Exhibit 99b1
MASTER TRUST AGREEMENT
Between
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FORTUNE BRANDS, INC.
And
FIDELITY MANAGEMENT TRUST COMPANY
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FORTUNE BRANDS, INC. SAVINGS PLANS
MASTER TRUST
Dated as of October 1, 1999
TABLE OF CONTENTS
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Section Page
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Section 1. Definitions..................................................................................2
Section 2. Trust........................................................................................3
Section 3. Exclusive Benefit and Reversion of Contributions.............................................4
Section 4. Disbursements................................................................................5
(a) Administrator Directed Disbursements.............................................................5
(b) Participant Withdrawal Requests..................................................................5
(c) Limitations......................................................................................5
Section 5. Investment of Trust..........................................................................5
(a) Selection of Investment Options..................................................................5
(b) Available Investment Options.....................................................................6
(c) Participant Direction............................................................................6
(d) Mutual Funds.....................................................................................6
Section 6. Administration of Fortune Stock Fund.........................................................7
(a) Investment in Fortune Common Stock...............................................................7
(b) Voting of Shares in Fortune Stock Fund......................................................... 11
(c) Tender Offers...................................................................................14
(d) Certain Rights Held in Fortune Stock Fund.......................................................18
Section 7. Administration of Gallaher Fund.............................................................19
(a) Investment in Gallaher ADRs.....................................................................19
(b) Voting of Gallaher ADRs.........................................................................22
(c) Tendering of Gallaher ADRs......................................................................24
Section 8. Investment Options..........................................................................28
(a) Participant Loans...............................................................................28
(b) Outside Managed Separate Investment Funds.......................................................29
(c) Reliance of Trustee on Directions...............................................................31
Section 9. Trustee Powers..............................................................................31
Section 10. Recordkeeping and Administrative Services to Be Performed...................................32
(a) General.........................................................................................32
(b) Accounts........................................................................................33
(c) Inspection and Audit............................................................................33
(d) Effect of Plan Amendment........................................................................33
(e) Returns, Reports and Information................................................................34
(f) Allocation of Plan Interests....................................................................34
Section 11. Compensation and Expenses..................................................................34
Section 12. Directions and Indemnification.............................................................35
(a) Identity of Administrator and Named Fiduciaries.................................................35
(b) Directions from Fortune or Administrator........................................................35
(c) Directions from Named Fiduciary.................................................................35
(d) Co-Fiduciary Liability..........................................................................36
(e) Indemnification.................................................................................36
(f) Survival........................................................................................36
Section 13. Resignation or Removal of Trustee..........................................................36
(a) Resignation.....................................................................................36
(b) Removal.........................................................................................37
Section 14. Successor Trustee..........................................................................37
(a) Appointment.....................................................................................37
(b) Acceptance......................................................................................37
(c) Corporate Action................................................................................37
Section 15. Termination................................................................................37
Section 16. Resignation, Removal, and Termination Notices..............................................38
Section 17. Duration...................................................................................38
Section 18. Amendment or Modification..................................................................38
Section 19. Electronic Services........................................................................38
Section 20. General....................................................................................39
(a) Performance by Trustee, its Agents or Affiliates................................................39
(b) Delegation by Employer..........................................................................39
(c) Entire Agreement................................................................................40
(d) Waiver..........................................................................................40
(e) Successors and Assigns..........................................................................40
(f) Partial Invalidity..............................................................................40
(g) Section Headings................................................................................40
Section 21. Governing Law..............................................................................40
(a) Massachusetts Law Controls......................................................................40
(b) Trust Agreement Controls........................................................................41
Section 22. Plan Qualification ........................................................................41
MASTER TRUST AGREEMENT, dated as of the first day of October, 1999,
between FORTUNE BRANDS, INC., a Delaware corporation, having an office at 1700
East Putnam Avenue, Old Greenwich, Connecticut 06870 ("Fortune"), and FIDELITY
MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at 82
Devonshire Street, Boston, Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, Fortune is the sponsor of the Fortune Brands Retirement
Savings Plan (the "Plan"); and
WHEREAS, a subsidiary of Fortune maintains the Fortune Brands Hourly
Employee Retirement Savings Plan, and other affiliates and subsidiaries of
Fortune may in the future maintain qualified defined contribution plans for the
benefit of their eligible employees; and
WHEREAS, Fortune desires to establish a single trust to hold all of the
assets of the Plan and such other tax-qualified defined contribution plans
maintained by Fortune, or any of its subsidiaries or affiliates, as elect to
participate therein; and
WHEREAS, the Trustee shall maintain a separate account reflecting the
equitable share of each Plan in the Trust and in all investments, receipts,
disbursements and other transactions hereunder, and shall report the value of
such equitable share at such times as may be mutually agreed upon by the Trustee
and Fortune. Such equitable share shall be used solely for the payment of
benefits, expenses and other charges properly allocable to each such Plan and
shall not be used for the payment of benefits, expenses or other charges
properly allocable to any other Plan; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust pursuant to the provisions of this Trust Agreement, which trust
shall constitute a continuation, by means of an amendment and restatement, of
each of the prior trusts from which plan assets are transferred to the Trustee;
and
WHEREAS, The Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by Fortune; and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are ministerial in nature
and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by Fortune.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, Fortune and the Trustee agree
as follows:
Section 1. Definitions. The following terms as used in this Trust Agreement
have the meaning indicated unless the context clearly requires otherwise:
(a) "Administrator" shall mean, with respect to the Plan, the person or
entity which is the "administrator" of such Plan within the meaning of
section 3(16)(A) of ERISA.
(b) "Agreement" shall mean this Trust Agreement, as the same may be amended
and in effect from time to time.
(c) "Code" shall mean the Internal Revenue Code of 1986, as it has been or
may be amended from time to time.
(d) "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it has been or may be amended from time to time.
(e) "Fidelity Mutual Fund" shall mean any investment company advised by
Fidelity Management & Research Company or any of its affiliates.
(f) "Fortune" shall mean Fortune Brands, Inc., a Delaware corporation, or
any successor to all or substantially all of its businesses which, by
agreement, operation of law or otherwise, assumes the responsibility of
Fortune Brands, Inc. under this Agreement.
(f) "Fortune Common Stock" shall mean the common stock of Fortune or such
other publicly-traded stock of Fortune, or such other publicly-traded
stock of Fortune's affiliates as meets the requirements of section
407(d)(5) of ERISA with respect to the Plan.
(g) "Fortune Stock Fund" shall mean the fund through which Trust
investments in Fortune Common Stock are made.
(h) "Gallaher ADRs" shall mean American Depository Receipts of Gallaher
Group Plc, a public limited company incorporated under the laws of
England and Wales and a former affiliate of Fortune.
(i) "Gallaher Fund" shall mean the fund through which Trust investments in
Gallaher ADRs are held.
(j) "Mutual Fund" shall refer both to Fidelity Mutual Funds and
Non-Fidelity Mutual Funds.
(k) "Named Fiduciary" shall mean, with respect to the application of any
provision of this Agreement to any Plan, the person or entity which is
the relevant fiduciary under such Plan with respect to such matter
(within the meaning of section 402(a) of the Employee Retirement Income
Security Act of 1974, as amended).
(l) "Non-Fidelity Mutual Fund" shall mean certain investment companies not
advised by Fidelity Management & Research Company or any of its
affiliates.
(m) "Participant" shall mean, with respect to the Plan, any employee (or
former employee) with an account under the Plan, which has not yet been
fully distributed and/or forfeited, and shall include the designated
beneficiary(ies) with respect to the account of any deceased employee
(or deceased former employee) until such account has been fully
distributed and/or forfeited.
(n) "Participant Recordkeeping Reconciliation Period" shall mean the period
beginning on the date of the initial transfer of assets to the Trust
and ending on the date of the completion of the reconciliation of
Participant records.
(o) "Plan" shall mean the Fortune Brands Retirement Savings Plan and the
Fortune Brands Hourly Employee Retirement Savings Plan and such other
tax-qualified defined contribution plans which are maintained by
Fortune or any of its subsidiaries or affiliates that elect to
participate in the Trust established hereunder for the benefit of their
eligible employees and which are designated by Fortune in writing to
the Trustee as a Plan hereunder, such writing to be in the form of the
Plan Designation Form provided by the Trustee and signed by Fortune.
Each reference to "a Plan" or "the Plan" in this Agreement shall mean
and include the Plan or Plans to which the particular provision of this
Agreement is being applied or all Plans, as the context may require.
(p) "Reporting Date" shall mean the last day of each calendar quarter, the
date as of which the Trustee resigns or is removed pursuant to Section
13 hereof and the date as of which this Agreement terminates pursuant
to Section 15 hereof.
(q) "Trust" shall mean the Fortune Brands, Inc. Savings Plans Master Trust,
being the trust established by Fortune and the Trustee pursuant to the
provisions of this Agreement.
(r) "Trustee" shall mean Fidelity Management Trust Company, a Massachusetts
trust company and any successor to all or substantially all of its
trust business as described in Section 14(c). The term Trustee shall
also include any successor trustee appointed pursuant to Section 14 to
the extent such successor agrees to serve as Trustee under this
Agreement.
Section 2. Trust. Fortune hereby establishes the Fortune Brands, Inc. Savings
Plans Master Trust with the Trustee. The Trust shall consist of an initial
contribution of money or other property acceptable to the Trustee in its sole
discretion, made by Fortune or transferred from a previous trustee under the
Plan, such additional sums of money and Fortune Common Stock as shall from time
to time be delivered to the Trustee under a Plan, all investments made therewith
and proceeds thereof, and all earnings and profits thereon, less the payments
that are made by the Trustee as provided herein, without distinction between
principal and income. The Trustee hereby accepts the Trust on the terms and
conditions set forth in this Agreement. In accepting this Trust, the Trustee
shall be accountable for the assets received by it, subject to the terms and
conditions of this Agreement.
Section 3. Exclusive Benefit and Reversion of Contributions.
(a) Except as provided in paragraphs (b), (c) and (d) of this Section,
no part of the Trust may be used for, or diverted to, purposes other than the
exclusive benefit of the Participants in the Plan or their beneficiaries prior
to the satisfaction of all liabilities with respect to the Participants and
their beneficiaries.
