1
EXHIBIT 4.4
THE FIFTH THIRD BANK
PROTOTYPE TRUST AGREEMENT
2
THE FIFTH THIRD BANK
PROTOTYPE TRUST AGREEMENT
TABLE OF CONTENTS
ARTICLES
1. Title, Purpose and Definitions
2. Contributions and Payments
3. Investment Duties and Powers of the Trustee
4. Compensation, Expenses, and Accounts
5. Actions of the Trustee
6. Resignation, Removal and Succession of the Trustee
7. Amendment and Termination
8. Miscellaneous
3
THE FIFTH THIRD BANK
PROTOTYPE TRUST AGREEMENT
By executing an Adoption Agreement under The Fifth Third Bank
Basic Prototype Plan Document #01, the Employer named therein (the "Employer")
and the Trustee named therein (either The Fifth Third Bank or an authorized
Fifth Third affiliate) (the "Trustee") agree to the following terms and
conditions. If the Plan is an amendment and restatement of an existing plan,
and if The Fifth Third Bank (or its authorized affiliate) was not the Trustee
on the Effective Date of the amendment and restatement, the prior trustee(s)
shall remain trustee(s) until the date specified in the Adoption Agreement;
provided that said trustee(s) shall be bound by the terms of the trust
agreement in effect prior to the date The Fifth Third Bank (or its authorized
affiliate) becomes trustee (rather than the terms of this Trust Agreement).
ARTICLE 1
TITLE, PURPOSE AND DEFINITIONS
1.1 Title. The Trust established pursuant hereto shall be known
by the name stated in the Adoption Agreement.
1.2 Purpose. The Trust is established for the purpose of holding
the Plan Assets and for the exclusive benefit of Participants and their
beneficiaries. Subject to the provisions of the Plan that are consistent with
ERISA, it shall be impossible, by any means, and at any time before the
satisfaction of all liabilities to Participants or their beneficiaries, for any
part of the Plan Assets to be used for, or diverted to, purposes other than for
the exclusive benefit of the Participants and their beneficiaries.
1.3 Definitions. As used in this Trust Agreement, the following
terms shall have the following meanings and provisions applicable thereto.
(a) "Administrator" means the individual, group of
individuals, or entity appointed as such by the Employer, provided that if none
is so appointed, then it means the first Employer designated in the Adoption
Agreement.
(b) "Adoption Agreement" means the document in which the
Employer specifies the elective provisions of the Plan.
(c) "Code" means the Internal Revenue Code of 1986, as
amended at the particular time applicable. A reference to a section of the
Code shall include said section and any comparable section or sections of any
future legislation that amends, supplements or supersedes said section.
4
(d) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, at the particular time applicable.
(e) "Participant" means a person who has become a
Participant as provided under Article 2 of the Plan. Any such person shall
remain a Participant as long as an Account is maintained for him under the
Plan.
(f) "Plan" means the plan set forth in The Fifth Third
Bank Basic Prototype Plan Document #01 and in the Adoption Agreement as adopted
by the Employer, and if amended at any time, then as so amended.
(g) "Plan Assets" means the assets of the Plan at the
particular time applicable.
(h) "Trust Year" means the Plan Year of the Plan.
ARTICLE 2
CONTRIBUTIONS AND PAYMENTS
2.1 Receipt of Contributions. The Trustee shall receive any
contributions paid to it in cash or in the form of such other property as it
may from time to time deem acceptable and which shall have been delivered to
it. All contributions so received, together with the income therefrom and any
other increment thereon, shall be held, invested, reinvested and administered
by the Trustee pursuant to the terms of this Trust Agreement. The Trustee
shall not be responsible for the calculation or collection of any contribution
under or required by the Plan, or for the determination of whether any
contributions received by it are correct or are otherwise in compliance with
the provisions of the Plan, but shall be responsible only as provided in this
Trust Agreement for property received by it.
