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EXHIBIT - 10.20
WALLACE COMPUTER SERVICES, INC.
BENEFIT TRUST
WALLACE COMPUTER SERVICES, INC.
BENEFIT TRUST
TABLE OF CONTENTS
Page
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ARTICLE I - TRUST, TRUSTEE AND TRUST FUND 2
Section 1.1. Trust 2
Section 1.2. Trustee 2
Section 1.3. Trust Fund 2
Section 1.4. Irrevocability of Trust 2
Section 1.5. Delivery of Funds 2
Section 1.6. The Plans 3
Section 1.7. Subtrusts 3
ARTICLE II - AUTHORIZED COMPANY REPRESENTATIVES 4
ARTICLE III - MATERIAL CHANGE 5
Section 3.1. Definition of Material Change 5
Section 3.2. Notification by Company 5
ARTICLE IV - RETURNS AND DISTRIBUTIONS FROM THE FUND 6
Section 4.1. Return of Trust Assets to the Company 6
Section 4.2. Distributions to Beneficiaries 8
Section 4.3. Non-Duplication of Benefits 9
Section 4.4. Withholding of Taxes 9
Section 4.5. Interests Nonassignable 10
ARTICLE V - INVESTMENT OF FUND 10
ARTICLE VI - POWERS AND RIGHTS OF TRUSTEE 10
Section 6.1. Trustee's Powers 10
Section 6.2. Advice of Counsel 11
Section 6.3. Indemnification of Trustee 11
Section 6.4. Compensation and Expenses 11
ARTICLE VII - ACCOUNTS AND REPORTS OF THE TRUSTEE 11
Section 7.1. Records and Accounts of the Trustee 11
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Section 7.2. Cash Basis of Accounts 12
Section 7.3. Fiscal Year 12
Section 7.4. Annual Report 12
Section 7.5. Approval of Reports 12
ARTICLE VIII - REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE 13
Section 8.1. Removal 13
Section 8.2. Resignation 13
Section 8.3. Appointment, Qualifications and Powers of
Successor Trustee 13
Section 8.4. Changes in Organization of Corporate Trustee 13
ARTICLE IX - AMENDMENT OR TERMINATION 14
Section 9.1. Authority to Amend or Terminate 14
Section 9.2 Method of Making Amendment 14
Section 9.3. Termination of Trust 14
ARTICLE X - MISCELLANEOUS 14
Section 10.1. Protection of Persons Dealing with Trustee 14
Section 10.2. Tax Status of Trust 15
Section 10.3. No Interest in Company Given by Trust 15
Section 10.4. Gender and Plurals 15
Section 10.5. Governing Law 15
ARTICLE XI - EXECUTION 16
WALLACE COMPUTER SERVICES, INC.
BENEFIT TRUST
This TRUST AGREEMENT (the "Agreement") is made between Wallace
Computer Services, Inc., a Delaware corporation (the "Company"), and The
Northern Trust Company as Trustee (the "Trustee").
WHEREAS, the Company is or may hereafter become obligated
under the Plans (as hereinafter defined), to make payments to certain of its
officers and key employees ("Participants"), or the beneficiaries thereof (such
Participants and beneficiaries being hereinafter collectively referred to as
"Beneficiaries");
WHEREAS, such Company obligations are not funded or otherwise
secured; and
WHEREAS, for purposes of assuring that payment of such Company
obligations will not improperly be withheld in the event of a Material Change
(as hereinafter defined), the Company desires to deposit with the Trustee,
subject only to the claims of the Company's existing or future creditors, assets
sufficient to enable the Trustee to make such payments as they may become due
and payable;
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NOW THEREFORE, in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
TRUST, TRUSTEE AND TRUST FUND
Section 1.1. Trust. This Agreement and the trust evidenced
hereby, as amended and supplemented from time to time, shall be known
collectively as the Wallace Computer Services, Inc. Benefit Trust (the "Trust").
Section 1.2. Trustee. The Northern Trust Company, an Illinois
corporation, of Chicago, Illinois, is hereby designated as the Trustee of the
Trust, to receive, hold, invest, administer and distribute the Fund (as
hereinafter defined) in accordance with the provisions of this Agreement for the
exclusive purpose of providing benefits to the Beneficiaries under the Plans (as
hereinafter defined).