(b) In the case of contributions made by the Plan Sponsor prior to the
receipt of an initial favorable determination letter from the Internal Revenue
Service ("IRS") with respect to the Plan, the Plan Sponsor may direct the
Trustee to return to the Plan Sponsor those contributions and all earnings
thereon within one year after the IRS refuses in writing to issue such a letter.
(c) In the case of any portion of a contribution made by the Plan
Sponsor by mistake of fact, the Plan Sponsor may direct the Trustee to return to
the Plan Sponsor that portion of the contribution within one year after the
payment of that portion of the contribution.
(d) In the case of any portion of a contribution made by the Plan
Sponsor and disallowed by the IRS as a deduction under section 404 of the Code,
the Plan Sponsor may direct the Trustee to return to the Plan Sponsor that
portion of the contribution within one year after the IRS disallows the
deduction in writing.
(e) Earnings attributable to the contributions returnable under
paragraph (c) or (d) shall not be returned to the Plan Sponsor, and any losses
attributable to those contributions shall reduce the amount returned.
Section 4. Disbursements.
(a) Administrator Directed Disbursements. The Trustee shall make
disbursements in the amounts and in the manner that the Administrator directs
from time to time in writing. The Trustee shall have no responsibility to
ascertain such direction's compliance with the terms of the Plan (except to the
extent the terms of the Plan have been communicated to the Trustee in writing)
or of any applicable law or the direction's effect for tax purposes or
otherwise; nor shall the Trustee have any responsibility to see to the
application of any disbursement.
(b) Participant Withdrawal Requests. Fortune hereby directs that,
pursuant to the Plan, a Participant withdrawal request (in-service or full
withdrawal) may be made by the Participant by telephone or such other electronic
means as may be mutually agreed upon by Fortune and Trustee, and the Trustee
shall process such request only after the identity of the Participant is
verified by use of a personal identification number ("PIN") and social security
number. The Trustee shall process such withdrawal in accordance with written
guidelines provided by Fortune and documented in the Plan Administrative Manual.
In the case of a hardship withdrawal request, the Trustee shall forward the
withdrawal document to the Participant for execution and submission for approval
to the Administrator. The Administrator shall have the responsibility for
approving the withdrawal and instructing the Trustee to send the proceeds to the
Administrator or to the Participant if so directed by the Administrator.
(c) Limitations. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. The Trustee shall be required to make all
disbursements in cash in accordance with the hierarchy of investments to be
converted to cash as detailed in the Plan Administrative Manual unless the
Administrator has provided written directions to the contrary.
Section 5. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(b) Available Investment Options. The Named Fiduciary with respect to a
Plan shall direct the Trustee as to the investment options in which the Trust
shall be invested during the Participant Recordkeeping Reconciliation Period,
and the investment options in which Plan Participants may invest, subject to the
following limitations. The Named Fiduciary may determine to offer as investment
options only (i) Mutual Funds, (ii) Fortune Common Stock, (iii) Gallaher ADRs,
(iv) notes evidencing loans to Participants in accordance with the terms of the
Plan, and (v) portfolios of assets managed by a third party investment manager
as defined in section 402(c)(3) of ERISA not affiliated with the Trustee.
The investment options initially selected by the Named Fiduciary are
identified on a Schedule of Administrative Services and a Schedule of Investment
Options provided by the Trustee and signed by Fortune. The Named Fiduciary may
add additional investment options with the consent of the Trustee and upon
mutual amendment of this Agreement and/or Schedules, as applicable, to reflect
such additions.
(c) Participant Direction. Each Participant shall direct the Trustee in
which investment option(s) to invest the assets in the Participant's individual
accounts. Such directions may be made by Participants by use of the telephone
exchange system, the internet, or in such other manner as may be agreed upon
from time to time by Fortune and the Trustee, maintained for such purposes by
the Trustee or its agent, in accordance with the written Schedule of Exchange
Guidelines provided by the Trustee and signed by Fortune. In the event that the
Trustee fails to receive a proper direction, the assets shall be invested in the
securities of the investment option set forth for such purpose on the Schedule
of Investment Options, until the Trustee receives a proper direction.
(d) Mutual Funds. Fortune hereby acknowledges that it has received from
the Trustee a copy of the prospectus for each Fidelity Mutual Fund selected by
the Named Fiduciary as a Plan investment option. All transactions involving
Non-Fidelity Mutual Funds shall be done in accordance with the Schedule of
Operational Guidelines for Non-Fidelity Mutual Funds provided by the Trustee and
signed by Fortune. Trust investments in Mutual Funds shall be subject to the
following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of
Mutual Funds (other than for exchanges) shall be made on the date on which the
Trustee receives from Administrator in good order all information and
documentation necessary to accurately effect such purchases and sales (or in the
case of a purchase, the subsequent date on which the Trustee has received a wire
transfer of funds necessary to make such purchase). Exchanges of Mutual Funds
shall be made in accordance with the Schedule of Exchange Guidelines provided by
the Trustee and signed by Fortune.
(ii) Voting. At the time of mailing of notice of each annual or
special stockholders' meeting of any Mutual Fund, the Trustee shall send a copy
of the notice and all proxy solicitation materials to each Participant who has
shares of the Mutual Fund credited to the Participant's accounts, together with
a voting direction form for return to the Trustee or its designee. Fortune shall
have the right to direct the Trustee as to the manner in which the Trustee is to
vote the mutual fund shares held in any short-term investment fund or liquidity
reserve. The Participant shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote the shares credited to the Participant's
accounts (both vested and unvested). The Trustee shall vote the shares as
directed by the Participant. The Trustee shall not vote shares for which it has
received no directions from the Participant. During the Participant
Recordkeeping Reconciliation Period, Fortune shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the shares of the
Mutual Funds in the Trust including Mutual Fund shares held in any short-term
investment fund for liquidity reserve. With respect to all rights other than the
right to vote, the Trustee shall follow the directions of the Participant and if
no such directions are received, the directions of the Named Fiduciary. The
Trustee shall have no duty to solicit directions from Participants or Fortune.
Section 6. Administration of Fortune Stock Fund.
(a) Investment in Fortune Common Stock. Trust investments in Fortune
Common Stock shall be made via the Fortune Stock Fund. Investments in the
Fortune Stock Fund shall consist primarily of shares of Fortune Common Stock. In
order to satisfy daily Participant exchange or withdrawal requests for transfers
and payments, the Fortune Stock Fund shall also include cash or short-term
liquid investments in accordance with this paragraph. Such holdings will include
Colchester Street Trust: Money Market Portfolio: Class I or such other Mutual
Fund commingled money market pool as agreed to by Fortune and Trustee. Fortune
shall, after consultation with the Trustee, establish and communicate to the
Trustee in writing a target percentage and drift allowance for such short-term
liquid investments. The Trustee shall be responsible for ensuring that the
actual cash held in the Fortune Stock Fund falls within the agreed upon range
over time. Each Participant's proportional interest in the Fortune Stock Fund
shall be measured in units of participation, rather than shares of Fortune
Common Stock. Such units shall represent a proportionate interest in all of the
assets of the Fortune Stock Fund, which includes shares of Fortune Common Stock,
short-term investments and at times, receivables for dividends and/or Fortune
Common Stock sold and payables for Fortune Common Stock purchased. The Trustee
shall determine a daily net asset value ("NAV") for each unit outstanding of the
Fortune Stock Fund. Valuation of the Fortune Stock Fund shall be based upon the
New York Stock Exchange ("NYSE") closing price of the stock, or if unavailable,
the latest available price as reported by the principal national securities
exchange on which the Fortune Common Stock is traded. The NAV shall be adjusted
by dividends paid on the shares of Fortune Common Stock held by the Fortune
Stock Fund, gains or losses realized on sales of Fortune Common Stock,
appreciation or depreciation in the market price of those shares owned, and
interest on the short-term investments held by the Fortune Stock Fund, expenses
that, pursuant to Fortune's direction, the Trustee accrues from the Fortune
Stock Fund, and commissions on purchases and sales of Fortune Common Stock.
Investments in Fortune Common Stock shall be subject to the following
limitations:
(i) Acquisition Limit. Pursuant to the Plan,
the Trust may be invested in Fortune Common Stock to the extent necessary to
comply with investment directions in accordance with this Agreement.
(ii) Fiduciary Duty. Fortune shall continually
monitor the suitability under the fiduciary duty rules of section 404(a)(1) of
ERISA (as modified by section 404(a)(2) of ERISA) of acquiring and holding
Fortune Common Stock. The Trustee shall not be liable for any loss, or by reason
of any breach, which arises from the directions of the Named Fiduciary with
respect to the acquisition and holding of Fortune Common Stock, unless it is
clear on their face that the actions to be taken under those directions would be
prohibited by the foregoing fiduciary duty rules or would be contrary to the
terms of this Agreement.
(iii) Each Participant with an interest in Fortune
Common Stock (or, in the event of the Participant's death, his beneficiary) is,
for the purposes of Section 6(a)(ii), hereby designated as a "named fiduciary"
(within the meaning of Section 403(a)(1) of ERISA), with respect to a pro rata
portion of (i) the shares of Fortune Common Stock held which are allocated to
other Participants' accounts but as to which directions are not timely received
by the Trustee, and (ii) the shares of Fortune Common Stock not allocated to
Participants' accounts, and (iii) allocated shares not purchased at the
direction of Participants, and such Participant (or beneficiary) shall have the
right to direct the Trustee in writing as to the manner in which the Trustee is
to vote such shares.
(iv) Purchase and sales of Fortune Common Stock shall
be made on the open market as necessary to maintain the target cash percentage
and drift allowance for the Fortune Stock Fund, provided that:
(A) If the Trustee is unable to purchase
or sell the total number of shares required to be purchased or sold on such day
as a result of market conditions; or
(B) If the Trustee is prohibited by the
Securities and Exchange Commission, the NYSE, or any other regulatory body from
purchasing or selling any or all of the shares required to be purchased or sold
on such day, then the Trustee shall purchase or sell such shares as soon as
possible thereafter. The Trustee may follow directions from Fortune to deviate
from the above purchase and sale procedures provided that such direction is made
in writing by Fortune.