2.2 Payments from the Plan Assets.
(a) From time to time, upon the Trustee's receipt of
written directions from the Administrator that payments from the Plan are due,
the Trustee shall make such payments from the Plan Assets to such persons in
such form, in such amounts and at such time as the Administrator shall have
directed; provided however, the Trustee shall not be required to make any
payment from the Plan Assets until it receives copies of such government
filings and/or approvals as the Trustee may reasonably request; and provided
further, contributions to the Plan shall be returned to the Employer only under
those circumstances set forth in the Plan and consistent with ERISA.
(b) Upon the distribution of Plan Assets in accordance
with (a) above, to the extent permitted by law, the Trustee shall be released
and discharged from all further
- 2 -
5
accountability or liability respecting such Plan Assets, shall be fully
protected in making payments out of the Plan Assets in accordance with such
written directions, shall have no responsibility to see to the application of
such payments or to ascertain whether such directions comply with the
provisions of the Plan, and shall have no responsibility for any payments made
by it in good faith without actual notice or knowledge of the changed condition
or status of any person receiving such payments.
(c) If any payment directed to be paid from the Plan
Assets is not claimed, then the Trustee shall notify the Administrator of that
fact promptly. The Trustee shall have no obligation to search for or ascertain
the whereabouts of any payee under the Plan.
(d) If any dispute arises as to the persons to whom
payment of any funds or delivery of any other Plan Assets should be made by the
Trustee, then the Trustee may withhold such payment or delivery until such
dispute shall have been determined by a court of competent jurisdiction or
shall have been settled by the parties concerned.
ARTICLE 3
INVESTMENT DUTIES AND POWERS OF THE TRUSTEE
3.1 Investment Duties. Subject to the funding policy for the Plan
as communicated to the Trustee in writing by the Employer, the Trustee shall,
except to the extent it deems it expedient (pending investment of Plan Assets
or pending payment of current expenses or benefits of the Plan) to keep Plan
Assets temporarily uninvested and in cash, invest and reinvest the principal
and income of the Plan Assets and keep the Plan Assets invested, without being
restricted to securities or property of the character authorized for
investments by trustees under the laws of any state, district or territory, in
such securities and/or in such property, real or personal, tangible or
intangible, or part interest therein, wherever situate, whether or not
productive of income, or consisting of wasting assets, as the Trustee shall
deem advisable. The Employer shall establish and communicate to the Trustee, a
funding policy which shall be consistent with the objectives of the Plan,
ERISA, and other applicable legal requirements and which shall identify the
Plan's short-run and long-run financial needs with respect to liquidity and
growth, as the same may change from time to time.
3.2 Investment Powers. The Trustee is authorized and empowered,
in addition to powers granted under any applicable statutes, regulations or
rules which, to the extent of their granting of powers applicable to trusts of
a similar nature to the Trust, are incorporated herein by reference.
