Exhibit 10.12
MASTER TRUST AGREEMENT
Between
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FMC CORPORATION
And
FIDELITY MANAGEMENT TRUST COMPANY
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FMC CORPORATION MASTER TRUST
Dated as of June 1, 1997
TABLE OF CONTENTS
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Section Page
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1 Definitions 2
2 Trust 3
3 Exclusive Benefit and Reversion of
Sponsor Contributions 4
4 Disbursements 4
(a) Administrator Directed Disbursements
(b) Participant Withdrawal Requests
(c) Limitations
5 Investment of Trust 5
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) Sponsor Stock
(f) Harsco Stock
(g) Notes
(h) Guaranteed Investment Contracts
(i) Participation in Commingled Pools
(j) Reliance of Trustee Directions
(k) Trustee Powers
6 Recordkeeping and Administrative Services to Be Performed 25
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
(f) Allocation of Plan Interests
7 Compensation and Expenses 27
8 Directions and Indemnification 23
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Sponsor or Administrator
(c) Directions from Named Fiduciaries
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
9 Resignation or Removal of Trustee 29
(a) Resignation
(b) Removal
10 Successor Trustee 29
(a) Appointment
(b) Acceptance
(c) Corporate Action
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TABLE OF CONTENTS
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(Continued)
Section Page
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11 Termination 30
12 Resignation, Removal, and Termination Notices 30
13 Duration 31
14 Amendment or Modification 31
15 General 31
(a) Performance by Trustee, its Agents or Affiliates
(b) Delegation by Employer
(c) Entire Agreement
(d) Waiver
(e) Successors and Assigns
(f) Partial Invalidity
(g) Section Headings
16 Governing Law 33
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
17 Plan Qualification 33
Schedules
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A. Administrative Services
B. Fee Schedule
C. Investment Options
D. Administrator's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Existing GICs
H. Telephone Exchange Guidelines
I. Investment Guidelines for GIC Management
J. Plan Designation Form
K. Operational Guidelines for Non-Fidelity Mutual Funds
iii
TRUST AGREEMENT, dated as of the first day of June, 1997, between FMC
CORPORATION, a Delaware corporation, having an office at 200 East Randolph
Drive, Chicago, Illinois 60601 (the "Sponsor"), and FIDELITY MANAGEMENT TRUST
COMPANY, a Massachusetts trust company, having an office at 82 Devonshire
Street, Boston, Massachusetts 02109 (the "Trustee ").
WITNESSETH:
WHEREAS, the Sponsor, or one of its affiliates, is the sponsor of the FMC
Corporation Employees' Thrift and Stock Purchase Plan, the United Defense
Limited Partnership Salaried Employees' Plan, the FMC Corporation 401(k) Plan
for Employees Covered by a Collective Bargaining Agreement, the United Defense
Limited Partnership Louisville Union Employees' Thrift Plan and the United
Defense Limited Partnership York Plan (individually and collectively, the
"Plan") and other Plans which may be added by mutual agreement of the Sponsor
and Trustee; and
WHEREAS, certain affiliates and subsidiaries of the Sponsor maintain, or
may in the future maintain, qualified defined contribution plans for the benefit
of their eligible employees; and
WHEREAS, the Sponsor desires to establish a master trust to hold all of
the assets of the Plan and/or such other tax-qualified defined contribution
plans maintained by the Sponsor, or any of its subsidiaries or affiliates, as
are designated by the Sponsor as being eligible to participate therein; 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 the Named
Fiduciary; and
WHEREAS, the Trustee is willing to perform recordkeeping and administrative
services for the Plan if the services are purely ministerial in nature and are
provided within a framework of plan provisions, guidelines and interpretations
conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the Sponsor 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) "FBSI" shall mean Fidelity Brokerage Services, Inc., an affiliate of the
Trustee.
(f) "GICs" shall mean guaranteed investment contracts.
(g) "Existing GICs" shall mean each guaranteed annuity contract heretofore
entered into by the Sponsor, any other Employer or any predecessor trustee
and specifically identified on Schedule "G" attached hereto.
(h) "Mutual Fund" shall mean securities issued by the investment companies
advised by Fidelity Management & Research Company and certain securities
issued by investment companies not advised by Fidelity Management &
Research Company.
(i) "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); and
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(j) "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.
(k) "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.
(l) "Plan" shall mean the FMC Corporation Employees' Thrift and Stock Purchase
Plan, the United Defense Limited Partnership Salaried Employees' Plan, the
FMC Corporation 401(k) Plan for Employees Covered by a Collective
Bargaining Agreement, the United Defense Limited Partnership Louisville
Union Plan, the United Defense Limited Partnership York Union Plan and such
other tax-qualified, defined contribution plans which are maintained by the
Sponsor or any of its subsidiaries or affiliates for the benefit of their
eligible employees as may be designated by the Sponsor in writing to the
Trustee as a Plan hereunder, such writing to be in the form of the Plan
Designation Form attached hereto as Schedule "J". 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.
(m) "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 9 hereof
and the date as of which this Agreement terminates pursuant to Section 11
hereof.
(n) "Sponsor Stock" shall mean the Common Stock of the Sponsor, or such other
publicly-traded stock of the Sponsor, or such other publicly-traded stock
of the Sponsor's affiliates as meets the requirements of section 407(d)(5)
of ERISA with respect to the Plan.
(o) "Sponsor" shall mean FMC Corporation, 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 the
Sponsor under this Agreement.
(p) "Trust" shall mean the FMC Corporation Master Trust, being the trust
established by the Sponsor and the Trustee pursuant to the provisions of
this Agreement.
(q) "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 lO(c). The term Trustee shall also include
any successor trustee appointed pursuant to Section 10 to the extent such
successor agrees to serve as Trustee under this Agreement.
(r) "Trustee's fiduciary duty" shall mean: the Trustee shall discharge its
duties with respect to the Plans solely in the interest of the participants
and beneficiaries and with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.
Section 2. Trust. The Sponsor hereby establishes the 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 the Sponsor or
transferred from a previous trustee under the Plan, such additional sums of
money and Sponsor Stock as shall from time to time be delivered to the Trustee
under a Plan, all investments made
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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 Sponsor Contributions. Except as
provided under applicable law, no part of the Trust allocable to a Plan 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.
Disbursements from the forfeiture account may be made, as directed by the
Sponsor, to offset contributions or legitimate Plan expenses.
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 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. The Sponsor hereby directs that,
pursuant to the Plan, a participant withdrawal request (in-service or full
withdrawal) may be made by the participant by telephone, 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 the Sponsor and documented in the Plan Administrative Manual. For
withdrawals which require spousal consent, the Trustee shall forward the
withdrawal document to the participant for execution and submission to the
Trustee. The Trustee shall have the responsibility for approving
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the withdrawal in accordance with written guidelines provided by the Sponsor and
documented in the Plan Administrative Manual.
(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 participant 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 what investment options: the Trust shall be
invested during the Participant Recordkeeping Reconciliation Period, and the
investment options in which Plan participants may invest in, subject to the
following limitations. The Named Fiduciary may determine to offer as investment
options only (i) Mutual Funds, (ii) Sponsor Stock, (iii) Harsco Stock, (iv)
notes evidencing loans to Participants in accordance with the terms of the Plan,
(v) Stable Value Investments chosen by the Trustee as set forth in the
Investment Guidelines attached hereto, (vi) Existing GICs, and (vii) collective
investment funds maintained by the Trustee for qualified plans; provided,
however, that the Named Fiduciary hereby directs the Trustee to continue to hold
such Existing GICs as set forth in Section A of Schedule "G" until the Named
Fiduciary directs otherwise, it being expressly understood that such direction
is given in accordance with Section 403(a) of ERISA; and provided, further, that
the Trustee shall be considered a fiduciary with investment discretion only with
respect to Plan assets that are invested in existing GICs set forth in Section B
of Schedule "G" chosen by the Trustee or in collective investment funds
maintained by the Trustee for qualified plans. The investment options initially
selected
by the Named Fiduciary are identified on Schedules "A" and "C" attached hereto.
The Named Fiduciary may add additional investment options with the consent of
the Trustee and upon mutual amendment of this Trust Agreement and the Schedules
thereto 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 maintained for such purposes by the Trustee or its agent, in
accordance with written Telephone Exchange Guidelines attached hereto as
Schedule "H". 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 Schedule "C", until the Trustee receives a proper
direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has received
from the Trustee a copy of the prospectus for each Mutual Fund selected by the
Named Fiduciary as a Plan investment option. All transactions involving Mutual
Funds not advised by Fidelity Management & Research Company (Non-Fidelity Mutual
Funds) shall be done in accordance with the Operational Guidelines attached
hereto as Schedule "K". 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 the Sponsor 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 Telephone Exchange Guidelines attached hereto as
Schedule "H".
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(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. The Sponsor
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, the Sponsor 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 the
Sponsor.
