contracts concerning real and personal property for such
considerations and upon such terms and conditions as the
Trustee may determine, which leases and contracts may extend
beyond the terms of the Trust and to execute deeds,
transfers, mortgages, releases, assignments, and discharges
of mortgages, leases and other instruments of any kind.
(i) To settle, compromise, arbitrate or contest
any claim by or against the Trust, or any other matter
directly or indirectly affecting the Trust, provided the
Trustee need not, except at its option, enter into or
maintain any litigation relative thereto until the Trustee
shall have been indemnified to its satisfaction against all
expenses and liabilities to which it may in its judgment be
subject by any such action.
(j) Subject to Section 3.6, to exercise all
voting rights, tender or exchange rights, any conversion
privileges, subscription rights and other rights and powers
available in connection with any securities or other property
at anytime held by the Trustee; to oppose or to consent to
the reorganization, consolidation, merger, or readjustment of
the finances of any corporation, company or association, or
to the sale, mortgage, pledge or lease of the property of any
corporation, company or association, any of the securities of
which may at any time be held by it and to do any act with
reference thereto, including the exercise of options, the
making of agreements or subscriptions and the payment of
expenses, assessments or subscriptions, which may be deemed
necessary or advisable by an Investment Manager or the
Company, in the case of the Institutional Trustee, or by the
Individual Trustees in connection therewith, and to hold and
retain any securities or other property which it may so
acquire; and to deposit any property with any protective,
reorganization or similar committee, and to pay and agree to
pay part of the expenses and compensation of any such
committee and any assessments levied with respect to property
so deposited.
(k) To perform any and all other acts which are
necessary for the proper administration and investment of the
Trust Fund.
Notwithstanding any other provisions of this Trust,
Trust assets may be invested in any collective investment
fund or funds, including common and group trust funds
presently in existence or hereafter established which are
maintained by a bank or trust company supervised by a state
or federal agency, notwithstanding that the bank or trust
company is a Trustee, Investment Manager, or is otherwise a
party-in-interest to one of the Plans. The assets so
invested shall be subject to all the provisions of the
instruments establishing such funds as they may be amended
from time to time. Such instruments establishing group
trusts exempt from taxation under Section 501 of the Code (by
qualifying under Section 401 of the Code), as they may be
amended from time to time, are hereby incorporated and made a
part of this Trust as if fully set forth herein. The
combining of money and other assets of this Trust with money
and other assets of other trusts and accounts in such fund or
funds is specifically authorized.
If the Trustee is directed by the Administrator or an
Investment Manager or other fiduciary having full investment
responsibilities with respect to a portion of the assets of
the Trust Fund to purchase securities issued by any foreign
government or agency thereof, or by any corporation or other
entity domiciled outside of the United States, it shall be
the responsibility of the Administrator or such fiduciary, as
the case may be, to advise the Trustee in writing with
respect to any laws or regulations of any foreign countries
or any United States territory or possession which shall
apply in any manner whatsoever to such securities, including,
without limitation, receipt by the Trustee of dividends,
interest or other distributions on such securities.
3.3 NOTICES AND EXERCISE OF RIGHTS. The Trustee
shall transmit promptly to the Administrator or the
Investment Manager or other fiduciary having full investment
responsibilities for a portion of the assets of the Trust
Fund, as the case may be, all notices of conversion,
redemption, tender, exchange, subscription, class action,
claim in insolvency proceedings or other rights or powers
relating to any of such assets, which notices are received by
the Trustee from its agents or custodians, from issuers of
the affected securities and from the party (or its agents)
extending such rights. The Trustee shall have no obligation
to determine the existence of any conversion, redemption,
tender, exchange, subscription, class action, claim in
insolvency proceedings or other right or power relating to
any of the securities in the Trust Fund of which notice was
given prior to the purchase of such securities by the Trust
Fund, and shall have no obligation to exercise any such right
or power unless the Trustee is informed of the existence of
the right or power.
The Trustee shall not be liable for any untimely
exercise or assertion of such rights or powers described in
the foregoing paragraph in connection with securities or
other property of the Trust Fund at any time held by it
unless (a) it or its agents or custodians are in actual
possession of such securities or property; (b) it receives
directions to exercise any such rights or powers from the
Administrator or the Investment Manager, as the case may be;
and (c) both (a) and (b) occur at least one business day
(three business days, in the case of foreign securities)
prior to the date on which such rights or powers are to be
exercised.
All shares of a registered investment company, the
prospectus of which offers its shares under a Plan
("Investment Company Shares"), shall be registered in the
name of the Trustee or its nominee. Subject to any
requirement of applicable law, the Trustee shall transmit to
the Administrator or Recordkeeper, as the case may be, copies
of any notices of shareholders' meetings, proxies and proxy-
soliciting materials, prospectuses and the annual or other
reports to shareholders, with respect to Investment Company
Shares held in the Trust Fund. The Trustee shall act in
accordance with appropriate instructions received from the
Administrator or Recordkeeper, as the case may be, with
respect to matters to be voted upon by shareholders of the
investment company, by such written, telephonic or electronic
means and within such time period as may be prescribed by the
Trustee. If no such instructions are received within the
prescribed time period with respect to any Investment Company
Shares, the Trustee shall not vote such shares.