(v) Execution of Purchases and Sales. (A) Purchases
and sales of units in the Fortune Stock Fund (other than for exchanges) shall be
made on the date on which the Trustee receives from Fortune in good order all
information, documentation, and wire transfers of funds (if applicable),
necessary to accurately effect such transactions. Exchanges of units in the
Fortune Stock Fund shall be made in accordance with the Schedule of Exchange
Guidelines provided by the Trustee and signed by Fortune. The Trustee may follow
directions from Fortune to deviate from the above purchase and sale procedures
provided that such direction is made in writing by Fortune.
(B) Purchases and Sales from or to Fortune.
If agreed to between Fortune and the Trustee in writing prior to the trading
date, the Trustee may purchase or sell Fortune Common Stock from or to Fortune
if the purchase or sale is for adequate consideration (within the meaning of
section 3(18) of ERISA) and no commission is charged. If employer contributions
or contributions made on behalf of the Participants (employee) under the Plans
are to be invested in Fortune Common Stock, Fortune may transfer Fortune Common
Stock in lieu of cash to the Trust. In either case, the number of shares to be
transferred will be determined by dividing the total amount of Fortune Common
Stock to be purchased or sold by the NYSE closing price of the Fortune Common
Stock on the trading date.
(C) Use of an Affiliated Broker. Fortune
hereby directs the Trustee to use Fidelity Capital Markets and its affiliates
("Capital Markets") to provide brokerage services in connection with any
purchase or sale of Fortune Common Stock in accordance with directions from Plan
Participants. Capital Markets shall execute such directions directly or through
its affiliate, National Financial Services Company ("NFSC"). The provision of
brokerage services shall be subject to the following:
(1) As consideration for such
brokerage services, Fortune agrees that Capital Markets shall be entitled to
remuneration under this direction provision in an amount of no more than three
and one-fifth cents ($.032) commission on each share of Fortune Common Stock.
Any change in such remuneration may be made only by a signed agreement between
Fortune and Trustee.
(2) The Trustee will provide Fortune
with a description of Capital Markets' brokerage placement practices and a form
by which Fortune may terminate this direction to use a broker affiliated with
the Trustee. The Trustee will provide Fortune with this termination form
annually, as well as quarterly and annual reports which summarize all securities
transaction-related charges incurred by the Plan.
(3) Any successor organization of
Capital Markets, through reorganization, consolidation, merger or similar
transactions, shall, upon consummation of such transaction, become the successor
broker in accordance with the terms of this direction provision.
(4) The Trustee and Capital Markets
shall continue to rely on this direction until notified to the contrary. Fortune
reserves the right to terminate this direction upon written notice to Capital
Markets (or its successor) and the Trustee, in accordance with Section 16 of
this Agreement.
(vi) Securities Law Reports. Fortune shall be
responsible for filing all reports required under Federal or state securities
laws with respect to the Trust's ownership of Fortune Common Stock, including,
without limitation, any reports required under section 13 or 16 of the
Securities Exchange Act of 1934, and shall immediately notify the Trustee in
writing of any requirement to stop purchases or sales of Fortune Common Stock
pending the filing of any report. The Trustee shall provide to Fortune such
information on the Trust's ownership of Fortune Common Stock as Fortune may
reasonably request in order to comply with Federal or state securities laws.
(b) Voting of Shares in Fortune Stock Fund.
(i) No Trustee Discretion. Notwithstanding any other
provision of the Plans or this Agreement, the Trustee shall have no discretion
or authority to exercise any voting rights with respect to the Fortune Common
Stock held in the Fortune Stock Fund except as provided in this Section 6.
(ii) Participant Direction. Each Participant in the
Plans shall be entitled to direct the Trustee in writing or by such other means
as agreed to by the Trustee and Fortune, and the Trustee shall solicit the
direction of such Participant, as to the manner in which any voting rights of
shares attributable to the Participant's proportional interest in the Fortune
Stock Fund (vested or unvested) are to be exercised with respect to any matter
on which holders of Fortune Common Stock are entitled to vote by proxy, consent
or otherwise, and the Trustee shall exercise the voting rights of such shares
with respect to such matter in accordance with the most recent timely direction
received by the Trustee from such Participant. With respect to the voting rights
of shares of Fortune Common Stock held in the Fortune Stock Fund as to which
timely directions have not been received by the Trustee as provided in the
preceding sentence and any shares of Fortune Common Stock representing the
proportional interest in the Fortune Stock Fund which are unallocated to
accounts of Participants, the Trustee shall exercise the voting rights of such
shares in the same manner and in the same proportion in which the voting rights
of shares as to which such directions were received by the Trustee are to be
exercised as provided in the preceding sentence. The Trustee shall combine
fractional interests of Participants in shares of Fortune Common Stock held in
the Fortune Stock Fund to the extent possible so that the voting rights with
respect to such matter are exercised in a manner which reflects as accurately as
possible the collective directions given by Participants. In giving directions
to the Trustee as provided herein, each Participant shall be acting as a named
fiduciary with respect to the exercise of voting rights of shares of Fortune
Common Stock in accordance with such directions.
(iii) Trustee to Communicate Voting Procedures. When
Fortune prepares for any annual or special meeting, Fortune shall notify the
Trustee at least thirty (30) days in advance of the intended record date and
shall cause a copy of all proxy solicitation materials to be sent to the
Trustee. If requested by the Trustee, Fortune shall certify to the Trustee that
the aforementioned materials represents the same information that is distributed
to shareholders of Fortune Common Stock. The Trustee will distribute or cause to
be distributed as promptly as possible to all Participants entitled to give
directions to the Trustee as to the exercise of voting rights with respect to
any matter all communications and other materials, if any, that the Trustee may
receive from any person or entity (including Fortune) that are being distributed
to the holders of Fortune Common Stock and either are directed generally to such
holders or relate to any matter on which holders of Fortune Common Stock are
entitled to vote by proxy, consent or otherwise, and Fortune will promptly
furnish to the Trustee all such communications and other materials, if any, as
are being distributed by or on behalf of Fortune. Fortune will provide the
Trustee with such information, documents and assistance as the Trustee may
reasonably request in connection with any communications or distributions to
Participants as aforesaid. This information will include the names and current
addresses of Participants and the number of shares of Fortune Common Stock
representing their proportional interest in the Fortune Stock Fund upon which
the Trustee may conclusively rely. Based on these materials, the Trustee shall
prepare a voting instruction form and will communicate or cause to be
communicated to all Participants the procedures regarding the exercise of voting
rights of shares of Fortune Common Stock held in the Fortune Stock Fund. The
form shall show the proportional interest in the number of full and fractional
shares of Fortune Common Stock credited to the Participant's accounts held in
the Fortune Stock Fund. Notwithstanding any other provision of this Section 6,
the Plan (as communicated to the Trustee by Fortune) or the Trust Agreement to
the contrary, unless Fortune or one of its affiliated organizations serves as
recordkeeper, to the extent necessary to provide Fortune or one of its
affiliated organizations as recordkeeper with information necessary accurately
to maintain records of the interest in the Plan of Participants, the Trustee
will use its best efforts (A) to keep confidential the direction (or the absence
thereof) from each Participant in connection with the exercise of voting rights
of shares of Fortune Common Stock held in the Fortune Stock Fund and the
identity of such Participant and (B) not to divulge such direction or identity
to any person or entity, including, without limitation, Fortune, its affiliated
organizations and any director, officer, employee or agent thereof. It is the
intent of this Section 6 that Fortune, its affiliated organizations and their
directors, officers, employees and agents not be able to ascertain the direction
given (or not given) by any Participant in connection with the exercise of
voting rights of such shares.
(iv) Invalidity. If a court of competent jurisdiction
issues an opinion, order or decree which, in the opinion of counsel to Fortune
or the Trustee, will, in all or any particular circumstances; (A) invalidate
under ERISA or otherwise any provision or provisions of the Plan or the Trust
Agreement with respect to the exercise of voting rights of shares of Fortune
Common Stock held in the Fortune Stock Fund; (B) cause any such provision or
provisions to conflict with ERISA, or (C) require the Trustee not to act or such
voting rights not to be exercised in accordance with such provision or
provisions, then, upon written notice thereof to the Trustee (in the case of an
opinion of counsel to Fortune) or to Fortune (in the case of an opinion of
counsel to the Trustee) such provision or provisions will be given no further
force or effect in such circumstances. Except to the extent otherwise specified
in such opinion, order or decree, the Trustee will have no discretion or
authority in such circumstances to exercise voting rights with respect to shares
of Fortune Common Stock held in the Fortune Stock Fund, but will exercise such
voting rights in accordance with the most recent timely directions received from
Participants, to the extent such directions have not been invalidated. To the
extent the Trustee, in order to comply with ERISA or other applicable law,
exercises any fiduciary responsibility it may have in any circumstances with
respect to any exercise of voting rights of shares of Fortune Common Stock held
in the Fortune Stock Fund, the Trustee in exercising its fiduciary
responsibility, unless pursuant to the requirements of ERISA or otherwise it is
unlawful to do so will take directions timely received from Participants as
being valid direction with respect to the exercise of such voting rights. In the
event that the Trustee, in its sole discretion, determines that in exercising
its fiduciary responsibility Under this Section 6(b)(iv) any relevant financial
factors bearing on the exercise of voting rights are equal or substantially
equal, the Trustee may take into account such non-financial factors as the
Trustee deems appropriate in its sole discretion.
(c) Tender Offers.
(i) Tender by Trustee. Notwithstanding any other
provision of the Plan or the Trust Agreement to the contrary, the Trustee will
have no discretion or authority to tender, deposit, sell, exchange or transfer
any shares of Fortune Common Stock (which, for purposes of this Section 6, will
include any rights within the meaning of Section 6(d)) held in the Fortune Stock
Fund pursuant to any tender offer (as defined herein) except as provided in this
Section 6. For purposes of this Section 6, a "tender offer" will mean any tender
or exchange offer for or request or invitation for tenders or exchanges of
shares of Fortune Common Stock and will include, without limitation, any such
tender offer made by or on behalf of Fortune.
