EKHIBIT 10.6(a)
TRUST AGREEMENT
BETWEEN
T. ROWE PRICE TRUST COMPANY AND
DENTSPLY INTERNATIONAL INC.
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TRUST AGREEMENT
BETWEEN
T. ROWE PRICE TRUST COMPANY AND
DENTSPLY INTERNATIONAL INC.
This TRUST AGREEMENT ("Agreement") is made by and
between DENTSPLY INTERNATIONAL INC., a corporation
("Employer"), and T. ROWE PRICE TRUST COMPANY, a Maryland
limited purpose trust company ("Trustee").
WITNESSETH
WHEREAS, the Employer sponsors and maintains the
DENTSPLY EMPLOYEE STOCK OWNERSHIP PLAN ("Plan"), a defined
contribution plan for the benefit of all eligible
employees who participate under the terms of the Plan,
including their beneficiaries and alternate payees
(individually, "Participant" and, collectively,
"Participants"); and
WHEREAS, the Employer intends that the Plan qualify
as a leveraged employee stock ownership plan under Section
4975(e)(7) of the Internal Revenue Code of 1986, as
amended (the "Code"), and that the Plan meet the
requirements of Section 4975(d)(3) of the Code; and
WHEREAS, the Employer intends that the Plan and
related trust shall qualify under Sections 401(a) and
501(a) of the Code; and
WHEREAS, the Employer desires to establish a trust to
serve as the funding vehicle for the Plan as provided
under the terms of the Plan;
NOW, THEREFORE, the Employer and the Trustee agree as
follows:
ARTICLE I. THE TRUST FUND
1.1 Establishment of Trust Fund. The Employer hereby
establishes with the Trustee a trust fund consisting of
such sums of U. S. currency and such other property
acceptable to the Trustee as shall from time to time be
paid to the Trustee pursuant to this Agreement. All such
money and property, together with all investments and
reinvestments made therewith and proceeds thereof, less
any payments or distributions made by the Trustee pursuant
to the terms of this Agreement, are referred to as the
"Trust Fund". The Trustee hereby accepts the Trust Fund
and agrees to hold it in accordance with the express
provisions of this instrument and the requirements of law.
1.2 Effective Date. This Agreement shall be effective as
of November 1, 2000.
1.3 Named Fiduciary. The Employer and a Committee of the
Employer are the named fiduciaries of the Plan ("Named
Fiduciary") within the meaning of Section 402(a)(2) of the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). The Named Fiduciary shall have the
power and duties with respect to the management and
control of the
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Trust Fund as set forth in the Plan and in this
Agreement. The term "Named Fiduciary," as used throughout
this Agreement, is deemed to refer to the Named Fiduciary
of the Plan, as set forth in this Section 1.3 and its duly
authorized representatives. The Trustee shall not be a
Named Fiduciary of the Plan.
1.4 Nature of Trustee's Duties. In performing its duties
hereunder, the Trustee shall serve solely in the capacity
of a directed trustee within the meaning of Section
403(a)(1) of ERISA. The Trustee shall not be deemed to be
the "administrator" as defined in ERISA Section 3(16)(A),
the "plan sponsor" as defined in ERISA Section 3(16)(B),
or a trustee with discretion to perform more than the
express ministerial duties pursuant to the terms of this
Agreement.
1.5 Limitation of Trustee's Duties. The Trustee shall
have no duty to: (a) determine or enforce payment of any
contribution due under the Plan; (b) inquire whether any
contribution made to the Trust Fund is in accordance with
the terms of the Plan or law; (c) determine the adequacy
of the funding policy adopted by the Employer or the Named
Fiduciary; (d) inquire as to the propriety of any
investment or distribution made under the Plan; or (e)
ensure the tax qualified status of the Plan under the Code.
ARTICLE II. INVESTMENT OF THE TRUST FUND
2.1 Investment of the Trust Fund - In General. The Named
Fiduciary shall be solely responsible for directing the
Trustee as to the investment and deposition of the Trust
Fund and shall have responsibility for the overall
diversification of the Trust Fund. The Trustee shall
invest and reinvest the Trust Fund only as directed and
the Trustee is specifically prohibited from having or
exercising any discretion with respect to the investment
of the Trust Fund.
2.2 Investment Powers of the Trustee. Subject to the
limitations of Section 2.1, the Trustee shall invest and
reinvest the Trust Fund as directed, free from any
limitations imposed by state law on investments of trust
funds and without distinction between income and
principal, in any investment approved by the Named
Fiduciary, including equity or debt securities, insurance
policies and contracts, savings and time deposits,
investment contracts issued by a bank, insurance company
or other financial or similar institution, short-term
instruments of deposit, registered investment companies
(including any investment company, the advisor of which is
an affiliate of the Trustee), investment partnerships or
other pooled investments funds, common, collective or
group trust funds (including any such fund held or
maintained by the Trustee or an affiliate of the Trustee)
for commingling assets of participating trusts, including
but not limited to assets of retirement plans which are
qualified under Section 401(a) of the Code (the instrument
of trust creating any such qualified common, collective or
group trust fund, to the extent of the Trust Fund's
equitable share thereof, being adopted hereby).