Section 1.3. Trust Fund. All cash, marketable securities and
other property delivered by the Company to the Trustee hereunder, together with
all other assets held in the Trust by the Trustee, are hereinafter called the
"Fund." Except as herein otherwise provided, title to the Fund shall at all
times be vested in the Trustee, subject to the right of the Trustee to hold
title to particular assets in bearer form or in the name of a nominee or
nominees; and the interest of the Beneficiaries in the assets of the Fund shall
be limited to the right to have such assets received, held, invested,
administered and distributed by the Trustee in accordance with the provisions of
the Trust.
Section 1.4. Irrevocability of Trust. The Trust shall not be
subject to revocation, amendment or modification, except as provided in Section
9.1.
Section 1.5. Delivery of Funds. (a) Concurrently with the
execution and delivery of this Agreement, the Company has delivered to the
Trustee such amount of cash, marketable securities or other property as they may
agree, to be held in the Fund.
(b) The Company shall deliver to the Trustee such amount of
cash or marketable securities as the Company deems necessary, in its sole
discretion, to fund amounts of required contributions under the Plans.
(c) Immediately after the occurrence of a Material Change, the
Company shall deliver to the Trustee, to be held in the Fund, cash or marketable
securities or other property having a fair market value (or any combination
thereof) equal to the amounts which are required to be contributed by the Plans.
Section 1.6. The Plans. For purposes of this Agreement, the
terms "Plans" shall refer to the Wallace Computer Services, Inc. 1990 Deferred
Compensation/Capital Appreciation Plan, the Wallace Computer Services, Inc. 1991
Deferred Compensation/Capital Appreciation Plan, the Wallace Computer Services,
Inc. 1993 Deferred Compensation/Capital Accumulation Plan, the Wallace Computer
Services, Inc. 1994 Deferred Compensation/Capital Accumulation Plan, the Wallace
Computer Services, Inc. 1995 Deferred Compensation/Capital Accumulation Plan. At
any time prior to a Material Change (as hereinafter defined), the Company may,
by written notice to the Trustee, cause additional plans or agreements to become
Plans subject to this Agreement. Upon and after a Material Change, the Company
may not add any additional plans or agreements to this Agreement, unless the
Trustee consents in writing to any such addition.
The Plans are intended to be unfunded and maintained primarily
for the purpose of providing deferred compensation for a select group of
management or highly compensated employees
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within the meaning of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). The existence of this Trust is not intended to alter this
characterization of the Plans.
The Company or the Committee (as defined in the Plans) shall
provide to the Trustee any and all amendments, supplements or other
documentation with regard to the Plans, including the adoption of any additional
or successor plan. The Company further agrees to provide, or cause the Committee
to provide, to the Trustee any and all pertinent information regarding the
obligations of the Trustee to the Beneficiaries hereunder. The Trustee's duties
and responsibilities shall be defined by this Trust Agreement without any
reference to any Plan or other agreement.
Section 1.7. Subtrusts. The Trustee shall establish (i) a
separate subtrust (a "Subtrust") for each Plan to which the Trustee shall credit
contributions it receives which are earmarked for that Plan and Subtrust and
(ii) if directed by the Company, a separate Subtrust to which the Trustee shall
credit contributions it receives which are earmarked to a special reserve for
payment of future fees and expenses of the Trustee and future Trust fees and
expenses for legal and administrative proceedings. Each Subtrust shall reflect
an undivided interest in assets of the Fund and shall not require any
segregation of particular assets. When Subtrusts are established, all
contributions shall be designated by the Company for a particular Subtrust;
provided that any contribution received by the Trustee which is not designated
by the Company for a particular Subtrust shall be allocated among the Subtrusts
as the Trustee may determine in its sole discretion.
Upon delivery of any contributions to the Trust, the Company
or the Committee may designate the amount thereof allocable to any participant
in any Plan. If such designation is made, the Trustee shall establish an Account
on behalf of such participant. When such Accounts are established, they shall
thereafter be treated as Subtrusts for purposes of this Agreement.
Unless otherwise directed by the Company or the Committee, (i)
the Trustee shall allocate investment earnings and losses and expenses of the
Fund among the Subtrusts and Accounts in such manner as the Trustee determines
in its discretion to be necessary to provide an equitable allocation of any
change in the value of the adjusted net worth of the Fund and (ii) the assets
allocated to a particular Subtrust for a Plan or Account for a participant may
not be utilized to provide benefits or pay expenses under any other Plans until
all benefits under such Plan have been paid in full.
