EXHIBIT 4.6
FOURTH AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
THIS AMENDMENT, made and entered into this 1st day of November, 1995,
by and between The Goodyear Tire & Rubber Company (the "Company") and The
Northern Trust Company (the "Trustee"),
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber Company
Commingled Trust (the "Trust Agreement") was entered into as of July 1, 1984,
between the Company and Bankers Trust Company, as Trustee; and
WHEREAS, pursuant to Article 12.4 of that certain Commingled Trust
Agreement dated July 1, 1984, and confirmed by letter dated October 30, 1995,
Company has removed Bankers Trust Company as Trustee under the Commingled
Trust; and
WHEREAS, by letter dated October 30, 1995, Company has appointed The
Northern Trust Company as successor Trustee and The Northern Trust Company by
same letter has accepted such appointment; and
WHEREAS, the Trust Agreement has been amended on three prior occasions;
and
WHEREAS, it is desired hereby to further amend the Trust Agreement;
NOW, THEREFORE, the Trust Agreement is hereby amended, effective as of
November 1, 1995, to provide the following:
Wherever in the Trust Agreement the words "Trustee", "Bankers Trust
Company," or "Bankers" appears, such word shall be deemed to mean "The Northern
Trust Company".
Immediately upon receipt of the Fund, Trustee shall directly, or through
its affiliate
Hazlehurst & Associates ("Recordkeeper"), perform recordkeeping services to be
described in a separate written agreement to be entered into between the
Trustee and the Company. The Company hereby approves Trustee's engagement of
Recordkeeper. Any change of Recordkeeper is subject to Company's prior
written approval in its sole discretion. As described in the separate written
agreement, Trustee shall remain responsible for the performance of the
functions described therein, whether performed directly by it or through
Recordkeeper.
Trustee or Recordkeeper will be providing Company with various
communications materials from time to time including, but not limited to,
printed publications, participant correspondence, videotape and audiotape
presentations, telephonic messages and so forth. In doing so, Trustee or
Recordkeeper will be utilizing certain of Company's and its subsidiary's
names, trademarks, tradenames, service marks, logos and other proprietary
designations. Trustee acknowledges that neither it nor Recordkeeper shall
acquire any right, title or interest in such designations by virtue of their
use hereunder.
The Trust Agreement is hereby further amended effective November 1,
1995 in the following particulars:
I. Section 2.3 shall be amended by adding the following provisions
immediately after the end of the first paragraph of that section:
"The Trustee shall use its best efforts in all cases to move
funds expeditiously, but shall in no event be required to advance its own
funds for such purpose. Pending directions from the Recordkeeper to allocate
contributions among the Discretionary or Directed Funds, the Trustee shall
invest the contributions in short term investments in accordance with Section
4.2 hereof."
To the extent that any portion of the Fund is invested in mutual
fund shares, the
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Company shall initially select such mutual funds and shall be responsible for
retaining the availability of or terminating the availability of such funds
and such portions shall be considered Directed Funds for purposes of this
Agreement. Trustee shall be responsible for entering into appropriate custody
agreements with the sponsor of a bank commingled fund or such other type of
fund as required.
The Company may authorize an Investment Manager to take such
action with respect to assets of a Directed Fund subject to such Investment
Manager's responsibility as are necessary to transfer assets between
collective, commingled or group trust funds maintained by such Investment
Manager or its bank affiliate. In such event, (i) it shall be the
responsibility of the Company to monitor the actions of such Investment
Manager and to determine whether or not such actions comply with the
authorities delegated to such Investment Manager; and, (ii) the Trustee shall
include the total market value of such Directed Fund as reported to it by such
Investment Manager into the reports required of the Trustee under this
Agreement, as well as reporting the activity between the Fund and the Directed
Fund; however, the Trustee shall have no responsibility to incorporate the
daily Directed Fund transactional activity on the individual assets of such
Directed Fund into such reports. Trustee shall have no responsibility to
report the individual assets held in such Directed Fund. Trustee shall
calculate and report the daily unit values on both the Discretionary and
Directed Funds using valuation methods as described in this Agreement to the
extent applicable."
Further, the next following paragraph in Section 2.3 shall be amended
by adding the following phrase "the Company, with respect to assets for which
it has, or has retained investment responsibility" between "shall mean" and
"an investment adviser".
Section 2.4 shall be amended by deleting from the fourth line of the
first paragraph the
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words "calendar quarter" and substituting therefor the word "month". In
addition, the fourth sentence of Section 2.4 shall be deleted entirely and
the following substituting therefor:
"Assets shall be valued at their fair market values as the Trustee
shall determine in accordance with methods consistently followed and
uniformly applied at the close of business on the day of valuation;
provided, however, the Trustee shall in good faith rely upon the
determination of the issuing insurance company or other financial institution
with respect to the fair market value of each insurance, investment or
other such type of contract and upon the determination of the Investment
Manager with respect to the fair market value of those assets for which it is
responsible for which the Trustee does not have a readily ascertainable
value."
2. 2.7 Loans to participants as provided in the Plans and
described in the guidelines to be approved by the Company will be
administered by the Recordkeeper pursuant to the recordkeeping agreement. As
directed by the Recordkeeper, the Trustee shall distribute cash to such
participants who are granted loans. Loan payments collected by the Company
shall be forwarded to the Trustee. The amount of such loans shall be carried
by the Trustee as an asset of the Trust equal to the combined unpaid
principal balance of all participants. The Trustee shall have no
responsibility for final approval of the guidelines set forth by the
Company as to granting or administering participant loans, or for the
collection and repayment of a loan.