(e) Sponsor Stock. Trust investments in Sponsor Stock shall be made via the
FMC Stock Fund (the "FMC Stock Fund"). Investments in the FMC Stock Fund shall
consist primarily of shares of Sponsor Stock. In order to satisfy daily
participant exchange or withdrawal requests for transfers and payments, the FMC
Stock Fund shall also include cash or short-term liquid investments in
accordance with this paragraph. Such holdings will include Fidelity
Institutional Cash Portfolios: Money Market Portfolio: Class I or such other
Mutual Fund or commingled money market pool as agreed to by the Sponsor and
Trustee. The Named Fiduciary 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 FMC Stock Fund falls
within the agreed upon range over time. Each participant's proportional interest
in the FMC Stock Fund shall be measured in units of participation, rather than
shares of Sponsor Stock. Such units shall represent a proportionate interest in
all of the assets of the FMC Stock Fund, which includes shares of Sponsor Stock,
short-term investments and at times, receivables for dividends and/or Sponsor
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Stock sold and payables for Sponsor Stock purchased. The Trustee shall determine
a daily net asset value ("NAV") for each unit outstanding of the FMC Stock
Fund. Valuation of the FMC Stock Fund shall be based upon the 4:00 p.m. 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 Sponsor Stock is traded. The NAV shall be adjusted by dividends
paid on the shares of Sponsor Stock held by the FMC Stock Fund, gains or losses
realized on sales of Sponsor Stock, appreciation or depreciation in the market
price of those shares owned, and interest on the short-term investments held by
the FMC Stock Fund, expenses that, pursuant to Sponsor direction, the Trustee
accrues from the FMC Stock Fund, and commissions on purchases and sales of
Sponsor Stock. Investments in Sponsor Stock shall be subject to the following
limitations:
(i) Fiduciary Duty of Named Fiduciary. The Trustee shall have no
responsibility for monitoring the suitability under the fiduciary duty rules of
section 404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA) of the
Sponsor acquiring and holding Sponsor 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 Sponsor 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.
(ii) Purchase and sales of Sponsor Stock shall be made on the open
market as necessary to maintain the target cash percentage and drift allowance
for the FMC Stock Fund, provided that:
(1) 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
(2) If the Trustee is prohibited by the Securities and Exchange
Commission, the New York Stock Exchange, 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
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Trustee may follow directions from the Administrator or Named Fiduciary to
deviate from the above purchase and sale procedures provided that such direction
is made in writing by the Administrator or Named Fiduciary.
(iii) Execution of Purchases and Sales. (A) Purchases and sales of units in
the FMC Stock Fund (other than for exchanges) shall be made on the date on which
the Trustee receives from the Administrator in good order all information,
documentation, and wire transfers of funds (if applicable), necessary to
accurately effect such transactions. Exchanges of units in the FMC Stock Fund
shall be made in accordance with the Telephone Exchange Guidelines attached
hereto as Schedule "H". The Trustee may follow directions from the Administrator
or Named Fiduciary to deviate from the above purchase and sale procedures
provided that such direction is made in writing by the Administrator or Named
Fiduciary.
(B) Purchases and Sales from or to Sponsor. If directed by the Sponsor in
writing prior to the trading date, the Trustee may purchase or sell Sponsor
Stock from or to the Sponsor if the purchase or sale is for adequate
consideration (within the meaning of section 3(18) of ERISA) and no commission
is charged. If Sponsor contributions (employer) or contributions made by the
Sponsor on behalf of the participants (employee) under the Plan are to be
invested in Sponsor Stock, the Sponsor may transfer Sponsor 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 Sponsor Stock to be purchased or
sold by the 4:00 p.m. NYSE closing price of the Sponsor Stock on the trading
date.
(C) Use of an Affiliated Broker. The Sponsor hereby directs the Trustee to
use Fidelity Brokerage Services, Inc. ("FBSI") to provide brokerage services in
connection with any purchase or sale of Sponsor Stock in accordance with
directions from Plan participants. FBSI 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, the Sponsor agrees
that FBSI shall be entitled to remuneration under this authorization provision
in the amount of three and one-half cents ($.035)
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commission on each share of Sponsor Stock. Any change in such remuneration may
be made only by a signed agreement between Sponsor and Trustee.
(2) Following the procedures set forth in Department of Labor
Prohibited Transaction Class Exemption 86-128 (PTCE 86-128), the Trustee will
provide the Sponsor with the following documents: (1) a description of FBSI's
brokerage placement practices; (2) a copy of PTCE 86-128; and (3) a form by
which the Sponsor may terminate this authorization to use a broker affiliated
with the Trustee. The Trustee will provide the Sponsor 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 FBSI, through reorganization,
consolidation, merger or similar transactions, shall, upon consummation of such
transaction, become the successor broker in accordance with the terms of this
authorization provision.
(4) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary. The Sponsor reserves the
right to terminate this authorization upon sixty (60) days written notice to
FBSI (or its successor) and the Trustee, in accordance with Section 11 of this
Agreement.
(iv) Securities Law Reports. The Named Fiduciary shall be responsible
for filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Sponsor 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 Sponsor Stock pending the filing of
any report. The Trustee shall provide to the Named Fiduciary such information on
the Trust's ownership of Sponsor Stock as the Named Fiduciary may reasonably
request in order to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other provision of
this Agreement the provisions of this Section shall govern the voting and
tendering of Sponsor Stock. The Sponsor, after consultation with
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the Trustee, shall provide and pay for all printing, mailing, tabulation and
other costs associated with the voting and tendering of Sponsor Stock.
(A) Voting.
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(1) When the issuer of Sponsor Stock prepares for any
annual or special meeting, the Sponsor 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, the Sponsor shall certify to the Trustee that the aforementioned
materials represents the same information that is distributed to shareholders of
Sponsor Stock. Based on these materials the Trustee shall prepare a voting
instruction form and shall provide a copy of all proxy solicitation materials to
be sent to each Plan participant with an interest in Sponsor Stock held in the
Trust, together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the proportional interest in the
number of full and fractional shares of Sponsor Stock credited to the
participant's accounts held in the FMC Stock Fund.
(2) Each participant with an interest in the FMC Stock Fund
shall have the right to direct the Trustee as to the manner in which the Trustee
is to vote (including not to vote) that number of shares of Sponsor Stock
reflecting such participant's proportional interest in the FMC Stock Fund (both
vested and unvested). Directions from a participant to the Trustee concerning
the voting of Sponsor Stock shall be communicated in writing, or by mailgram or
similar means as is agreed upon by the Trustee and the Sponsor. These directions
shall be held in confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other person except to the
extent that the consequences of such directions are reflected in reports
regularly communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. Upon its receipt of the
directions, the Trustee shall vote the shares of Sponsor Stock reflecting the
participant's proportional interest in the FMC Stock Fund as directed by the
participant.
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(3) For all undirected shares of Sponsor Stock, both
allocated and unallocated shares, the Trustee shall vote as directed by the
Sponsor, which may delegate to a fiduciary independent of the Trustee and the
Sponsor, the authority to so direct the Trustee. All fees associated with the
appointment of an independent fiduciary will be borne by the Sponsor.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any securities
held in the Trust that are Sponsor Stock, the Sponsor shall timely notify the
Trustee in advance of the intended tender date and shall cause a copy of all
materials to be sent to the Trustee. The Sponsor shall certify to the Trustee
that the aforementioned materials represent the same information distributed to
shareholders of Sponsor Stock. Based on these materials and after consultation
with the Sponsor the Trustee shall prepare a tender instruction form and shall
provide a copy of all tender materials to be sent to each plan participant,
together with the foregoing tender instruction form, to be returned to the
Trustee or its designee. The tender instruction form shall show the number of
full and fractional shares of Sponsor Stock that reflect the participants
proportional interest in the FMC Stock Fund (both vested and unvested).
(2) Each participant shall have the right to direct the
Trustee to tender or not to tender some or all of the shares of Sponsor Stock
reflecting such participant's proportional interest in the FMC Stock Fund (both
vested and unvested). Directions from a participant to the Trustee concerning
the tender of Sponsor Stock shall be communicated in writing, or by mailgram or
such similar means as is agreed upon by the Trustee and the Sponsor. These
directions shall be held in confidence by the Trustee and shall not be divulged
to the Sponsor, or any officer or employee thereof, or any other person except
to the extent that the consequences of such directions are reflected in reports
regularly communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall tender or not
tender shares of Sponsor Stock as directed by the participant. Except as
otherwise required by law, the Trustee shall not tender shares of Sponsor Stock
reflecting a participant's proportional interest in the FMC Stock Fund for which
it has received no direction from the participant.
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(3) Except as otherwise required by law, the Trustee shall
tender that number of shares of Sponsor Stock not credited to participants'
accounts in the same proportion as the total number of shares of Sponsor Stock
credited to participants' accounts for which it has received instructions from
Participants.
(4) A participant who has directed the Trustee to tender
some or all of the shares of Sponsor Stock reflecting the participant's
proportional interest in the FMC Stock Fund may, at any time prior to the tender
offer withdrawal date, direct the Trustee to withdraw some or all of the
tendered shares reflecting the participant's proportional interest, and the
Trustee shall withdraw the directed number of shares from the tender offer prior
to the tender offer withdrawal deadline. Prior to the withdrawal deadline, if
any shares of Sponsor Stock not credited to participants' accounts have been
tendered, the Trustee shall redetermine the number of shares of Sponsor Stock
that would be tendered under Section 5(e)(v)(B)(3) if the date of the foregoing
withdrawal were the date of determination, and withdraw from the tender offer
the number of shares of Sponsor Stock not credited to participants' accounts
necessary to reduce the amount of tendered Sponsor Stock not credited to
participants' accounts to the amount so redetermined. A participant shall not be
limited as to the number of directions to tender or withdraw that the
participant may give to the Trustee.
(5) A direction by a participant to the Trustee to tender
shares of Sponsor Stock reflecting the participant's proportional interest in
the FMC 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 Sponsor Stock tendered from that
interest. Pending receipt of directions (through the Administrator) 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 in Schedule "C".
