1
Exhibit 4.3
TRUST AGREEMENT
Establishing
the
PLANTRONICS, INC. ANNUAL PROFIT SHARING/INDIVIDUAL
SAVINGS PLAN TRUST
by and between
PLANTRONICS, INC.
and
CG Trust Company
2
TABLE OF CONTENTS
PAGE
----
Section 1. Establishment of Trust.............................................................................. 1
Section 2. General Duties of the Employer; Indemnification..................................................... 1
Section 3. General Duties of Trustee........................................................................... 2
Section 4. Power and Duties of Trustee with Respect to Trust Fund.............................................. 2
Section 5. Payment of Taxes.................................................................................... 3
Section 6. Disbursement of Trust Funds......................................................................... 3
Section 7. Expenses and Compensation of Trustee................................................................ 4
Section 8. Expenses of the Plan and Trust Fund................................................................. 4
Section 9. Accounts of the Trustee............................................................................. 4
Section 10. Resignation, Removal and Substitution of Trustee.................................................... 5
Section 11. Amendment and Termination of Trust.................................................................. 6
Section 12. Miscellaneous Provisions............................................................................ 6
Exhibit A Schedule of Trust Assets............................................................................ 8
-i-
3
THIS TRUST AGREEMENT, made this 1st day of December, 1992, by and
between Plantronics, Inc., a corporation organized and existing under the laws
of the State of Delaware (hereinafter called the "Employer"), and CG TRUST
COMPANY, a trust company organized under the laws of the State of Illinois with
its principal office and place of business in the City of Chicago, Illinois
(hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, the Employer has established or adopted for its eligible
employees the Plantronics, Inc. Annual Profit Sharing/Individual Savings Plan
(hereinafter called the "Plan") and serves as the Plan Administrator; and
WHEREAS, the Employer desires the Trustee to hold Plan funds and the
Trustee is willing to hold such funds pursuant to the terms of this Trust
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto do hereby mutually declare and agree as
follows:
Section 1. Establishment of Trust.
(a) In order to carry out the purposes of the Plan, the Employer hereby
creates and establishes a trust to be known as the Plantronics, Inc. Annual
Profit Sharing/Individual Savings Plan Trust (hereinafter called the "Trust" or
"Trust Fund"). The Trustee accepts this Trust and agrees to act as Trustee
hereunder, but only on the terms and conditions set forth in this Trust
Agreement. Subject to the terms of this Trust Agreement, all right, title and
interests and to the estate of the Trust Fund shall be vested in the Trustee for
the exclusive benefit of plan participants.
(b) The Trust Fund shall include only those assets which the Trustee
accepts and which are identified on Exhibit A. Only assets actually received by
the Trustee will be accepted in Trust. The Employer acknowledges and agrees that
it is responsible for effectuating the transfer of any assets held by a prior
trustee or custodian to the Trustee. All assets so received, together with the
income therefrom and any other increment thereon, shall be held by the Trustee
pursuant to the terms of this Trust Agreement without distinction between
principal and income and without liability for the payment of interest thereon.
Section 2. General Duties of the Employer; Indemnification.
(a) The Employer shall control and manage the operation of the Plan.
The Employer shall be responsible for determining benefit rights under the Plan,
instructing the Trustee in the disbursement of benefits, investment management,
soliciting proxies, directing the Trustee in voting proxies and performing those
plan administration functions specified in the Plan. The Employer shall also act
as custodian with respect to promissory notes, mortgages and related documents
given in connection with Plan loans, if any, and the Employer shall hold in
safekeeping all such promissory notes, mortgages and related documents.
4
(b) The Trustee shall be fully protected and shall incur no liability
in acting in reliance upon the written instructions or directions of the
Employer, or any delegate of the Employer. In addition, the Trustee shall be
entitled to rely on directions given by a plan participant, where the plan
provisions permit such direction. The participant shall be regarded as the
delegate of the Employer for purposes of this Agreement and any reference herein
to directions or instructions from the Employer shall include directions or
instructions from any delegate of the Employer including plan participants.
(c) The Employer shall indemnify and hold harmless the Trustee from and
against any and all claims, losses, damages, expenses (including reasonable
counsel fees) and liability to which the Trustee may be subject by reason of any
act done or omitted to be done, except where the same is due to gross negligence
or willful misconduct of the Trustee.