Section 4.2 of the Trust Agreement as previously amended, is
hereby deleted entirely and the following substituted therefor:
"Section 4.2 Subject to contrary instruction from the
Investment Manager, with respect to cash balances of a Directed Fund and in
its discretion with respect to assets of a Discretionary Fund, the Trustee
may from time to time transfer cash to the Trustee or its affiliate as
Trustee of any collective trust fund which is now or hereafter maintained as a
4
medium for the collective investment of funds of pension, profit sharing or
other employee benefit plans and which is qualified under Section 401(a) and
exempt from tax under Section 501(a) of the Internal Revenue Code of 1986, as
amended, and may withdraw any part or all of the assets so transferred; any
assets deposited with the trustees of a collective trust fund shall be held
and invested by the trustee thereunder pursuant to all the terms and
conditions of the Trust Agreement or Declaration of Trust establishing the
fund which are hereby incorporated herein by reference and shall prevail over
any contrary provision of this Trust Agreement."
3. Section 5.2 shall be amended by adding the following to the
end of that section, that is to the end of the parenthetical material: ",
except in a collective short-term investment fund in which the Trustee shall
invest cash, subject to contrary instructions from the Investment Manager, as
provided under Section 4.2."
Section 5.3 is amended by deleting the word "written" from the
thirteenth and eighteenth lines of that section.
Section 5.4 is amended by inserting the word "bank" on the
eighth line between the words "two" and "business".
4. Section 6.1(c) is amended by inserting "except as provided in
Article XVI," at the beginning thereof. The following provisions shall be
added to Section 6.1:
"(d) To transfer assets of a Directed Fund to a common,
collective or commingled trust fund exempt from tax under the Internal
Revenue Code of 1986, as amended, maintained by an Investment Manager or its
affiliate or by another Trustee who is designated by the Company, to be held
and invested subject to all the terms and conditions thereof;
(e) To invest and reinvest assets in units or participation
in regulated investment companies (including those for which the Trustee or
its affiliate is adviser);
5
(f) To enter into insurance, investment or such other types
of contracts issued by an insurance company or other type of financial
institution and the Trustee shall act with respect to any such contract only
as directed by the Investment Manager."
Further, Section 6.2 shall be added to the Trust Agreement, as
follows:
"(a) The Company has established the Goodyear Stock Fund
which is to be composed of investments in common stock of the Company
("Company Stock"). The Company shall notify the Trustee in writing of the
amount of such fund to be maintained in the collective short term investment
fund. Any cash held by the Trustee from time to time in the Goodyear Stock
Fund may be invested in collective short term investment funds of the Trustee.
The Company may authorize and direct the, Trustee in
writing to seek to obtain settlement for sales of Company Stock on an
expedited basis under certain circumstances in which case the Trustee shall
carry out its responsibilities for execution of Company Stock sale
transactions in accordance with such direction and subject to any limitations
expressed therein.
Except for the short term investment of cash, the
Company has limited the investment power of the Trustee in the Goodyear Stock
Fund to the purchase of Company Stock.
(b) A participant shall be a "named fiduciary" under ERISA
to the extent of the parlicipant's authority to direct the investment in,
voting, tender, exchange or sale of Company Stock allocated to the
participant's account and their proportionate share of unallocated Company
Stock."
6.3 An Investment Manager may direct in writing that the custody
of assets of a Directed Fund (other than those invested in a collective or
group trust fund) be maintained with one or more persons or entities
designated by the Investment Manager to maintain custody of assets of a
Directed Fund ("Custodial Agent"). In such event, the Investment Manager
shall
6
approve, and direct the Trustee to enter into a custody agreement with the
Custodial Agent, which custody agreement may authorize the Custodial Agent to
maintain custody of such assets with one or more subagents, (including a
broker or dealer registered under the Securities Exchange Act of 1934 or a
nominee of such broker or dealer). The Custodial Agent shall have custodial
responsibility for any assets maintained with the Custodial Agent or its
subagents pursuant to the custody agreement. Not withstanding any other
provision of this Agreement, including, but not limited to, Section 15.1, the
Company agrees to indemnify The Northern Trust Company from any liability,
loss and expense, including legal fees and expenses, which The Northern Trust
Company may sustain by reason of acting in good faith, in accordance with any
directions of the Investment Manager pursuant to this Section 6.3.
5. The second paragraph of Section 8.1 is hereby amended by
deleting the last sentence from that paragraph. Further, the third paragraph
of Section 8.1 is deleted and the following substituted therefor:
"To the extent, if any, that the Trustee shall be required to
value the assets of any Directed Fund for any purpose, including any
accounting as hereinabove provided, the Trustee may carry out such valuation
in accordance with the procedures for assessing fair market value as provided
in Section 2.4."
6. Section 10.3 is hereby amended by adding the following to the
end of the third line: "or in such other form, including transmission by
electronic means, as agreed upon by such person or committee and the
Trustee,"
7. Section 12.4 is hereby amended by deleting the parenthetical
information on the third from the last and next to the last lines at the end
of the first paragraph and substituting therefor the following:
7
"(including a collective short term investment fund maintained
by the Trustee)"
8. Section 13.1 shall be amended by deleting the words
"New York" at the end thereof and substituting therefor the word "Ohio".
Section 15.1 is hereby amended by inserting "or upon the direction of
the Company," in (i) of the second paragraph thereof, between "or to appoint
such Investment Manager under such Plans," and "or anything omitted to be done
in good faith,". Section 15.1 is further amended by adding the following to
the end of the second paragraph:
", or (iii) as a direct or indirect result of any act or failure to
act in good faith of the Trustee in connection with the purchase, retention,
voting, tender, exchange or sale of Company Stock, except to the extent such
amounts arise from the Trustee's negligent performance of processing functions
in connection with Company Stock that are expressly allocated to the Trustee
under the terms of this Agreement, or from the Trustee's negligent performance
of trade execution responsibilities with respect to Company Stock
transactions, or from intentional wrongdoing of Trustee."