(a) to invest in any collective or common trust fund
operated and maintained by the Trustee or an affiliate of the Trustee,
including, but not limited to, demand notes, short-term notes and cash
equivalent funds;
- 3 -
6
(b) to invest in any collective, common or pooled trust
fund operated or maintained by any bank or trust company, including the Trustee
or any affiliate of the Trustee, exclusively for the commingling and collective
investment of monies or other assets held under or as a part of a plan which is
established in conformity with and qualifies under section 401(a) of the Code;
and, anything herein to the contrary notwithstanding, to the extent monies or
other assets are transferred to such collective trust in exchange for an
interest in such collective trust, the terms and conditions of such collective
trust, as amended from time to time, shall govern the investment duties,
responsibilities and powers of the trustee of such collective trust and, to the
extent required by law, such terms, responsibilities and powers shall be
incorporated herein by reference and shall be a part of this Trust Agreement;
and, for purposes of valuation, the value of the interest maintained by the
Plan Assets in such collective trust shall be the fair market value of the
collective fund units held by the Trustee determined in accordance with
generally recognized valuation procedures;
(c) to purchase and subscribe for any securities or other
property and to retain such securities or other property in trust;
(d) to sell at public or private sale, for cash, or upon
credit, or otherwise dispose of any property, real or personal, and no person
dealing with the Trustee shall be bound to see to the application or to inquire
into the validity, expediency or propriety of any such sale or other
disposition;
(e) to exercise any conversion privilege, subscription
right or other option pertaining to or in connection with securities or other
property held by it;
(f) to exercise itself, or by general or limited power of
attorney, any right, including the right to vote, incident to any securities or
other property held by it;
(g) to join in, dissent from or oppose the
reorganization, recapitalization, consolidation, sale or merger of corporations
or properties of which it may hold stocks, bonds or other securities or in
which it may be interested, to pay any expenses, assessments or subscriptions
in connection therewith, and to accept and to hold any other securities issued
in connection therewith;
(h) to register any investment held in the Plan Assets in
its own name or in the name of a nominee or to hold any investment in bearer
form;
(i) to employ suitable agents, accountants and counsel
and to pay their reasonable expenses and compensation;
(j) to hold any part or all of the Plan Assets
uninvested;
(k) to invest in savings accounts, certificates of
deposit and other deposits which bear a reasonable rate of interest, with any
financial institution or quasifinancial
- 4 -
7
institution, either domestic or foreign, including any such financial
institution operated or maintained by the Trustee (or an affiliate) in its
corporate capacity;
(l) to form corporations and partnerships and to create
trusts to hold title to any securities or other property, all upon such terms
and conditions as it may deem advisable;
(m) to invest in open-end investment companies (mutual
funds) and closed-end investment companies, investment trusts, and in any
partnership, limited or unlimited, joint venture or other form of joint
enterprise created for any lawful purpose;
(n) to adjust, settle, contest, compromise and arbitrate
any claims, debts, or damages due or owing to or from the Plan Assets, and to
sue, commence or defend any legal proceedings in reference thereto;
(o) to borrow money upon such terms and conditions as may
be deemed advisable to carry out the purposes of the Trust and to pledge
securities or other property in repayment of any such loan; provided, however,
that loans or advances may be made by the Trustee by way of overdrafts or
otherwise on a temporary basis on which no interest is payable;
(p) to enter into any type of contract with any insurance
company or companies, either for the purposes of investment or otherwise, and,
to the extent the Plan so provides, to purchase any life insurance policy or
annuity contract;
(q) to buy, sell, and deal in options as writer of call
options against securities, stocks, convertible preferred stocks, convertible
bonds and warrants, which are owned by the Trust, to repurchase written call
options in a closing transaction, to deliver the securities for cash if the
option is exercised, to buy put options for securities, stock, convertible
preferred stock, convertible bonds and warrants, which are owned by the Trust,
to resell put options, in a closing transaction and to deliver the securities
for cash if the option is exercised;
(r) to make, execute and deliver as Trustee any and all
deeds, leases, mortgages, advances, contracts, waivers, releases or other
instruments in writing necessary or proper in the employment of any of the
foregoing powers;
(s) if provided for in the Adoption Agreement, to buy,
sell or hold qualifying employer securities, limited in the case of a money
purchase pension plan or a profit sharing plan, the benefits of which are taken
into account in determining the benefits payable to any participant under a
defined benefit plan, to 10% of Plan Assets, all as provided in section 407 of
ERISA; and
(t) to exercise, generally, any of the powers which an
individual owner might exercise in connection with property either real,
personal or mixed held in the Plan Assets, and to do all other acts that the
Trustee may deem necessary or proper to carry out any of the powers set forth
in this Article 3 or otherwise in the best interests of the Trust.
- 5 -
8
3.3 Separate Accounts with Respect to Non-Corporate Employers. If
the Employer is not a corporation, then the Trustee, in its sole discretion,
may segregate and separately invest and account for the account of any
Participant, if necessary to comply with any applicable securities laws. The
Administrator shall be responsible for notifying the Trustee as to
Participants' residency.