(vi) General. With respect to all rights other than the right to
vote, the right to tender, and the right to withdraw shares previously tendered,
in the case of Sponsor Stock credited to a participant's proportional
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interest in the FMC Stock Fund, 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. With respect to all rights other than the right to vote and the
right to tender, in the case of Sponsor Stock not credited to participants'
accounts, the Trustee shall follow the directions of the Named Fiduciary.
(vii) Conversion. All provisions in this Section 5(e) shall also
apply to any securities received as a result of a conversion of Sponsor Stock.
(f) Harsco Stock. Trust investments in Harsco Stock shall be made via the
Harsco Stock Fund (the "Harsco Stock Fund"). Investments in the Harsco Stock
Fund shall consist primarily of shares of Harsco Stock. In order to satisfy
daily participant exchange or withdrawal requests for transfers and payments,
the Harsco Stock Fund shall also include cash or short-term liquid investments
in accordance with this paragraph. Such holdings will include Fidelity
Institutional Cash Portfolios: Money Market Portfolio: Class I or such other
Mutual Fund or commingled money market pool as agreed to by the Sponsor and
Trustee. The Named Fiduciary 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 Harsco Stock Fund
falls within the agreed upon range over time. Each participant's proportional
interest in the Harsco Stock Fund shall be measured in units of participation,
rather than shares of Harsco Stock. Such units shall represent a proportionate
interest in all of the assets of the Harsco Stock Fund, which includes shares of
Harsco Stock, short-term investments and at times, receivables for dividends
and/or Harsco Stock sold and payables for Harsco Stock purchased. The Trustee
shall determine a daily net asset value ("NAV") for each unit outstanding of the
Harsco Stock Fund. Valuation of the Harsco Stock Fund shall be based upon the
4:00 p.m. 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 Harsco Stock is traded. The NAV shall be
adjusted by dividends paid on the shares of Harsco Stock held by the Harsco
Stock Fund, gains or losses realized on sales of Harsco Stock, appreciation or
depreciation in the market price of those shares owned, and interest on the
short-term investments held by the Harsco Stock Fund, expenses that, pursuant
to Sponsor direction, the Trustee accrues from the Harsco Stock Fund, and
14
commissions on purchases and sales of Harsco Stock. Investments in Harsco Stock
shall be subject to the following limitations:
(i) Fiduciary Duty of Named Fiduciary. The Trustee shall have no
duty to 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 the Sponsor
acquiring and holding Harsco 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 Harsco 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.
(ii) Purchase and sales of Harsco Stock shall be made on the open
market as necessary to maintain the target cash percentage and drift allowance
for the Harsco Stock Fund, provided that:
(1) 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
(2) If the Trustee is prohibited by the Securities and Exchange
Commission, the New York Stock Exchange, 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 the Administrator or
Named Fiduciary to deviate from the above purchase and sale procedures provided
that such direction is made in writing by the Administrator or Named Fiduciary.
(iii) Execution of Purchases and Sales. (A) Purchases and sales of
units in the Harsco Stock Fund (other than for exchanges) shall be made on the
date on which the Trustee receives from the Administrator in good order all
information, documentation, and wire transfers of funds (if applicable),
necessary to accurately effect such transactions. Exchanges of units in the
Harsco Stock Fund shall be made in accordance with the Telephone Exchange
Guidelines attached hereto as Schedule "H". The Trustee may follow directions
from the Administrator or Named
15
Fiduciary to deviate from the above purchase and sale procedures provided that
such direction is made in writing by the Administrator or Named Fiduciary.
(B) Purchases and Sales from or to Sponsor. If directed by the
Sponsor in writing prior to the trading date, the Trustee may purchase or sell
Harsco Stock from or to the Sponsor if the purchase or sale is for adequate
consideration (within the meaning of section 3(18) of ERISA) and no commission
is charged. If Sponsor contributions (employer) or contributions made by the
Sponsor on behalf of the participants (employee) under the Plan are to be
invested in Harsco Stock, the Sponsor may transfer Harsco 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 Harsco Stock to be purchased or sold
by the 4:00 p.m. NYSE closing price of the Harsco Stock on the trading date.
(C) Use of an Affiliated Broker. The Sponsor hereby directs the
Trustee to use Fidelity Brokerage Services, Inc. ("FBSI") to provide brokerage
services in connection with any purchase or sale of Harsco Stock in accordance
with directions from Plan participants. FBSI 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, the
Sponsor agrees that FBSI shall be entitled to remuneration under this
authorization provision in the amount of three and one-half cents ($.035)
commission on each share of Harsco Stock. Any change in such remuneration may be
made only by a signed agreement between Sponsor and Trustee.
(2) Following the procedures set forth in Department of
Labor Prohibited Transaction Class Exemption 86-128 (PTCE 86-128), the Trustee
will provide the Sponsor with the following documents: (1) a description of
FBSl's brokerage placement practices; (2) a copy of PTCE 86-128; and (3) a form
by which the Sponsor may terminate this authorization to use a broker affiliated
with the Trustee. The Trustee will provide the Sponsor with this termination
form annually, as well as quarterly and annual reports which summarize all
securities transaction related charges incurred by the Plan.
16
(3) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions, shall, upon
consummation of such transaction, become the successor broker in accordance with
the terms of this authorization provision.
(4) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary. The Sponsor reserves the
right to terminate this authorization upon sixty (60) days written notice to
FBSI (or its successor) and the Trustee, in accordance with Section 11 of this
Agreement.
(iv) Securities Law Reports. The Named Fiduciary shall be responsible
for filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Harsco 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 Harsco Stock pending the filing of any report. The
Trustee shall provide to the Named Fiduciary such information on the Trust's
ownership of Harsco Stock as the Named Fiduciary may reasonably request in order
to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other provision of
this Agreement the provisions of this Section shall govern the voting and
tendering of Harsco Stock. The Sponsor, after consultation with the Trustee,
shall provide and pay for all printing, mailing, tabulation and other costs
associated with the voting and tendering of Harsco Stock.
(A) Voting
(l) When the issuer of Harsco Stock prepares for any annual
or special meeting, the Sponsor 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,
the Sponsor shall certify to the Trustee that the aforementioned materials
represents the same information that is distributed to shareholders of Harsco
17
Stock. Based on these materials the Trustee shall prepare a voting instruction
form and shall provide a copy of all proxy solicitation materials to be sent to
each Plan participant with an interest in Harsco Stock held in the Trust,
together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the proportional interest in the
number of full and fractional shares of Harsco Stock credited to the
participant's accounts held in the Harsco Stock Fund.
(2) Each participant with an interest in the Harsco Stock
Fund shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote (including not to vote) that number of shares of Harsco Stock
reflecting such participant's proportional interest in the Harsco Stock Fund
(both vested and unvested). Directions from a participant to the Trustee
concerning the voting of Harsco Stock shall be communicated in writing, or by
mailgram or similar means as is agreed upon by the Trustee and the Sponsor.
These directions shall be held in confidence by the Trustee and shall not be
divulged to the Sponsor, or any officer or employee thereof, or any other person
except to the extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. Upon its receipt of the
directions, the Trustee shall vote the shares of Harsco Stock reflecting the
participant's proportional interest in the Harsco Stock Fund as directed by the
participant.
(3) For all undirected shares of Sponsor Stock, both
allocated and unallocated shares, the Trustee shall vote as directed by the
Sponsor, which may delegate to a fiduciary independent of the Trustee and
Sponsor, the authority to so direct the Trustee. All fees associated with the
appointment of an independent fiduciary will be borne by the Sponsor.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any securities
held in the Trust that are Harsco Stock, the Sponsor shall timely notify the
Trustee in advance of the intended tender date and shall cause a copy of all
materials received by the Sponsor to be sent to the Trustee. The Sponsor shall
certify to the Trustee that the
18
aforementioned materials represent the same information distributed to
shareholders of Harsco Stock. Based on these materials and after consultation
with the Sponsor the Trustee shall prepare a tender instruction form and shall
provide a copy of all tender materials to be sent to each plan participant,
together with the foregoing tender instruction form, to be returned to the
Trustee or its designee. The tender instruction form shall show the number of
full and fractional shares of Harsco Stock that reflect the participants
proportional interest in the Harsco Stock Fund (both vested and unvested).
(2) Each participant shall have the right to direct the
Trustee to tender or not to tender some or all of the shares of Harsco Stock
reflecting such participant's proportional interest in the Harsco Stock Fund
(both vested and unvested). Directions from a participant to the Trustee
concerning the tender of Harsco Stock shall be communicated in writing, or by
mailgram or such similar means as is agreed upon by the Trustee and the Sponsor.
These directions shall be held in confidence by the Trustee and shall not be
divulged to the Sponsor, or any officer or employee thereof, or any other person
except to the extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall tender or not
tender shares of Sponsor Stock as directed by the participant. Except as
otherwise required by law, the Trustee shall not tender shares of Harsco Stock
reflecting a participant's proportional interest in the Harsco Stock Fund for
which it has received no direction from the participant.
(3) Except as otherwise required by law, the Trustee shall
tender that number of shares of Harsco Stock not credited to participants'
accounts in the same proportion as the total number of shares of Harsco Stock
credited to participants' accounts for which it has received instructions from
Participants.