3.4 ADMINISTRATIVE POWERS. Notwithstanding any
other provision of this Agreement to the contrary, the
Trustee shall have and shall exercise, in its sole
discretion, the following powers and duties with respect to
the Trust Fund:
(a) To employ suitable agents, custodians and
counsel and to pay their reasonable expenses and
compensation.
(b) To appoint ancillary trustees to hold any
portion of the assets of the trust and to pay their
reasonable expenses and compensation.
(c) To register any securities held by it
hereunder in its own name or in the name of a nominee with or
without the addition of words indicating that such securities
are held in a fiduciary capacity and to hold any securities
in bearer form and to deposit any securities or other
property in a depository or clearing corporation.
(d) To make, execute and deliver, as Trustee,
any and all deeds, leases, mortgages, conveyances, waivers,
releases or other instruments in writing necessary or
desirable for the accomplishment of any of the foregoing
powers.
(e) Generally to do all ministerial acts,
whether or not expressly authorized, which the Trustee may
deem necessary or desirable in carrying out its duties under
this Trust Agreement.
The Trustee may consult with legal counsel (who may but
need not be counsel for the Company) concerning any question
which may arise with respect to its rights and duties under
this Trust Agreement. The written opinion of such counsel
will, to the extent permitted by law, be full and complete
protection in respect of any action taken or omitted by the
Trustee hereunder in good faith and in accordance with said
opinion.
3.5 DISBURSEMENTS. The Trustee shall, from time to
time, make or cause distributions, Participant loans, or
other disbursements to be made out of the Trust Fund to such
persons, in such manner and in such amount or amounts, in
cash or in kind or partly in each, as the Administrator or
Recordkeeper, as the case may be, may from time to time
direct. The Administrator or Recordkeeper, as the case may
be, shall be responsible to ensure that any such direction
conforms to the applicable provisions of the Plans, this
Trust Agreement, and ERISA. The Trustee shall be entitled to
rely upon the written directions of the Administrator or
Recordkeeper and shall not be under any liability for any
distribution, Participant loan, or other disbursement made in
accordance therewith.
3.6 COMPANY SECURITIES. In the event of a Tender
Offer for any equity or debt securities issued by the Company
("Company Securities"), and except to the extent that ERISA
shall otherwise require, unless otherwise provided in an
investment manager agreement, the Trustee shall exercise no
discretion to tender, sell or exchange any such securities
that are allocated to a Participant's or Beneficiary's
account, but instead (i) shall follow the instructions of
such person as to whether Company Securities allocated to his
or her account shall be tendered, sold or exchanged pursuant
to the Tender Offer (and shall follow any further
instructions of such person concerning any related elections
to be made) or (ii) if no such instructions are received
within the prescribed time period, shall not tender, sell or
exchange any Company Securities allocated to his or her
account.
Except to the extent that ERISA shall otherwise require,
and unless otherwise provided in an investment manager
agreement, with respect to any matter duly submitted for
action to the holders of any class or series of Company
Securities the Trustee shall exercise no voting discretion
with respect to Company Securities that are allocated to a
Participant's or Beneficiary's account, but instead (i) shall
follow the instructions of such person as to how Company
Securities allocated to his or her account shall be voted or
(ii) if no such instructions are received within the
prescribed time period, shall vote the Company Securities
allocated to such person's account in the same proportion as
it will vote Company Securities for which it has received
timely instructions.
Except to the extent that ERISA shall otherwise require,
and unless otherwise provided in an investment manager
agreement, with respect to any other rights similar to tender
or voting rights, the Trustee shall exercise no discretion
with respect to Company Securities that are allocated to a
Participant's or Beneficiary's account, but instead (i) shall
follow the instructions of such person as to the exercise of
such rights or (ii) if no such instructions are received
within the prescribed time period, shall not exercise any
such rights with respect to Company Securities allocated to
such person's account.
The Administrator or Recordkeeper shall furnish the
Trustee with the name of each affected Participant or
Beneficiary and with the number of shares of Company
Securities allocated to such Participant's or Beneficiary's
Account as close in time as practicable to the record date
fixed for the determination of shareholders entitled to
tender or vote and shall provide such other information and
assistance as the Trustee shall reasonably request. The
Trustee shall act in accordance with appropriate instructions
received from the Administrator or Recordkeeper, as the case
may be, pursuant to the provisions of this Section, by such
written, telephonic or electronic means and within such time
period as may be prescribed by the Trustee (or an independent
fiduciary, in the case of a matter determined by the
Administrator to involve the potential for undue employer
influence).
With respect to any unallocated Company Securities,
except to the extent ERISA shall otherwise require and unless
otherwise provided in an investment manager agreement, the
Trustee shall vote such Company Securities in the same
proportion as Company Securities allocated to Participant's
or Beneficiary's accounts for which it has received timely
voting instructions and shall not tender, sell or exchange
any unallocated Company Securities (or make any related
elections) in the event of a Tender Offer for any Company
Securities, nor exercise other rights similar to voting or
tender rights.