ARTICLE II
AUTHORIZED COMPANY REPRESENTATIVES
The Company shall furnish the Trustee the name and specimen
signature of each person upon whose certification of any calculation, decision
or direction of the Company or the Committee the Trustee is authorized to rely.
Until notified of a change in the identity of such person or persons, the
Trustee shall act upon the assumption that there has been no such change.
ARTICLE III
MATERIAL CHANGE
Section 3.1. Definition of Material Change. For the purpose of
this Agreement, a "Material Change" of the Company shall mean:
(a) the acquisition (in one or more transactions) of
beneficial ownership of thirty-five percent (35%) or
more of the outstanding shares of common stock of the
Company by any person or entity (or by any group of
persons or entities acting in concert for the purpose
of acquiring, voting, holding or disposition of the
Company's common stock);
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(b) individuals who, as of September 6, 1995,
constitute the Board of Directors of the Company (the
"Incumbent Board") cease for any reason to constitute
at least a majority of such Board; provided, however,
that any individual who becomes a member of the Board
of Directors of the Company subsequent to such date
whose election, or nomination for election by the
stockholders of the Company, was approved by a vote
of at least a majority of the directors then
comprising the Incumbent Board shall be deemed to be
a member of the Incumbent Board; and provided
further, that no individual whose election or initial
assumption of office as a director of the Company
occurs as a result of an actual or threatened
election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended) with
respect to the election or removal of directors, or
any other actual or threatened solicitation of
proxies or consents by or on behalf of any person
other than the Board of Directors of the Company,
shall be deemed to be a member of the Incumbent
Board; or
(c) the occurrence of any other event or state of
facts that the Board of Directors of the Company may
determine (by the adoption of a resolution) has,
does, or would constitute a "Material Change" for the
purposes of this Section 3.1.
Section 3.2. Notification by Company. The Company shall notify
the Trustee in writing of the occurrence of a Material Change; and the Trustee
may rely on such notice or on any other notice or knowledge, satisfactory to the
Trustee, as to whether a Material Change shall have occurred. The Trustee also
may from time to time request that the Company confirm or deny in writing to the
Trustee that a Material Change shall have occurred, to which the Company shall
respond in writing within three business days after its receipt. The Company's
failure to respond within one business day after such request is delivered to
the Company shall be deemed to constitute confirmation of the occurrence of a
Material Change. The Trustee shall not be under any duty to make any
investigation as to whether a Material Change has occurred.
ARTICLE IV
RETURNS AND DISTRIBUTIONS FROM THE FUND
Section 4.1. Return of Trust Assets to the Company. (a) If any
excess assets remain in the Trust, or a Subtrust, as the case may be, after the
Company's obligations to pay benefits and applicable expenses under a Plan have
been satisfied, then such excess assets shall be transferred pro rata, based on
relative balances, to the remaining Subtrust(s).
(b) Any expense (including any expense of the Trustee)
incurred by the Trustee in investing the Fund shall be for the account of the
Company, and the Company shall promptly upon written notice from the Trustee,
reimburse the Fund for any such expense, except to the extent, if any, that any
such expense constitutes a payment to a Beneficiary pursuant to a benefit
designation or has been applied to reduce an amount payable to the Company
pursuant to Section 1.5.
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(c) If the Company shall become Insolvent (as hereinafter
defined), the Trustee shall immediately cease distributions from the Fund
pursuant to Section 4.2 and shall hold the Fund for the benefit of the Company's
general creditors. For purposes of the Trust, the Company shall be deemed to be
"Insolvent" and an "Insolvency" shall be deemed to have occurred if:
(i) the Company shall (A) be generally not paying its debts as
they become due, (B) file, or consent by answer or otherwise to the
filing against it of, or fail to controvert in a timely manner, a
petition for relief, reorganization or arrangement under, or any other
petition in bankruptcy or for liquidation under, or to take advantage
of, any bankruptcy or insolvency law of any jurisdiction, (C) make an
assignment for the benefit of its creditors, (D) consent to the
appointment of a custodian, receiver, trustee or other officer with
similar powers of itself or of any substantial part of its property,
(E) be adjudicated insolvent or be liquidated in any insolvency
proceeding or (F) take corporate action for the purpose of any of the
foregoing; or
(ii) a court or governmental authority of competent
jurisdiction shall enter an order appointing, without consent by the
Company, a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of
its property; or an order for relief shall be entered in any case or
proceeding for liquidation or reorganization or otherwise to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding-up or liquidation of the Company; or
if any petition for any such relief shall be filed against the Company
and such petition shall not be dismissed within 30 days.