(ii) Participant Direction. Each Participant will be
entitled to direct the Trustee in writing or by such other means as agreed to by
the Trustee and Fortune, and the Trustee will solicit the direction of such
Participant as to the tendering, depositing, selling, exchanging or transferring
of shares of Fortune Common Stock attributable to his proportionate interest in
the Fortune Stock Fund pursuant to any tender offer, and the Trustee will
tender, deposit, sell, exchange or transfer such shares (or will not tender such
shares of Fortune Common Stock) pursuant to such tender offer in accordance with
the most recent timely direction received by the Trustee from such Participant.
With respect to shares of Fortune Common Stock held in the Fortune Stock Fund as
to which timely written directions have not been received by the Trustee from
Participants, such Participants will be deemed to have directed the Trustee that
such shares of Fortune Common Stock, subject to all provisions of the Plans, the
Trust Agreement, and applicable law, not be tendered, deposited, sold, exchanged
or transferred pursuant to such tender offer, and the Trustee will not tender,
deposit, sell, exchange or transfer any of such shares pursuant thereto. If,
under the terms of such tender offer or otherwise, any shares of Fortune Common
Stock tendered or deposited pursuant thereto may be withdrawn, the Trustee will
(A) use its best efforts to solicit the direction of each Participant, as to the
exercise of withdrawal rights with respect to shares of Fortune Common Stock
that have been tendered or deposited pursuant to this Section 6, and (B)
exercise (or refrain from exercising) such withdrawal rights in the same manner
as will reflect the most recent timely directions received with respect to the
exercise of such withdrawal rights. The Trustee will not withdraw shares except
pursuant to a timely direction of a Participant. The Trustee will combine
fractional interests of Participants in shares of Fortune Common Stock held in
the Fortune Stock Fund to the extent possible so that such shares are tendered,
deposited, sold, exchanged or transferred, and withdrawal rights with respect
thereto are exercised, in a manner which reflects as accurately as possible the
collective directions given or deemed to have been given by Participants in
accordance with this Section 6. In giving or being deemed to have given
directions to the Trustee as provided in this Section 6(c), each Participant
will be acting as a named fiduciary with respect to the tender, deposit, sale,
exchange or transfer of shares of Fortune Common Stock (or the retention of such
shares in the Fortune Stock Fund) in accordance with such directions pursuant to
this Section 6(c) and the exercise of (or the refraining from exercising)
withdrawal rights with respect to shares of Fortune Common Stock tendered or
deposited pursuant to the third sentence of this Section 6(c).
(iii) Trustee to Communicate Tender Procedures. In
the event that Fortune receives notice of the commencement of a tender offer for
Fortune Common Stock as to which Participants are entitled to give directions as
provided in this Section 6, Fortune shall notify the Trustee as soon as
administratively possible and shall cause a copy of all materials available to
Fortune to be sent to the Trustee. If requested by the Trustee, Fortune shall
certify to the Trustee that the aforementioned materials represent the same
information available to Fortune. In the event of a tender offer, the Trustee
will distribute or cause to be distributed as promptly as possible to all
Participants entitled to give directions to the Trustee with respect to such
tender offer all communications and other materials, if any, that the Trustee
may receive from any person or entity (including Fortune) that are being
distributed to the holders of the securities to whom such tender offer is
directed and either are directed generally to such holders or relate to such
tender offer, and Fortune will promptly furnish to the Trustee all such
communications and other materials, if any, as are being distributed by or on
behalf of Fortune. Fortune will provide the Trustee with such information,
documents and assistance as the Trustee may reasonably request in connection
with any communications or distributions to Participants as aforesaid. This
information will include the names and current addresses of Participants and the
number of shares of Fortune Common Stock credited to the accounts of each of
them, upon which the Trustee may conclusively rely. Based on these materials and
after consultation with Fortune, the Trustee shall prepare a tender instruction
form to be sent to each Plan Participant with an interest in the Fortune Stock
Fund containing the procedures relating to their right to give directions as
named fiduciaries to the Trustee. The tender instruction form shall show the
number of full and fractional shares of Fortune Common Stock that reflect the
Participants' proportional interest in the Fortune Stock Fund. Notwithstanding
any other provision of this Section 6, the Plan (as communicated to the Trustee
by Fortune) or the Trust Agreement to the contrary, except if Fortune or one of
its affiliated organizations serves as recordkeeper, to the extent necessary to
provide Fortune or one of its affiliated organizations with information
necessary accurately to maintain records of the interest in the Plans of
Participants, the Trustee will use it best efforts (A) to keep confidential the
direction (or the absence thereof) from each Participant with respect to any
tender offer and the identity of such Participant and (B) not to divulge such
direction or identity to any person or entity, including, without limitation,
Fortune, its affiliated organizations and any director, officer, employee or
agent thereof. It is the intent of this Section 6(c) that Fortune, its
affiliated organizations and their directors, officers, employees and agents not
be able to ascertain the direction given (or not given) or deemed to have been
given by any Participant with respect to any tender offer.
(iv) Invalidity. If a court of competent jurisdiction
issues an opinion, order or decree which, in the opinion of counsel to Fortune
or the Trustee, will, in all or any particular circumstances; (A) invalidate
under ERISA or otherwise any provision or provisions of the Plan or the Trust
Agreement with respect to the tendering, depositing, sale, exchange or transfer
of shares of Fortune Common Stock held in the Fortune Stock Fund or the exercise
of any withdrawal rights with respect to shares tendered or deposited pursuant
to a tender offer; (B) cause any such provision or provisions to conflict with
ERISA; or (C) require the Trustee not to act or such shares not to be tendered,
deposited, sold, exchanged or transferred or such withdrawal rights not to be
exercised in accordance with such provision or provisions; then, upon written
notice thereof to the Trustee (in the case of an opinion of counsel to Fortune)
or to Fortune (in the case of an opinion of counsel to the Trustee) such
provision or provisions will be given no further force or effect in such
circumstances. Except to the extent otherwise specified in such opinion, order
or decree, the Trustee will have no discretion or authority in such
circumstances to tender, deposit, sell, transfer or exchange shares of Fortune
Common Stock held in the Fortune Stock Fund (or the retention of such shares in
the Fortune Stock Fund) pursuant to a tender offer or with respect to the
exercise of (or refraining from exercising) any withdrawal rights with respect
to shares tendered or deposited pursuant to a tender offer, but will act in
accordance with the most recent timely directions received from Participants to
the extent such directions have not been invalidated. To the extent the Trustee,
in order to comply with ERISA or other applicable law, exercises any fiduciary
responsibility it may have in any circumstances with respect to the tendering,
depositing, sale, exchange or transfer of shares of Fortune Common Stock held in
the Fortune Stock Fund or the exercise of any withdrawal rights with respect to
shares tendered or deposited pursuant to a tender offer, the Trustee in
exercising its fiduciary responsibility, unless pursuant to the requirements of
ERISA or otherwise it is unlawful to do so will take directions timely received
from Participants as being valid direction with respect to a tender offer. In
the event that the Trustee, in its sole discretion, determines that in
exercising its fiduciary responsibility under this Section 6(c)(iv) any relevant
financial factors bearing on the exercise of tender rights are equal or
substantially equal, the Trustee may take into account such non-financial
factors as the Trustee deems appropriate in its sole discretion.
(v) Proceeds of Tender. A direction by a Participant
to the Trustee to tender shares of Fortune Common Stock reflecting the
Participant's proportional interest in the Fortune Stock Fund shall not be
considered a written election under the Plan by the Participant to withdraw, or
have distributed, any or all of his withdrawable shares. The Trustee shall
credit to each proportional interest of the Participant from which the tendered
shares were taken the proceeds received by the Trustee in exchange for the
shares of Fortune Common Stock tendered from that interest. Pending receipt of
directions from the Participant or the Named Fiduciary, as provided in the Plan,
as to which of the remaining investment options the proceeds should be invested
in, the Trustee shall invest the proceeds in the investment option described the
Schedule of Investment Options provided by the Trustee and signed by Fortune and
the Trustee.
(d) Certain Rights Held in Fortune Stock Fund.
(i) Sale or Exchange of Preferred Share Purchase
Rights. If any Preferred Share Purchase Rights of Fortune (or any rights issued
by Fortune in substitution or replacement therefor) held in the Fortune Stock
Fund ("rights") become transferable separately from the shares of Fortune Common
Stock held in the Fortune Stock Fund as provided in the Plan or Trust Agreement,
Fortune agrees to purchase the rights from the Trustee as soon as practicable.
As soon as administratively feasible after the rights become separately
transferable from the shares of Fortune Common Stock, the Trustee shall, in its
sole discretion, appoint an independent financial advisor as specifically
permitted under Section 9 of this Trust Agreement. The independent financial
advisor shall be retained at the Fortune's expense for the purpose of
determining a price at which the rights shall be sold to Fortune by the Trustee.
Notwithstanding the foregoing, if prior to the sale of the rights by the Trustee
to Fortune, Fortune determines to exchange one right for a share of Fortune, the
Trustee will surrender each right that it holds in exchange for a share of
Fortune Common Stock.
(ii) Invalidity. If a court of competent
jurisdiction issues an opinion, order or decree which, in the opinion of counsel
to Fortune or the Trustee, will, in all or any particular circumstances, (A)
invalidate under ERISA or otherwise any provision or provisions of the Plans or
the Trust Agreement with respect to the sale of rights by the Trustee to Fortune
or the exchange of rights, (B) cause any such provision or provisions to
conflict with ERISA, or (C) require the Trustee not to sell to Fortune or
exchange the rights, then, upon written notice thereof to the Trustee (in the
case of an opinion of counsel to Fortune) or to Fortune (in the case of an
opinion of counsel to the Trustee) such provision or provisions will be given no
further force or effect in such circumstances. In the event such opinion, order
or decree invalidates the sale or exchange of rights to Fortune on the basis
that the price at which the rights are valued by the independent financial
advisor does not constitute adequate consideration under ERISA, Fortune shall
purchase the rights from the Trustee for adequate consideration as set forth in
or determined pursuant to such opinion, order or decree. In the event such
opinion, order or decree invalidates the sale or exchange of rights to Fortune
for any other reason, the Trustee shall sell the rights to a person or persons
not affiliated with Fortune. If the Trustee is unable to sell the rights to a
person or persons not affiliated with Fortune, the Trustee shall then follow the
directions of Fortune as Named Fiduciary with respect to the disposition of the
rights unless it is clear on the direction's face that the actions to be taken
under the direction would be prohibited by the fiduciary duty rules of section
404(a) of ERISA or would be contrary to the terms of the Plan (as communicated
by Fortune to the Trustee in writing) or this Agreement. It is agreed that the
Trustee shall in no way be required to retain the rights
(iii) Allocation of Proceeds. Pending receipt of
directions from the Named Fiduciary or the Participant as provided in the Plan,
as to which of the remaining investment options the proceeds of the rights
should be invested in, the Trustee shall invest the proceeds in the investment
option described in the Schedule of Investment Options provided by the Trustee
and signed by Fortune and the Trustee.