(4) A participant who has directed the Trustee to tender
some or all of the shares of Harsco Stock reflecting the participant's
proportional interest in the Harsco Stock Fund may, at any time prior to the
tender offer withdrawal date, direct the Trustee to withdraw some or all of the
tendered shares reflecting the participant's proportional interest, and the
Trustee shall withdraw the directed number of shares from the tender offer prior
to the tender offer withdrawal deadline. Prior to the withdrawal deadline, if
any shares of Harsco Stock not credited to
19
participants' accounts have been tendered, the Trustee shall redetermine the
number of shares of Harsco Stock that would be tendered under Section
5(f)(v)(B)(3) if the date of the foregoing withdrawal were the date of
determination, and withdraw from the tender offer the number of shares of Harsco
Stock not credited to participants' accounts necessary to reduce the amount of
tendered Harsco Stock not credited to participants' accounts to the amount so
redetermined. A participant shall not be limited as to the number of directions
to tender or withdraw that the participant may give to the Trustee.
(5) A direction by a participant to the Trustee to tender
shares of Harsco Stock reflecting the participant's proportional interest in the
Harsco Stock Fund shall not be considered a written election under the Plan by
the participant to withdraw, or have distributed, any or ail 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 Harsco Stock tendered from that
interest. Pending receipt of directions (through the Administrator) 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 in Schedule "C".
(vi) General. With respect to all rights other than the right to
vote, the right to tender, and the right to withdraw shares previously tendered,
in the case of Harsco Stock credited to a participant's proportional interest in
the Harsco Stock Fund, 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. With respect to all rights other than the right to vote and the
right to tender, in the case of Harsco Stock not credited to participants'
accounts, the Trustee shall follow the directions of the Named Fiduciary.
(vii) Conversion. All provisions in this Section 5(f) shall also
apply to any securities received as a result of a conversion of Harsco Stock.
20
(g) Notes. For Plans which allow loans, the Administrator shall act as
the Trustee's agent for participant loan notes and as such shall (i) collect and
remit all principal and interest payments to the Trustee and (ii) keep the
proceeds of such loans separate from the other assets of the Administrator and
clearly identify such assets as Plan assets. 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 telephone 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 the Sponsor, the amount available for the loan. Based
on the interest rate supplied by the Sponsor 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 note with
the proceeds check to the participant. The Trustee also shall distribute truth-
in-lending disclosure to the participant. To facilitate recordkeeping, the
Trustee may destroy the original of any promissory note made in connection with
a loan to a participant under the Plan, provided that the Trustee 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) For loans which require spousal consent, 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)
collect and remit all principal and interest payments to the Trustee, (iii) keep
the proceeds of such loans separate from the other assets of the Administrator
and clearly identify such assets as Plan assets, 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 telephone exchange
system maintained for such purpose by the Trustee or
21
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 the Sponsor 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 all cases, such instruction
by the Administrator shall be made within thirty (30) days of the participant's
initial request (the origination date).
(h) Guaranteed Investment Contracts. Trust investments in GICs shall be
subject to the following limitations:
(i) Commingled Pool Investments. To the extent that the Named
Fiduciary selects as an investment option the Managed Income Portfolio of the
Fidelity Group Trust for Employee Benefit Plans (the "Group Trust"), the Sponsor
hereby (A) agrees to the terms of the Group Trust and adopts said terms as a
part of this Agreement and (B) acknowledges that it has received from the
Trustee a copy of the Group Trust, the Declaration of Separate Fund for the
Managed Income Portfolio of the Group Trust, and the Circular for the Managed
Income Portfolio.
(ii) Individually-Managed Investments. To the extent that the Named
Fiduciary selects GICs chosen by the Trustee as an investment option, the
Sponsor hereby directs the Trustee to choose such GICs in accordance with the
Investment Guidelines for GIC Management attached hereto as Schedule "I".
(iii) In order to provide the necessary monies for exchanges or
redemptions from the GIC investment option, if any, under the Plan, the Sponsor
agrees that the Plan shall maintain a liquidity reserve allocated to such
investment option in Fidelity Institutional Cash Portfolios: Money
22
Market Portfolio: Class I or such other Mutual Fund or commingled money market
pool as agreed to by the Sponsor and the Trustee.
(i) Participation in Commingled Pools. To the extent that the Named
Fiduciary selects as an investment option the U.S. Equity Index Commingled Pool
of the Fidelity Group Trust for Employee Benefit Plans (the "Group Trust"), the
Sponsor hereby (A) agrees to the terms of the Group Trust and adopts said terms
as a part of this Agreement and (B) acknowledges that it has received from the
Trustee a copy of the Group Trust, the Declaration of Separate Fund for the U.S.
Equity Index Commingled Pool of the Group Trust, and the Circular for the U.S.
Equity Index Commingled Pool.
(j) Reliance of Trustee on Directions. (i) The Trustee shall not be
liable for any loss, or by reason of any breach, which arises from any
Participant's exercise or non-exercise of rights under this Agreement over the
assets in the Participant's accounts.
(ii) The Trustee shall not be liable for any loss, or by reason of
any breach, which arises from the Named Fiduciary's exercise or non-exercise of
rights under this Section 5, 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 or this Agreement.
(k) Trustee Powers. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of this Section 5, 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.
23
(ii) Subject to paragraphs (b) and (c) of this Section 5, to invest
in GICs and short term investments (including interest bearing accounts with the
Trustee or money market mutual funds advised by affiliates of the Trustee) and
in collective investment funds maintained by the Trustee for qualified plans, in
which case the provisions of each collective investment fund in which the Trust
is invested shall be deemed adopted by the Sponsor and the provisions thereof
incorporated as a part of this Trust as long as the fund remains exempt from
taxation under Sections 401(a) and 501(a) of the Internal Revenue Code of 1986,
as amended.
(iii) 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.
(iv) To keep that portion of the Trust in cash or cash balances as
the Named Fiduciary or Sponsor may, from time to time, deem to be in the best
interest of the Trust.
(v) 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.
(vi) To make, execute, acknowledge, and deliver any and all documents
of transfer or conveyance and to carry out the powers herein granted.
(vii) 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
24
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 the Sponsor.
(viii) 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 the
Sponsor.
(ix) 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 6. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Named Fiduciary'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 the
Sponsor 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 one year from the date of filing such account with the
Sponsor, the Trustee shall have no liability or further accountability to anyone
with respect to the propriety of its acts or transactions shown in such account,
except with respect
25
to such acts or transactions as to which the Sponsor shall within such one year
period file with the Trustee written objections.
(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 the Administrator or any person designated by the Administrator.
Upon the resignation or removal of the Trustee or the termination of this
Agreement, the Trustee shall provide to the Administrator, at no expense to the
Sponsor, (i) test data in the format available from Fidelity's Participant
Recordkeeping System (FPRS) (via diskette or tape, with corresponding hard copy
reports and file layout information) containing a file dump of plan data,
including a statement of each participant's accounts, which statement shall
include at least the name, address, social security number, date of hire, date
of birth, vesting, account balances by participant and source, forfeiture
balances and any other indicative data maintained on FPRS, and (ii) a final file
dump in the same format as the test data as of the final date specified in the
notice of resignation, removal, or termination of the Trustee or the termination
of this Agreement. The Sponsor will be responsible for any cost associated with
providing the Administrator or the Plan's new recordkeeper with additional
records which are not routinely prepared by Fidelity in recordkeeping the Plan.
Such costs shall be communicated to the Sponsor in advance, and the Sponsor's
written approval of such costs shall be obtained before such costs are incurred.
(d) Effect of Plan Amendment. A confirmation of the current qualified
status of each Plan is attached hereto as Schedule "F". The Trustee's provision
of the recordkeeping and administrative services set forth in this Section 6
shall be conditioned on the Sponsor 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 due to an issue of the Plans'
qualification status, an IRS determination letter or an opinion of counsel
substantially in the form of Schedule "F" covering such amendment, and on the
Sponsor providing the Trustee on a timely basis with all the information the
Sponsor deems necessary for the Trustee to perform the recordkeeping and
administrative services and such other information as the Trustee may reasonably
request.
26
(e) Returns, Reports and Information. The Sponsor 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 the Sponsor with such
information as the Sponsor may reasonably request to make these filings. The
Sponsor shall also be responsible for making any disclosures to Participants
required by law including, without limitation, such disclosures as may be
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 7. Compensation and Expenses. Within thirty (30) days of receipt of
the Trustee's bill, which shall be computed and billed in accordance with
Schedule "B" attached hereto and made a part hereof, as amended from time to
time, the Sponsor shall send to the Trustee a payment in such amount or the
Sponsor may direct the Trustee to deduct such amount from Participants' account.
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.
27
Section 8. Directions and Indemnification.
(a) Identity of Sponsor and Named Fiduciaries. The Trustee shall be fully
protected in relying on the fact that the Sponsor and the Named Fiduciaries
under a Plan are the individuals or persons named as such on the Authorization
Letters in the form of Schedules "D" and "E" attached hereto or on a Plan
Designation Form in accordance with Schedule "J" attached hereto or such other
individuals or persons as the Sponsor may notify the Trustee in writing.
(b) Directions from Sponsor or Administrator. Whenever the Sponsor or
Administrator provides a direction to the Trustee, the Trustee shall not be
liable for any loss, or by reason of any breach, 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 the Sponsor in the form
attached hereto as Schedule "D", provided the Trustee reasonably believes the
signature of the individual to be genuine. Such direction may also be made via
EDT in accordance with procedures agreed to by the Sponsor 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 Sponsor. 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 a Named Fiduciary provides
a direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, 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 in the form attached
hereto as Schedule "E" 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 or this Agreement.
28
(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. The Sponsor 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, etc., arising solely from
the Trustee's negligence, bad faith, violations of law, terms of this Agreement
or error.