The Trustee shall, if ordered by a court of competent jurisdiction, distribute
the assets of the Trust as such court may direct to pay the claims of creditors
without regard to the amount of other assets of the Company available to pay
such claims.
The Company shall notify the Trustee immediately after the
occurrence of any event of Insolvency, as specified in the preceding paragraph.
If the Trustee shall receive any written allegation (other than from the
Company) that the Company is Insolvent, it shall immediately suspend
distributions from the Fund pursuant to Section 4.2 and shall, within five days
of the receipt of such allegation, request a written confirmation or denial by
the Company, under oath, of such allegation. The Trustee shall not resume such
distributions if the Company is Insolvent, but the Trustee shall resume such
distributions if the Company confirms that it is not Insolvent. In the absence
of such notification or allegation, the Trustee shall be entitled, but shall not
be required, to make its own determination as to whether the Company has become
Insolvent based on information available to it, but the Trustee shall not be
under any duty to make any investigation as to the Insolvency or financial
status of the Company.
Section 4.2. Distributions to Beneficiaries. The Trustee shall
make distributions to the Beneficiaries in the amounts and at the times
specified in writing by the Company or the Committee to the Trustee. In
addition, any individual (a "Claimant") may claim the right to receive payment
of benefits under the Plan from the Trust by so notifying the Trustee in
writing. Such notice shall set forth (i) the specific provisions of the Plan or
Plans under which such Claimant believes he is entitled to benefits and (ii) the
facts which support such claim. The Trustee shall, within three business days
after receipt of such claim, notify the Committee in writing requesting
directions from the Committee regarding what payments, if any, are to be made to
such Claimant. If, within ten business days after the giving of such notice to
the Committee, the Trustee shall not have received from the Committee a written
statement setting forth the particular provision of the Plan which provides the
basis for the denial of the claim and the other facts relied upon as basis for
such denial, the claimant shall be conclusively deemed to be entitled to the
benefits claimed, and the Trustee shall commence making payments to the claimant
in the amount set forth in such notice. The Committee shall not direct the
Trustee to withhold all or any part of a requested payment to such Claimant
unless such direction shall contain a statement, under oath, of the Chief
Executive Officer of the Company, (x) acknowledging such Claimant's entitlement
to benefits under the Plans and payment from the Trust, but setting forth facts
relating to the computation of such benefits and payments to such Claimant
different from those set forth in the claim, in which event
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the Trustee shall pay the amounts so computed by the Committee; (y) denying such
Claimant's entitlement to benefits under both of the Plans and payment from the
Trust, and setting forth the specific provisions of the Plans and facts
supporting such denial; or (z) stating that the Company has made all such
required payments directly to the Beneficiary, accompanied by evidence of such
payments. The Trustee shall not follow any direction by the Committee pursuant
to the preceding sentence to the extent such direction is based upon the absence
of a deduction for tax purposes of all or a portion of the benefits claimed by
such Claimant under the Plans. The Trustee shall not follow any direction by the
Committee pursuant to clause (y) of such sentence unless it shall be accompanied
by a written opinion of independent legal counsel not regularly retained by the
Company that, as a matter of law, such Claimant is not entitled to any benefits
under either Plan or payment from the Trust; provided, however, such opinion
cannot be based upon the basis that either Plan or this Agreement is not a
legal, valid and binding contract enforceable against the Company (or any
successor thereto) or upon the basis of any amendment to any Plan made after
such Claimant has become vested under the applicable Plans. The Committee shall
not direct the Trustee to withhold any payment or to reduce the amount of any
payment to any Claimant on account of any amount alleged to be owed by such
Claimant, whether to the Company or any other person.
Section 4.3. Non-Duplication of Benefits. Neither the creation
of the Trust nor the transfer of cash or marketable securities by the Company to
the Trustee shall to any extent release the Company from its obligation to pay
or cause to be paid all benefits to which any person is entitled under the
Plans, except any payment of benefits by the Trustee to any person shall be
deemed to constitute payment by the Company and shall satisfy the obligation of
the Company to pay the benefits so paid by the Trustee. The Trustee and the
Company (or the Committee) shall each advise the other in writing of the payment
of any benefits paid pursuant to any Plan to the end that there shall be no
duplicate payment.