Article XVI is hereby amended by adding the following Section 16.2
immediately following Section 16. 1:
16.2 At least thirty (30) days prior to each annual or special
meeting of its shareholders, the Company shall cause to be sent to each
participant, and to each former participant and beneficiary, a copy of the
proxy solicitation material therefor together with a form requesting that each
such participant, former participant or beneficiary give to the Trustee (or to
a tabulating agent appointed by the Company, provided, however, the Trustee
reserves the right to appoint the tabulating agent if the Trustee, in the
reasonable exercise of its discretion, determines that such appointment by the
Trustee is necessary for it to fulfill its
8
fiduciary responsibilities) his confidential instructions with respect to the
manner in which his proportionate interest in the Company Stock held in the
Goodyear Stock Fund shall be voted by the Trustee. If the participant, former
participant or beneficiary furnishes such instructions to the Trustee or to the
tabulating agent within the time specified in the notification, the Trustee
shall vote such Company Stock in accordance with such instructions.
Furthermore, the Trustee shall vote the Company Stock with respect to which
it or the tabulating agent does not receive instructions as specified above,
and all unallocated Company Stock held in the Goodyear Stock Fund in the same
proportion as it votes the Company Stock for which it received instructions
as specified above. Instructions received from individual participants,
former participants and beneficiaries by the Trustee or the tabulating agent
shall be held in the strictest confidence and shall not be divulged or
released to the Company, its officers, directors or employees."
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first
entered above.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ James Boyazis
--------------------------------------
Title: Vice President
--------------------------------
Attest: /s/ Patricia A. Kemph
----------------------------------
Title: Assistant Secretary
----------------------------
THE NORTHERN TRUST COMPANY
By: /s/ Peter R. Sparrow
--------------------------------------
Title: Vice President
--------------------------------
Attest: /s/ John H. Torn
----------------------------------
Title: Assistant Secretary
----------------------------
9
EXHIBIT 4.6 (Continued)
THIRD AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
THIS AMENDMENT, made and entered into this 13TH
day of January, 1994, by and between The Goodyear Tire & Rubber Company
(the "Company") and Bankers Trust Company (the "Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber
Company Commingled Trust (the "Trust Agreement") was entered into as of
July 1, 1984, between the Company and the Trustee;
WHEREAS, the Trust Agreement has been amended on two prior
occasions; and
WHEREAS, it is desired hereby further to amend the Trust
Agreement to provide for an updated list of the eligible Plans of the
Company, its subsidiaries and affiliates;
NOW, THEREFORE, Schedule A of the Trust Agreement is hereby
amended, effective as of January 1, 1994, to provide as follows:
SCHEDULE A
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
The Goodyear Tire & Rubber Company Employee
Savings Plan for Salaried Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan for Bargaining Unit Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan Without Matching Contributions
for Bargaining Unit Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan for Hourly Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan for Salaried Expatriate
Employees
Celeron Corporation Employee Savings Plan
* * *
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed by their duly authorized officers as
of the day and year first entered above.
THE GOODYEAR TIRE &
RUBBER COMPANY
By /s/ Samil F. Gibara
-------------------------------------
Title: Vice President
------------------------------
Attest
/s/ Patricia A. Kemph
------------------------------
Title:
Assistant Secretary
BANKERS TRUST COMPANY
By
--------------------------------------
Title: Vice President
Attest:
------------------------------
Title:
Vice President
- 2 -
EXHIBIT 4.6 (Continued)
SECOND AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
THIS AMENDMENT, made and entered into this day
of December, 1987, by and between The Goodyear Tire & Rubber
Company (the "Company") and Bankers Trust Company (the
"Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust Agreement for The Goodyear
Tire & Rubber Company Commingled Trust (the "Trust Agreement")
was entered into as of July 1, 1984, between the Company and
the Trustee; and
WHEREAS, it is desired hereby to amend the Trust
Agreement to provide for investment of trust assets in an
equity fund maintained by the Trustee;
NOW THEREFORE, Section 4.2 of the Trust Agreement
is hereby amended, effective as of January 1, 1987, to provide
as follows:
4.2 Any other provisions of this Agreement to the contrary
notwithstanding, the Trustee may in its discretion transfer from time
to time, (a) any part or all of the assets of Part C of the Fund, and
(b) cash balances of Parts A and B of the Fund to the trustee of the
General Employee Benefit Trust (hereinafter referred to as the
"General Trust") created by Bankers Trust Company under Declaration of
Trust dated May 28, 1956, as the same may have heretofore been or may
hereafter be amended, to be held subject to all of the provisions
thereof and to be commingled with the assets of other trusts
participating therein; PROVIDED, HOWEVER, that any assets of the Fund
allocated to a Directed Fund shall be transferred to the General
Trust only upon the direction of the Investment Manager and with the
approval of the Trustee of the General
Trust, and provided, further, that any assets of a Directed Fund or of
Parts A and B of the Fund transferred to the General Trust shall be
invested only in one or more special purpose investment funds
established from time to time for the purpose of providing a vehicle
for short term investment of participating trusts. Upon the direction
of the Investment Manager, the Trustee shall cause the withdrawal of
all or part of the equitable share of the Commingled Trust in the
General Trust, subject to the provisions thereof to the extent that
such equitable share is attributable to assets of a Directed Fund. To
the extent of the equitable share of the Commingled Trust in the
General Trust, the General Trust shall be part of each Plan pursuant
to which the Commingled Trust has been adopted. In the event of
conflict between the provisions of this Agreement and the General
Trust, the provisions of the General Trust shall control.