Notwithstanding the above, the assets of the Plan shall be
invested primarily in shares of the common stock of the
Employer ("Stock"), which shall be qualifying employer
securities ("Qualifying Employer Securities"), as such
term is defined in Section 4975(e)(8) of the Code. The
Trustee shall have the power to hold all or a portion of
the Trust Fund uninvested pending receipt of clear and
proper investment directions or pending receipt of a
contribution amount which is necessary to carry out an
investment direction.
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2.3 Investment Funds. At the direction of the Named
Fiduciary, the Trustee shall establish one or more
separate investment funds within the Trust Fund, each
separate fund being referred to as an "Investment Fund."
Investment Funds shall be established by direct investment
or through the medium of a bank, trust fund, insurance
contract or regulated investment company, as the Named
Fiduciary shall direct. Each Investment Fund shall be
held and administered as part of the Trust Fund, but shall
be separately invested and accounted for. To the extent
authorized by the Plan and conditioned on the Trustee's
acceptance of such property pursuant to Section 1.1
hereof, the Named Fiduciary may direct the Trustee to
establish one or more Investment Funds all or a portion of
the assets of which shall be invested in Qualifying
Employer Securities. Any such direction shall be deemed
to include a certification by the Named Fiduciary that the
acquisition and holding of such Qualifying Employer
Securities does not constitute a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
The Employer shall be solely responsible for complying
with any securities laws that may apply to Qualifying
Employer Securities held in the Trust Fund.
2.4 Participant Instructions. The Named Fiduciary's
investment direction to the Trustee may represent the
aggregate of investment instructions of Participants with
respect to the assets in each Participant's Plan account.
All references in this Agreement to directions or
instructions provided by the Named Fiduciary shall be
deemed to include Participant instructions that are
provided to the Named Fiduciary or its agent and delivered
by the Named Fiduciary or its agent to the Trustee. The
Named Fiduciary shall have the duty to select and monitor
all Investment Funds or other investment media made
available to Participants under the Plan. The Named
Fiduciary or its agent shall ensure that all Participants
who are entitled to direct the investment of assets in
their Plan accounts previously received or receive a copy
of all material describing such Investment Funds that is
required by law. If a Participant fails to direct the
investment of assets in the Participant's Plan accounts as
permitted by the Plan, the Named Fiduciary shall direct
the Trustee as to the investment of such assets.
2.5 Appointment of Investment Manager. The Named
Fiduciary may appoint one or more investment managers, as
defined in Section 3(38) of ERISA ("Investment Manager")
to manage, acquire and dispose of all or a portion of the
Trust Fund or an Investment Fund. The Named Fiduciary
shall provide the Trustee with written notice of the
appointment of each Investment Manager and of the
termination of such appointment and direct the segregation
of that portion of the Trust Fund to be managed by the
Investment Manager. The Named Fiduciary also shall
provide the Trustee with a copy of the investment
management agreement and an acknowledgement by the
Investment Manager that it is a fiduciary with respect to
the Plan within the meaning of Section 3(21)(A) of ERISA.
The Trustee shall be entitled to rely on such documents
until otherwise notified in writing by the Named
Fiduciary. The Trustee shall invest and reinvest such
portion of the Trust Fund under the management of the
Investment Manager as directed by the Investment Manager.
The Trustee shall be entitled to conclusively rely upon
the valuation of any securities or other property held in
any portion of the Trust Fund that is provided to it by
such Investment Manager for all purposes under this
Agreement.
2.6 Plan Loans. At the direction of the Named Fiduciary,
the Trustee shall invest assets of the Trust Fund in loans
to Participants. Any such direction shall be deemed to
include a certification by the Named Fiduciary that such
loan is in accordance with provisions of the Plan and
ERISA
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and does not constitute a "prohibited transaction" under
ERISA. The Trustee shall accept as collateral for each
Participant loan only the appropriate amount of the
Participant's Plan account designated by the Plan document
or established policies. The Trustee shall invest all
loan repayments in accordance with the directions of the
Named Fiduciary and shall make distributions of defaulted
loans as directed by the Named Fiduciary.
2.7 Investment and Insurance Contracts. In the event
that insurance policies or contracts or investment
contracts issued by a bank, insurance company or other
financial or similar institution (including structured or
synthetic investment contracts) are held in the Trust Fund
at the direction of the Named Fiduciary or an Investment
Manager ("Contracts"), the Trustee shall not be liable for
the refusal or inability of any insurance company, bank or
other financial institution to issue, change, pay proceeds
or make payments due under any Contract; for the form,
terms, genuineness, validity or sufficiency of any
Contract; or for any delay in payment or proceeds due
under any Contract. The Trustee shall not be responsible
for the valuation of any Contract and the Trustee shall be
entitled to conclusively rely upon such valuation provided
by the issuer of the Contract for all purposes under this
Agreement. The Trustee shall not be responsible for
evaluating or monitoring the financial condition or status
of any financial institution or insurance company issuing
any such Contract which the Named Fiduciary or an
Investment Manager directs the Trustee to hold or to
purchase with the Trust Fund.