3.4 Power of the Employer, Administrator or Participants to Direct
Investments and Exercise of Powers.
(a) General. The Employer or Administrator may, at any
time and from time to time, by written action, advise and direct the Trustee in
the investment of the Plan Assets or in the exercise of any of the Trustee's
powers. The Employer or Administrator may also, at any time and from time to
time, by written direction, require the Trustee to obtain the written approval
of the Employer or Administrator before making investments of a particular type
specified in such direction or before exercising any of the Trustee's powers as
may be specified in such direction.
(b) Participant Investment Direction. If the Plan
permits Participants to elect the manner in which their Accounts or specified
subaccounts are invested, the Administrator shall be responsible for
implementing the investment elections by direction to the Trustee. Unless
specifically agreed otherwise by the Administrator and the Trustee, the Trustee
shall receive, and act upon, investment instructions solely from the
Administrator (and not the Participants directly).
(c) Relationship to the Trustee. The Trustee shall
follow the directions of the Administrator in making investment funds specified
by the Administrator available under the Plan. The Trustee shall be under no
duty or obligation to review the selection of investment funds by the
Administrator or Participants. The Trustee shall have no fiduciary
responsibility whatsoever in connection with any such investment funds (or
other Participant directed investments) except for such investment funds over
which the Trustee has investment management authority as directed by the
Administrator. The Trustee shall have no liability or responsibility for
action pursuant to the direction of the Administrator, Employer or Participants
(if applicable).
3.5 Investment Manager.
(a) Appointment. Notwithstanding anything to the
contrary in this Trust Agreement contained, the Employer may direct, by written
notice, the segregation of all or any portion or portions of the Plan Assets in
a separate investment account or investment accounts and in such event, may
appoint an investment manager to direct the investment and reinvestment of any
such investment account pursuant to this Article 3. If investment of the Plan
Assets is to be directed in whole or in part by an investment manager, then the
Employer shall deliver to the Trustee a copy of the instruments appointing the
investment manager and evidencing the investment manager's acceptance of such
appointment, an acknowledgement by the investment
- 6 -
9
manager that it is a fiduciary of the Plan, and evidence that such investment
manager is (1) registered as an investment adviser under the Investment
Advisers Act of 1940, (2) a bank as defined in that Act, or (3) an insurance
company qualified, under the laws of more than one State, to manage, acquire,
or dispose of any asset of a plan. The Trustee shall be fully protected in
relying upon such documents until otherwise notified in writing by the
Employer.
(b) Relationship to the Trustee. The Trustee shall
follow the directions of the investment manager regarding the investment and
reinvestment of the Plan Assets or such portion thereof as shall be under
management by the investment manager and shall exercise the powers set forth in
this Article 3, as directed by the investment manager. The Trustee shall be
under no duty or obligation to review any investment to be acquired, held or
disposed of pursuant to such directions nor to make any recommendations with
respect to the disposition or retention of any such investment or the exercise
or nonexercise of the powers in this Article 3. The Trustee shall have no
liability or responsibility for acting or not acting pursuant to the direction
of, or failing to act in the absence of any direction from, the investment
manager, unless the Trustee knows that by such action or failure to act it
would be itself committing or participating in a breach of fiduciary duty by
the investment manager.
(c) Securities Transactions. Upon receipt of written
notification from the investment manager that it has issued an order for the
purchase or sale of securities directly to a broker, the Trustee shall execute
and deliver any appropriate trading authorizations that may be requested, and
the Trustee shall be authorized to, and shall, pay for securities purchased
against receipt thereof and deliver securities sold against payment therefor,
as the case may be.
(d) Resignation or Removal. If an investment manager
should resign or be removed by the Employer, then the Trustee shall, pursuant
to this Article 3, manage the investment of the Plan Assets which had been
managed by such investment manager unless and until he shall be notified of the
appointment of another investment manager with respect thereto as provided in
this Section.