Section 7. Administration of Gallaher Fund.
(a) Investment in Gallaher ADRs. Trust investments in Gallaher ADRs
shall be made via the Gallaher Fund. In order to satisfy daily Participant
exchange or withdrawal requests for transfers and payments, the Gallaher Fund
shall also include cash or short-term liquid investments in accordance with this
paragraph. Such holdings will include Colchester Street Trust: Money Market
Portfolio: Class I or such other Mutual Fund or commingled money market pool as
agreed to by Fortune and Trustee. Fortune shall, after consultation with the
Trustee, establish and communicate to the Trustee in writing a target percentage
and drift allowance for such short-term liquid investments. The Trustee shall be
responsible for ensuring that the actual cash held in the Gallaher Fund falls
within the agreed upon range over time. Each Participant's proportional interest
in the Gallaher Fund shall be measured in units of participation, rather than
numbers of Gallaher ADRs. Such units shall represent a proportionate interest in
all of the assets of the Gallaher Fund, which includes Gallaher ADRs and
short-term investments. The Trustee shall determine the NAV for each unit
outstanding of the Gallaher Fund. Valuation of the Gallaher Fund shall be based
on the NYSE closing price of the Gallaher ADRs, or if unavailable, the latest
available price as reported by the principal national securities exchange on
which the Gallaher ADRs are traded. The NAV shall be adjusted by dividends paid
on the Gallaher ADRs held in the Gallaher Fund, gains or losses realized on
sales of Gallaher ADRs, appreciation or depreciation in the market price of
those shares owned, and interest on the short-term investments held by the
Gallaher Fund, expenses that, pursuant to Fortune's direction, the Trustee
accrues from the Gallaher Fund, and commissions on sales of Gallaher ADRs.
Investments in Gallaher ADRs shall be subject to the following limitations:
(i) Acquisition Limit. No further contributions
will be invested in the Gallaher Fund, nor may any exchanges be made to the
Gallaher Fund from any of the other investment options. The proceeds of any
distribution received by the Gallaher Fund with respect to Gallaher ADRs will be
invested as directed by Participants or the Named Fiduciary in accordance with
the Plan. Nothing in this Section 7(a)(i), however, restricts the Trustee's
ability to retain in the Gallaher Fund any additional Gallaher ADRs received as
a result of a stock dividend, stock split or similar transaction.
(ii) Sales of Gallaher ADRs. Sales of Gallaher ADRs
shall be made on the open market as necessary to maintain the target cash
percentage and drift allowance for the Gallaher Fund, provided that:
(A) If the Trustee is unable to sell the
total number of Gallaher ADRs to be sold on such day as a result of market
conditions; or
(B) If the Trustee is prohibited by the
Securities and Exchange Commission, NYSE, or any other regulatory body from
selling any or all of the Gallaher ADRs required to be sold on such day, then
the Trustee shall purchase or sell such Gallaher ADRs as soon as possible
thereafter. The Trustee may follow directions from Fortune to deviate from the
above sale procedures provided that such direction is made in writing by
Fortune.
(iii) Execution of Sales. (A) Sales of Gallaher
ADRs in the Gallaher Fund shall be made on the date on which the Trustee
receives from Fortune in good order all information and documentation necessary
to accurately effect such transactions. Exchange of units out of the Gallaher
Fund shall be made in accordance with the Schedule of Exchange Guidelines
provided by the Trustee and signed by Fortune and the Trustee. The Trustee may
follow directions from Fortune to deviate from the above sale procedures
provided that such direction is made in writing by Fortune.
(B) Use of an Affiliated Broker. Fortune
hereby directs the Trustee to use Capital Markets to provide brokerage services
in connection with any sale of Gallaher ADRs in accordance with directions from
Plan Participants. Capital Markets shall execute such directions directly or
through NFSC. The provision of brokerage services shall be subject to the
following:
(1) As consideration for such
brokerage services, Fortune agrees that Capital Markets shall be entitled to
remuneration under this direction provision in an amount of no more than three
and one-fifth cents ($.032) commission on each Gallaher ADR. Any change in such
remuneration may be made only by a signed agreement between Fortune and Trustee.
(2) The Trustee will provide Fortune
with a description of Capital Markets' brokerage placement practices and a form
by which Fortune may terminate this direction to use a broker affiliated with
the Trustee. The Trustee will provide Fortune with this termination form
annually, as well as quarterly and annual reports which summarize all securities
transaction-related charges incurred by the Plan.
(3) Any successor organization of
Capital Markets, through reorganization, consolidation, merger or similar
transactions, shall, upon the consummation of such transaction, become the
successor broker in accordance with the terms of this direction.
(4) The Trustee and Capital Markets
shall continue to rely on this direction provision until notified to the
contrary. Fortune reserves the right to terminate this direction upon written
notice to Capital Markets (or its successor) and the Trustee, in accordance with
Section 16 of this Agreement.
(b) Voting of Gallaher ADRs.
(i) No Trustee Discretion. Notwithstanding any
other provision of the Plans or the Trust Agreement to the contrary, the Trustee
will have no discretion or authority to provide any voting instructions with
respect to Gallaher ADRs held in the Gallaher Fund except as provided in this
Section 7.
(ii) Participant Direction. Each Participant will be
entitled to direct the Trustee in writing, or by such other means as agreed to
by Fortune and the Trustee, and the Trustee will solicit the direction of such
Participant as to the manner in which the Gallaher ADR depositary should be
instructed to vote the Gallaher shares underlying the Gallaher ADRs attributable
to his proportionate interest in the Gallaher Fund. The Trustee will instruct
the Gallaher ADR depositary that such Gallaher ADRs be voted with respect to any
matter in accordance with the most recent timely direction received by the
Trustee from such Participant. With respect to the voting of Gallaher ADRs held
in the Gallaher Fund as to which timely directions have not been received by the
Trustee, the Trustee will instruct the Gallaher ADR depositary to vote the
Gallaher shares underlying the Gallaher ADRs in the same manner and in the same
proportion in which the Gallaher ADRs as to which such directions were timely
received by the Trustee are to be voted. The Trustee will combine fractional
interests of Participants in Gallaher ADRs held in the Gallaher Fund to the
extent possible so that the voting instructions to the Gallaher ADR depositary
with respect to such matter are provided in a manner which reflects as
accurately as possible the collective directions given by Participants. In
giving directions to the Trustee as provided in this Section 6(b), each
Participant will be acting as a named fiduciary with respect to the voting
rights of Gallaher ADRs in accordance with such directions pursuant to this
Section 7(b).
(iii) Trustee to Communicate Voting Procedures. In
the event that Fortune receives notice of any annual or special meeting of the
issuer of Gallaher ADRs, Fortune shall notify the Trustee as soon as
administratively feasible of the intended record date and shall cause a copy of
all related materials obtained by Fortune to be sent to the Trustee. The Trustee
will distribute or cause to be distributed as promptly as possible to all
Participants entitled to give directions to the Trustee as to voting with
respect to any matter, all communications and other materials, if any, that the
Trustee may receive from any person or entity that are being distributed to the
holders of Gallaher ADRs and either are directed generally to such holders or
relate to any matter on which holders of Gallaher ADRs are entitled to provide
voting instructions by proxy, consent or otherwise, and Fortune will promptly
furnish to the Trustee all such communications and other materials, if any, that
it receives that are being distributed by or on behalf of Gallaher. Fortune will
use its reasonable best efforts to provide the Trustee with such information,
documents and assistance as the Trustee may reasonably request in connection
with any communications or distributions to Participants as aforesaid. This
information will include the names and current addresses of Participants and the
Gallaher ADRs representing their proportional interest in the Gallaher Fund,
upon which the Trustee may conclusively rely. Based on these materials, the
Trustee shall prepare a voting instruction form and will communicate or cause to
be communicated to all Participants the procedures regarding the exercise of
voting rights of Gallaher ADRs held in the Gallaher Fund. The form shall show
the proportional interest in the number of full and fractional shares of
Gallaher ADRs credited to the Participant's accounts held in the Gallaher Fund.
Notwithstanding any other provision of this Section 6, the Plans (as
communicated to the Trustee by Fortune) or the Trust Agreement to the contrary,
except if Fortune or one of its affiliated organizations serves as recordkeeper,
to the extent necessary to provide Fortune or one of its affiliated
organizations as recordkeeper with information necessary accurately to maintain
records of the interest in the Plans of Participants, the Trustee will use its
best efforts (A) to keep confidential the direction (or the absence thereof)
from each Participant in connection with the voting of Gallaher ADRs held in the
Gallaher Fund and the identity of such Participant, and (B) not to divulge such
direction or identity to any person or entity, including, without limitation,
Gallaher, Fortune, their affiliated organizations and any director, officer,
employee or agent thereof. It is the intention of this Section 7 that Gallaher,
Fortune, their affiliated organizations and their directors, officers, employees
and agents not be able to ascertain the direction given (or not given) by any
Participant in connection with the voting of Gallaher ADRs.