2.8 Trustee's Duty and Responsibility with Respect to the
Trust Fund. The Trustee shall have no duty to question
any action or direction of the Employer, the Named
Fiduciary, an Investment Manager or a Participant
(pursuant to the provisions of Section 5.3) or the failure
of the Employer, the Named Fiduciary, an Investment
Manager or a Participant to give directions, or to review
the securities or other investments which are held
pursuant to directions of the Employer, the Named
Fiduciary, an Investment Manager or a Participant as to
the investment, reinvestment, retention or disposition of
any such assets. The Trustee shall not have any
responsibility for diversification of such assets, for any
loss to or depreciation of such assets resulting from the
purchase, retention or sale of assets in accordance with
the direction of the Employer, the Named Fiduciary, an
Investment Manager or a Participant. The Trustee shall
not be responsible for any investment action taken or
omitted by the Trustee in accordance with any direction of
the Employer, the Named Fiduciary, an Investment Manager
or Participant; any investment inaction in the absence of
an investment direction from the Employer, the Named
Fiduciary, an Investment Manager or Participant; or any
investment action taken by the Trustee pursuant to an
order to purchase or sell securities placed by the
Employer, the Named Fiduciary, an Investment Manager or
Participant directly with a broker, dealer or issuer.
2.9 Leveraged Acquisitions of Stock. It is specifically
contemplated that the Trust Fund will operate pursuant to
a leveraged employee stock ownership plan and that the
Trustee will, solely at the direction of the Named
Fiduciary, incur indebtedness for the purpose of acquiring
Stock. Following the original leveraged acquisition of
Stock, the Named Fiduciary may from time to time direct
the Trustee to incur such indebtedness (including
indebtedness to the Employer) on behalf of the Trust Fund
(an "ESOP Loan") on such terms and conditions as the Named
Fiduciary shall determine. Any such ESOP Loan shall meet
all of the requirements necessary to constitute an "exempt
loan" within the meaning of Treasury Regulation Section
54.4975-7(b)(1)(iii) and shall be used primarily for the
benefit of the Participants. The proceeds of any
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such ESOP Loan shall be used, within a reasonable time
after the ESOP Loan is obtained, only to purchase Stock or
to repay such ESOP Loan or a prior ESOP Loan. Any such
ESOP Loan shall provide for no more than a reasonable rate
of interest and must be without recourse against the Plan
and Trust Fund. The number of years to maturity under the
ESOP Loan must be definitely ascertainable at all times.
The ESOP Loan may not be payable at the demand of any
person, except in the case of a default. The only assets
of the Trust Fund that may be given as collateral for an
ESOP Loan are shares of Stock acquired with the proceeds
of the ESOP Loan and shares of Stock that were used as
collateral on prior ESOP Loans repaid with the proceeds of
the current ESOP Loan. In the event that Stock is used as
collateral for an ESOP Loan, such Stock shall be released
from such encumbrance at an annual rate which is geared to
the total repayment (principal plus interest) of the ESOP
Loan or the rate of principal repayment of the ESOP Loan,
provided that in either case all applicable requirements
of the applicable regulations shall be satisfied. No
person entitled to payment under an ESOP Loan shall be
entitled to payment from the Trust Fund other than from
shares of Stock acquired with the proceeds of the ESOP
Loan that are collateral for the ESOP Loan, Employer
contributions made under the Plan for the purpose of
satisfying the ESOP Loan obligation, earnings attributable
to such Stock and such Employer contributions, and such
other assets, if any, as to which recourse may be
permitted under Section 4975 of the Code. Payments of
principal and interest on any such ESOP Loans shall be
made by the Trustee, as directed by the Named Fiduciary,
only from (1) Employer contributions made under the Plan
for the purpose of satisfying such ESOP Loan obligation,
earnings on such contributions and earnings on shares of
Stock acquired with the proceeds of such ESOP Loan, (2)
the proceeds of a subsequent ESOP Loan made to repay the
prior ESOP Loan, and/ or (3) the proceeds of the sale of
any collateralized shares of Stock acquired with the
proceeds of such ESOP Loan. In the event of a default
under an ESOP Loan, the value of Trust Fund assets
transferred to the lender shall not exceed the amount of
the default, provided further that if the lender is a
"party in interest" within the meaning of ERISA Section
3(14) or a "disqualified person" within the meaning of
Section 4975(e)(2) of the Code, a transfer of Trust Fund
assets upon default shall be made only if, and to the
extent of, the Trust Fund's failure to meet the ESOP
Loan's payment schedule.
2.10 Knowledge of the Trustee. When the Trustee is
subject to the direction of the Employer, the Named
Fiduciary, or an Investment Manager in performing its
duties under this Agreement, the Trustee's
responsibilities will be limited to certain ministerial
duties with respect to the portion of the Trust Fund
subject to such direction, which duties do not involve the
exercise of any discretionary authority to manage or
control Trust Fund assets and which duties will be
performed in the normal course of business by employees of
the Trustee, its affiliates or agents who are unfamiliar
with investment management ("Ministerial Duties"). Except
as required by Section 403(a)(1) of ERISA, the Trustee is
not undertaking any duty or obligation, express or
implied, to review, and will not be deemed to have
reviewed, any transaction involving the investment of the
Trust Fund which it is directed to perform by the
Employer, the Named Fiduciary or an Investment Manager
except to the extent necessary to perform these
Ministerial Duties in accordance with such direction.