(d) In addition to and in no way in limitation of the indemnification
of paragraph (c), the Employer hereby agrees to indemnify and hold harmless the
Trustee from and against any claims, losses, damages, expenses (including
reasonable counsel fees) and liability to which the Trustee may be subject by
reason of any act or omission of any prior, subsequent or existing trustee of
the Plan.
Section 3. General Duties of Trustee.
(a) The Trustee shall receive, hold, manage, invest and reinvest the
Trust Fund pursuant to the provisions of this Section and Section 4 pursuant to
the written directions of the Employer. The Trustee shall take no action except
pursuant to directions received by it from the Employer and shall have no duty
to determine any facts or the propriety of any action taken or omitted by it in
good faith pursuant to instructions from such persons.
(b) The Trustee shall be responsible only for such assets as are
actually received by it as Trustee hereunder. The Trustee shall have no duty or
authority to ascertain whether any contributions should be made to it pursuant
to the Plan or to bring any action to enforce any obligation to make any such
contribution, nor shall it have any responsibility concerning the amount of any
contribution or the application of the Plan's contribution formula.
(c) The duties and obligations of the Trustee hereunder shall be
limited to those expressly imposed upon it by this Trust Agreement
notwithstanding any reference herein to the Plan, and no further duties or
obligations of the Trustee, such as a duty to value plan investments, determine
the prudence of any plan investment, or diversify plan investments, shall be
implied. The Trustee shall not be liable in discharging its duties hereunder if
it acts in good faith and in accordance with the terms of this Trust Agreement
and in accordance with applicable Federal or state laws, rules and regulations.
Section 4. Power and Duties of Trustee with Respect to Trust Fund. The
Trustee shall have the following powers and duties regarding the Trust Fund:
-2-
5
(a) To hold title to the assets of the Trust Fund for the exclusive
benefit of plan participants, which may include entering into depository
arrangements for the safekeeping of records relevant to the ownership of such
assets with any bank or banks as the Trustee may choose. Without limiting the
generality of the foregoing, the Employer specifically directs the Trustee to
appoint, and the Trustee hereby appoints the Employer to act as custodian with
respect to promissory notes, mortgages and related documents given in connection
with Plan loans, if any.
(b) To invest the assets of the Trust Fund in such investment vehicles
as directed by the Employer, including plan loans made to participants, and
annuity or insurance contracts issued by affiliates of the Trustee, in
accordance with directions received from the Employer, and to agree to
amendments to such annuity or insurance contracts, as directed by the Employer.
The Trustee shall have no duty or responsibility to determine the
appropriateness of any plan investment, or to cause such investments in to be
changed.
Notwithstanding any other provision of this agreement, all notices, proposed
contract amendments, rate or fee changes or other communications regarding all
group annuity contracts that are assets of the Plan, including any group annuity
contract issued by Connecticut General Life Insurance Company, will be sent
directly by the issuer of the contract to the Employer or forwarded by the
Trustee to the Employer, and the Trustee shall act on behalf of the plan with
respect to any such notice, proposed amendment change or other communication
only- accordance with the written direction of the Employer. Any rights of a
contractholder under any such group annuity contract to discontinue, amend or
otherwise modify the contract shall be exercised only upon the specific written
direction of the Employer to the issuer of the contract or by the Trustee at the
Employer's specific written direction.
(c) To make transfers among investment vehicles or disbursements from
the Trust Fund as directed by the Employer or (if permitted by the terms of the
Plan) plan participants. The Trustee shall be entitled to rely on such
direction, and shall have no responsibility to ascertain whether the Plan
permits such a transfer or disbursement.
(d) To delegate to third parties, including affiliates of the Trustee,
any or all of its duties hereunder, including recordkeeping and reporting. Also,
the Trustee may utilize the services of outside custodians to hold on the
Trustee's behalf any plan assets invested in securities.
(e) To vote securities proxies as directed by the Employer.
Section 5. Payment of Taxes. The Trustee shall pay out of the Trust
Fund income taxes and other taxes of any and all kinds levied or assessed under
existing or future laws against the Trust Fund, or against any person with an
interest in the Trust Fund.
Section 6. Disbursement of Trust Funds.
(a) Upon receipt of written direction of the Employer, the Trustee
shall make payments from the Trust Fund to such persons or direct Connecticut
General Life Insurance Company to make
-3-
6
such payments from an annuity contract listed on Exhibit A, in such manner and
in such amounts as the Employer shall direct in writing, and amounts paid
pursuant to such direction shall no longer constitute a part of the Trust Fund.