The Administrator shall establish procedures designed to
safeguard the confidentiality of information relating to the
purchase, holding and sale of Company Securities, and the
exercise of voting, tender and similar rights with respect
thereto, by Participants and Beneficiaries. The
Administrator shall be responsible for ensuring that such
procedures meet the requirements of ERISA Reg. Section
2550.404c-1(d)(2). In the event the Administrator determines
that a particular situation involves a potential for undue
employer influence upon Participants and Beneficiaries within
the meaning of ERISA Reg. Section 2550.404c-1(d)(2), the
Administrator shall promptly appoint an independent fiduciary
to perform the role of the Administrator to carry out
activities with respect to such situation. Such independent
fiduciary shall not be a person affiliated with an Employer
within the meaning of ERISA Reg. Section 2550.404c-1(e)(3).
Except as the Administrator shall otherwise determine, a
Tender Offer shall be deemed to involve a potential for undue
employer influence upon Participants or Beneficiaries.
As used in this Section, "Tender Offer" means (a) a
tender offer, or a request or invitation for tenders, which
is subject to Section 14(d)(1) of the Securities Exchange Act
of 1934, as amended, or (b) an issuer tender offer which is
the subject of an issuer tender offer statement pursuant to
Rule 13e-4 of the United States Securities and Exchange
Commission (or any successor regulation).
3.7 RECORDS AND ACCOUNTS. The Trustee shall
maintain or cause to be maintained suitable records, data and
information relating to its functions hereunder. The Trustee
shall keep accurate and detailed accounts of all investments,
receipts, disbursements, and other actions hereunder, and
such other records as the Administrator may from time to time
direct, as agreed to by the Trustee. The books and records
of the Trustee relating thereto shall be open to inspection
and audit at all reasonable times by the Administrator or its
duly authorized representatives and each Investment Manager.
All transfers to, withdrawals from, and other
transactions regarding the Trust Fund shall be conducted in
such a way that the proportionate interest in the Trust Fund
of each Plan and the fair market value of that interest may
be determined at any time. Whenever the assets of more than
one Plan are commingled in the Trust Fund or in any
Investment Fund, the undivided interest therein of that Plan
shall be debited or credited (as the case may be) (i) for the
entire amount of every contribution received on behalf of
that Plan, every benefit payment, or other expense
attributable solely to that Plan, and every other transaction
relating only to that Plan; and (ii) for its proportionate
share of every item of collected or accrued income, gain or
loss, and general expense; and other transactions
attributable to the Trust Fund or that Investment Fund as a
whole. As of each date when the fair market value of the
investments held in the Trust Fund or an Investment Fund are
determined as provided for in the preceding paragraph, the
Trustee shall adjust the value of each Plan's interest
therein to reflect the net increase or decrease in such
values since the last such date.
The Trustee shall determine the fair market value of
assets of the Trust Fund based upon valuations provided by
Investment Managers, information and financial publications
of general circulation, statistical and valuation services,
records of security exchanges, appraisals by qualified
persons, transactions and bona fide offers in assets of the
type in question and other information customarily used in
the valuation of property.
Within sixty (60) days after the close of each fiscal
year of the Trust and at more frequent intervals if agreed to
by the parties hereto, and within sixty (60) days after the
removal or resignation of the Trustee in accordance with this
Agreement, the Trustee shall render to the Company a written
statement and account showing in reasonable summary the
investments, receipts, disbursements, and other transactions
engaged in during the preceding fiscal year or period, and
setting forth the assets, at cost and current fair market
value, and liabilities of the Trust. Accounts maintained by
the Administrator or Recordkeeper, if any, may be
incorporated into Trustee reports. Unless the Company shall
have filed with the Trustee written exceptions or objections
to any such statement and account within one hundred twenty
(120) days after receipt thereof, the Company shall be deemed
to have approved such statement and account. In such case or
upon written approval by the Company of any such statement
and account, the approval by the Company shall be final and
binding as to all matters stated therein, upon the Company,
the Employers, and all persons who then are or thereafter
become interested in the Trust.
The Company or its delegate, each Investment Manager,
and the Trustee shall file such descriptions and reports and
make such other publications, disclosures, registrations and
other filings as are required of them respectively by ERISA.
Nothing contained in this Trust Agreement or in the
Plans shall deprive the Trustee of the right to have a
judicial settlement of its account. In any proceeding for a
judicial settlement of the Trustee's accounts or for
instructions in connection with the Trust, the only necessary
party thereto in addition to the Trustee shall be the
Company, and no Participant, Beneficiary, or other person
having or claiming any interest in the Trust Fund shall be
entitled to any notice or service of process (except as
required by law). Any judgment, decision or award entered in
any such proceeding or action shall be conclusive upon all
interested persons.
3.8 COMPENSATION AND EXPENSES. The Trustee shall be
entitled to such reasonable compensation for services
rendered as may from time to time be agreed upon, in writing,
by the Board of Directors and to reimbursement of expenses
properly and actually incurred in the performance of their
respective duties hereunder, provided that no person serving
as Trustee who already receives compensation from an Employer
or related employer for services rendered as an employee
shall receive remuneration for services hereunder except for
reimbursement of expenses properly and actually incurred and
not otherwise reimbursed. The portion of Trustee
compensation and expenses properly attributable to an
Investment Fund shall be paid therefrom unless paid by the
Company.