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ARTICLE III. OTHER MINISTERIAL DUTIES OF THE TRUSTEE
3.1 Other Ministerial Duties of the Trustee. The Trustee
is authorized and empowered with respect to the Trust Fund
to perform the following Ministerial Duties necessary to
effectuate the instructions and directions of the Named
Fiduciary, the Plan Administrator, an Investment Manager
or a Participant:
a) To make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all
other instruments that may be necessary or appropriate to
carry out the powers herein granted.
b) To register any investment held by it in the name
of the Trustee or in the name of any custodian or its
nominee, with or without words indicating that such
securities are held in a fiduciary capacity, but the books
and records of the Trustee shall at all times show that
all such investments are part of the Trust Fund.
c) To hold or to appoint an agent or custodian to
hold any property hereunder in bearer form or in its own
name or the name of its nominee and to deposit or arrange
for the deposit of any securities or other property in a
securities depository or clearing agency; provided,
however, that the Trustee may not serve as custodian or
appoint or terminate a custodian for any plan assets, as
defined in ERISA and the regulations thereunder, which are
managed by an affiliate of the Trustee. Any agent or
custodian so appointed shall be paid fees as mutually
agreed upon by the Employer and the agent or custodian and
paid in the same manner as other expenses of the Trust
Fund. The Trustee shall not hold any property or
securities hereunder in the same account as any individual
property of the Trustee.
d) To retain custody of original executed documents
evidencing loans to Participants made after the effective
date of this Agreement and, to the extent provided to the
Trustee by the Employer, original executed documents
evidencing outstanding loans to Participants made prior to
the effective date of this Agreement.
e) To employ suitable agents, counsel, financial
consultants, valuation experts or other professionals (who
may also be agents, counsel, consultants or experts for
the Employer or the Named Fiduciary) and to pay their
reasonable expenses and compensation out of the Trust Fund.
f) To trade all securities held in the Trust Fund as
soon as possible after an order is received and processed
by the Trustee or its agent in accordance with directions
of the Employer, the Named Fiduciary or an Investment
Manager, taking into account any trade delays which may
occur due to stock market constraints or the liquidity of
the security.
g) Solely at the written direction of the Named
Fiduciary, to borrow or raise monies for the purpose of
the Trust Fund from any source and, for any sum borrowed,
to issue its promissory note as Trustee and to secure the
repayment thereof by pledging all or any part of the Trust
Fund, but nothing contained herein shall obligate the
Trustee to render itself liable individually for the
amount of any such borrowing; and no person loaning money
to the Trustee
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shall be bound to see the application of money loaned or
to inquire into the validity or propriety of any such
borrowing.
Each and all of the foregoing powers may be exercised
without a court order or approval.
3.2 Valuation of Trust Fund. The Trustee, as of the
valuation date set forth in the Plan and at such other
time or times as is necessary or as the Trustee and the
Named Fiduciary agree, shall determine the net worth of
the assets of the Trust Fund. The valuation shall be
based upon valuations provided by Investment Managers,
trustees of common trust funds, sponsors of registered
investment companies, records of securities exchanges or
valuation services, market data providers or qualified
appraisers. Notwithstanding the foregoing, the Trustee
shall not be responsible for providing the value of any
Contracts, as described in Section 2.7, or for any asset
which is not liquid or not publicly traded, the value of
which shall be provided by the Named Fiduciary. The
Trustee may obtain the opinions of qualified appraisers,
as necessary in the discretion of the Trustee, to
determine the fair market value of Qualifying Employer
Securities, the fees of which appraiser shall, unless paid
by the Employer, be paid from the Trust Fund.
3.3 Trust Records. The Trustee shall keep accurate and
detailed records of all receipts, investments,
disbursements and other transactions required to be
performed hereunder with respect to the Trust Fund. The
Trustee agrees to treat as confidential all records and
other information relative to the Trust Fund. The Trustee
shall not disclose such records and other information to
third parties except to the extent required by law or as
requested in writing by the Employer. The Trustee agrees
to permit the Employer to inspect the records of the Trust
Fund maintained by the Trustee during regular business
hours and to permit the Employer to audit the same upon
the giving of reasonable notice to the Trustee. The
Trustee further agrees that it will provide the Employer
with information and records that the Employer may
reasonably require in order to perform audits of such
records.
3.4 Confidentiality/ Security of Records. Trustee and
Employer agree to treat as confidential and use only in
connection with this Agreement all Plan data, records,
computer programs and software, reports and other
documents, which are furnished to the other under this
Agreement. Trustee and Employer will protect the security
of such records and will not disclose such records or
other information to third parties except as required by
law or when requested to do so by the other; provided,
however, that the Trustee may disclose such records or
information to its agents in the course of performing its
duties under this Agreement.