(e) Trustee's Records and Accounts. The accounts, books
and records of the Trustee shall reflect the segregation, pursuant to the
provisions of this Section, of any portion or portions of the Plan Assets in a
separate investment account or accounts.
3.6 Voting of Qualifying Employer Securities.
(a) Anything in this Trust Agreement to the contrary
notwithstanding, if any Plan Assets are invested in qualifying employer
securities pursuant to an Adoption Agreement, the Trustee shall exercise any
voting rights pertaining to any such securities in accordance with any
instructions received from the person or persons designated in the Adoption
Agreement as having the right to exercise such voting rights. In the event
that any such person or persons shall fail to so instruct the Trustee, then the
Trustee shall have the same power to act (or refrain from acting) with respect
to any such vote as it has with any other Plan Asset.
- 7 -
10
(b) If the Trustee is designated in the Adoption
Agreement as having the right to exercise such voting rights, the Trustee shall
have the same power to act (or refrain from acting) with respect to any voting
right as it has with any other Plan Asset.
ARTICLE 4
COMPENSATION, EXPENSES, AND ACCOUNTS
4.1 Compensation. The Trustee shall be entitled to such
compensation for services rendered by it as may be provided for in its schedule
of fees as in effect from time to time.
4.2 Trust Expenses. The expenses incurred by the Trustee in the
performance of its duties, including fees for legal services, and such
compensation to the Trustee as may be provided for pursuant to Section 4.1, and
all other proper charges and disbursements of the Trustee, shall be paid by the
Employer; provided however, any such expenses not so paid by the Employer shall
be paid from the Plan Assets. The Employer shall be primarily liable for the
payment of the Trustee's fees and expenses, and the Employer hereby agrees to
pay any unpaid fees, taxes and expenses which the Plan Assets are not
sufficient to satisfy.
4.3 Tax Assessments. The Trustee shall notify the Employer with
regard to any tax assessments which it receives on any income or property
maintained in the Plan Assets and, unless notified to the contrary by the
Employer at lease ten (10) days before the tax is due, shall pay any such
assessments from the Plan Assets. If the Employer notifies the Trustee within
said period that in its opinion or in the opinion of counsel such assessments
are invalid or that they should be contested, then the Trustee shall take
whatever action is indicated in the notice received from the Employer or
counsel, including contesting the assessment or litigating any claims.
4.4 Accounts, Records, Reports and Valuations.
(a) The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements and other transactions under the
Trust and all such accounts and other records relating thereto shall be open to
inspection and audit at all reasonable times by any person designated by the
Employer. Within ninety (90) days following the close of the Trust Year, the
Trustee shall make a valuation of the Plan Assets (other than any insurance
contracts) at fair market value as of the last day of such Trust Year and shall
file with the Employer a written copy of such valuation and a written account
setting forth all investments, receipts, disbursements and other transactions
effected by it under the Trust during such Trust Year. To the extent permitted
by law, but subject to any express provision of applicable law as may be in
effect from time to time to the contrary, no person other than the Employer may
require an accounting or bring any action against the Trustee with respect to
the Plan Assets or its actions as Trustee.
- 8 -
11
(b) Notwithstanding any other provision of this Trust
Agreement, the Trustee shall have the right to have a judicial settlement of
its accounts. In any proceeding for a judicial settlement of the Trustee's
accounts, or for instructions in connection with the Plan Assets, the only
necessary party thereto in addition to the Trustee shall be the Employer. If
the Trustee so elects, it may bring any other person or persons as a party or
parties defendant.
(c) All accounts and records maintained by the Trustee
with respect to the Plan Assets shall be preserved for such period as may be
required under any applicable law. Upon the expiration of any such required
retention period, the Trustee shall have the right to destroy such records and
accounts after first notifying the Employer of its intention and transferring
to the Employer any such accounts and records requested by it. The Trustee
shall have the right to preserve all accounts and records in original form, or
on microfilm, magnetic tape, or any other similar process.