(iv) Invalidity. If a court of competent
jurisdiction issues an opinion, order or decree which, in the opinion of counsel
to Fortune or the Trustee, will, in all or any particular circumstances; (A)
invalidate under ERISA or otherwise any provision or provisions of the Plans or
the Trust Agreement with respect to the voting of Gallaher ADRs held in the
Gallaher Fund; (B) cause any such provision or provisions to conflict with
ERISA; or (C) require the Trustee not to act or such voting rights not to be
exercised in accordance with such provision or provisions; then, upon written
notice thereof to the Trustee (in the case of an opinion of counsel to Fortune)
or to Fortune (in the case of an opinion of counsel to the Trustee) such
provision or provisions will be given no further force or effect in such
circumstances. Except to the extent otherwise specified in such opinion, order
or decree, the Trustee will have no discretion or authority in such
circumstances to provide voting instructions with respect to Gallaher ADRs held
in the Gallaher Fund, but will exercise such voting rights in accordance with
the most recent timely directions received from Participants to the extent such
directions have not been invalidated. To the extent the Trustee, in order to
comply with ERISA or other applicable law, exercises any fiduciary
responsibility it may have in any circumstances with respect to providing voting
instructions regarding Gallaher ADRs held in the Gallaher Fund, the Trustee in
exercising its fiduciary responsibility, unless pursuant to the requirements of
ERISA or otherwise it is unlawful to do so, will take into account directions
timely received from Participants as being valid direction.
(c) Tendering of Gallaher ADRs.
(i) Tender by Trustee. Notwithstanding any other
provision of the Plans or the Trust Agreement to the contrary, the Trustee will
have no discretion or authority to tender, deposit, sell, exchange or transfer
any Gallaher ADRs representing the proportional interest in the Gallaher Fund
(or to give directions to the Gallaher ADR depositary with respect to securities
underlying the Gallaher ADRs) pursuant to any tender offer (as defined herein)
except as provided in this Section 7(c). For purposes of this Section 7(c), a
"tender offer" will mean any tender or exchange offer for or request or
invitation for tenders or exchanges of Gallaher ADRs (or securities underlying
the Gallaher ADRs) and will include, without limitation, any such tender offer
made by or on behalf of Gallaher Group Plc.
(ii) Participant Direction. Each Participant will be
entitled to direct the Trustee in writing, or by such other means as agreed to
by the Trustee and Fortune, and the Trustee will solicit the written direction
of such Participant as to the tendering, depositing, selling, exchanging or
transferring of Gallaher ADRs attributable to his proportionate interest in the
Gallaher Fund (or to provide instructions to the Gallaher ADR depositary with
respect to securities underlying the Gallaher ADRs) pursuant to any tender
offer, and the Trustee will tender, deposit, sell, exchange or transfer Gallaher
ADRs (or will not tender such Gallaher ADRs) (or will provide instructions to
the Gallaher ADR depositary with respect to securities underlying the Gallaher
ADRs) pursuant to such tender offer in accordance with the most recent timely
direction received by the Trustee from such Participant. With respect to
Gallaher ADRs held in the Gallaher Fund as to which timely directions have not
been received by the Trustee from Participants, such Participants will be deemed
to have directed the Trustee not to tender such Gallaher ADRs in the Gallaher
Fund (or to provide instructions to the Gallaher ADR depositary that securities
underlying the Gallaher ADRs not be tendered by the Gallaher ADR depositary)
subject to all provisions of the Plans, the Trust Agreement, and applicable law,
not be tendered, deposited, sold, exchanged or transferred pursuant to such
tender offer, and the Trustee will act in accordance therewith. In the event
that, under the terms of such tender offer or otherwise, any Gallaher ADRs (or
securities underlying Gallaher ADRs) tendered or deposited pursuant thereto may
be withdrawn, the Trustee will use its best efforts to solicit the direction of
each Participant as to the exercise of withdrawal rights with respect to
Gallaher ADRs (or securities underlying Gallaher ADRs) that have been tendered
or deposited pursuant to this Section 7(c), and the Trustee will exercise (or
refrain from exercising) (or instruct the Gallaher ADR depositary to exercise or
refrain from exercising) such withdrawal rights in the same manner as will
reflect the most recent timely directions received with respect thereto. The
Trustee will not withdraw Gallaher ADRs (or instruct the Gallaher ADR depositary
to withdraw securities underlying Gallaher ADRs) except pursuant to a timely
direction of a Participant. The Trustee will combine fractional interests of
Participants in Gallaher ADRs held in the Gallaher Fund to the extent possible
so that such Gallaher ADRs are tendered, deposited, sold, exchanged or
transferred, and withdrawal rights with respect thereto are exercised, in a
manner which reflects as accurately as possible the collective directions given
or deemed to have been given by Participants in accordance with this Section
7(c). In giving or being deemed to have given directions to the Trustee as
provided in this Section 7(c), each Participant will be acting as a named
fiduciary in accordance with such directions pursuant to this Section 7(c).
(iii) Trustee to Communicate Tender Procedures. In
the event that Fortune receives notice of the commencement of a tender offer as
to which Participants are entitled to give directions as provided in this
Section 7(c), Fortune shall notify the Trustee as soon as administratively
feasible of the intended record date and shall cause a copy of all related
materials obtained by Fortune to be sent to the Trustee. In the event of such a
tender offer, the Trustee will distribute or cause to be distributed as promptly
as possible to all Participants entitled to give directions to the Trustee with
respect to such tender offer all communications and other materials, if any,
that the Trustee may receive from any person or entity that are being
distributed to the holders of the securities to whom such tender offer is
directed and either are directed generally to such holders or relate to such
tender offer. Fortune will use its reasonable best efforts to provide the
Trustee with such information, documents and assistance as the Trustee may
reasonably request in connection with any communications or distributions to
Participants, as aforesaid. This information will include the names and current
addresses of Participants and the Gallaher ADRs or securities underlying such
Gallaher ADRs representing their proportionate interests in the Gallaher Fund,
upon which the Trustee may conclusively rely. Based on these materials and after
consultation with Fortune, the Trustee shall prepare a tender instruction form
to be sent to each Plan Participant with an interest in the Gallaher Fund
containing the procedures relating to their right to give directions as named
fiduciaries to the Trustee. The tender instruction form shall show the number of
full and fractional Gallaher ADRs that reflect the Participants proportional
interest in the Gallaher Fund. Notwithstanding any other provision of this
Section 7(c), the Plans (as communicated to the Trustee by Fortune) or the Trust
Agreement to the contrary, except if Fortune or one of its affiliated
organizations serves as recordkeeper, to the extent necessary to provide Fortune
or one of its affiliated organizations as recordkeeper with information
necessary accurately to maintain records of the proportional interest in the
Plan of Participants, the Trustee will use its best efforts (A) to keep
confidential the direction (or the absence thereof) from each Participant with
respect to any tender offer and the identity of such Participant, and (B) not to
divulge such direction or identity to any person or entity, including, without
limitation, Gallaher, Fortune, their affiliated organizations and any director,
officer, employee or agent thereof. It is the intent of this Section 7 that
Gallaher, Fortune, their affiliated organizations and their directors, officers,
employees and agents not be able to ascertain the direction given (or not given)
or deemed to have been given by any Participant with respect to any tender
offer.
(iv) Invalidity. If a court of competent
jurisdiction issues an opinion, order or decree which, in the opinion of counsel
to Fortune or the Trustee, will, in all or any particular circumstances; (A)
invalidate under ERISA or otherwise any provision or provisions of the Plans or
the Trust Agreement with respect to the tendering, depositing, sale, exchange or
transfer of Gallaher ADRs (or securities underlying Gallaher ADRs) held in the
Gallaher Fund or the exercise of any withdrawal rights with respect to Gallaher
ADRs (or securities underlying Gallaher ADRs) tendered or deposited pursuant to
a tender offer; (B) cause any such provision or provisions to conflict with
ERISA; or (C) require the Trustee not to act or such Gallaher ADRs (or
securities underlying Gallaher ADRs) not to be tendered, deposited, sold,
exchanged or transferred or such withdrawal rights not to be exercised in
accordance with such provision or provisions; then, upon written notice thereof
to the Trustee (in the case of an opinion of counsel to Fortune) or to Fortune
(in the case of an opinion of counsel to the Trustee) such provision or
provisions will be given no further force or effect in such circumstances.
Except to the extent otherwise specified in such opinion, order or decree, the
Trustee will have no discretion or authority in such circumstances to tender,
deposit, sell, transfer or exchange Gallaher ADRs held in the Gallaher Fund (or
the retention of such shares in the Gallaher Fund), or to give instructions to
the Gallaher ADR depositary with respect to securities underlying Gallaher ADRs,
pursuant to a tender offer or with respect to the exercise of (or refraining
from exercising) any withdrawal rights with respect thereto, but will act in
accordance with the most recent timely directions received from Participants to
the extent such directions have not been invalidated. To the extent the Trustee,
in order to comply with ERISA or other applicable law, exercises any fiduciary
responsibility it may have in any circumstances with respect to the tendering,
depositing, sale, exchange or transfer of Gallaher ADRs held in the Gallaher
Fund, or giving instructions to the Gallaher ADR depositary with respect to
securities underlying Gallaher ADRs, or the exercise of any withdrawal rights
with respect thereto, the Trustee in exercising its fiduciary responsibility,
unless pursuant to the requirements of ERISA or otherwise it is unlawful to do
so, will take into account directions timely received from Participants as being
valid direction.
(v) Proceeds of Tender. The proceeds of any sale,
exchange or transfer of Gallaher ADRs (or securities underlying Gallaher ADRs)
will be allocated pursuant to the direction of a Participant; provided, however,
that the proceeds thereof will not be held in the Gallaher Fund.
Section 8. Investment Options.
(a) Participant Loans. (i) General Purpose Loans. The Administrator
shall act as the Trustee's agent for Participant loan notes and as such shall
(i) separately account for repayments of such loans and clearly identify such
assets as Plan assets and (ii) collect and remit all principal and interest
payments to the Trustee. To originate a Participant loan, the Plan Participant
shall direct the Trustee as to the term and amount of the loan to be made from
the Participant's individual account. Such directions shall be made by Plan
Participants by use of the exchange system maintained for such purpose by the
Trustee or its agent. The Trustee shall determine, based on the current value of
the Participant's account on the date of the request and any guidelines provided
by Fortune, the amount available for the loan. Based on the interest rate
supplied by Fortune in accordance with the terms of the Plan, the Trustee shall
advise the Participant of such interest rate, as well as the installment payment
amounts. The Trustee shall distribute the loan agreement and truth-in-lending
disclosure with the proceeds check to the Participant. To facilitate
recordkeeping, the Trustee may destroy the original of any proceeds check made
in connection with a loan to a Participant under the Plan, provided that the
Trustee or its agent first creates a duplicate by a photographic or optical
scanning or other process yielding a reasonable facsimile of the promissory note
and the Plan Participant's signature thereon, which duplicate may be reduced or
enlarged in size from the actual size of the original promissory note.