Section 4.4. Withholding of Taxes. The Trustee shall, upon
written direction from the Committee, withhold from any distribution which it is
required to make hereunder such sum as the Committee may reasonably estimate to
be necessary to cover any taxes for which the Company may be liable with respect
to such distribution. The Trustee shall forward any withheld amounts to the
Company, and the Company shall be responsible for (i) paying to the appropriate
taxing authority all income and employment taxes so withheld; (ii) furnishing to
each person receiving a distribution from the Trust appropriate tax information
respecting such distribution and withholding (if any); and (iii) preparing and
filing all information reports or returns required to be filed. Upon discharge
or settlement of such tax liability the Trustee shall distribute the balance of
such sum, if any, to the distributee from whose distribution it was withheld, or
if such distributee is then deceased, to such other person as the Committee
shall direct. Prior to making any distribution hereunder the Trustee may require
such releases or other documents from any taxing authority, or may require such
indemnity and surety bond, as the Trustee shall reasonably deem necessary for
its protection.
Section 4.5. Interests Nonassignable. No right or interest of
any Beneficiary or distributee to receive distributions from the Trust shall be
assignable or transferable in whole or in part, either directly, by operation of
law or otherwise, including, but not by way of limitation, execution, levy,
garnishment, attachment, pledge or bankruptcy, but excluding devolution by death
or mental incompetency; and no right or interest of any Beneficiary or
distributee to receive distributions from the Trust shall be liable for, or
subject to, any obligation or liability of such Beneficiary or distributee,
including claims for alimony or the support of any spouse.
ARTICLE V
INVESTMENT OF FUND
Contributions by the Company to the Trust may be in the form
of cash, marketable securities, life insurance policies or other property
acceptable to the Trustee. Assets transferred to the Trust by the Company in the
form of property other than cash may be held by the Trustee in kind, or, if
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the Trustee reasonably determines that funds are needed to make payments
hereunder, may be sold by the Trustee. The Trustee is expressly empowered to
borrow (as directed by the Company) against the cash surrender value of any life
insurance policy for the purpose of paying premiums on life insurance policies
or for the payment of benefits, whether or not such premiums or benefit payments
are for the benefit of the individual insured by such policy.
Cash paid to the Trustee shall be invested as the Trustee
shall determine. The Trustee may not invest directly in securities (including
stock or rights to acquire stock) or obligations issued by the Company or its
affiliates or in other real or personal property of the Company or its
affiliates. The Company shall have the power to reacquire part or all of the
assets held in the Fund at any time by simultaneously substituting for it other
readily marketable property of equivalent value, net of any estimated costs of
disposition. The Trustee shall not be liable as a result of its retaining any
investment, nor for any loss to or diminution of the Trust assets resulting from
any such action.
ARTICLE VI
POWERS AND RIGHTS OF TRUSTEE
Section 6.1. Trustee's Powers. The Trustee shall have the
following powers and rights, in addition to those vested in it elsewhere in this
Agreement or by law:
(i) to retain any marketable securities transferred to the
Trustee, irrespective of the extent of diversification or any law or
rule of court concerning trust investments, or to sell any such
securities;
(ii) to cause any assets to be held or registered in the
Trustee's name individually, in the name of a nominee or in such other
form as the Trustee deems best, in each case without disclosing the
Trust relationship and without retaining possession and control of the
assets so held or registered;
(iii) to vote in person or by general or limited proxy, or
refrain from voting, any securities for any purpose in the event that
such securities shall be entitled to vote with respect to any matter;
to exercise or sell any conversion rights; to consent to and join in or
oppose any reorganization, consolidation, merger, recapitalization,
spin-off, combination or any other change in the corporate structure of
the issuer of any securities held by the Trustee or any exchange of
such securities for other securities or cash, and in connection
therewith to deposit and accept and hold other securities or cash
received therefor;
(iv) to employ agents, attorneys, accountants, actuaries,
brokers, custodians and proxies and to delegate to them such powers as
the Trustee deems advisable;
(v) to contest, prosecute, compromise or abandon claims or
other charges in favor of or against the Trust, and the Company shall
indemnify the Trustee against all expenses and liabilities sustained or
anticipated by it by reason thereof;
(vi) to perform other acts necessary or appropriate for the
proper administration of the Trust, execute and deliver necessary
instruments and give full receipts and discharges; and
(vii) to interpret the terms and provisions of the Trust, to
establish and revise rules and regulations relating to the Trust and to
make any other determinations that it believes are necessary or
advisable for the administration of the Trust.