3.5 Accounting. Within 90 days after the close of the
Plan's fiscal year or such other period as the Employer
and the Trustee may agree, and within 90 days after the
resignation or removal of the Trustee, as provided herein,
the Trustee shall file with the Employer a written account
setting forth all investments, receipts, disbursement and
other transactions effected by it during such fiscal year
or during the period from the close of the last fiscal
year to the date of such resignation or removal. Unless
the Employer files written objections to such account with
the Trustee within 180 days after the filing of such
account with the Employer, the accounting shall be deemed
to be approved and the Trustee shall, to the maximum
extent permitted by applicable law, be released and
forever discharged from all liability for further
accountability to the Employer for the accuracy of such
accounting and for the propriety of all acts and the
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transactions of the Trustee reflected in such account.
If written objections are specified and the matters in
controversy cannot be settled between the Employer and the
Trustee, the Trustee may apply for a judicial settlement
of the account, the costs of such settlement being allowed
as an expense of the Trust Fund. The only necessary party
thereto in addition to the Trustee shall be the Employer.
3.6 Distributions and Other Payments. The Trustee shall
make payment to such persons, including the Employer, the
Trustee, the Named Fiduciary, the Plan recordkeeper and
Participants, as the Named Fiduciary may direct from time
to time. The Named Fiduciary shall be responsible for
insuring that any distribution or other payment from the
Trust Fund conforms to the provisions of the Plan and
ERISA. Excluding those fees and expenses set forth in
this Agreement and the Plan's recordkeeping agreement,
which may be paid from the Trust Fund if not paid directly
by the Employer, the Named Fiduciary's direction to pay
fees or expenses relating to the administration of the
Plan or Trust Fund shall be in the form of a certificate
substantially in the form as set forth in Exhibit "A".
Notwithstanding any other provisions of this Agreement,
the Trustee may condition any distribution or other
payment of Trust Fund assets upon receipt of satisfactory
assurances that the approval of appropriate governmental
agencies or other authorities has been secured and that
all notice and other procedures required by applicable law
have been satisfied. The Trustee shall be entitled to
rely conclusively upon the Named Fiduciary's directions
and shall not be liable for any distribution or other
payment made in reliance upon the Named Fiduciary's
directions.
3.7 Limitation of Duties. The Trustee is a party to this
Agreement solely for the purposes set forth herein and
neither the Trustee nor any of its officers, directors,
employees or agents shall have any duties or obligations
with respect to the Trust Fund, except as expressly set
forth herein. To the extent not prohibited by ERISA, the
Trustee shall not be responsible in any way for any action
or omission of the Employer or the Named Fiduciary with
respect to the performance of the Employer's or Named
Fiduciary's duties and obligations set forth in this
Agreement and in the Plan. The Trustee may rely upon such
information, direction, action or inaction of the Employer
or the Named Fiduciary as being proper under the Plan or
the Agreement and is not required to inquire into the
propriety of any such information, direction, action or
inaction.
ARTICLE IV. DUTIES OF THE EMPLOYER
4.1 Duties of the Employer. In addition to any duties of
the Employer otherwise prescribed in this Agreement, the
Employer, individually or through the Named Fiduciary,
shall be responsible for performing the following
functions with respect to the Trust Fund:
a) Transmitting all Trust Fund contributions made by
or on behalf of each Participant to the Trustee at such
times and in such manner as is mutually agreed between the
Employer and the Trustee;
b) Providing the Trustee with such information and
data relevant to the Plan as is necessary for the Trustee
to properly perform its duties hereunder;
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c) Providing to the Trustee, on a timely basis, a
copy of the Plan document including all amendments and
restatements, and a copy of the Plan's determination
letter from the Internal Revenue Service;
d) Determining that the contributions made by or on
the behalf of each Participant are in accordance with any
applicable federal and state law and regulations;
e) Assuring that the Plan maintains qualified status
under Section 401(a) of the Code at all times while any
Plan assets are held in the Trust Fund;
f) Providing the Trustee with the value of any
Contracts;
g) Determining the suitability of and selecting
every investment offered as an option under the Plan,
including but not limited to Qualifying Employer
Securities;
h) Determining that loans to Participants are made
and administered in accordance with the Plan, ERISA and
the Code;
i) Determining that all payments, including
distributions to Participants, are reasonable, proper and
in accordance with the Plan, ERISA and the Code;
j) Determining whether any domestic relations order
is "qualified" in accordance with Code Section 414(p) and
directing the Trustee as to how to effect any such order;
and
k) Meeting any U.S. securities laws that may apply
with respect to offering Qualifying Employer Securities as
an investment option under the Plan. This includes, but
is not limited to, registering such stock with the
Securities and Exchange Commission ("SEC") and other
government agencies, filing reports with the SEC and other
government agencies, and preparing prospectuses, proxy
solicitations and other similar materials.