(f) Survival. The provisions of this Section 8 shall survive the
termination of this Agreement.
Section 9. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon sixty (60) days'
notice in writing to the Sponsor, unless a shorter period of notice is agreed
upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time upon thirty
(30) days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
Section 10. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for any reason,
the Sponsor may in writing appoint a successor trustee under this Agreement. The
successor trustee shall have all of the
29
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 the Sponsor 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 11. Termination. This Agreement may be terminated at any time by the
Sponsor upon thirty (30) 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 the Sponsor shall designate, all cash
and assets then constituting the Trust. If, by the termination date, the Sponsor
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 the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
Section 12. 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
30
given by certified or registered mail, return receipt requested, to the Sponsor
c/o Directors of Benefits, FMC Corporation, 200 East Randolph Drive, Chicago,
Illinois 60601, and to the Trustee c/o John M. Kimpel, 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 13. 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 14. 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 the
Sponsor and the Trustee (whose consent shall not be unreasonably withheld or
delayed). Notwithstanding the foregoing, and not prior to June 1, 2000, to
reflect increased operating costs the Trustee may once each calendar year amend
Schedule "B" with the Sponsor's consent, which consent shall not be unreasonably
withheld or delayed, upon seventy-five (75) days written notice to the Sponsor.
Section 15. General
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
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, Inc. 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
the Sponsor, hereby irrevocably delegates and grants to the Sponsor full and
exclusive power and authority to exercise all of the powers conferred upon the
Sponsor 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 talking with
31
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 the Sponsor 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 the Sponsor.
(c) Entire Agreement. This Agreement 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.
32
Section 16. 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 17. Plan Qualification. The Sponsor 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, the Sponsor 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 the Sponsor.
33
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.
FMC CORPORATION
/s/ W.R. Cooper /s/ David J. Kostelansky
Attest: _______________ By: ________________________________
Secretary David J. Kostelansky
Name: ______________________________
Director Benefits and
Information Technology
Title: _____________________________
5/30/97
Date: ______________________________
FIDELITY MANAGEMENT TRUST
COMPANY
/s/ Douglas O. Kent /s/ Lucy B. Lewis
Attest: ___________________ By: ________________________________
Assistant Clerk Lucy B. Lewis
Name: ______________________________
Vice President
Title: _____________________________
6/11/97
Date: ______________________________
34
Schedule "A"
ADMINISTRATIVE SERVICES
------------------------
Administration
- --------------
* Establishment and maintenance of Participant account and election
percentages.
* Maintenance of the following plan investment options:
- Fidelity Retirement Government Money Market Portfolio
- Stable Value Fund
- Fidelity Puritan Fund
- Fidelity U.S. Equity Index Commingled Pool
- Mutual Qualified Fund (class Z)
- Fidelity Low Priced Stock Fund
- Sequoia Fund
- Fidelity Blue Chip Growth Fund
- Fidelity Diversified International Fund
- Clipper Fund
- FMC Stock Fund
- Harsco Stock Fund (United Defense Limited Partnership Salaried
Employees' Plan and United Defense Limited Partnership York Plan)
* Maintenance of the following money classifications:
- Basic Pre-Tax
- Supplemental Pre-Tax
- Pre-Tax Match
- Basic After-Tax
- Supplemental After-Tax
- After-Tax Match
- Rollover
- Prior Plan Company Match
- Harsco Company Rollover (United Defense Limited Partnership Salaried
Employees' Plan and United Defense Limited Partnership York Plan)
* Processing of mutual fund trades.
The Trustee will provide only the recordkeeping and administrative services
set forth on this Schedule "A" and as detailed in the Plan Administrative
Manual and no others.
A) Provide Participant Telephone Services
1. Fidelity registered representatives are available from 8:30 a.m. -
12:00 midnight ET to provide toll free telephone service for
participant inquiries and transactions, including hearing impaired
participants and accepting collect calls from international
participants. Additionally, participants have 24 hour account balance
inquiry and transaction capability access utilizing our automated
voice response system.
35
2. For security purposes, all calls are recorded. In addition, several
levels of security are available including the verification of a
Personal Identification Number (PIN) and/or any other indicative data
resident on the system.
3. Through our telephone services, Fidelity provides the following
services:
. Provide investment option information.
. Maintain plan and GIC specific provisions.
. Process exchanges (transfers) between investment options on a daily
basis
. Maintain and process changes to participants' contribution
allocations for all money sources.
. Allow participants to change their deferral and after-tax
percentages and provide updates via EDT for customer to apply to its
payrolls accordingly.
. Consult with participants in various loan scenarios and generate all
documentation.
. Process all participant loan and withdrawal requests via Fidelity's
toll-free telephone service according to plan provisions on a daily
basis.
. Process in-service and hardship withdrawals via telephone due to
certain circumstances previously approved by the Sponsor.
. Enroll new participants via telephone; provide confirmation of
enrollment within five (5) days of the request.
. Literature fulfillment.
B) Plan Accounting
1. Process payroll contributions according to payroll frequency via
electronic data transfer (EDT). The data format will be provided by
Fidelity.
2. Provide plan and participant level accounting for up to fifteen (15)
money classifications for the Plan.
3. Audit and reconcile the plan and participant accounts daily.
4. Provide daily plan and participant level accounting for all investment
options.
5. Reconcile and process participant withdrawal requests as approved and
directed by the Sponsor. All requests are paid based on the current
market values of participants' accounts, not advanced or estimated
values. A distribution report will accompany each check.
6. Track individual participant loans; process loan withdrawals;
re-invest loan repayments; and prepare and deliver comprehensive
reports to plan sponsor to assist in the administration of participant
loans.
7. Fidelity's Guaranteed Investments Daily Equity System (GUIDE) is an
automatic GIC daily portfolio accounting system. GUIDE provides the
Sponsor with daily valuation of their plan assets whether individually
managed or in our Managed Income Portfolio.
8. Maintain and process changes to participants' prospective and existing
investment mix elections via Fidelity's toll-free telephone service.
C) Participant Reporting
1. Mail confirmation to participants of all transactions initiated via
Fidelity Telephone Services within three (3) calendar days of the
transaction.
2. Prepare and mail via first class to each plan participant a quarterly
detailed participant statement reflecting all activity for the period.
Statements will be mailed no later than twenty (20) calendar days
after each quarter end.
36
D) Plan Reporting
1. Prepare, reconcile and deliver a monthly Trial Balance Report
presenting all money classes and investments. This report is based on
the market value as of the last business day of the month. The report
will be delivered not later than twenty (20) days after the end of
each month in the absence of unusual circumstances.
2. Prepare, reconcile and deliver a Quarterly Administrative Report
presenting both on a participant and a total plan basis all money
classes, investment positions and a summary of all activity of the
participant and plan as of the last business day of the quarter. The
report will be delivered not later than twenty (20) days after the end
of each quarter in the absence of unusual circumstances.
E) Government Reporting
Process year-end tax reports for participants - 1099R, as well as
financial reporting to assist in the preparation of Form 5500.
F) Communication Services
On a fee for service basis (as requested by the Sponsor), employee
communications describing available investment options, including
multimedia informational materials and group presentations.
G) Other
Performance of non-discrimination limitation testing upon request. In
order to obtain this service, the client shall be required to provide
the information identified in the Fidelity Discrimination Testing
Package Guidelines.
Monitor and process required minimum distribution amounts as follows:
the Trustee will notify the MRD participant and, upon notification
from the MRD participant, will use the MRD participant's information
to process their distributions. If the MRD participant does not
respond to the Trustee's notification, the Sponsor directs the Trustee
to automatically begin the required distributions for the participant.
Determine whether domestic relations orders ("DRO"), issued by a court
of competent jurisdiction, are "qualified" under section 414(p) of the
Internal Revenue Code and section 206(d) of ERISA. In conjunction with
making this determination, the Trustee shall provide the following
services in accordance with the Sponsor's written administrative
guidelines for processing QDROs:
. Upon receipt of the DRO, the Trustee will notify the
Participant, alternate payee(s) and their legal
representatives, if any, will segregate that portion of a
member's account necessary to satisfy the DRO while the
determination is made;
. After completing a review, the Trustee will provide
notification to the affected parties of whether the DRO is
qualified and, if not qualified, the reason(s) for the DRO's
failure to be qualified;
. If the DRO is determined to be a good QDRO, the alternate
payee(s) will be notified, which notification shall also
include information regarding distribution of the account
balance;
. Distribution of that portion of the account balance, as
specified in the QDRO, to the alternate payee(s) and the
appropriate federal and state withholding and reporting on
such distribution.
37
FMC CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ David J. Kostelansky 5/30/97 By: /s/ Lucy B. Lewis 6/11/97
--------------------------------- ---------------------------
Director Date Vice President Date
Benefits Information Technology
38
Schedule "B"
FEE SCHEDULE
------------
Annual Participant Fee: $25.00 per participant*, billed
and payable quarterly.
Enrollments by Phone: $5.00 per non-active employee
residing on Fidelity's participant
recordkeeping system.
Loan Fee: Establishment fee of $75.00 per
loan account.
In-Service Withdrawals by Phone: $20.00 per withdrawal.
Return of Excess Contribution Fee: $25.00 per participant, one-time
charge per calculation and check
generation.
Plan Sponsor Workstation (PSW): $5.00 per hour per PSW for on-line
usage (no charge if accessed via
another internet service provider.)
Three PSW provided free of charge.
QDRO Qualification: $750.00 per order (to be paid by the
Sponsor or deducted from participant
balances as a plan expense.)