* * *
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed by their duly authorized
officers as of the day and year first entered above.
THE GOODYEAR TIRE & RUBBER COMPANY
By /s/ G. R. Heigieries
--------------------------------
Title: Vice President
Attest:
P. A. Kemph
------------------------------
Title: Assistant Secretary
BANKERS TRUST COMPANY
By /s/ Robert M. Bynke
--------------------------------
Title: Vice President
Attest:
Ronni E. Weiss
------------------------------
Title: Assistant Vice President
0055P
EXHIBIT 4.6 (Continued)
FIRST AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber
Company Commingled Trust (the "Trust Agreement"), was entered into as of
July 1, 1984, between The Goodyear Tire & Rubber Company (the "Company")
and Bankers Trust Company; and
WHEREAS, it is desired hereby to amend the Trust Agreement
to provide a procedure for the disposition of the stock of the Company
during a tender offer;
NOW, THEREFORE, the Trust Agreement is hereby amended in
the respects hereinafter set forth:
1. The Trust Agreement is amended by the addition of new
Article XVI at the end thereof to provide as follows:
ARTICLE XVI
-----------
SECTION 16.1. In the event that any
person (other than the Company or any affiliate
thereof) shall make a tender offer for any Company
Stock, the Company undertakes to promptly provide
a copy of the offer, and any other material infor-
mation concerning such offer, to each Plan par-
ticipant who has an account invested in Company
Stock together with a form for furnishing to the
Trustee instructions as to whether Company Stock
credited to such accounts should be tendered.
Each participant may elect that all, but not less
than all, of the Company Stock credited to his
account be tendered by the Trustee on his behalf.
Upon receipt of instructions from a participant
to so tender, the Trustee shall tender all such
Company Stock credited to such participant's
account. Any Company Stock held by the Trustee
as to which it receives no instruction from the
participant to whose account such stock is cred-
ited shall not be tendered. In the event that
the participants' instructions cannot otherwise
be returned to the Trustee in a timely fashion,
the Company agrees to collect and tabulate such
instructions in a manner that will assure a con-
fidential and accurate tabulation and timely
tender by the Trustee. Any securities received
by the Trustee as a result of having tendered
Company Stock, as hereinabove provided, shall be
held, and any cash so received shall be invested
in short term investments, pending any further
action which the Trustee may be required to take
pursuant to the Plan. Notwithstanding anything
in this Agreement to the contrary, during the
period of any tender offer for Company Stock, the
Trustee shall refrain from making purchases of
Company Stock under this Agreement.
The Trustee shall be entitled to
reasonable compensation and reimbursement for
its out-of-pocket expenses for any services
attributable to the duties and responsibilities
described in this Section 16.1.
The Company hereby agrees to hold the
Trustee harmless and to indemnify the Trustee
from and against any and all losses, claims, dam-
ages, liabilities or expenses whatsoever (includ-
ing, but not limited to, any and all expenses
reasonably incurred in investigation, preparing
or defending against any litigation or proceed-
ing, commenced or threatened, or any claim what-
soever), (a) arising out of, relating to or in
connection with any tender offer of the kind
referred to above, whether in respect of the
solicitation of directions from Plan partici-
pants, or tabulating, reporting or acting upon
such directions or otherwise, or (b) arising
out of or based upon any untrue statement or
alleged untrue statement contained in any in-
strument, document or other material furnished
by or through the Company to Plan participants,
or otherwise used by the Company or authorized by
it for use in respect of, any such tender offer
or arising out of or based upon an omission or
alleged omission to state a material fact re-
quired to be stated or necessary to make other
- 2 -
statements made in any such material not mislead-
ing, except, solely in the case of indemnifica-
tion pursuant to clause (a), for a loss, claim,
damage, liability or expense primarily attrib-
utable to the bad faith or negligence of the Trus-
tee. If a claim is made against the Trustee, the
Trustee shall notify the Company of any action
commenced against the Trustee within a reasonable
time after the Trustee shall have been served
with the summons or other first legal process
giving information as to the nature and basis of
the claim. However, failure to so notify the
Company shall not relieve the Company from any
liability which it may have on account of this
indemnity or otherwise of the Trustee shall sus-
tain the burden of proving that the Company has
not been prejudiced in any material respect by
such failure. The Company shall not be liable
for any settlement of any proceeding effected
without its written consent, but if settled with
such consent or if there be a final judgment for
the plaintiff after the Trustee has given the
Company reasonable notice of the proceeding, the
Company agrees to indemnify the Trustee from and
against any loss or liability by reason of such
settlement or judgment. The indemnity agreement
set forth above shall remain operative and in
full force and effect whether or not the Trustee
shall have resigned or been replaced and regard-
less or any termination of the Plan or the Trust
or any investigation made by or on behalf of the
Trustee.
EXECUTED at Akron, Ohio, this 20TH day of
November, 1986.
THE GOODYEAR TIRE & RUBBER
COMPANY
By /s/ James R. Glass
----------------------------------
Attest: Title: Executive Vice President
/s/ John M. Russ
--------------------------
Title: Assistant Secretary
BANKERS TRUST COMPANY
By /s/ Robert M. Bynke
----------------------------------
Title: Vice President
Attest:
/s/ Ronnie E. Weiss
--------------------------
Title: Assistant Vice President
EXHIBIT 4.6 (Continued)
COMMINGLED TRUST AGREEMENT
--------------------------
Agreement and Declaration of Trust made as of
July 1, 1984, by and between THE GOODYEAR TIRE & RUBBER
COMPANY, an Ohio corporation (hereinafter referred to as the
"Company") and BANKERS TRUST COMPANY, a New York Corporation
(hereinafter referred to as the "Trustee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company desires to establish a commingled
trust known as the The Goodyear Tire & Rubber Company Commingled
Trust (the "Commingled Trust") which will serve as a medium for
commingling the assets of the trusts (the "Trusts") established
under the eligible employee benefit plans of the Company, its
subsidiaries and affiliates (the "Plans");
WHEREAS, the Plans listed on Schedule A, annexed
hereto, are eligible Plans of the Company, its subsidiaries
and affiliates; and
WHEREAS, the trust agreements pursuant to which
Trusts have been established provide that the assets thereof
may be transferred to and held by the Trustee in common with
the assets of trusts established under the Plans.