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Section 6.2. Advice of Counsel. The Trustee may consult with
legal counsel, who may be counsel for the Company, independent actuaries, who
may be regularly retained by the Company, independent public accountants who may
be regularly retained by the Company, or other experts in respect of any of its
rights, powers, duties or obligations hereunder, and shall be fully protected in
relying on the advice of such counsel, actuaries, accountants or other experts.
Section 6.3. Indemnification of Trustee. The Trustee shall be
indemnified and held harmless by the Company from and against any and all
liability to which the Trustee shall be subjected by reason of carrying out its
duties and obligations under the Trust, including all expenses reasonably
incurred in its defense if the Company shall fail to provide such defense, other
than any liability arising out of the Trustee's negligence or willful
misconduct. The Trustee shall be fully protected in relying upon any notice
given hereunder which it in good faith believes to be genuine and executed and
delivered in accordance with this Agreement.
Section 6.4. Compensation and Expenses. The Trustee shall be
entitled to such reasonable compensation as may be agreed upon from time to time
by the Company and the Trustee. The Trustee is authorized and directed to pay
from the Fund all costs and expenses incurred in administering the Fund,
including the compensation, fees and expenses of the Trustee, the fees of
counsel for the Trustee and other administrative expenses to the extent such
expenses are not paid by the Company.
ARTICLE VII
ACCOUNTS AND REPORTS OF THE TRUSTEE
Section 7.1. Records and Accounts of the Trustee. The Trustee
shall maintain accurate and detailed records and accounts of all transactions of
the Trust and make them available at all reasonable times for inspection or
audit by any person designated by the Company or the Committee. At the direction
of the Company or the Committee, the Trustee shall submit to the independent
accountants for the Company and to others designated by the Company or the
Committee such valuations, reports or other information as any of them may
reasonably require.
Section 7.2. Cash Basis of Accounts. All accounts of the
Trustee shall be kept on a cash basis.
Section 7.3. Fiscal Year. The fiscal year of the Trust shall
be the same as the fiscal year of the Company; and if the Company shall notify
the Trustee that the Company has changed its fiscal year, the Trustee shall take
the necessary steps to change the fiscal year of the Trust to correspond
therewith.
Section 7.4. Annual Report. As soon as practicable after the
end of each fiscal year of the Trust and after the effective date of the removal
or resignation of the Trustee, the Trustee shall file with the Company a written
report setting forth all transactions with respect to the Fund during such
fiscal year or during the period from the end of the last fiscal year to the
date of such removal or resignation and listing the assets of the Fund and the
market values thereof as of the last business day of the period covered by such
report.
Section 7.5. Approval of Reports. Upon the receipt by the
Trustee of the Company's written approval of any report delivered pursuant to
Section 7.4, or upon the expiration of three months after delivery of any such
report to the Company, such report (as originally filed if no objection shall
have been timely made by the Company, or as adjusted pursuant to agreement
between the Company and the Trustee) shall be deemed to be final, except as to
such matters, if any, specified by written objections theretofore delivered to
the Trustee by the Company regarding which the Trustee has not yet given an
explanation or made adjustments satisfactory to the Company, and the Trustee
shall be released and
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discharged as to all matters set forth in such report (other than any unresolved
matters set forth in such written objections) to the same extent as though such
report has been settled and allowed by a decree of a court having competent
jurisdiction regarding such report, the Trustee and the Company. The Trustee,
nevertheless, shall have the right to have its accounts and reports settled by
judicial proceedings if it so elects, in which event the Company and the Trustee
shall be the only necessary parties (although the Trustee may also join such
other parties as it may deem appropriate).
ARTICLE VIII
REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE
Section 8.1. Removal. The Company, by resolution of its board
of directors, may remove the Trustee at any time, such removal to take effect
upon the effective date of the appointment of a successor Trustee as hereinafter
provided by giving 30-days' prior written notice to the Trustee.