(b) At no time prior to the satisfaction of all liabilities with
respect to participants and beneficiaries under this Trust shall any part of the
corpus or income of the Trust Fund be used for, or diverted to, purposes other
than for the exclusive benefit of plan participants or beneficiaries. Except as
provided in the Plan, the assets of the Trust Fund shall never inure to the
benefit of the Employer and shall be held for the exclusive purpose of providing
benefits to participants in the Plan and their beneficiaries, and defraying
reasonable expenses of administering the Plan.
Section 7. Expenses and Compensation of Trustee. The Trustee shall be
paid its reasonable expenses, including reasonable expenses of counsel and other
agents employed by the Trustee. The Trustee's compensation for its services as
Trustee shall be agreed upon by the Employer and the Trustee in writing;
provided, however, that if the Trustee proposes an amended fee schedule and the
Employer fails to object thereto within ninety (90) days of its receipt, the
amended fee schedule shall be deemed accepted by the Employer. Such expenses and
compensation shall be paid by the Employer, or if they are not so paid, they
shall be paid by the Trustee from the Trust Fund.
Section 8. Expenses of the Plan and Trust Fund. The Employer shall pay,
or, if not paid by the Employer and the Plan so permits, the Employer shall
direct the Trustee to pay from the Trust Fund, the reasonable expenses relating
to the Plan and Trust Fund payable to third parties, including affiliates of the
Trustee. Such expenses shall include, without limitation, actuarial, investment
management, accounting and legal expenses.
Section 9. Accounts of the Trustee.
(a) The Trustee has accepted this Trust on the condition that the
Employer has entered or is entering into a service agreement with Connecticut
General Life Insurance Company whereby Connecticut General Life Insurance
Company will provide recordkeeping services for all Plan assets held pursuant to
this Trust Agreement. The Trustee shall be required to forward to the Employer,
or require Connecticut General Life Insurance Company to forward to the
Employer, the recordkeeping reports and related financial information provided
by Connecticut General Life Insurance Company.
(b) The Trustee's books and records with respect to the Trust Fund
shall be open to inspection by the Employer at all reasonable times during
business hours of the in Trustee. Following the close of the Plan's fiscal year,
the Trustee shall provide an inventory of the assets held in Trust to the
Employer and certify to the accuracy thereof. The Employer may approve such
inventory by an instrument in writing delivered to the Trustee. If the Employer
does not file in writing with the Trustee exceptions or objections to any such
inventory within sixty (60) days after an accounting has been rendered, the
Employer shall be deemed to have approved such inventory. In that event, or upon
the written approval of the Employer of any such inventory, the Trustee shall be
released, relieved and discharged with respect to all matters and things set
forth in such inventory as though such inventory had been settled by the decree
of a court of competent jurisdiction.
-4-
7
(c) In the case of the revocation or termination of this Trust, or in
case of the resignation or removal of the Trustee, the Employer and the Trustee
shall have the right to a settlement of the Trustee's accounts. This accounting
may be made either (1) by agreement of settlement between the Trustee and the
Employer, or (2) by judicial settlement in an action, suit or proceeding
instituted by the Employer or the Trustee in a court of competent jurisdiction.
(d) Notwithstanding any other provision of this Agreement, the Employer
acknowledges that the Trustee shall not be required to provide an inventory of
accounting of any Plan loans to Plan participants or beneficiaries. Pursuant to
Section 2(a) and Section 4(a), the Employer shall act as custodian with respect
to promissory notes, mortgages and related documents given in connection with
Plan loans and the Employer shall be solely responsible for the safekeeping,
inventorying and accounting for these assets.
Section 10. Resignation, Removal and Substitution of Trustee.
(a) The Trustee may resign at any time by giving at least 30 days'
written notice to the Employer (unless the Employer deems notice of a shorter
duration to be adequate). The Employer may remove the Trustee at any time by
giving at least 30 days' written notice to the Trustee (unless the Trustee deems
notice of a shorter duration to be adequate). No removal of the Trustee shall
become effective, however, until all sums due hereunder to the Trustee for its
compensation and expenses shall have been paid to it and the Employer has
appointed a qualified successor Trustee.
(b) The Trustee's service pursuant to this Agreement is conditioned
upon the existence of one or more contracts between the Employer or the Plan (or
the Trustee on behalf of the Employer or the Plan) and Connecticut General Life
Insurance Company providing a funding medium for the Plan and providing for full
Plan recordkeeping services. In the event the contract providing a funding
medium or providing for recordkeeping services is discontinued or terminated,
this Agreement shall be terminated as well with no further notice from either
party to the other as of the date of discontinuance or termination of the
contract providing a funding medium or providing for recordkeeping services.