NOW, THEREFORE, the Company and the Trustee agree as
follows:
ARTICLE I
---------
1.1 The Company hereby establishes with the Trustee
a Commingling Trust consisting of such sums of money and
such property acceptable to the Trustee as shall from time to
2
time be paid or delivered to the Trustee from the Trusts and the
earnings and profits thereon. All such money and property, all
investments made therewith and proceeds thereof and all earnings
and profits thereon, less the payments or other distributions
which, at the time of reference, shall have been made by the
Trustee, as authorized herein, are referred to herein as the "Fund"
and shall be held by the Trustee, IN TRUST, and dealt with in
accordance with the provisions of this Agreement.
ARTICLE II
----------
2.1 The assets of a Trust may be transferred to the
the Commingled Trust and such Trust may become a Participating
Trust thereby only if all of the following conditions have
been met:
(a) The Company, or a subsidiary, or an affiliate
has established the Trust;
(b) It is maintained in connection with a Plan
which is qualified under Section 401(a) of the Internal
Revenue Code of 1954, as amended;
(c) Such Trust is qualified under Section 401(a)
of the Internal Revenue Code of 1954, as amended and exempt
from taxation under Section 501(a) such Code, as amended;
(d) The Trust is authorized by the terms of the trust
agreement (the "Trust Agreement") pursuant to which it has
been established to commingle its assets with assets of other
trusts established under the Plans;
(e) The Commingled Trust is maintained at all times as a
domestic trust in the United States;
3
(f) Bankers Trust Company is trustee of such Trust; and
(g) Such Trust is permitted in its governing trust instrument to
commingle its assets with assets of other trusts through the medium of a common,
collective or commingled trust.
The Trusts established under the Plans listed on Schedule
A annexed hereto shall be deemed Participating Trusts as of the
date first written above without any further action on the part of
any one.
2.2 When the assets of a Participating Trust under
the Plan of any subsidiary or affiliate of the Company are
transferred to the Commingled Trust, such subsidiary or affiliate
shall be bound by the decisions, instructions, actions and
directions of the Company under this Agreement and the Trustee
shall be fully protected by the Company and such subsidiary or
affiliate in relying upon such decisions, instructions, actions
and directions of the Company. The Trustee shall not be
required to give notice to or obtain the consent of any such
subsidiary or affiliate with respect to any action which is
taken by the Trustee pursuant to this agreement, and the
Company shall have the sole authority to enforce this Agreement
on behalf of any such subsidiary or affiliate.
2.3 Responsibility for the management and control of the
assets of Plans utilizing the Commingled Trust (including the power
to acquire or dispose of such assets) may be vested in the discretion
of the Company, in the Trustee and/or in such one or more Investment
Managers appointed by the Company pursuant to the provisions of
such Plans. That portion of the Fund for which the Trustee shall
4
have such responsibility is hereinafter referred to as the "Discretion-
ary Fund". Any portion of the Fund over which an Investment Manager
shall have such responsibility is hereinafter referred to as a
"Directed Fund". Allocation of assets of the Fund between or
among any Discretionary or Directed Funds shall be determined by
the Company. For efficiency or convenience of investment or
administration, the Fund or any such Discretionary or Directed Fund
may be divided into such one or more sub-funds as the Company or
the Trustee may deem advisable.
For the purposes of this Agreement, "Investment Manager"
shall mean an investment adviser registered under the Investment
Advisers Act of 1940, a bank (other than the Trustee) as defined
in that Act, or an insurance company qualified to perform invest-
ment management services under the laws of more than one State,
which shall have acknowledged in writing that it is a fiduciary
with respect to all Participating Plans, and which shall have the
power to manage, acquire and dispose of Plan assets.
2.4 The Trustee shall maintain a separate account
reflecting the equitable share in the Fund of each Participating
Trust. For this purpose, the Trustee shall determine the value of
the assets of the Fund as of the last day of each calendar quarter
and as of such other dates as the Trustee may deem appropriate or
the Company may direct. In addition, for the convenience of the
Company, the Company may request the Trustee to include in such
account assets which do not constitute part of the Fund, for the
purposes of determining the value of all of the assets of such
Participating Trusts. Assets shall be valued at their market
5
values at the close of business on the date of valuation, or, in
the absence of readily ascertainable market values, at such values
as the Trustee shall determine in accordance with methods consistently
followed and uniformly applied. Anything herein to the contrary
notwithstanding, with respect to assets constituting part of a
Directed Fund hereunder or in the event that assets which do not
constitute part of the Fund are included in such valuation or
account at the request of the Company, the Trustee may rely for all
purposes of this Agreement, including for the purpose of determining
the value of such assets as of any quarterly or other valuation
date, on any certified appraisal or other form of valuation submitted
to it by the Investment Manager or by the person or persons controlling
such assets.