Minimum Require Distributions: $25.00 per MRD participant per year.
Non-Fidelity Mutual Funds: .10% service fee on Clipper Fund, .05%
service fee on Mutual Qualifed Fund
and 0% on Sequoia Fund (to be paid by
the Non-Fidelity Mutual Fund vendor.)
* This fee will be imposed pro rata for each calendar quarter, or any part
thereof, that it remains necessary to keep a participant's account(s) as
part of the Plan's records, e.g., vested, deferred, forfeiture, top-heavy
and terminated participants who must remain on file through calendar year-
end for 1099-R reporting purposes.
GIC Fees
- --------
. To the extent that assets are invested in GICs chosen by the Trustee:
.12% basis points on first 100 million.
.10% basis points on next 100 million.
.07% basis points on assets in excess of 200 million.
39
Trustee Fee
- -----------
. To the extent that assets are invested in Sponsor Stock, .10% of such
assets in the Trust payable pro rata quarterly on the basis of such assets
as of the calendar quarter's last valuation date, but no less than $10,000
nor more than $100,000 per year.
Other Fees
- ----------
Separate charges for optional non-discrimination testing, extraordinary
expenses resulting from large numbers of simultaneous manual transactions
or from errors not caused by Fidelity, or for reports not contemplated in
this Agreement. The Administrator may withdraw reasonable administrative
fees from the Trust by written direction to the Trustee.
All communications will be fee for service, excluding STAGES and postage
for literature fulfillment and quarterly statements. Fees for the Super 800
telephone service will be passed through to the Sponsor at cost following
installation. No fee will be charged for customizing the Voice Response
System (VRS) for deferrals; additional VRS customization which occurs after
the phone opening may require additional fees.
Note: These fees have been negotiated and accepted based on the following Plan
characteristics: eight (8) Plans in the relationship, current plan assets of
$892 million, current participation of 13,944 participants, current GIC assets
of $245 million, stock assets of $532 million and projected net cash flows of
$25 million per year. Fees will be subject to revision if these Plan
characteristics change significantly by either falling below or exceeding
current or projected levels. Fees also have been based on the use of up to
twelve (12) investment options, and such fees will be subject to revision if
additional investment options are added.
FMC CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ David J. Kostelansky 5/30/97 By: /s/ Lucy B. Lewis 6/11/97
--------------------------------- ---------------------------
Date Vice President Date
40
Schedule "C"
INVESTMENT OPTIONS
------------------
In accordance with Section 4(b), the Named Fiduciary hereby directs the
Trustee that participants' individual accounts may be invested in the following
investment options:
- Fidelity Retirement Government Money Market Portfolio
- Stable Value Fund
- Fidelity Puritan Fund
- Fidelity U.S. Equity Index Commingled Pool
- Mutual Qualified Fund (class Z)
- Fidelity Low Priced Stock Fund
- Sequoia Fund
- Fidelity Blue Chip Growth Fund
- Fidelity Diversified International Fund
- Clipper Fund
- FMC Stock Fund
- Harsco Stock Fund (United Defense Limited Partnership Salaried
Employees' Plan and United Defense Limited Partnership York Plan)
The investment option referred to in Section 4(c) and Section
4(e)(v)(B)(5) shall be the FMC Stock Fund.
FMC CORPORATION
By: /s/ David J. Kostelansky 5/30/97
---------------------------------
Date
41
FMC Corporation
Executive Offices
200 East Randolph Drive
Chicago, Illinois 60601
312 861 6000
Schedule "D" [FMC LOGO]
June 2, 1997
Ms. Carolyn Redden
Fidelity Investments Institutional Operations Company, Inc.
82 Devonshire Street - MM3H
Boston, Massachusetts 02109
FMC Master Trust
***NOTE: This schedule should contain names and signatures for
ALL individuals who will be providing directions to Fidelity
representatives in connection with the Plan.
Fidelity representatives will be unable to accept directions from
any individual whose name does not appear on this schedule.***
Dear Ms. Redden:
This letter is sent to you in accordance with Section 8(b) of the Trust
Agreement dated as June 2, 1997 between FMC Corporation and Fidelity
Management Trust Company. I hereby designate David J. Kostelansky, Henry Kahn
and Yasmin J. Kwentus, as the individuals who may provide directions upon which
Fidelity Management Trust Company shall be fully protected in relying. Only one
such individual need provide any direction. The signature of each designated
individual is set forth below and certified to be such.
You may reply upon each designation and certification set forth in this letter
until I deliver to you written notice of the termination of authority of a
designated individual.
Very truly yours,
/s/ David J. Kostelansky
David J. Kostelansky
Director
Benefits and Information Technology
/s/ David J. Kostelansky
------------------------
David J. Kostelansky
Director, Benefits and Information Technology
------------------------
Henry Kahn
Vice President and Treasurer
/s/ Yasmin J. Kwentus
------------------------
Yasmin J. Kwentus
Sr. Human Resources Analyst
FMC Corporation
Executive Offices
200 East Randolph Drive
Chicago Illinois 60601
312 861 6000
Schedule "E" [LOGO]
June 2, 1997
Ms. Carol Redden
Fidelity Investments Institutional Operations Company, Inc.
82 Devonshire Street- MM3H
Boston, Massachusetts 02109
FMC Master Trust
Dear Ms. Redden:
This letter is sent to you in accordance with Section 8(c) of the Trust
Agreement dated as June 2, 1997 between FMC Corporation and Fidelity Management
Trust Company. I hereby designate David J. Kostelansky, J. Paul McGrath and
Henry Kahn, as the individuals who may provide directions upon which Fidelity
Management Trust Company shall be fully protected in relying. Only one such
individual need provide any direction. The signature of each designated
individual is set forth below and certified to be such.
You may reply upon each designation and certification set forth in this letter
until I deliver to you written notice of the termination of authority of a
designated individual.
Very truly yours,
/s/ David J. Kostelansky
David J. Kostelansky
Director
Benefits and Information Technology
/s/ David J. Kostelansky
- -------------------------
David J. Kostelansky
Director Benefits and Information Technology
/s/ J. Paul McGrath
- -------------------------
J. Paul McGrath
General Counsel
- -------------------------
Henry Kahn
Vice President and Treasurer
FMC Corporation
Executive Offices
200 East Randolph Drive
Chicago Illinois 60601
312 861 6000
May 29, 1997 [FMC LOGO]
Ms. Carolyn Redden
Fidelity Investments Institutional Operations Company, Inv.
82 Devonshire Street
Boston, Massachusetts 02109
Dear Ms. Redden:
This letter is sent to you in accordance with Section 8(a) of the Trust
Agreement dated as of the second day of June, 1997 between FMC Corporation and
Fidelity Management Trust Company.
Each of the plans identified below is a tax-qualified defined contribution plan
which meets the requirements of Section 17 of said Trust Agreement and which is
maintained by the undersigned, or one of its subsidiaries or affiliates, for the
benefit of their eligible employees. Each such plan is hereby designated as
a "Plan" for purposes of said Trust Agreement. FMC Corporation is the
Administrator and Named Fiduciary of said Plan(s).
Plans
-----
FMC Corporation Employees Thrift and Stock Purchase Plan
UDLP Salaried Employees Thrift and Stock Purchase Plan
FMC Corporation 401(k) Plan for Employees covered by a Collective
Bargaining Agreement
UDLP Louisville Union Employees Thrift Plan
UDLP York Plan
We hereby further certify that each Employer with respect to each of the
foregoing Plan(s) has authorized the assets of such Plan to be deposited in the
Trust and, as a result, is bound by Section 15(b) of said Trust Agreement.
You may reply upon the foregoing designations and certifications until we
deliver to you written notice of a change in any of the information set forth
therein.
Very truly yours,
/s/ David J. Kostelansky
David J. Kostelansky
Director
Benefits and Information Technology
Schedule "G"
EXISTING GICs
-------------
A.
In accordance with Section 5(b), the Named Fiduciary hereby directs the
Trustee to continue to hold the following Existing GICs until such time as the
Named Fiduciary directs otherwise:
- Contract Issuer: Allstate Life Insurance
- Contract Number: GA-5168
- Contract Issuer: Metropolitan Life Insurance Company
- Contract Number: 13156
- Contract Issuer: The Prudential Insurance Company of America
- Contract Number: GA-5632-213
- Contract Issuer: The Prudential Insurance Company of America
- Contract Number: GA-5632-214
- Contract Issuer: The Prudential Insurance Company of America
- Contract Number: GA-5646
B.
In accordance with a separate Investment Management Agreement between the
Sponsor and the Trustee, dated , 1997, the Trustee became Investment
Manager of the following GICs:
- Contract Issuer: Citibank, N.A.
- Contract Number: 120217
- Contract Issuer: Commonwealth Life Insurance Company
- Contract Number: ADA00023TR
- Contract Issuer: Commonwealth Life Insurance Company
- Contract Number: ADA00023TR-1
- Contract Issuer: Commonwealth Life Insurance Company
- Contract Number: ADA00577FR
- Contract Issuer: Commonwealth Life Insurance Company
- Contract Number: ADA00774FR
- Contract Issuer: John Hancock
- Contract Number: 7787 GAC
- Contract Issuer: Metropolitan Life Insurance Company
- Contract Number: 13156
45
- Contract Issuer: SEI Stable Asset Fund
- Contract Number: GIC Fund
FMC CORPORATION
By /s/ David J. Kostelansky 5/30/97
----------------------------------
Date
Schedule "H"
TELEPHONE EXCHANGE GUIDELINES
-----------------------------
The following telephone exchange guidelines are currently employed by Fidelity
Investments Institutional Operations Company, Inc. (FIIOC).