3.9 RELIANCE BY TRUSTEE. To the extent permitted by
law --
(a) the Trustee may rely and act upon the
written directions of the Board of Directors, the
Administrator or Recordkeeper, or any duly appointed
Investment Manager, or other person authorized in writing by
the Board of Directors or the Administrator and may rely upon
and be protected in acting upon such directions reasonably
believed by it to have been executed by a duly authorized
person, so long as the Trustee acts in good faith and in
accordance with the provisions of this Trust Agreement in
taking or failing to take any such action;
(b) the Trustee may rely and act upon the
instructions of any Participant, Beneficiary, or the
Administrator or Recordkeeper, made in accordance with
Section 3.6, and may rely upon and be protected in acting
upon such instructions reasonably believed by it to have been
made by such person, so long as the Trustee acts in good
faith and in accordance with the provisions of this Trust
Agreement, in taking or failing to take any such action;
(c) the Trustee need not inquire into the
source of any money or property transferred to the Trust Fund
nor into the authority or right of the transferor of such
money or property to transfer such money or property to the
Trustee; and
(d) the Trustee shall not be under any duty to
require payment of any contributions to the Trust Fund, or to
see that any payment made to it is computed in accordance
with the provisions of the Plans, or otherwise be responsible
for the adequacy of the Trust Fund to meet and discharge any
liabilities under the Plans.
3.10 RELIANCE BY OTHERS. No person dealing with the
Trustee shall be bound to see to the application of any money
or property paid or delivered to the Trustee or to inquire
into the validity or propriety of any transactions, except as
otherwise required by law.
3.11 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) INSTITUTIONAL TRUSTEE. If a Trustee is a
bank, trust company or other institution, the Trustee may
resign at any time by delivering to the Board of Directors a
written notice of resignation, to take effect at a date
specified therein, which shall not be less than sixty (60)
days after the delivery thereof, unless such notice shall be
waived by the Board of Directors. If the Trustee resigns,
the Board of Directors shall appoint a successor Trustee in a
written instrument, copies of which shall be delivered to the
Trustee and the successor Trustee. The Trustee may be
removed by the Board of Directors by delivering to the
Trustee a written notice of removal to take effect at a date
specified therein, which shall not be less than thirty (30)
days after delivery thereof, unless such notice shall be
waived by the Trustee. In the event of such removal, the
Board of Directors shall appoint a successor Trustee in a
written instrument, copies of which shall be delivered to the
Trustee and the successor Trustee.
In the case of the resignation or removal of the
Trustee, the Trustee shall transfer all right, title and
interest in the assets of the Trust Fund to the successor
Trustee. Any successor Trustee shall have the same powers
and duties hereunder as those conferred upon the initial
Trustee.
(b) INDIVIDUAL TRUSTEE. If a committee of
individuals is appointed to serve as Trustee, any such
individual may resign at any time by delivering to the Board
of Directors a written notice of resignation, to take effect
at a date specified therein, which shall not be less than
thirty (30) days after delivery thereof, unless such notice
shall be waived by the Board of Directors. If such
individual resigns, the Board of Directors may appoint an
individual to serve as successor Trustee. In the event the
Board of Directors fails to appoint an individual to serve as
successor Trustee, the remaining individuals serving as
Trustee shall constitute the Trustee. The Board of Directors
shall appoint a successor Trustee upon the resignation of the
last individual serving as Trustee.
An individual appointed to serve as Trustee may be
removed by the Board of Directors by delivering to such
individual a written notice of removal to take effect at a
date specified therein, unless such notice shall be waived by
such individual. In the event of such removal, the Board of
Directors may appoint an individual to serve as successor
Trustee. In the event the Board of Directors fails to
appoint an individual to serve as successor Trustee, the
remaining individuals serving as Trustee shall constitute the
Trustee. The Board of Directors shall appoint a successor
Trustee upon the removal of the last individual serving as
Trustee.
In the case of the resignation or removal of an
individual appointed to serve as Trustee, such individual, to
the extent necessary, shall transfer all right, title and
interest in the assets of the Trust Fund to the individual
appointed to serve as successor Trustee. Any individual
appointed to serve as successor Trustee shall have the same
powers and duties hereunder as those conferred upon the
initial individual serving as Trustee.
As used in this Section 3.11(b), in the case of an
Individual Trustee serving as a Trustee of the Duncanson &
Holt Plan, each reference to the Board of Directors shall be
deemed to be a reference to the Board of Directors of
Duncanson & Holt, Inc..
3.12 MANNER OF ACTION FOR INDIVIDUAL TRUSTEES. The
Individual Trustees shall act by a majority of the
individuals so serving voting at a meeting or signing written
consents without holding a meeting. Any individual serving
as Trustee may participate in a Trustee meeting by means of a
conference telephone or similar communications device by
which all persons participating in the meeting can hear each
other.
3.13 DELEGATION. The Trustee may delegate to any
other person or persons, severally or jointly, the authority
to perform any ministerial act in connection with the
administration of the Plans.
3.14 SIGNATURES FOR INDIVIDUAL TRUSTEES. A majority
of the Individual Trustees or any one individual so serving
who is authorized by all of the individuals so serving shall
have the authority to execute all instruments, reports or
other documents necessary or appropriate to carry out the
action and decisions of the Individual Trustees. Any such
document may be executed by facsimile signature. The
Institutional Trustee, any Investment Manager or any other
interested party may rely upon any document, report or other
instrument so executed as evidence of action of or a decision
by the Individual Trustees.