(ii) Loans for the Purchase of a Primary
Residence. The Administrator shall act as the Trustee's agent for the purpose of
holding all trust investments in Participant loan notes and related
documentation and as such shall (i) hold physical custody of and keep safe the
notes and other loan documents, (ii) separately account for repayments of such
loans and clearly identify such assets as Plan assets, (iii) collect and remit
all principal and interest payments to the Trustee, and (iv) cancel and
surrender the notes and other loan documentation when a loan has been paid in
full. To originate a Participant loan, the Plan Participant shall direct the
Trustee as to the type of loan to be made from the Participant's individual
account. Such directions shall be made by Plan Participants by use of the
exchange system maintained for such purpose by the Trustee or its agent. The
Trustee shall determine, based on the current value of the Participant's
account, the amount available for the loan. Based on the interest rate supplied
by Fortune in accordance with the terms of the Plan, the Trustee shall advise
the Participant of such interest rate, as well as the installment payment
amounts. The Trustee shall forward the loan document to the Participant for
execution and submission for approval to the Administrator. The Administrator
shall have the responsibility for approving the loan and instructing the Trustee
to send the loan proceeds to the Administrator or to the Participant if so
directed by the Administrator. In the event that approval or disapproval by the
Administrator is not made within thirty (30) days of the Participant's initial
request (the origination date), the loan shall be deemed disapproved.
(b) Outside Managed Separate Investment Funds. This Paragraph is
intended to authorize appointment of an investment manager as contemplated in
Section 402(c)(3) of ERISA.
Fortune may appoint an investment manager with respect to some or all
of the assets of the Plan. The appointment of the investment manager shall be
made by an officer of Fortune or other named fiduciary authorized by a
resolution of Fortune's Board of Directors to make such appointments. The
authority of the investment manager shall not begin until Trustee receives from
Fortune notice satisfactory to Trustee that the investment manager has been
appointed and that the investment manager has acknowledged in writing that with
respect to the relevant assets of the Fund he or she or it is a fiduciary with
respect to the Plan within the meaning of ERISA. The investment manager's
authority shall continue until Trustee receives similar notice that the
appointment has been rescinded. By notifying Trustee of the appointment of an
investment manager, Fortune shall be deemed to warrant that such investment
manager meets the requirements of Section 3(38) of ERISA, but Trustee may demand
independent evidence that any investment manager meets those requirements.
The assets with respect to which a particular investment manager has
been appointed shall be segregated from all other assets held by Trustee under
this Agreement and the investment manager shall have the duty and power to
direct Trustee in every aspect of their investment. The Trustee shall follow the
directions of an investment manager regarding the investment and reinvestment of
the Trust, or such portion thereof as shall be under management by the
investment manager, and shall be under no duty or obligation to review any
investment to be acquired, held or disposed of pursuant to such directions nor
make any recommendations with respect to the disposition or continued retention
of any such investment. The Trustee shall have no liability or responsibility
for acting without question on the direction of, or failing to act in the
absence of any direction from an investment manager, unless the trustee has
knowledge that by such action or failure to act it will be participating in or
undertaking to conceal a breach of fiduciary duty by that investment manager.
Upon request, Trustee shall execute appropriate powers of attorney authorizing
an investment manager appointed hereunder to exercise the powers and duties of
the investment manager.
Trustee may rely upon any order, certificate, notice, direction or
other documentary confirmation purporting to have been issued or given by an
investment manager which Trustee believes to be genuine and to have been issued
or given by such investment manager.
An investment manager shall certify, at the request of the Trustee, the
value of any securities or other property held in any fund managed by 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.
Any oral direction shall be followed by a written confirmation as soon
as practical. Trustee shall follow the procedures established by Fortune to
validate such oral directions.
(c) Reliance of Trustee on Directions.
(i) The Trustee shall not be liable for any loss, or expense
which arises from any Participant's exercise or non-exercise of rights under
this Section 8 over the assets in the Participant's accounts.
(ii) The Trustee shall not be liable for any loss or expense which
arises from the Named Fiduciary's exercise or non-exercise of rights under this
Section 8, unless it was clear on their face that the actions to be taken under
the Named Fiduciary's directions were prohibited by the fiduciary duty rules of
Section 404(a) of ERISA or were contrary to the terms of the Plan as
communicated in writing to the Trustee.
Section 9. Trustee Powers. The Trustee shall have the following powers and
authority:
(a) Subject to the provisions of this Trust Agreement, to sell,
exchange, convey, transfer, or otherwise dispose of any property held in the
Trust, by private contract or at public auction. No person dealing with the
Trustee shall be bound to see to the application of the purchase money or other
property delivered to the Trustee or to inquire into the validity, expediency,
or propriety of any such sale or other disposition.
(b) To cause any securities or other property held as part of the
Trust to be registered in the Trustee's own name, in the name of one or more of
its nominees, or in the Trustee's account with the Depository Trust Company of
New York and to hold any investments in bearer form, but the books and records
of the Trustee shall at all times show that all such investments are part of the
Trust.
(c) To keep that portion of the Trust in cash or cash balances as
Fortune may, from time to time, deem to be in the best interest of the Trust.
(d) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein granted.
(e) To borrow funds from a bank not affiliated with the Trustee
in order to provide sufficient liquidity to process Plan transactions in a
timely fashion, provided that the cost of borrowing shall be allocated in a
reasonable fashion to the investment fund(s) in need of liquidity.
(f) To settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to commence or defend suits
or legal or administrative proceedings; to represent the Trust in all suits and
legal and administrative hearings; and to pay all reasonable expenses arising
from any such action, from the Trust if not paid by Fortune.
(g) To employ legal, accounting, clerical, and other assistance
as may be required in carrying out the provisions of this Agreement and to pay
their reasonable expenses and compensation from the Trust if not paid by
Fortune.
(h) To invest all of any part of the assets of the Trust in
guaranteed interest contracts and short-term investments (including interest
bearing accounts with the Trustee of money market mutual funds advised by
affiliates of the Trustee) and in any collective investment trust or group
trust, including any collective investment trust or group trust maintained by
the Trustee, which then provides for the pooling of the assets of plans
described in Section 401(a) and exempt from tax under Section 501(a) of the
Code, or any comparable provisions of any future legislation that amends,
supplements, or supersedes those sections, provided that such collective
investment trust or group trust is exempt from tax under the Code or regulations
or rulings issued by the Internal Revenue Service; the provisions of the
document governing such collective investment trusts or group trusts, as it may
be amended from time to time, shall govern any investment therein and are hereby
made a part of this Trust Agreement.
(i) To do all other acts although not specifically mentioned
herein, as the Trustee may deem necessary to carry out any of the foregoing
powers and the purposes of the Trust.
Section 10. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in the Schedule of Administrative Services
provided by the Trustee and signed by Fortune. These recordkeeping and
administrative functions shall be performed within the framework of Fortune's
written directions regarding the Plan's provisions, guidelines and
interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of each Reporting
Date. Within thirty (30) days following each Reporting Date or within sixty (60)
days in the case of a Reporting Date caused by the resignation or removal of the
Trustee, or the termination of this Agreement, the Trustee shall file with
Fortune a written account setting forth all investments, receipts,
disbursements, and other transactions effected by the Trustee between the
Reporting Date and the prior Reporting Date, and setting forth the value of the
Trust as of the Reporting Date. Except as otherwise required under ERISA, upon
the expiration of six (6) months from the date of filing such account, the
Trustee shall have no liability or further accountability with respect to the
propriety of its acts or transactions shown in such account, except with respect
to such acts or transactions as to which a written objection shall have been
filed with the Trustee within such six (6) month period.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to the termination of this
Agreement, by Fortune or any person designated by Fortune. Upon the resignation
or removal of the Trustee or the termination of this Agreement, the Trustee
shall provide to Fortune, at no expense to Fortune, in the format regularly
provided to Fortune, a statement of each Participant's accounts as of the
resignation, removal, or termination, and the Trustee shall provide to Fortune
or the Plan's new recordkeeper such further records as are reasonable, at
Fortune's expense.
(d) Effect of Plan Amendment. Fortune has delivered to the Trustee
confirmation that the Plans are tax qualified under the Code. The Trustee's
provision of the recordkeeping and administrative services set forth in this
Section 10 shall be conditioned on Fortune delivering to the Trustee a copy of
any amendment to the Plan as soon as administratively feasible following the
amendment's adoption, with, if requested, an IRS determination letter or an
opinion of counsel covering such amendment, and on Fortune providing the Trustee
on a timely basis with all the information Fortune deems necessary for the
Trustee to perform the recordkeeping and administrative services and such other
information as the Trustee may reasonably request.
(e) Returns, Reports and Information. Except as set forth on the
Schedule of Administrative Services and in this Agreement, Fortune shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide
Fortune with such information as Fortune may reasonably request to make these
filings. Fortune shall also be responsible for making any disclosures to
Participants required by law, except such disclosure as may be required under
federal or state truth-in-lending laws with regard to Participant loans, which
shall be provided by the Trustee.
(f) Allocation of Plan Interests. All transfers to, withdrawals from,
or other transactions regarding the Trust shall be conducted in such a way that
the proportionate interest in the Trust 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 or in any investment option, the undivided
interest therein of each such Plan shall be debited or credited (as the case may
be) (i) for the entire amount of every contribution received on behalf of such
Plan, every benefit payment, or other expense attributable solely to such Plan,
and every other transaction relating only to such Plan; and (ii) for its
proportionate share of every item of collected or accrued income, gain or loss,
and general expense, and of any other transactions attributable to the Trust or
that investment option as a whole.
Section 11. Compensation and Expenses. All reasonable expenses of plan
administration as shown on the Schedule of Fees provided by the Trustee and
signed by Fortune, as amended from time to time, shall be a charge against and
paid from the appropriate Plan Participants' accounts, except to the extent such
amounts are paid by Fortune in a timely manner.
All expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all taxes of any
kind whatsoever that may be levied or assessed under existing or future laws
upon or in respect of the Trust or the income thereof, shall be a charge against
and paid from the appropriate Participants' accounts.
Section 12. Directions and Indemnification.