Telephone exchange hours are 8:30 a.m. (ET) to 12:00 midnight (ET) on each
business day. A "business day" is any day on which the New York Stock Exchange
is open.
FIIOC reserves the right to change these telephone exchange guidelines at its
discretion upon ninety (90) days prior written notice.
Investment Options
------------------
Exchanges Between Investment Options
------------------------------------
Participants may call on any business day to exchange between the
investment options. If the request is received before 4:00 p.m. (ET), it
will receive that day's trade date. Calls received after 4:00 p.m. (ET)
will be processed on a next day basis.
Exchange Restrictions
- ---------------------
Investments in the Sponsor Stock Fund will consist primarily of shares of
Sponsor Stock. Investments in the Harsco Stock Fund will consist primarily
of shares of Harsco Stock. In order to satisfy daily participant requests
for exchanges, loans and withdrawals, the Stock Funds will also hold cash
or other short-term liquid investments in an amount that has been agreed
to in writing by the Sponsor and the Trustee. The Trustee will be
responsible for ensuring that the percentage of these investments falls
within the agreed upon range over time. However, if there is insufficient
liquidity in the Stock Funds to allow for such activity, the Trustee will
sell shares of the appropriate Stock in the open market.
Participants may not exchange out of the FMC Stock held in employee
contribution sources until they have attained age 55. Participants who have
attained age 55 may exchange out of the FMC Stock Fund once each year.
Participants may not exchange out of the FMC Stock held in employer
contribution sources.
Participants will not be permitted to make direct transfers between the
Stable Value Fund and a competing fund. Participants who wish to exchange
between the Stable Value Fund and a competing fund must first exchange into
a non-competing fund for a period of 90 days.
FMC CORPORATION
By: /s/ 5/30/97
--------------------------------
Date
47
SCHEDULE "I"
------------
INVESTMENT GUIDELINES
---------------------
Set forth below are the objectives and guidelines to be followed by Fidelity
Management Trust Company for the administration of the stable value investment
option (the "Account") within the FMC Employees' Thrift and Stock Purchase Plan
(the "Plan"), established by FMC Corporation (the "Sponsor").
I. INVESTMENT OBJECTIVES
The primary objective is to seek the preservation of capital. The secondary
objective is to attempt to provide over time a competitive level of income
consistent with the preservation of capital.
II. PORTFOLIO GUIDELINES
The Account shall be invested in the following classes of assets.
A. Universe
1. Investment Contracts. Investment Contracts ("Contracts") are issued by
insurance companies, banks or other financial-services institutions (the
"Issuer(s)") and evidence debt obligations of the applicable Contract
Issuer(s) to the Plan. Contracts are either collateralized by the general
underlying assets, or certain specific underlying assets, of the Contract
Issuer(s).
All Contracts, at the time of purchase, shall be benefit-responsive, which
means that they shall provide for benefit withdrawals and investment
exchanges to be paid at full book-value (i.e., principal plus accrued
interest). However, withdrawals prompted by an employer-initiated-event,
such as withdrawals resulting from the sale of a division of the Sponsor, a
corporate layoff or the addition of Plan investment options, for example,
may be paid at the Contract's market-value, which may be more or less than
book-value.
The interest rate of a particular Contract may be either fixed or adjusted
periodically according to an index or to reflect the performance of certain
assets of the Contract Issuer. Maturity dates of Contracts may or may not
be fixed. Contracts may include, but are not limited to, the following:
. Fixed-rate contracts
. Indexed-rate contracts
. Participating-rate contracts
. Structured contracts
. Separate-account contracts
2. Synthetic Investment Products. Synthetic investment contract products
("Synthetic Products") are comprised of both an investment component and a
contractual component. The investment component consists of one or more
securities or shares or units of a pooled portfolio of fixed-income
securities ("Underlying Investment(s)").
48
Underlying Investments may include, but are not limited to, the following:
. Asset-backed securities
. Mortgage-backed securities
. Commercial mortgage-backed securities
. Collateralized mortgage obligations
. U.S. Treasuries
. Securities issued or backed by U.S. government agencies,
government-sponsored enterprises or similar U.S. government
entities or instrumentalities
. Securities issued by supranational organizations
. Structured notes and similar arrangements
. Corporate bonds
. Yankees
. Private placements (including Rule 144a securities)
. Units of commingled pools primarily invested in the above
. Shares of mutual funds primarily invested in the above
. Money market instruments
This investment component is "wrapped" by one or more contracts ("Wrap
Contract(s)") issued by insurance companies, banks or other financial-
services institutions (the "Wrap Contract Issuers"). Wrap Contracts, at the
time of purchase, shall be benefit-responsive, which means that they shall
provide for benefit withdrawals and investment exchanges to be paid at the
full book-value of the Underlying Investment(s) (i.e., principal plus
accrued interest). In this manner, Wrap Contracts are designed to decrease
the normal market fluctuations associated with the performance of the
Underlying Securities. However, certain withdrawals, similar to those
described above with respect to Contracts, may be paid at the market-value
of the Underlying Investment(s) (which may be more or less than book-
value).
The interest rate of a particular Synthetic Product may be either fixed or
adjusted periodically and is in either case tied to the performance of the
Underlying Investment(s). The maturity date of a particular Synthetic
Product may be a fixed date or an indeterminate date.
3. Money Market Investments. Investments may be shares of mutual funds or
units of commingled pools which are invested primarily in money-market
instruments.
B. Credit and Diversification Limitations
1. At the time of purchase, Contract Issuers, Wrap Contract Issuers and
issuers of the Underlying Investments ("Securities Issuers"), whether
domestic or foreign, must be deemed to be creditworthy by Fidelity
Management Trust Company ("FMTC").
2. At the time of purchase, Contract Issuers and Securities Issuers must meet
the then-current diversification requirements established by FMTC.
C. Investment Contract Disclosures
Detailed investment contract disclosures are attached as Appendix A.
49
D. Special Limitations and Restrictions Imposed by the Sponsor
Notwithstanding anything herein to the contrary, the Sponsor hereby imposes
special limitations and restrictions as set forth below:
1. Prior to purchasing for the Plan any class of assets not contemplated by
the then-existing Investment Guidelines, the Investment Manager shall
provide, and the Sponsor shall review, the contractual terms and conditions
to investments in said class of assets that may apply with respect to the
determination at various times of (i) market value, (ii) book value and
(iii) the consequences, if any, of termination prior to maturity. If such
terms and conditions are deemed in the Sponsor's sole discretion to be
acceptable, the Investment Guidelines shall be amended, upon the mutual
written consent of the parties, to permit the Account to be invested in
that class of assets.
These Investment Guidelines are effective as of March 1, 1997 and supersede all
prior written and oral agreements regarding investments of the Account. Any
deviation from or amendment to these Investment Guidelines must be approved in
writing by both the Trustee and Sponsor prior to implementation thereof.
FMC CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ David J. Kostelansky By: /s/ Lucy B. Lewis
-------------------------------- --------------------------------
Name: David J. Kostelansky Name: Lucy B. Lewis
------------------------------ ------------------------------
Title: Director of Benefits and Title: Vice President
----------------------------- -----------------------------
Information Technology Date: 6/11/97
----------------------------- ------------------------------
Date: 5/30/97
------------------------------
50
Appendix A
Investment Contract Disclosures
-------------------------------
1. FUNDING COMMITMENTS
The terms of each investment contract are based upon the information in the
bidding specifications given to potential bidders. Often detailed information
about expected deposits and withdrawals is necessary to receive the best rate
from an issuer on a given placement day.
Some investment contracts obligate the Plan to give a designed lump sum deposit
to the issuer by a specific date. Other contracts require a Plan to direct all
cash flow, including other contract maturities, to the issuer over a set period
(the funding "window"). At the end of the window, the issuer expects a certain
dollar amount to be received and may refuse to accept additional cash flow. In
either case the funding date may be several months following the commitment
("advance commitment" contracts).
If the Plan fails to fulfill its contractual funding obligations, there may be
financial consequences for Plan participants. This is because the issuer
conducts its financial affairs in reliance on receiving the deposits as
promised. Consequently, issuers may include shortfall funding provisions in
their contracts (particularly advance commitment contracts) in order to protect
their financial position.
The responsibility for a funding shortfall will vary depending on the underlying
cause. If participant activity (e.g. increased transfers out of the Account)
causes the shortfall, issuers will generally either assume the risk or extend
the funding date indefinitely. However, if a shortfall is caused by an employer-
initiated event (e.g. an unexpected layoff, plan termination, or a change in
funding policy, the issuer will seek to be made whole under the terms of the
contract. If the contract has not yet been funded, the issuer may seek
reimbursement from the contractholder if the issuer incurs a financial loss.
As contractholder, FMTC intends to honor all funding commitments made on behalf
of the Plan. In the event of a shortfall, however, FMTC would only assume
responsibility to the extent that FMTC has been given funds by the Plan for
deposit and subsequently fails to remit the funds to the issuer.