(d) The Trustee shall make such periodic reports to the
Employer as the Trustee shall deem necessary and proper and such other reports
as the Employer may reasonably request, including a valuation of the Plan
Assets at fair market value as of any date requested by the Employer.
(e) If, within ninety (90) days from the date upon which
the Trustee delivers any accounting to the Employer, the Employer fails to make
any written objection thereto, then such accounting shall be deemed to be
approved by the Employer, and the Trustee shall be released and discharged as
to all items, matters, and things set forth in such accounting, as if such
accounting had been settled and allowed by decree of a court of competent
jurisdiction in an action or proceeding in which the Trustee, the Employer, and
all persons having and claiming to have any interest in the Plan Assets or
under the Plan were parties.
ARTICLE 5
ACTIONS OF THE TRUSTEE
5.1 General Fiduciary Duties of the Trustee. The Trustee
acknowledges that it assumes the fiduciary duties established by this Trust
Agreement and imposed by law. Subject to the provisions of the Plan which are
consistent with ERISA and which permit Plan Assets to be returned to the
Employer, the Trustee shall discharge its duties with respect to the Plan
solely in the interest of the Participants and beneficiaries and for the
exclusive purpose of providing benefits to such Participants and their
beneficiaries and defraying reasonable expenses of administering the Plan, with
the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man 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, and by diversifying the investments of the Plan so as to minimize
the risk of large losses, unless under the circumstances it is clearly prudent
not to do so, all in accordance with the provisions of this Trust Agreement
- 9 -
12
insofar as they are consistent with the provisions of ERISA, as this Trust
Agreement and ERISA may be from time to time amended. No Trustee shall be
required to investigate, or be responsible for, any acts or omissions occurring
before it became, or after it ceased to be, a fiduciary with respect to the
Plan.
5.2 Extent of Responsibilities. The Trustee shall have only such
responsibilities as are stated in this Trust Agreement; provided however, to
the extent that the Trustee is the payor of benefits under the Plan, the plan
administrator (as defined in section 414(g) of the Code) of the Plan may,
subject to providing the Trustee with such information as the Secretary of the
Treasury may require, direct the Trustee to withhold applicable federal income
taxes under and in accordance with section 3405 of the Code. In addition, it
may be specified in Item 37 of the Adoption Agreement that the Trustee shall
have the ministerial function of maintaining Participants' accounts in
accordance with information, interpretations, and directions from the
Administrator. The Trustee shall have no discretionary responsibility for the
administration of the provisions of the Plan.
5.3 Court Approval. At no time during the administration of this
Trust shall the Trustee be required to obtain any court approval of any act
required of it in connection with the performance of its duties or in the
performance of any act required of it, in the administration of its duties as
Trustee. The Trustee shall have full authority to exercise its judgment in all
matters and at all times without court approval of such decisions; provided,
however, that if any application to or proceeding or action in the courts is
made, only the Employer and the Trustee shall be necessary parties, and no
Participant in the Plan or other person having an interest in the Plan shall be
entitled to any notice or service of process. Any judgment entered in such
proceeding or action shall be conclusive upon all persons claiming an interest
under the Plan.
5.4 Rights of Reliance by the Trustee.
(a) Counsel. The Trustee may consult with legal counsel
(who may be of counsel to the Employer) concerning any question which may arise
with reference to its duties under this Trust Agreement and the opinion of such
counsel shall be full and complete protection to the Trustee in respect to any
action taken or suffered by the Trustee in good faith and in accordance with
the opinion of such counsel.
(b) Directions, Statements, and Certificates.