3.15 INDEMNIFICATION. To the extent permitted by
applicable law, and, in the case of the Individual Trustees,
the bylaws of the Company, the Company agrees to indemnify
and save harmless the Trustee against all liability or
expense (including reasonable attorneys' fees) arising (a)
out of any matter as to which this Trust Agreement provides
that the Trustee is directed, protected, not liable, or not
responsible; or (b) by reason of any breach of any statutory
duty owed to the Plans by the Company, any Employer, the
Individual Trustees (in the case of the Institutional
Trustee) or the Institutional Trustee (in the case of the
Individual Trustees), the Administrator or Recordkeeper, any
Investment Manager, or any delegate of any of them (and for
the purposes of this sentence the Trustee shall not be
considered to be such a delegate), provided, however, that
the Trustee shall not be indemnified for any liability or
expense (including reasonable attorneys' fees) arising from
such Trustee's negligence or bad faith in performing or
failing to perform its duties under this Trust Agreement or
from breach of any statutory duty owed to the Plans by such
Trustee under applicable law.
ARTICLE IV
INVESTMENT MANAGERS
4.1 APPOINTMENT. The Board of Directors may from
time to time appoint one or more Investment Managers to
direct the investment of the assets of the Trust or such
portion thereof as may be designated by the Board of
Directors. Such appointment shall be in writing and shall be
effective only upon receipt by the Board of Directors of the
written acceptance of the Investment Manager and
acknowledgement, in writing, by the Investment Manager that
the Investment Manager is a fiduciary with respect to the
Plans and Trust. The Board of Directors shall give prompt
written notice of such appointment to the Trustee. The
Trustee shall be fully protected in relying upon the
effectiveness of such appointment until such time as it
receives written notice from the Board of Directors to the
contrary.
4.2 TRUSTEE AS AN INVESTMENT MANAGER. The
Institutional Trustee shall have no duty or responsibility to
direct the investment and reinvestment of the Trust Fund, or
any portion thereof, unless such investment responsibilities
are expressly agreed to in writing between the Board of
Directors and the Institutional Trustee in accordance with
the provisions of this Article. In the event that the Board
of Directors and the Institutional Trustee enter into such an
agreement, the Institutional Trustee shall have the powers
and duties of an Investment Manager under this Trust
Agreement with respect to the portion of the assets of the
Trust Fund designated therein.
4.3 INVESTMENT DIRECTIONS. The Trustee shall, as
promptly as possible, comply with the directions of an
Investment Manager regarding the investment or reinvestment
of Trust assets which are under the investment direction of
such Investment Manager. Directions of an Investment Manager
may be verbal unless written direction or confirmation is
required by the Trustee. The Trustee may conclusively
presume that an Investment Manager is entitled to act, in
directing the investment and reinvestment of Trust assets for
which it is responsible, in its sole and independent
discretion and without limitation, except for any limitations
with respect to which the Board of Directors provides written
notice to the Trustee. The Trustee shall have no liability
(a) for the acts or omissions of any Investment Manager; (b)
for complying with the investment directions of the fiduciary
having full investment responsibility with respect to any
portion of the assets of the Trust Fund; (c) for failing to
act in the absence of Investment Manager direction; or (d)
for any loss that may result by reason of the manner of
division of the Trust Fund by the Company for purposes of
investment.
The Trustee may request an Investment Manager to certify
the value of any securities or other property held in the
portion of the Trust Fund under the investment direction of
such Investment Manager, and such certification shall be
regarded as a direction with regard to such valuation. The
Trustee shall be entitled to conclusively rely upon such
valuation for all purposes under this Trust Agreement.
If the fiduciary having full investment responsibility
with respect to a portion of the assets of the Trust Fund
shall issue orders for the purchase or sale of securities
directly to a broker, unless otherwise directed by such
fiduciary, written notification of the issuance of each such
order (or confirmation thereof) shall be authority for the
Institutional Trustee to pay for securities purchased or to
deliver securities sold, as the case may be. Upon the
direction of such fiduciary, the Institutional Trustee shall
execute and deliver appropriate trading authorizations,
provided that no such authorization shall be deemed to
increase the liability or responsibility of the Trustee under
this Trust Agreement.
4.4 RESIGNATION AND REVOCATION OF APPOINTMENT. An
Investment Manager may resign at any time upon thirty (30)
days' written notice to the Board of Directors and the Board
of Directors may remove an Investment Manager at any time
upon thirty (30) days' written notice to the Investment
Manager, provided the Board of Directors and the Investment
Manager may by written instrument waive such notice. In the
event an Investment Manager resigns or is removed, the
Trustee shall, unless a successor Investment Manager is
appointed, invest such assets in accordance with the
direction of the Company.
ARTICLE V
INVESTMENT OF FUNDS
5.1 ESTABLISHMENT OF INVESTMENT FUNDS. The
Institutional Trustee shall establish a Company Stock Fund
(as described in Section 5.2) and the Trustees shall
establish one or more other Investment Funds as the Company
may from time to time direct. The Company shall direct that
each Investment Fund, other than the Company Stock Fund,
shall be invested:
(a) at the discretion of the Individual
Trustees in accordance with such investment guidelines and
objectives as may be established by the Company for such
Investment Fund; or
(b) at the discretion of a duly appointed
Investment Manager in accordance with such investment
guidelines and objectives as may be established by the
Company; or
(c) in such investments as the Company may
specify for such Investment Fund.