11. PLAN WITHDRAWALS AND INVESTMENT EXCHANGES
An investment contract generally imposes ongoing contractual commitments on the
Plan to maintain the issuer's promise to pay the book value of the contract. If
the sponsoring employer changes Plan rules in a manner which changes
significantly the amount of "benefit-responsive" withdrawals from a contract,
the insurer may be authorized to lower the interest rate or assess a monetary
penalty. Alternatively, the insurer may refuse to pay withdrawals prompted by
the plan change. Employer-initiated events such as a large scale layoff or a
sale of part of the business may cause the same consequences. Early advance
notice to FMTC of a coming Plan change or corporate event is critical to provide
FMTC sufficient time to try to minimize any financial consequences to the Plan.
A request by the Plan contractholder (sponsoring employer or trustee) to
withdraw funds prior to the contract maturity date may also result in the
assessment of a market value adjustment on the amount withdrawn. Some contracts
don't allow such pre-maturity withdrawals without issuer consent.
51
Due to the potential financial consequences to Plan participants in these types
of situations, funding and withdrawal decisions must be carefully weighed by
Plan sponsors, managers and trustees.
The undersigned hereby acknowledges and agrees that it has read and understood
the foregoing disclosures.
FMC Corporation
BY: /s/ David J. Kostelansky
---------------------------
Name:
Title: Director, Benefits
and Information
Technology
Date: 5/30/97
-----------------------
52
Schedule "J"
[Sponsor's Letterhead]
Ms. Carolyn Redden
Fidelity Investments Institutional Operations Company, Inc.
82 Devonshire Street
Boston, Massachusetts 02109
[Name of Plan]
Dear Ms. Redden:
This letter is sent to you in accordance with Section 8(a) of the Trust
Agreement dated as of the [_] day of [_], 199X, between [_] and Fidelity
Management Trust Company.
Each of the plans identified below is a tax-qualified defined contribution
plan which meets the requirements of Section 17 of said Trust Agreement and
which is maintained by the undersigned, or one of its subsidiaries or
affiliates, for the benefit of their eligible employees. Each such plan is
hereby designated as a "Plan" for purposes of said Trust Agreement. The
following individuals or entities are the Administrator and Named Fiduciary
(ies) of said Plan(s).
Plans Administrator Named Fiduciary(ies)
- ----------------------------------------
We hereby further certify that each Employer with respect to each of the
foregoing Plan(s) has authorized the assets of such Plan to be deposited in the
Trust and, as a result, is bound by Section 15(b) of said Trust Agreement.
You may rely upon the foregoing designations and certifications until we
deliver to you written notice of a change in any of the information set forth
therein.
Very truly yours,
[SPONSOR]
By
-----------------------------
53
Schedule "K"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
----------------------------------------------------
Pricing
By 7:00 p.m. Eastern Time ("ET") each Business Day, the Fund Vendor will input
the following information ("Price Information") into the Fidelity Participant
Recordkeeping System ("FPRS") via the remote access price screen that Fidelity
Investments Institutional Operations Company ("FIIOC"), an affiliate of the
Trustee, has provided to the Fund Vendor: (1) the net asset value for each Fund
at the Close of Trading, (2) the change in each Fund's net asset value from the
Close of Trading on the prior Business Day, and (3) in the case of an income
fund or funds, the daily accrual for interest rate factor ("mil rate"). FIIOC
must receive Price Information each Business Day. If on any Business Day the
Fund Vendor does not provide such Price Information to FIIOC, FIIOC shall pend
all associated transaction activity in the Fidelity Participant Recordkeeping
System ("FPRS") until the relevant Price Information is made available by Fund
Vendor.
Trade Activity and Wire Transfers
By 7:00 a.m. ET each Business Day following Trade Date ("Trade Date plus One"),
FIIOC will provide, via facsimile, to the Fund Vendor a consolidated report of
net purchase or net redemption activity that occurred in each of the Funds up to
4:00 p.m. ET on the prior Business Day. The report will reflect the dollar
amount of assets and shares to be invested or withdrawn for each Fund. FIIOC
will transmit this report to the Fund Vendor each Business Day, regardless of
processing activity. In the event that data contained in the 7:00 a.m. ET
facsimile transmission represents estimated trade activity, FIIOC shall provide
a final facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any
resulting adjustments shall be processed by the Fund Vendor at the net asset
value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC transaction confirms for
all daily activity in each of the Funds. The Fund Vendor shall also send via
regular mail to FIIOC, by no later than the fifth Business Day following
calendar month close, a monthly statement for each Fund. FIIOC agrees to notify
the Fund Vendor of any balance discrepancies within twenty (20) Business Days of
receipt of the monthly statement.
For purposes of wire transfers, FIIOC shall transmit a daily wire for aggregate
purchase activity and the Fund Vendor shall transmit a daily wire for aggregate
redemption activity, in each case including all activity across all Funds
occurring on the same day.
54
Prospectus Delivery
FIIOC shall be responsible for the timely delivery of Fund prospectuses and
periodic Fund reports ("Required Materials") to Plan participants, and shall
retain the services of a third-party vendor to handle such mailings. The Fund
Vendor shall be responsible for all materials and production costs, and hereby
agrees to provide the Required Materials to the third-party vendor selected by
FIIOC. The Fund Vendor shall bear the costs of mailing annual Fund reports to
Plan participants. FIIOC shall bear the costs of mailing prospectuses to Plan
participants.
Proxies
Participants shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote the shares of the Non-Fidelity Mutual Funds
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, the Sponsor shall have the
right to direct the Trustee as to the manner in which the Trustee is to vote the
shares of the Non-Fidelity Mutual Funds in the Trust. 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 further duty to solicit directions from
participants or the Sponsor.
The Fund Vendor shall be responsible for all costs associated with the
production of proxy materials. FIIOC shall retain the services of a third-party
vendor to handle proxy solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly to the Fund Vendor by the
third-party vendor.
Participant Communications
The Fund Vendor shall provide internally-prepared fund descriptive information
approved by the Funds' legal counsel for use by FIIOC in its written participant
communication materials. FIIOC shall utilize historical performance data
obtained from third-party vendors (currently Morningstar, Inc., FACTSET Research
Systems and Lipper Analytical Services) in telephone conversations with plan
participants and in quarterly participant statements. The Sponsor hereby
consents to FIIOC's use of such materials and acknowledges that FIIOC is not
responsible for the accuracy of such third-party information. FIIOC shall seek
the approval of the Fund Vendor prior to retaining any other third-party vendor
to render such data or materials under this Agreement.
Compensation
FIIOC shall be entitled to fees as set forth in a separate agency agreement
with the Fund Vendor.
55
Indemnification
The Fund Vendor shall be responsible for compensating participants and/or FIIOC
in the event that losses occur as a result of (1) the Fund Vendor's failure to
provide FIIOC with Price Information or (2) providing FIIOC with incorrect Price
Information.
56
FIRST AMENDMENT TO MASTER TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
FMC CORPORATION
THIS FIRST AMENDMENT, dated as of the fifteenth day of July, 1997, by and
between Fidelity Management Trust Company (the "Trustee") and FMC Corporation
(the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated June 1, 1997, with regard to the FMC Corporation Employees'
Thrift and Stock Purchase Plan, the United Defense Limited Partnership Salaried
Employees' Plan, the FMC Corporation 401(k) Plan for Employees Covered by a
Collective Bargaining Agreement, the United Defense Limited Partnership
Louisville Union Employees' Thrift Plan and the United Defense Limited
Partnership York Plan (individually and collectively, the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending Section "B" of Schedule "G" "Existing GICs" by deleting from
said section any reference to Metropolitan Life Insurance Company
Contract Number 13156.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this First
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
FMC CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ D. J. Kostelansky By: /s/ Lucy B. Lewis 7/25/97
---------------------------- -----------------------------
Date Vice President Date
SECOND AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
FMC CORPORATION
THIS SECOND AMENDMENT, dated as of the sixth day of October, 1997, by and
between Fidelity Management Trust Company (the "Trustee") and FMC Corporation
(the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated June 1, 1997, with regard to the FMC Corporation Employees'
Thrift and Stock Purchase Plan, the United Defense Limited Partnership Salaried
Employees' Plan, the FMC Corporation 401(k) Plan for Employees Covered by a
Collective Bargaining Agreement, the United Defense Limited Partnership
Louisville Union Employees' Thrift Plan and the United Defense Limited
Partnership York Plan (individually and collectively, the "Plan"); and
WHEREAS, the Sponsor has notified the Trustee that effective October 6,
1997 the United Defense Limited Partnership Salaried Employees' Plan, the United
Defense Limited Partnership Louisville Union Employees' Thrift Plan and the
United Defense Limited Partnership York Plan will no longer be part of the FMC
Corporation Master Trust; and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Deleting all references to the United Defense Limited Partnership
Salaried Employees' Plan, the United Defense Limited Partnership
Louisville Union Employees' Thrift Plan and the United Defense Limited
Partnership York Plan.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Second
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
FMC CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ David J. Kostelansky 10/7/97 By: /s/ 11/4/97
-------------------------------- -----------------------------
Date Vice President Date
THIRD AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
FMC CORPORATION
THIS THIRD AMENDMENT, dated as of the thirtieth day of November, 1997, by
and between Fidelity Management Trust Company (the "Trustee") and FMC
Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Master Trust
Agreement dated June 1, 1997, with regard to the FMC Corporation Employees'
Thrift and Stock Purchase Plan and the FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement (individually and collectively, the
"Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending Schedule "G", Existing GICs, by removing the following from
subsection B and adding it to subsection A:
- Contract Issuer: John Hancock
- Contract Number: 7787 GAC
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Third
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
FMC CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ David J. Kostelansky 11/14/97 By: /s/ 11/26/97
--------------------------------- ------------------------------
Date Vice President Date