ARTICLE V. VOTING, TENDER AND SIMILAR RIGHTS
5.1 General Provisions. Except to the extent otherwise
provided in Section 5.3(a) and 5.3(c) of this Agreement,
the Named Fiduciary (or the Investment Manager with
respect to assets under its management) shall direct the
Trustee as to the manner in which it shall; (i) vote in
person or by proxy, general or special, any securities
held in the Trust Fund; (ii) exercise conversion
privileges, subscription rights and other options; and
(iii) participate in or dissent from reorganizations,
tender offers or other changes in property rights.
5.2 Receipt of Notices. Upon receipt, the Trustee shall
transmit to the Named Fiduciary (or to the Investment
Manager with the respect to assets under its management)
all notices of conversion, redemption, tender, exchange,
subscription, class action, claim in insolvency
proceedings or other rights or powers relating to any
investment in the Trust Fund, which notices are received
by the Trustee from its agents or custodian, from issuers
of securities and from the party (or its agents)
extending such rights. The Trustee shall have no
obligation to determine the
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existence of any conversion, redemption, tender, exchange,
subscription, class action, claim in insolvency
proceedings or other right or power relating to any
investments in the Trust Fund.
5.3 Qualifying Employer Securities.
a) General. The Trustee shall exercise all voting
or tender offer rights with respect to any Qualifying
Employer Securities in the Trust Fund which are allocated
to the Plan accounts of Participants in accordance with
instructions from Participants. Each Participant shall be
a named fiduciary within the meaning of Section 403(a)(1)
of ERISA for the purpose of directing the voting and
tendering of Qualifying Employer Securities allocated to
his Plan account. Each Participant may direct the
Trustee, confidentially, how to vote or whether or not to
tender the Qualifying Employer Securities representing
shares allocated to his Plan account. Upon timely receipt
of direction, the Trustee shall vote or tender all such
shares of Qualifying Employer Securities as directed by
the Participants. In the case of a tender offer or other
right or options with respect to Qualifying Employer
Securities, a Participant who does not issue valid
directions to the Trustee to sell, offer to sell, exchange
or otherwise dispose of such Qualifying Employer
Securities shall be deemed to have directed the Trustee
that such shares allocated to his Plan account remain
invested in Qualifying Employer Securities. The Trustee
is authorized to retain independent counsel and/or
valuation experts to assist it in performing any of its
duties or obligations in the event of a tender offer or
other right or options with respect to Qualifying Employer
Securities, the fees of which independent counsel or
valuation expert shall, unless paid by the Employer, be
paid from the Trust Fund. The Employer shall provide the
Trustee with all information and assistance that the
Trustee may reasonably request in order for the Trustee to
perform its duties hereunder.
b) Voting Shares For Which No Participant Direction
is Received. For all shareholder meetings other than
those for which the Named Fiduciary directs the Trustee
not to vote in accordance with Section 5.3(c) hereof, the
Named Fiduciary directs the Trustee to vote shares of
Qualifying Employer Securities allocated to Participants'
Plan accounts for which no Participant direction is
received as directed by the Named Fiduciary. Other than
as provided for in Section 5.3(a) with respect to tender
offers, the Named Fiduciary will not instruct the Trustee
that the shares remain unvoted.
c) Direction Not to Vote. If the Employer opts to
comply with ERISA Section 404(c) and the regulations
issued thereunder, the Named Fiduciary may direct the
Trustee not to vote shares of Qualifying Employer
Securities allocated to Participant's Plan accounts for
which no Participant direction is received by completing
Exhibit "B" on an annual basis within a reasonable time
prior to the date of each shareholder meeting relating to
Qualifying Employer Securities. The Trustee is entitled
to rely upon such certification without further
investigation. Upon receipt of a properly executed Exhibit
"B" prior to the shareholder meeting, the Trustee shall
not vote proxies for those Participant's shares with
respect to that shareholder meeting for which no
instruction is received. The Named Fiduciary shall use
reasonable procedures to inform Participants as to what
action will be taken in the absence of such affirmative
instructions. If the Named Fiduciary fails to file an
Exhibit "B" certification with the Trustee prior to the
shareholder meeting, the Trustee shall follow the
procedures established in Section 5.3(b) of this Agreement
with respect to voting of proxies for that shareholder
meeting.
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ARTICLE VI. RESIGNATION OR REMOVAL OF TRUSTEE
6.1 Resignation or Removal of Trustee. The Trustee may
resign at any time upon 60 days' prior written notice to
the Employer and the Employer may remove the Trustee at
anytime upon 60 days' prior written notice to the
Trustee. If mutually agreed upon between the parties, the
60 days' notice may be waived or reduced. Upon
resignation or removal of the Trustee, the Employer shall
appoint a successor trustee. Upon receipt by the Trustee
of written acceptance of such appointment by the successor
trustee, the Trustee shall transfer and pay over to the
successor the Trust Fund and all records (or copies)
pertaining thereto. The Trustee is authorized, however,
to reserve such sum of money or property as it may deem
advisable for payment of any liabilities constituting a
charge against the Trust Fund or against the Trustee, with
any balance of such reserve remaining after payment of all
such items to be paid over to the successor trustee. Upon
the transfer and payment over the assets of the Trust Fund
and upon the settlement or approval of the account for the
Trustee pursuant to Section 3.5 herein, the Trustee shall
be released and discharged from any and all claims,
demands, duties and obligations arising out of the Trust
Fund and its management thereof.