The Company may from time to time change its direction
with respect to any Investment Fund and may, at any time,
eliminate any Investment Fund. Whenever an Investment Fund
is eliminated, the Trustee shall promptly liquidate the
assets of such Investment Fund and reinvest the proceeds
thereof in accordance with the direction of the Company.
The Trustee shall transfer to each Investment Fund such
portion of the assets of the Trust as the Administrator may
from time to time direct in accordance with the terms of the
Plans. All interest, dividends and other income received
with respect to, and any proceeds realized from the sale or
other disposition of, assets held in any Investment Fund
shall be credited to and reinvested in such Investment Fund,
and all expenses properly attributable to any Investment Fund
shall be paid therefrom unless paid by the Company.
5.2 COMPANY STOCK FUND. The Trustee shall establish
a Company Stock Fund which shall be invested primarily in
shares of common stock of UNUM Corporation and any other
qualifying employer security within the meaning of Section
407(d)(5) of ERISA. The Trustee shall, as soon as
practicable, apply amounts allocated to the Company Stock
Fund to purchase Company stock on the open market or in
private transactions, from the Company or otherwise, at
current market value. Pending investment in Company stock,
the Trustee shall invest amounts allocated to and dividends
or other amounts received by the Company Stock Fund in short-
term cash equivalents including, but not limited to, short-
term debt obligations issued or guaranteed by the United
States government, money market funds and savings accounts.
Notwithstanding the provisions of this Section 5.2 to
the contrary, the Trustee shall be under no duty or
obligation to invest any assets of the Trust in shares of
common stock of the Company unless the Company shall
determine that (a) such shares constitute "qualifying
employer securities" within the meaning of Section 407 of
ERISA and (b) such investment is not prohibited by Section
404, 406 or 407 of ERISA.
ARTICLE VI
FIDUCIARY RESPONSIBILITY
6.1 ALLOCATION OF FIDUCIARY RESPONSIBILITIES. All
fiduciaries with respect to the Trust shall be required to
meet the prudence, diversification and other fiduciary
responsibilities of applicable law to the extent such
requirements and responsibilities apply to them, provided
each fiduciary shall be responsible for carrying out only the
requirements, responsibilities and duties placed upon such
fiduciary by this Trust Agreement. In particular, except as
otherwise provided by law:
(a) An Investment Manager shall have full
investment responsibility with respect to the assets of the
Trust for which it has the power of investment direction.
The other fiduciaries, including but not limited to the
Trustee, shall have no duty or responsibility with respect to
the investment of such assets as long as they are subject to
the investment direction of such Investment Manager.
(b) Steven Bonville, Michael Cowell, Margaret
Downing, Eileen Farrar, Ruth Greene, Linda Guyden and Edward
Hillman shall serve as Trustee with respect to the property
held in trust under the UNUM Plan that is not invested in the
Company Stock Fund or the Fixed Income Fund, provided that
the Institutional Trustee shall serve solely as custodian
with respect to such assets. The Individual Trustees shall
have full investment responsibility with respect to such
assets of the Trust that are not invested in the Company
Stock Fund or the Fixed Income Fund, are not invested
pursuant to the direction of the Board of Directors, and are
not subject to the investment direction of an Investment
Manager. Other fiduciaries, including, but not limited to,
the Institutional Trustee, shall have no duty or
responsibility with respect to the investment of such assets.
(c) Kevin P. Walker and Thomas G. Brown shall
serve as Trustee with respect to the property held in trust
under the Duncanson & Holt Plan that is not invested in the
Company Stock Fund or the Fixed Income Fund, provided that
the Institutional Trustee shall serve solely as custodian
with respect to such assets. The Individual Trustees shall
have full investment responsibility with respect to such
assets of the Trust that are not invested in the Company
Stock Fund or the Fixed Income Fund, are not invested
pursuant to the direction of the Board of Directors, and are
not subject to the investment direction of an Investment
Manager. Other fiduciaries, including, but not limited to,
the Institutional Trustee, shall have no duty or
responsibility with respect to the investment of such assets.
(d) The Institutional Trustee shall serve as
sole Trustee with respect to those assets of the Trust
comprising the Company Stock Fund and the Fixed Income Fund.
The Institutional Trustee shall have no duty or
responsibility with respect to the investment of such assets
unless such investment responsibilities are expressly agreed
to in writing between the Board of Directors and the
Institutional Trustee in accordance with the provisions of
Article IV for the appointment of Investment Managers. The
Board of Directors shall have full investment
responsibilities with respect to the investment of such
assets that are not subject to the direction of an Investment
Manager (including the Institutional Trustee, if appointed in
accordance with the preceding sentence). Other fiduciaries,
including, but not limited to, the Individual Trustees, shall
have no duty or responsibility with respect to the investment
of such assets.
(e) The Individual Trustees shall have no duty
or responsibility with respect to investment of assets of the
Trust so long as they are invested at the direction of the
Board of Directors or a duly appointed Investment Manager,
and the Institutional Trustee shall have no duty or
responsibility with respect to the investment of assets of
the Trust except as provided in subsection (d).
(f) The Administrator shall have no duty or
responsibility with respect to the investment of the assets
of the Trust.
(g) The fiduciaries, including, but not limited
to, the Trustee, the Employers, the Administrator, and any
Investment Manager shall have no responsibility for the
investment elections made by Participants or Beneficiaries,
or for the exercise of voting, tender or similar rights by
Participants or Beneficiaries.