(1) The Employer shall furnish the Trustee from
time to time with a written list of those persons authorized to give
directions, statements, or certificates to the Trustee, and the Trustee shall
be entitled to rely upon such list and shall not be charged with notice of any
change with respect thereto until the Employer shall have furnished the Trustee
with a new written list evidencing such change. The Trustee shall be entitled
to rely upon any direction, statement, certificate, or other communication
believed by it to be genuine and to be from the Employer or any such person to
the full extent permitted by law.
- 10 -
13
(2) Any action required by any provision of this
Trust Agreement to be taken by the Board of Directors, if any, of the Employer
shall be evidenced by a resolution of the Board of Directors certified to the
Trustee by the Secretary of the Employer, and the Trustee shall be fully
protected in relying upon any resolution so certified to it to the full extent
permitted by law.
(c) Plan Qualification. The Employer shall furnish the
Trustee with copies of all determination letters from the Internal Revenue
Service relating to the qualification of the Plan under section 401 of the
Code, and the Trustee may rely upon such letters.
5.5 Indemnification of the Trustee. Anything in the Plan to the
contrary notwithstanding, and whether or not the Trustee has resigned or been
removed, except to the extent that it is judicially determined that the Trustee
has acted with gross neglect or willful misconduct, the Employer shall
indemnify the Trustee against any liabilities, losses, damages, and expenses,
including attorney's, accountant's, and other advisors' fees, incurred as a
result of:
(a) any action of the Trustee taken in good faith in
accordance with any information, instruction, direction, or opinion given to
the Trustee by the Employer, its Board of Directors (if any), the
Administrator, or legal counsel of the Employer, or any person or entity
appointed by any of them and authorized to give any information, instruction,
direction, or opinion to the Trustee;
(b) the failure of the Employer, its Board of Directors
(if any), the Administrator, or any person or entity appointed by any of them
to make timely disclosure to the Trustee of information which any of them or
any appointee knows or should know if it acted in a reasonably prudent manner;
or
(c) any breach of fiduciary duty by the Employer, its
Board of Directors (if any), the Administrator, or any person or entity
appointed by any of them, other than such a breach which is caused by any
failure of the Trustee to perform its duties under this Trust Agreement.
5.6 Bond. The Trustee shall not be required to give any bond or
any other security for the faithful performance of its duties under this Trust
Agreement, except such as may be required by a law which prohibits the waiver
thereof.
- 11 -
14
ARTICLE 6
RESIGNATION, REMOVAL AND SUCCESSION OF THE TRUSTEE
6.1 Resignation and Removal. The Trustee may be removed by the
Employer (by action of its Board of Directors if it is a corporation) at any
time by notice in writing to the Trustee. The Trustee may resign at any time
upon sixty (60) days' notice in writing to the Employer. Within thirty (30)
days after such removal or resignation, the Trustee shall file with the
Employer a written report setting forth all investments, receipts and
disbursements and other transactions effected by the Trustee since the end of
the preceding Trust Year. Such report shall contain an exact description of
all securities and property purchased and sold, the cost or net proceeds of
sale (excluding accrued interest paid or received) and shall further indicate
such assets held to such date of removal or resignation, together with the cost
of each item thereof, as carried on the books of the Trustee.
6.2 Successor. Upon removal or resignation of the Trustee, but in
no event more than sixty (60) days thereafter, the Employer (by action of its
Board of Directors if it is a corporation) shall establish a new trust
agreement or other funding agreement for the Plan and shall appoint, and
procure acceptance by, a successor trustee or other funding agent under the
Plan. Upon such appointment, and upon the written acceptance of such
successor, the Trustee shall assign, transfer and pay over to such successor
the assets then constituting the Plan Assets; provided, however, that the
Trustee is authorized to reserve such sum of money (and for that purpose to
liquidate such property as may be necessary to produce such sum) as may seem
advisable for payment of all proper charges against the Plan Assets including
proper and reasonable expenses in connection with such resignation or removal,
and any balance of such reserve remaining after the payment of such charges
shall be paid over to the successor. Upon the payment and delivery to any
successor of all the Plan Assets, and after full settlement of accounts, the
responsibilities of the Trustee shall terminate.