2.5 By entering into this Agreement the Trustee does not
assume any responsibility or undertake any duty to enforce payment
of any contribution to any Plan, any responsibility for the adequacy
of the Fund or the funding standards adopted by the sponsor of any
Plan to meet or discharge any pension or other liabilities under
such plan, or any responsibility under the terms of this Agreement
for the management or control of any Directed Funds. No duties or
obligations shall be imposed upon the Trustee unless they have been
specifically undertaken by the express terms of this Agreement.
2.6 Except as may otherwise be permitted by law, at
no time prior to the satisfaction of all liabilities with respect
to participants and their beneficiaries under any Plan shall any
part of the equitable share of such Plan in the Fund be used for,
6
or diverted to, any purposes other than for the exclusive benefit
of such employees and their beneficiaries, and for defraying
reasonable expenses of administering such Plans.
ARTICLE III
-----------
3.1 The Trustee shall:
(a) hold the assets from time to time constituting the
Fund in its own name or in the name of a nominee under such
conditions of custody and safekeeping as it shall deem appropriate
for the particular type of trust asset, and collect all interest,
dividend and other income thereon;
(b) invest and reinvest the Discretionary Fund as pro-
vided in Article IV;
(c) settle purchases and sales for any Directed Fund
upon the instructions of the Investment Manager as provided in
Article V;
(d) pay monies to or on the order of the
Company in accordance with the provisions of each Participating
Trust including, when the Company shall so order, payments
directly to or for the benefit of the members and their benefici-
aries, or to an insurance company to provide, by the purchase of
an annuity contract, or otherwise, for the payment of benefits;
(e) transfer any portion of the Fund on the order of
the Company to any insurance company, bank, or other financial
institution or other trustee to provide an alternative or additional
funding medium or investment vehicle for the management and/or
control of plan assets; and
7
3.2 Any orders pursuant to subparagraphs (d) and (e) of
Article 3.1 may, but need not specify the application to be made
of monies so ordered, and the Trustee may charge such distribution
against any portion of the Fund, as the Company may direct. The
Trustee may assume that any such orders are not contrary to any
applicable law. The Trustee shall not be responsible in any way
respecting the determination, computation, payment or application
of any benefit, for the form, terms or issuer of any contract
issued by an insurance company, bank or other financial institution
which it is directed to purchase with assets of the Fund (whether
or not such contract is purchased to provide primarily for the
payment of benefits under any Plan or primarily as an investment
vehicle or funding medium), for performing any functions under any
insurance or other contract which it may be directed to purchase
and hold as contract holder thereunder (other than the execution of
any documents incidental thereto on the instructions of the Company)
or for the terms of any trust agreement under which any trustee to
which it shall deliver any assets of the Fund on the order of the
Company is acting, or for any other matter affecting the admin-
istration of a Plan by the Company or any other person or persons
to whom responsibility for Plan administration is allocated or
delegated pursuant to the terms of the Plan.
ARTICLE IV
----------
4.1 The Trustee shall invest and reinvest the Discre-
tionary Fund in accordance with the terms of the Trust Agreement as
a single fund without distinction between principal and income in
8
investments authorized in such Parts as may be established hereunder
pursuant to the terms of the Trust Agreement (and as may from time
to time constitute part of the Discretionary Fund pursuant to the
terms of the Plan) in such shares and proportions in accordance
with the terms of the Plan (as certified to the Trustee by the
Company); except that, to the extent permitted in the Trust Agreement,
the Trustee is authorized to hold in the Discretionary Fund uninvested
cash awaiting investment and such additional cash balances as it
shall deem reasonable or necessary to meet anticipated distributions
from or administrative costs of any Plan or the Fund, without
incurring any liability for the payment of interest on such cash.
The Trustee shall discharge the foregoing powers and
discretions in accordance with the funding policy and, to the
extent the Plans provide, guidelines established by the Company
from time to time and communicated in writing to the Trustee. The
Trustee shall have no responsibility with respect to the formulation
of any funding, investment or diversification policy embodied in
any such direction.
In addition, if the Company has exercised its
discretion to vest responsibility for the management and
control of any portion of the Fund in one or more Investment
Managers or, if the Commingled Trust is not the only funding
medium under a Plan, then the Company shall be responsible
under such Plan and this Agreement for determining the diver-
sification policy with respect to the investment of such Plan
assets (including the Fund) for monitoring adherence to such
policy and for advising the Trustee with respect to its
compliance with any investment limitations on Employer or
9
other securities or property contained in such Plan or imposed
on such Plan by applicable statute.
4.2 The Trustee may in its discretion transfer from
time to time cash balances accumulated pursuant to this Agreement
to the trustee of the General Employee Benefit Trust (hereinafter
referred to as the "General Trust") created by Bankers Trust
Company under Declaration of Trust dated May 28, 1956, as the
same may have heretofore been or may hereafter be amended, to
be held subject to all of the provisions thereof and to be
commingled with the assets of other trusts participating
therein; provided, however, that any assets of the Fund allocated
to a Directed Fund shall be transferred to the General Trust
only upon the direction of the Investment Manager and with the
approval of the Trustee of the General Trust, and provided,
further, that any assets transferred to the General Trust shall
be invested only in one or more special purpose investment
funds established from time to time for the purpose of providing
a vehicle for short term investment of participating trusts.
Upon the direction of the Investment Manager, the Trustee shall
cause the withdrawal of all or part of the equitable share of
the Commingled Trust in the General Trust, subject to the
provisions thereof to the extent that such equitable share is
attributable to assets of a Directed Fund. To the extent
of the equitable share of the Commingled Trust in the General
Trust, the General Trust shall be part of each Plan pursuant to
which the Commingled Trust has been adopted. In the event of
conflict between the provisions of this Agreement and the
General Trust, the provisions of the General Trust, shall control.