(c) Any successor trustee hereunder may be either a corporation
authorized and empowered to exercise trust powers or may be one or more
individuals. In either event, the appointment of a successor trustee shall not
be effective until such successor trustee delivers its written acceptance of
trust to the Trustee.
(d) Upon the completion of the accounting provided for in Section 9 and
upon the appointment of a successor trustee, the resigning or removed Trustee
shall execute, acknowledge and deliver all documents and written instruments
necessary to transfer and deliver the Trust Fund and all rights and privileges
therein to the successor trustee. Upon the completion of such accounting and
upon the appointment of a successor trustee, the resigning and removed Trustee
shall be discharged from further accountability for the Trust Fund with respect
to any matter within the scope of such accounting, and shall be under no further
duty, obligation or responsibility for the disposition by such successor trustee
of the Trust Fund or any part thereof.
-5-
8
Section 11. Amendment and Termination of Trust.
(a) The Employer and the Trustee may mutually agree at any time to
amend this Trust Agreement and the Trust created hereby to any extent deemed
advisable. No amendment to this Trust Agreement shall be effective unless
mutually agreed to in writing by the Employer and the Trustee; provided,
however, that Trustee's fee schedule may be amended or provided in Section 7.
(b) The Employer may at any time revoke this Trust Agreement and
terminate the Trust hereby created. Such revocation and termination shall become
effective upon receipt by the Trustee or its delegate of a written instrument of
such revocation and termination executed by the Employer. Upon such termination,
disposition of the assets of the Trust Fund shall be governed by the terms of
the Plan; provided, however, that the Trustee shall not distribute any portion
of the Trust Fund after such termination unless the Employer first obtains a
determination from the Internal Revenue Service that such termination will not
affect adversely the qualified status of the Plan and, if required, approval of
the Pension Benefit Guaranty Corporation of such termination and distribution of
assets. In lieu of an Internal Revenue Service determination, assets of the
Trust Fund may be distributed if the Employer agrees in writing with the Trustee
to indemnify the Trust Fund for any taxes or other penalties which may be
assessed against it as a result of such termination or agrees to provide a bond
to secure payment of any such taxes or penalties.
Section 12. Miscellaneous Provisions.
(a) Trust Agreement and the Trust hereby created shall be governed,
construed, administered and regulated in all respects under the law of the
United States and the State of Illinois.
(b) The titles of the Sections in this Trust Agreement are for
convenience of reference only and in case of any conflict, the text of this
instrument, rather than such titles, shall control.
(c) In case any provisions of this Trust Agreement shall be held
illegal or invalid for any reason, their illegality or invalidity shall not
affect the remaining parts of this Trust Agreement, and this Trust Agreement
shall be construed and enforced as if the illegal and invalid provisions had
never been a part of the Trust Agreement.
(d) This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed an original. The counterparts shall constitute one
and the same instrument and may be sufficiently evidenced by any one
counterpart.
(e) This Trust Agreement shall be binding upon the respective
successors and assigns of the Employer and the Trustee.
(f) Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different gender
or number would be appropriate.
-6-
9
(g) In the event of any conflict between provisions of the Plan and
those of this Trust Agreement, this Trust Agreement shall prevail.
(h) Communications to the Trustee shall be sent to the Trustee's
principal offices or such address as the Trustee may specify in writing. No
communication shall be binding upon the Trustee until it is received by the
Trustee or its delegate. Communications to the Employer shall be sent to the
Employer's principal offices or such address as the Employer may specify in
writing.
IN WITNESS WHEREOF, this Trust Agreement has been executed as of the
day and year first above written. The persons executing this Trust Agreement
represent that they are duly authorized to do so.
Attest: Employer
________________________________ By_____________________________
Its
Attest: CG TRUST COMPANY
________________________________ By_____________________________
Its
-7-
10
EXHIBIT A
SCHEDULE OF TRUST ASSETS
1. Group Annuity contract GA-36353, issued by Connecticut General Life
Insurance Company.
2. Promissory notes given in connection with loans to Plan participants
and beneficiaries.
3. Fidelity Magellan Fund
4. Fidelity Equity-Income Fund
5. Fidelity Intermediate Bond Fund
-8-