(a) Identity of Administrator and Named Fiduciaries. The Trustee shall
be fully protected in relying on the fact that the Administrator and the Named
Fiduciaries under a Plan are the individuals or persons named as such on the
Authorization Letters signed by Fortune or on a Plan Designation Form provided
by the Trustee and signed by Fortune or such other individuals or persons as
Fortune may notify the Trustee in writing.
(b) Directions from Fortune or Administrator. Whenever Fortune or the
Administrator provides a direction to the Trustee, the Trustee shall not be
liable for any loss or expense arising from the direction if the direction is
contained in a writing (or is oral and immediately confirmed in a writing)
signed by any individual whose name and signature have been submitted (and not
withdrawn) in writing to the Trustee by Fortune provided the Trustee reasonably
believes the signature of the individual to be genuine unless it is clear on the
direction's face that the actions to be taken under the direction would be
prohibited by the fiduciary duty rules of section 404(a) of ERISA or would be
contrary to the terms of this Agreement. Such direction may also be made via
Electronic Data Transfer ("EDT") in accordance with procedures agreed to by
Fortune and the Trustee; provided, however, that the Trustee shall be fully
protected in relying on such direction as if it were a direction made in writing
by Fortune. The Trustee shall have no responsibility to ascertain any
direction's (i) accuracy, (ii) compliance with the terms of the Plan or any
applicable law, or (iii) effect for tax purposes or otherwise.
(c) Directions from Named Fiduciary. Whenever Fortune or the Named
Fiduciary provides a direction to the Trustee, the Trustee shall not be liable
for any loss or expense arising from the direction (i) if the direction is
contained in a writing (or is oral and immediately confirmed in a writing)
signed by any individual whose name and signature have been submitted (and not
withdrawn) in writing to the Trustee by the Named Fiduciary and (ii) if the
Trustee reasonably believes the signature of the individual to be genuine,
unless it is clear on the direction's face that the actions to be taken under
the direction would be prohibited by the fiduciary duty rules of section 404(a)
of ERISA or would be contrary to the terms of the Plan (as communicated by
Fortune to the Trustee in writing) or this Agreement. For purposes of this
Section, such direction may also be made via electronic data transfer (EDT) or
other electronic means in accordance with procedures agreed to by the Named
Fiduciary and the Trustee; provided, however, that the Trustee shall be fully
protected in relying on such direction as if it were a direction made in writing
by the Named Fiduciary.
(d) Co-Fiduciary Liability. In any other case, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided in section
405(a) of ERISA. Without limiting the foregoing, the Trustee shall have no
liability for the acts or omissions of any predecessor or successor trustee.
(e) Indemnification. Fortune shall indemnify the Trustee against, and
hold the Trustee harmless from, any and all loss, damage, penalty, liability,
cost, and expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted against the
Trustee by reason of any claim, regulatory proceeding, or litigation arising
from any act done or omitted to be done by any individual or person with respect
to the Plan or Trust, excepting only any and all loss arising solely from the
Trustee's negligence or bad faith.
The Trustee shall indemnify Fortune against and hold Fortune
harmless from any and all such loss, damage, penalty, liability, cost, and
expense, including without limitation, reasonable attorney's fees and
disbursements, that may be incurred by, imposed upon, or asserted against
Fortune solely as a result of (i) any defects in the investment methodology
embodied in the target asset allocation or model portfolio provided through
Fidelity Portfolio PlannerSM, except to the extent that any such loss, damage,
penalty, liability, cost or expense arises from information provided by the
Participant, Fortune or third parties; or (ii) any prohibited transactions
resulting from the provision by the Trustee of Fidelity PortfolioPlanner.
(f) Survival. The provisions of this Section 12 shall survive the
termination of this Agreement.
Section 13. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon sixty (60)
days' notice in writing to Fortune, unless a shorter period of notice is agreed
upon by Fortune.
(b) Removal. Fortune may remove the Trustee at any time upon sixty (60)
days' notice in writing to the Trustee, unless a shorter period of notice is
agreed upon by the Trustee.
Section 14. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, Fortune may in writing appoint a successor trustee under this Agreement.
The successor trustee shall have all of the rights, powers, privileges,
obligations, duties, liabilities, and immunities granted to the Trustee under
this Agreement. The successor trustee and predecessor trustee shall not be
liable for the acts or omissions of the other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action on the part
of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
be requested in writing by Fortune or the successor trustee to vest title to all
Trust assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through reorganization, consolidation, or
merger, or any similar transaction, shall, upon consummation of the transaction,
become the successor trustee under this Agreement.
Section 15. Termination. This Agreement may be terminated at any time by Fortune
upon sixty (60) days' notice in writing to the Trustee. On the date of the
termination of this Agreement, the Trustee shall forthwith transfer and deliver
to such individual or entity as Fortune shall designate, all cash and assets
then constituting the Trust. If, by the termination date, Fortune has not
notified the Trustee in writing as to whom the assets and cash are to be
transferred and delivered, the Trustee may bring an appropriate action or
proceeding for leave to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by Fortune for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
Section 16. Resignation, Removal, and Termination Notices. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to Fortune c/o Director, Corporate
Employee Benefits, 1700 East Putnam Avenue, Old Greenwich, Connecticut 06870,
and to the Trustee c/o Legal Department, ERISA Group, Fidelity Investments, 82
Devonshire Street, Boston, Massachusetts 02109, or to such other addresses as
the parties have notified each other of in the foregoing manner.
Section 17. Duration. This Trust shall continue in effect without limit as to
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
Section 18. Amendment or Modification. This Agreement may be amended or modified
at any time and from time to time only by an instrument executed by both Fortune
and the Trustee. Notwithstanding the foregoing, to reflect increased operating
costs the Trustee may once each calendar year amend the Schedule of Fees without
Fortune's consent upon seventy-five (75) days written notice to Fortune.
Section 19. Electronic Services.
(a) The Trustee may provide communications and services via electronic
medium ("Electronic Services"), including, but not limited to, Fidelity Plan
Sponsor WebStation, Client Intranet, Client e-mail, interactive software
products or any other information provided in an electronic format. Fortune, its
agents and employees agree to keep confidential and not publish, copy,
broadcast, retransmit, reproduce, commercially exploit or otherwise
redisseminate the data, information, software or services without the Trustee's
written consent.
(b) Fortune shall be responsible for installing and maintaining all
Electronic Services on its computer network and/or Intranet upon receipt in a
manner so that the information provided via the Electronic Services will appear
in the same form and content as it appears on the form of delivery, and for any
programming required to accomplish the installation. Materials provided for Plan
Sponsor's intranet web sites shall be installed by Fortune and shall be clearly
identified as originating from Fidelity. Fortune shall promptly remove
Electronic Services from its computer network and/or Intranet, or replace the
Electronic Services with an updated service provided by the Trustee, upon
written notification (including written notification via facsimile) by the
Trustee.
(c) All Electronic Services shall be provided to Fortune without any
express or implied legal warranties or acceptance of legal liability by the
Trustee relative to the use of material or Electronic Services by Fortune. No
rights are conveyed to any property, intellectual or tangible, associated with
the contents of the Electronic Services and related material.
(d) To the extent that any Electronic Services utilize Internet
services to transport data or communications, the Trustee will take, and Fortune
agrees to follow, reasonable security precautions; however, the Trustee
disclaims any liability for interception of any such data or communications. The
Trustee shall not be responsible for, and makes no warranties regarding access,
speed or availability of Internet or network services. The Trustee shall not be
responsible for any loss or damage related to or resulting from any changes or
modifications to the electronic material after delivering it to Fortune.
Section 20. General.
(a) Performance by Trustee, its Agents or Affiliates. Fortune
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, including
Fidelity Investments Institutional Operations Company or its successor, and that
certain of such services may be provided pursuant to one or more other
contractual agreements or relationships.
(b) Delegation by Employer. By authorizing the assets of any Plan as to
which it is an employer to be deposited in the Trust, each employer, other than
Fortune, hereby irrevocably delegates and grants to Fortune full and exclusive
power and authority to exercise all of the powers conferred upon Fortune and
each employer by the terms of this Agreement, and to take or refrain from taking
any and all action which such employer might otherwise take or refrain from
taking with respect to this Agreement, including the sole and exclusive power to
exercise, enforce or waive any rights whatsoever which such employer might
otherwise have with respect to the Trust, and irrevocably appoints Fortune as
its agent for all purposes under this Agreement. The Trustee shall have no
obligation to account to any such employer or to follow the instructions of or
otherwise deal with any such employer, the intention being that the Trustee
shall deal solely with Fortune.
(c) Entire Agreement. This Agreement, including the Schedules referred
to herein which are incorporated herein by reference, contains all of the terms
agreed upon between the parties with respect to the subject matter hereof.
(d) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(e) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(f) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(g) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
Section 21. Governing Law.
(a) Massachusetts Law Controls. This Agreement is being made in the
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration of
this Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan,
and in the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement shall control.
Section 22. Plan Qualification. Fortune shall be responsible for verifying that
while any assets of a particular Plan are held in the Trust, the Plan (i) is
qualified within the meaning of section 401(a) of the Code; (ii) is permitted by
existing or future rulings of the United States Treasury Department to pool its
funds in a group trust; and (iii) permits its assets to be commingled for
investment purposes with the assets of other such plans by investing such assets
in this Trust. If any Plan ceases to be qualified within the meaning of section
401(a) of the Code, Fortune shall notify the Trustee as promptly as is
reasonable. Upon receipt of such notice, the Trustee shall promptly segregate
and withdraw from the Trust, the assets which are allocable to such disqualified
Plan, and shall dispose of such assets in the manner directed by Fortune.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
FORTUNE BRANDS, INC.
Attest: Mark S. Lyon By: /s/ Gilbert L. Klemann, II
--------------- -----------------------------------------
Secretary
Name: Gilbert L. Klemann, II
--------------------------------------
Title: Executive Vice President - Corporate
--------------------------------------
Date: September 30, 1999
--------------------------------------
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: Douglas O. Kant
------------------ By: /s/ Carolyn Redden
Secretary ------------------------------------------
Name: Carolyn Redden
---------------------------------------
Title: Vice President
---------------------------------------
Date: October 7, 1999
---------------------------------------