10
ARTICLE V
---------
5.1 The investment and reinvestment of any Directed Fund
established under this Agreement shall be under the exclusive management
and control of the Investment Manager appointed by the Company. The Trustee
shall not be a party to any agreement with the Investment Manager, and the
terms and conditions of appointment, authority and retention of the
Investment Manager shall be the sole responsibility of the Company.
The Company shall certify in writing to the Trustee:
(a) that it has appointed an Investment Manager in accordance
with procedures provided in each Plan;
(b) that the Investment Manager is an "Investment Manager"
as such term is defined in Article 2.3 of this Agreement; and
(c) the assets of the Fund to be allocated to the Directed Fund
over which such Investment Manager shall have responsibility.
The Investment Manager shall furnish the Trustee from
time to time with the names and signatures of those persons
authorized to direct the Trustee on its behalf hereunder. The
Trustee shall have the right to request that all directions by
an Investment Manager pursuant to this Agreement be in writing and
shall assume no liability hereunder for failure to act pursuant to
such directions unless and until it shall receive directions in
form satisfactory to it.
5.2 All transactions in or from a Directed Fund related
to the acquisition or disposal of assets, as well as all purchases and
sales of assets, shall be made upon such terms and conditions and from or
through such principals and agents,
11
as the Investment Manager shall direct. No directed transactions
shall be executed through the facilities of the Trustee except in
those instances where the Trustee shall make available its facilities
solely for the purposes of temporary investment of cash reserves of a
Directed Fund. (However, nothing herein shall confer any authority or
obligation upon the Trustee to invest or reinvest the cash balances of
any Directed Fund unless and until it receives directions from the
Investment Manager.)
5.3 Supervision of the Investment Manager shall be the
exclusive responsibility of the Company. Therefore, the Trustee
shall be under no duty or obligation to review or to question any
direction of the Investment Manager, or to review the securities or
other property held in any Directed Fund with respect to prudence,
proper diversification of Fund or Plan assets or compliance with any
limitation on the Investment Manager's authority under the terms of
the Plan, any agreement entered into between the Company and the
Investment Manager or imposed by applicable law, or to make any
suggestions to the Company or the Investment Manager with respect to
the investment and reinvestment of any Directed Fund. The Trustee shall
be fully protected in acting or omitting to act in accordance with or in
the absence of the written directions of the Investment Manager and shall
be under no liability for any loss of any kind which may result by reason
of any action taken or omitted by it in good faith in accordance with any
direction of the Investment Manager or by reason of inaction in the
absence of written directions from the Investment Manager.
12
5.4 The Trustee shall not be deemed to have any responsibility
to manage and control any asset held in a Directed Fund upon the resignation
or removal of an Investment Manager unless and until it has been notified in
writing by the Company that the Investment Manager's authority has terminated
and that such Directed Fund assets are to be integrated with the Discretionary
Fund. Such notice shall not be deemed effective until two business days after
it has been received by the Trustee. In the event that the assets of a
Directed Fund shall become integrated at any time with the Discretionary
Fund, the Trustee shall not be liable for any losses to the Fund resulting
from the disposition of any investment made by an Investment Manager or
for the holding of any illiquid or unmarketable securities or the holding
of any other asset acquired by the Investment Manager if the Trustee is
unable to dispose of such investment because of any Securities Laws
restrictions or if an orderly liquidation of such investment is impractical
under prevailing conditions, or for failure to comply with any investment or
diversification limitations imposed by the Company pursuant to the power
reserved to it under Article 4.1 or for any other violation of the terms
of the Agreement, the Plans or applicable law or laws as a result of the
addition of Directed Fund assets to the Discretionary Fund.
5.5 The Trustee shall not be liable for the acts or omissions of any
Investment Manager unless the Trustee knowingly participates in, or knowingly
undertakes to conceal, an act or
1 3
omission of such Investment Manager knowing such act or omission
constitutes a breach of fiduciary responsibility by the Investment
Manager. If the Trustee has knowledge of a breach committed by
the Investment Manager, it shall notify the Company in writing
thereof, and the Company shall thereafter assume full responsi-
bility to all persons interested in the Plans to remedy such
breach.
5.6 It is understood by the parties hereto that while
the Trustee will perform certain ministerial duties (such as
custodial, reporting, recording, and bookkeeping functions) with
respect to Directed Funds, such duties do not involve the exer-
cise of any discretionary authority or other authority to manage
and control assets of the Directed Funds and will be performed
in the normal course by officers and other employees of the
Trustee who are unfamiliar with investment management. It is
agreed between the parties to this Agreement that the Trustee is
not undertaking any duty or obligation expressed or implied to
review and will not be deemed to have any knowledge of or
responsibility with respect to or to have participated in any
transaction involving the investment of the Directed Funds as a
result of the performance of or information received in the course
of performing such ministerial duties. Therefore, in the event
that "knowledge" of the Trustee shall be a prerequisite to im-
posing a duty upon or determining liability of the Trustee under
any Plan or this Agreement or any statute regulating the conduct
of such Trustee with respect to such Directed Funds as a result
14
of any act or omission of the Investment Manager, or as a result
of any transaction engaged in by the Investment Manager, then the
receipt and processing of investment orders or other documents
relating to plan assets by an officer or other employee of the
Trustee engaged in the performance of purely ministerial functions
referred to in this Article 5.6 shall not constitute "knowledge" of
the Trustee.