ARTICLE 7
AMENDMENT AND TERMINATION
7.1 Amendment.
(a) By the Trustee. This Trust Agreement may be amended
by the Trustee by an instrument in writing, a copy of which shall be given to
the Employer.
(b) By the Employer and the Trustee. This Trust
Agreement may be amended by the Employer and the Trustee by an instrument in
writing; provided however, if this Trust
- 12 -
15
Agreement is so amended, then the Employer will not longer participate in a
prototype plan but will be considered to have an individually designed plan.
(c) Conditions. Any amendment may be made effective
retroactively if necessary to bring the Trust into conformity with governmental
regulations which must be complied with in order to make the Plan or Trust
eligible for tax benefits. No amendment shall operate to deprive any
Participant or beneficiary of any vested rights or benefits accrued to him
prior to such amendment, nor shall any amendment or modification cause or
authorize any part of the Plan Assets to revert to or be refunded to the
Employer, except as otherwise provided in the Plan and consistent with ERISA.
7.2 Termination.
(a) This Trust Agreement and the Trust created hereby may
be terminated at any time by the Employer and upon such termination, the Plan
Assets shall be paid out by the Trustee as and when directed by the
Administrator pursuant to Section 2.2.
(b) If the Trustee resigns and the Employer fails to
appoint a successor trustee or other funding agent within sixty (60) days, or
such longer period as the Trustee may specify in writing, then the Plan and
this Trust Agreement and the Trust created hereby shall terminate, and the
Trustee shall, subject to applicable limitations under the Plan, distribute the
Plan Assets to or for the benefit of the Participants.
(c) Upon such termination of the Trust in whole or in
part, the Trustee shall have a right to have its accounts settled as provided
in Section 4.4.
(d) When the Plan Assets shall have been applied or
distributed as provided herein, then the Trustee shall be released and
discharged from all further accountability or liability respecting the Plan
Assets (or that part of the Plan Assets so applied or distributed if the Trust
is terminated only in part) or any part thereof so applied or distributed and
shall not be responsible in any way or to any person for the further
disposition of the Plan Assets (or that part of the Plan Assets so applied or
distributed, if the Trust is terminated only in part) or any part thereof so
applied or distributed.
ARTICLE 8
MISCELLANEOUS
8.1 Headings. The headings are for reference only. In the event
of a conflict between a heading and the content of a Section, the content of
the Section shall control.
- 13 -
16
8.2 Gender and Number. Except when otherwise indicated by the
context, the genders of pronouns and the singular and plural numbers of terms
shall be interchangeable.
8.3 Governing Law. This Trust shall be deemed to be an Ohio trust
and shall in all respects be construed and regulated by the laws of the State
of Ohio, except where such laws are preempted by the Code or by ERISA.
8.4 Successors. This Trust Agreement shall be binding upon, and
the powers herein granted to the Employer and the Trustee, respectively, shall
be exercisable by the respective successors and assigns of the Employer and the
Trustee. Any corporation which shall, by merger, consolidation, purchase or
otherwise, succeed to substantially all the trust business of the Trustee, upon
such succession and without any appointment or other action by any person,
shall be and become successor trustee hereunder.
8.5 Participant's Interest. Except as otherwise provided in the
Plan or this Trust Agreement, no Participant or beneficiary under the Plan
shall have any interest in or right to the Plan Assets and, to the full extent
of all applicable laws, the assets of this Trust shall not be subject to any
form of attachment, garnishment, sequestration, or other actions afforded
creditors of any Participant or beneficiary.
8.6 Severability. In case any provision of this Trust Agreement
shall be held illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining provisions of this Trust Agreement, and this
Trust Agreement shall be construed and interpreted as if such illegal or
invalid provision had never been a part of it.
- 14 -