6.2 Employer's Failure to Appoint Successor Trustee. If
the Employer has not appointed a successor trustee which
has accepted such appointment as of the effective date of
the Trustee's resignation or removal, the Trustee shall
have the right to apply to a court of competent
jurisdiction for the appointment of such successor or for
a determination of its rights and obligations, the costs
of such action, unless paid by the Employer, being paid
from the Trust Fund.
ARTICLE VII. AMENDMENT AND
TERMINATION OF THE TRUST AGREEMENT
7.1 Amendment. The Employer and the Trustee may amend
this Agreement at any time by a written agreement between
them; provided, however, that no such amendment shall make
it possible for any part of the corpus or income of the
Trust Fund to be used or diverted to purposes other than
the exclusive benefit of Participants and defraying
reasonable expenses of administering the Plan and trust
created under this Agreement.
7.2 Termination. This Agreement and the trust created
hereunder shall terminate upon the termination of the
Plan, unless expressly extended by the Employer. The
trust also shall terminate upon the dissolution or
liquidation of the Employer where no successor has elected
to continue the Plan and this Agreement. Termination of
the trust shall be effected by distribution of all Trust
Fund assets to the Participants or other persons entitled
thereto pursuant to the direction of the Named Fiduciary,
subject to the Trustee's right to reserve funds as
provided in Section 6.1 hereof. Upon the completion of
such distribution, the Trustee shall be relieved from all
further liability with respect to all amounts so paid.
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ARTICLE VIII . MISCELLANEOUS
8.1 Exclusive Benefit. This trust has been established
for the exclusive benefit of the Participants. Except as
provided herein, it shall be impossible at any time prior
to the satisfaction of all liabilities to the Participants
for any part of the principal or income of the Trust Fund
(other than such part as is required to pay taxes,
administrative expenses or return of contributions to the
Employer as provided in Section 8.2 herein) to be paid or
diverted to the Employer or to be used for any purpose
whatsoever other than for the exclusive benefit of the
Participants.
8.2 Return of Contributions. The Trustee shall return
contributions to the Employer upon the Employer's written
direction for any of the following reasons: (i) the
contribution is made by reason of a mistake of fact as
described in Section 403(c) of ERISA, (ii) the
contribution is conditioned on initial qualification of
the Plan under Section 401(a) of the Code and the Plan
does not so qualify, or (iii) the contribution is
conditioned on its deductibility under Section 404 of the
Code and the contribution is not deductible.
Contributions returned to the Employer under this Section
8.2 shall be paid to the Employer within one year after
the Employer's payment of such mistaken contribution, the
date of denial of initial qualification or date of
disallowance of the deduction, if the Employer so directs
the Trustee in writing. In making such a return of assets
to the Employer, the Trustee shall accept the Employer's
written direction as its warranty that such return is
provided for in the Plan and complies with the Plan
document and ERISA Section 403(c), and the Trustee may
rely on such warranty without further investigation.
8.3 Nonalienation of Benefits. No rights or claims to
any of the monies or other assets of the Trust Fund shall
be assignable, nor shall such rights or claims be subject
to garnishment, attachment, execution or levy of any kind;
and any attempt to transfer, assign or pledge the same,
except as specifically permitted by law, shall not be
recognized by the Trustee.
8.4 Written Instruction. Any direction of the Employer
or the Named Fiduciary pursuant to any provisions of this
Agreement shall be set forth in writing from the Employer
or the Named Fiduciary to the Trustee and the Trustee
shall be fully protected in relying upon such written
direction of the Employer or Named Fiduciary. For
purposes of this Section 8.4, written instructions shall
include the electronic or telephonic transmission of
information or data as mutually agreed upon by the Trustee
and the Employer. The Trustee shall be fully protected in
relying upon any communication that the Trustee reasonably
believes to have been given by the Employer or the Named
Fiduciary or their duly authorized representatives, or any
individual having apparent authority as such. The Trustee
shall receive all directions or instructions in writing
provided that the Trustee may accept oral directions for
purchases or sales from the Named Fiduciary via telephone
or other electronic procedures as agreed to between the
Employer and the recordkeeper for the Plan.
8.5 Indemnification and Hold Harmless. The Employer
shall indemnify and hold harmless the Trustee (including
its employees, representatives and agents) from and
against any liability, loss or expense (including
reasonable attorneys' fees) arising out of: (a) the
Trustee's performance of its duties or responsibilities
under this Agreement, except to the extent that such loss
or expense arises from the Trustee's own willful
misconduct or gross negligence, (b) any action taken by the
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Trustee in accordance with the direction or instructions
of the Employer, the Named Fiduciary, a Participant or an
Investment Manager, (c) any matter relating to the Plan
for which the Trustee has no responsibility, control or
liability under this Agreement, and (d) the failure of the
Named Fiduciary or the Employer (including its employees,
representatives and agents) to perform its duties under
this Agreement or with respect to the Plan; provided,
however, that this Section 8.5 shall not be construed to
relieve the Trustee from responsibility or liability for
any duty imposed upon directed trustees under Section
403(a)(1) of ERISA.