A fiduciary with respect to the Plans and Trust may
employ or retain others to advise or perform services within
respect to its responsibilities hereunder, including but not
limited to actuaries, attorneys, accountants, investment
advisers, administrators and consultants; provided, however,
that no person other than a fiduciary shall carry out
fiduciary responsibilities.
6.2 FIDUCIARY RESPONSIBILITY. Each fiduciary shall
exercise the powers granted to it and discharge the duties
placed upon it by this Trust Agreement solely in the interest
of the Participants and their Beneficiaries and:
(a) for the exclusive purposes of (i) providing
benefits to the Participants and their Beneficiaries, and
(ii) defraying reasonable expenses of administering the Plans
and Trust;
(b) with the care, skill, prudence and
diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of like
character and with like aims; and
(c) with respect to any assets of the Trust
Fund subject to its investment direction, by diversifying the
investments of the Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent
not to do so.
6.3 PROHIBITED TRANSACTIONS. The Individual
Trustees, the Institutional Trustee, the Company, any
Employer, and any Investment Manager shall not, with respect
to the Trust, engage in a transaction which it knows or
should know is prohibited by Section 406 or 407(a) of ERISA
or by Section 4975 of the Code, unless an appropriate
exemption or exemptions have been granted by the Department
of Labor under Section 408 of ERISA and the Department of the
Treasury under Section 4975(c)(2) of the Code.
ARTICLE VII
DELEGATION OF AUTHORITY BY EMPLOYERS
Each Employer other than the Company shall automatically
be or become upon adoption of a Plan a party to this
Agreement. Each such Employer irrevocably grants to the
Company exclusive authority to exercise all the powers
conferred upon it by the terms of this Agreement, including
the power to amend or to terminate this Agreement, and hereby
irrevocably appoints the Company as its agent for all such
purposes.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 AMENDMENT. This Trust Agreement may be amended
from time to time by the Board of Directors, provided (i) the
duties and liabilities of the Trustee shall not be increased
without its written consent and (ii) no amendment shall,
except as permitted by law, authorize or permit any portion
of the Trust Fund to be used for or diverted to purposes
other than for the exclusive benefit of the Participants and
their Beneficiaries. Each amendment shall be effective with
respect to and binding upon each Employer without further
action by such Employer.
8.2 TERMINATION. With the consent of UNUM
Corporation, this Trust Agreement may be terminated at any
time by an Employer (by resolution of its Board of Directors
or the person or persons to whom such Board delegates its
authority) with respect to its Participants and their
Beneficiaries. Upon termination, the Trustee shall, if
directed by the Administrator, liquidate all or any
designated portion of the Trust Fund and, after approval of
the Trustee's final account, distribute the Trust Fund as
directed by the Administrator in accordance with the
provisions of the applicable Plan.
ARTICLE IX
MISCELLANEOUS
9.1 NONALIENABILITY OF BENEFICIAL INTERESTS. Except
as expressly provided in the Plans, the beneficial interests
of Participants and their Beneficiaries shall not be subject
to alienation, assignment, garnishment, attachment, execution
or levy of any kind, and any attempt to cause a beneficial
interest to be so subjected shall not be recognized.
9.2 RESTRICTION AS TO REVERSION OF TRUST ASSETS.
Except as hereinafter provided and permitted by law, in no
event shall any part of the Trust Fund be used for, or
diverted to, purposes other than for the exclusive benefit of
the Participants and their Beneficiaries.
(a) If the Internal Revenue Service initially
determines that a Plan does not meet the requirements of
Section 401(a) of the Code, the assets of the Trust
attributable to contributions made to that Plan and any
earnings thereon shall be returned to the contributing
Employers within one (l) year of the denial of qualification.
(b) Contributions by each Employer are
conditioned upon the initial qualification of the applicable
Plan under Section 401(a) of the Code, and upon deductibility
under Section 404 of the Code. Upon the request of the
Company, any contributions attributable to an Employer (i)
which are made by reason of a mistake of fact, (ii) which are
conditioned upon the initial qualification of the applicable
Plan, or (iii) for which a deduction is disallowed shall be
returned to such Employer within one (l) year of the mistaken
payment of the contribution, denial of qualification or
disallowance of the deduction. In the event of a denial of
qualification, the amount contributed for the period during
which a Plan was not qualified may be returned. In the event
of a mistake of fact or a disallowance of deduction, the
amount which may be returned to such Employer is the excess
of the amount contributed over the amount which would have
been contributed had there not occurred a mistake of fact or
a mistake in determining the deduction. Earnings
attributable to any excess contribution shall not be
returned, but losses attributable thereto shall reduce the
amount which may be returned.
9.3 INVESTMENT GUIDELINES AND OBJECTIVES. The
Company may from time to time establish investment guidelines
and objectives which shall be communicated, in writing, to
the Trustee and each Investment Manager appointed in
accordance with Section 4.1. The Trustee and each such
Investment Manager shall invest and reinvest the portion of
the Trust Fund over which it has investment authority
consistent with such guidelines and objectives.
9.4 COMPUTERIZED REPORTING SERVICES.
(a) The Company agrees to use the equipment,
computer programs and other information supplied by the
Institutional Trustee under this Agreement solely for its own
internal use and benefit and not for resale or other transfer
or disposition to, or use by or for the benefit of, any other
person or organization other than an Employer without the
prior written approval of the Trustee.