Section 8.2. Resignation. The Trustee may resign by delivering
to the Company a written resignation to take effect upon the effective date of
the appointment of a successor Trustee as hereinafter provided.
Section 8.3. Appointment, Qualifications and Powers of
Successor Trustee. The Company shall appoint as a successor Trustee, by
resolution of the board of directors of the Company, a bank or trust company
having the requisite corporate trust powers to act as the Trustee, provided such
bank or trust company shall have capital stock and surplus at the time of such
appointment of not less than $250,000,000. Each successor Trustee shall have all
the rights, powers, title, discretion, obligations, duties and immunities given
to, or acquired by, the original Trustee. The legal title to the assets of the
Fund shall be and remain vested in the Trustee from time to time acting
hereunder without any transfer or conveyance to, by or from any succeeding or
retiring Trustee. No successor Trustee shall be liable for the acts or omissions
of any prior Trustee or be obligated to examine the accounts, acts or omissions
of any prior Trustee. Upon the appointment of a successor Trustee, the removed
or resigning Trustee shall transfer and deliver the assets of the Trust Fund to
such successor after reserving such reasonable amounts as it shall deem
necessary to provide for any expenses, fees, taxes then or thereafter chargeable
against the Trust Fund.
Section 8.4. Changes in Organization of Corporate Trustee. In
the event that any Trustee hereunder shall be converted into, shall merge or
consolidate with, or shall sell or transfer substantially all of its corporate
trust business to, another bank or trust company qualified to act hereunder, the
bank or trust company resulting from such conversion, merger or consolidation,
or to which such sale or transfer shall be made, shall thereupon become and be
the Trustee hereunder with the same effect as though originally named herein.
ARTICLE IX
AMENDMENT OR TERMINATION
Section 9.1. Authority to Amend or Terminate. The board of
directors of the Company shall have the right at any time and from time to time
to amend the Trust in any manner, in whole or in part, or to terminate the
Trust; provided, however, that no such amendment shall change the duties or
liabilities of the Trustee without its written consent; and provided further,
that no amendment or termination shall be made which would in any manner
diminish or otherwise adversely affect the rights of Beneficiaries or Claimants
under Article IV or provide for the distribution of the Fund to the Company
under circumstances other than those described in Article IV.
Section 9.2 Method of Making Amendment. Each amendment of the
Trust shall be made by delivery to the Trustee of a written instrument setting
forth such amendment duly executed by the Company, together with a certified
copy of a resolution of the board of directors of the Company
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authorizing the execution of such written instrument. Such written instrument
(with the consent to the Trustee endorsed thereon, if its duties or liabilities
are changed thereby) shall constitute the instrument of amendment.
Section 9.3. Termination of Trust. Termination of the Trust
shall occur when the Trustee shall cease to hold any assets hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.1. Protection of Persons Dealing with Trustee. No
person, other than the Company, dealing with the Trustee shall be required or
entitled to examine the application of any money paid or property delivered to
the Trustee, or to determine whether or not the Trustee is acting pursuant to
authority granted to it hereunder or to authorizations or directions herein
required.
Section 10.2. Tax Status of Trust. The Trust is intended to be
a trust the assets of which are deemed to be owned for federal income tax
purposes by the Company as grantor pursuant to subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended. Until
advised otherwise, the Trustee may conclusively assume that the Trust is not
subject to federal income tax.
Section 10.3 No Interest in Company Given by Trust. Neither
the creation of the Trust nor anything contained in this Agreement shall be
construed as giving any person or employee of the Company any equity or interest
in any assets (other than the Fund), business or affairs of the Company or any
right to continue in the employ of the Company.
Section 10.4. Gender and Plurals. Words in the masculine
gender shall include the feminine gender, and, unless the context otherwise
requires, words in the singular shall include the plural and words in the plural
shall include the singular.
Section 10.5. Governing Law. This Agreement and the Trust
shall be governed by, and construed in accordance with, the internal laws (as
opposed to conflict of law provisions) of the State of Illinois.
ARTICLE XI
EXECUTION
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Trustee, to evidence
the establishment of the Trust, have each caused the Trust to be signed by their
duly authorized officers.
WALLACE COMPUTER SERVICES, INC.
By
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Title
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Date , 199
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ATTEST:
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Title
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THE NORTHERN TRUST COMPANY
By
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Title
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Date , 199
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ATTEST:
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Title
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