8.6 Trustee's Fees, Expenses and Taxes. The Trustee
shall be paid a fee of $5000.00 annually as compensation
for its services hereunder. This fee is a combined fee
for both the Plan and the Dentsply International Inc.
401(k) Savings Plan. The Trustee shall give 90 days
advance written notice to the Employer whenever its fees
are changed. Such fees, any taxes of any kind whatsoever
which may be levied or assessed upon the Trust Fund, and
any expenses incurred by the Trustee in the performance of
its duties hereunder, including fees for legal services
rendered to the Trustee, shall, unless paid by the
Employer, be paid from the Trust Fund.
8.7 Merger, Consolidation or Transfer. In the event of
the merger, consolidation or transfer of any portion of
the Trust Fund to a trust fund held under any other plan,
the Trustee shall dispose of all or part, as the case may
be, of the Trust Fund, in accordance with the written
directions of the Named Fiduciary, subject to the right of
the Trustee to reserve funds as provided in Section 6.1
hereof.
8.8 Conflict with the Plan Document. In the event of any
conflict between the provisions of the Plan document and
this Agreement with respect to the rights or obligations
of the Trustee, the provisions of this Agreement shall
prevail.
8.9 Construction. Whenever used in this Agreement,
unless the context indicates otherwise, the singular shall
include the plural, the plural shall include the singular,
and the male gender shall include the female gender.
8.10 Headings. Headings in this Agreement are inserted
solely for convenience of reference and shall neither
constitute a part of this Agreement, nor affect its
meaning, construction or intent.
8.11 Severability. If any provision of this Agreement is
held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions,
and this Trust Agreement shall be construed and enforced
as if such provision had not been included.
8.12 Surviving Sections. Notwithstanding any Sections of
this Agreement to the contrary, Sections 6.1, 6.2, 7.2,
8.5 and 8.6 shall survive the termination of this
Agreement.
8.13 Law Governing. This Agreement shall be
administered, construed and enforced according to the laws
of the State of Maryland and applicable federal law.
8.14 Predecessor and Successor Trustees. The Trustee
shall not be responsible and shall have no liability for
the acts or omissions of any of its predecessors or
successors.
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8.15 Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the parties
hereto.
8.16 Entire Agreement; Modification. This instrument
contains the entire agreement of the parties signatory
hereto. Except as provided in Section 8.6, no
modification, amendment or waiver of any provision of this
Agreement will be effective unless in writing and signed
by all parties hereto.
8.17 Signature Authority. The person executing this
Agreement on behalf of the Employer certifies that he or
she is duly authorized by the Employer consistent with the
terms of the Plan to do so.
IN WITNESS WHEREOF, the Employer and the Trustee have
caused their duly authorized officers to execute this
Agreement on the date as written below.
ATTEST/WITNESS: DENTSPLY INTERNATIONAL INC.
_____________________________ By: __________________________________
--------------------------------------
Title
--------------------------------------
Date
ATTEST/WITNESS: T. ROWE PRICE TRUST COMPANY
______________________________ By: ___________________________________
Vice President
---------------------------------------
Date
130
EXHIBIT A
TO THE TRUST AGREEMENT BETWEEN
T. ROWE PRICE TRUST COMPANY AND DENTSPLY INTERNATIONAL INC.
PAYMENT OF PLAN EXPENSES FROM THE TRUST FUND
Excluding Plan recordkeeping and Trustee fees and
expenses, the Employer shall submit
to the Trustee all expenses to be charged to the Trust
Fund. Each submission also shall include the following
certification executed by the Named Fiduciary:
I hereby certify that these expenditures
reflect administrative
expenses solely for the DENTSPLY
Employee Stock Ownership for the
period of _________ and that such
expenses are proper and
reasonable.
Each submission shall also include an explanation of
the purpose of the expenditure and
an invoice where relevant.
- ------------------------------------------
[Print Name]
- ------------------------------------------
Title
- ------------------------------------------
Date
131
EXHIBIT B
TO THE TRUST AGREEMENT BETWEEN
T. ROWE TRUST COMPANY AND DENTSPLY INTERNATIONAL INC.
CERTIFICATION OF COMPLIANCE WITH ERISA SECTION 404(c)
AND APPLICABLE REGULATIONS
The Employer shall submit to the Trustee the
following certification, executed by the Named Fiduciary,
within a reasonable time prior to each shareholder meeting
for Qualified Employer Securities if the Trustee is not to
vote unvoted shares:
I represent that I am an
authorized representative of the
Named Fiduciary of the DENTSPLY
Employee Stock Ownership Plan
("Plan"). In such capacity, I
hereby certify that the Plan is
in compliance with ERISA Section
404(c) and the regulations
issued thereunder and that
unvoted shares of Qualifying
Employer Securities held in
Participants' Plan accounts for
which no Participant direction
is received should not be voted,
as described in Section _____ of
the Plan.
- ------------------------------------------
[Print Name]
- ------------------------------------------
Title
- ------------------------------------------
Date
132