The Company acknowledges that the data bases, computer
programs, screen formats, screen designs, report formats,
interactive design techniques, and other information
furnished to the Company by the Institutional Trustee
constitute copyrighted trade secrets or proprietary
information of substantial value to the Institutional
Trustee. Such data bases, programs and other information are
collectively referred to below as "Proprietary Information".
The Company agrees that it shall treat all Proprietary
Information as proprietary to the Institutional Trustee and
that it shall not divulge any Proprietary Information to any
person or organization except as expressly permitted
hereunder. Without limiting the foregoing, the Company
agrees for itself and its employees and agents:
(b) to use such programs and data bases (i)
solely on the Institutional Trustee's approved computers,
(ii) solely from equipment at Company or Employer locations
agreed to between the Company and the Institutional Trustee
and (iii) solely in accordance with the Institutional
Trustee's applicable user's documentation;
(c) to use equipment supplied or approved by
the Institutional Trustee solely with programs supplied by
the Institutional Trustee and no other programs or software;
(d) to refrain from copying or duplicating in
any way (other than in the normal course of performing
processing on the Institutional Trustee's computers) any part
of any Proprietary Information;
(e) to refrain from obtaining unauthorized
access to any programs, data or other information not owned
by the Company, and if such access is accidentally obtained,
to respect and safeguard the same as Proprietary Information;
(f) to refrain from causing or allowing
information transmitted from the Institutional Trustee's
computer to the Company's or an Employer's terminals to be
retransmitted to another computer, terminal or other device;
(g) that the Company or any Employer shall have
access to only those authorized transactions as agreed to
between the Company and the Institutional Trustee;
(h) to honor reasonable written requests made
by the Institutional Trustee to protect at the Institutional
Trustee's expense the rights of the Institutional Trustee in
Proprietary Information at common law, under the federal
copyright statutes and under other federal and state
statutes.
(i) The Company hereby acknowledges that the
data and information it will be accessing from Institutional
Trustee is unaudited and may not be accurate due to
inaccurate pricing of securities, delays of a day or more in
updating the Account and other causes for which Trustee will
not be liable to the Company.
9.5 SECURITY CODES. If the Institutional Trustee
has issued to the Company, or to any Investment Manager
appointed by the Company, security codes or passwords in
order that the Institutional Trustee may verify that certain
transmissions of information, including directions or
instructions, have been originated by the Company or the
Investment Manager, as the case may be, the Institutional
Trustee shall be kept indemnified by and be without liability
to the Company for any action taken or omitted by it in
reliance upon receipt by the Institutional Trustee of
transmissions of information with the proper security code or
password, including communications purporting to be
directions or instructions, which the Institutional Trustee
reasonably believes to be from the Company or Investment
Manager.
9.6 FISCAL YEAR OF TRUST. The fiscal year of the
Trust shall be the twelve (12) month period ending each
December 31.
9.7 BINDING ON SUCCESSORS. This Agreement shall be
binding upon the Company, each Employer, each Trustee, and
their respective successors and assigns.
9.8 GENDER AND NUMBER. When the context requires,
words in any gender shall include the masculine, feminine and
neuter gender. The plural shall include the singular and the
singular shall include the plural.
9.9 GOVERNING LAW. The Trust shall be governed and
construed in accordance with the laws of the United States of
America and to the extent such laws shall not be held to have
preempted local law, by the laws of the Commonwealth of
Massachusetts.
9.10 ARTICLE AND SECTION HEADINGS. The article and
section headings are only intended for convenience of
reference and shall not be considered in the construction of
the Trust.
IN WITNESS WHEREOF, UNUM Corporation, Duncanson & Holt,
Inc. and the Trustee have caused this Agreement to be
executed as of the day and year first above written.
Witness: UNUM CORPORATION
______________________________ By____________________________
Its
DUNCANSON & HOLT, INC.
______________________________ By____________________________
Its
STATE STREET BANK AND TRUST
COMPANY
______________________________ By:___________________________
Its Vice President,
Trustee
______________________________ ______________________________
Kevin P. Walker, Trustee under
the Duncanson & Holt, Inc.
Employee Profit Participation
and Savings Plan
______________________________ ______________________________
Thomas G. Brown, Trustee under
the Duncanson & Holt, Inc.
Employee Profit Participation
and Savings Plan
______________________________ ______________________________
Steven Bonville, Trustee under
the UNUM Employees Retirement
Savings Plan and Trust
______________________________ ______________________________
Michael Cowell, Trustee under
the UNUM Employees Retirement
Savings Plan and Trust
______________________________ ______________________________
Margaret Downing, Trustee
under the UNUM Employees
Retirement Savings Plan and
Trust
______________________________ ______________________________
Eileen Farrar, Trustee under
the UNUM Employees Retirement
Savings Plan and Trust
______________________________ ______________________________
Ruth Greene, Trustee under the
UNUM Employees Retirement
Savings Plan and Trust
______________________________ ______________________________
Linda Guyden, Trustee under
the UNUM Employees Retirement
Savings Plan and Trust
______________________________ ______________________________
Edward Hillman, Trustee under
the UNUM Employees Retirement
Savings Plan and Trust