ARTICLE VI
----------
6.1 Without in any way limiting the powers and discretions
conferred upon the Investment Manager by the other provisions
of this Agreement or by law, any Investment Manager appointed hereunder
shall have the following powers and discretions with respect to the
Directed Fund subject to its management and control, and, upon the
directions of such Investment Manager, the Trustee shall make, execute,
acknowledge and deliver any and all documents of transfer and conveyance
and any and all other instruments that may be necessary or appropriate to
carry out such powers and discretions:
(a) to sell, exchange, convey, transfer or otherwise dispose of
any property constituting the Directed Fund by private contract or at public
auction, and no person dealing with the Investment Manager or the Trustee
shall be bound to see to the application of the purchase money or to inquire
into the validity, expediency or propriety of any such sale or other
disposition;
(b) to enter into contracts or to make commitments
either alone or in company with others to sell at any future date
1 5
any property acquired for the Directed Fund or to purchase at a future date
any property which it may be authorized to acquire under this Agreement; and
(c) to vote upon any stocks, bonds or other securities;
to give general or special proxies or powers of attorney with or
without power of substitution; to exercise any conversion privileges,
subscription rights or other options and to make any payments incidental
thereto; to consent to or otherwise participate in corporate reorganizations
or other changes affecting corporate securities and to delegate discretionary
powers and to pay any assessments or charges in connection therewith; and
generally to exercise any of the powers of an owner with respect to stocks,
bonds, securities or other property held in the Directed Fund.
Notwithstanding the powers hereinabove conferred on the Trustee,
the Trustee shall purchase and retain Company Stock as provided in the Trust
Agreement regardless of market fluctuations and, in the normal course, the
Trustee shall sell stock only as permitted in the Trust Agreement.
ARTICLE VII
-----------
7.1 The Trustee, with respect to the Discretionary Fund, shall be
vested with all of the powers and discretions vested in the Investment
Manager by Article 6.1.
7.2 In addition, the Trustee is hereby authorized in
its discretion:
16
(a) to register any securities held in the Fund in its
own name or in the name of a nominee and to hold any investment
in bearer form, and to combine certificates representing such
investments with certificates of the same issue held by the
Trustee in other fiduciary capacities or to deposit or to
arrange for the deposit of such securities in any qualified
central depository even though, when so deposited, such securities
may be merged and held in bulk in the name of the nominee of such
depository with other securities deposited therein by any other
person, or to deposit or arrange for the deposit of any securities
issued by the United States Government, or any agency or instru-
mentality thereof, with a federal reserve bank, but the books and
records of the Trustee shall at all times show that all such
investments are part of the Fund;
(b) to employ suitable agents, depositories and coun-
sel, domestic or foreign, and to charge their reasonable expenses
and compensation against the Fund;
(c) to borrow money, with the consent of the Company,
from any source as may be necessary or advisable to effectuate the
purposes of the Trust on such terms and conditions as the Trustee,
in its absolute discretion, may deem advisable;
(d) to deposit any funds of the Commingled Trust in
interest bearing account deposits maintained by or savings
certificates issued by the Trustee, in its separate corporate
capacity, or in any other banking institution affiliated with
the Trustee;
17
(e) to organize corporations under the laws of any
state for the purpose of acquiring or holding title to any property for
the Fund or to request the Company to appoint another trustee for such
purpose; and
(f) to make any distribution or transfer of the Discretionary
Fund assets in cash or in kind as the Trustee in its absolute discretion
shall determine and, in furtherance thereof, to value such assets, which
valuation shall be conclusive and binding on all persons;
ARTICLE VIII
------------
8.1 The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements and other transactions
hereunder for the Fund (including any Directed Fund) and all accounts,
books and records relating thereto shall be open to inspection and audit
at all reasonable times by any persons designated by the Company.
In addition, within ninety (90) days following the close of
each fiscal year, and within ninety (90) days after the removal or
resignation of the Trustee, the Trustee shall file with the Company a
written account setting forth all receipts and disbursements of the Fund
and all investments and other transactions effected by it upon its own
authority or pursuant to the directions of any Investment Manager, or the
Company or any Committee as herein provided during the period accounted for.
Within sixty
18
(60) days from the date of filing such annual or other account,
the Trustee, if requested by the Company, will also serve copies
of such account upon any persons designated by the Company as
having administrative responsibility with respect to any Plan.
Upon the expiration of ninety (90) days from the date of filing
such account, the Trustee shall be forever released and discharged
from all liability and accountability to the Company or any
person upon whom the Trustee has served a copy of the account
with respect to the accuracy of such accounting and the propriety
of all acts and failures to act of the Trustee reflected in such
account for which it shall be responsible hereunder, except with
respect to any such acts or transactions as to which the Company
or any person upon whom the account has been served shall within
such 90 day period file with the Trustee specific written objections.
To the extent, if any, that the Trustee shall be required
to value the assets of any Directed Fund for any purpose, including
any accounting as hereinabove provided, the Trustee may rely for all
purposes of this Agreement on any certified appraisal or other form
of valuation submitted to it by the Investment Manager or responsible
for the management and control of such Directed Fund.
8.2 Except to the extent that Sections 502 and 504 of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as the same
may be amended from time to time, may provide otherwise, in order to
protect the Trust from the expenses which might
19
otherwise be incurred, no one other than the Company may require the
Trustee to account or may institute an action or proceeding against the
Trustee or the Fund. However, nothing herein shall in any way limit the
Trustee's right to bring any action or proceeding to settle its account
or for such other relief as it may deem appropriate.
8.3 The Trustee may from time to time consult with counsel, who may
be counsel to the Company, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder and the
Trustee shall be fully protected, to the extent permitted by law, in acting
in good faith upon the advice of counsel.
ARTICLE IX
----------
9.1 All taxes (excluding transfer taxes on shares of
Company stock distributed to participants or their beneficiaries
that may be levied or assessed under existing or future laws
upon the Fund or the income thereof shall be paid from the Fund.
All other expenses incurred by the Trustee in connection with its
administration of the Commingled Trust, including fees for legal
services rendered to the Trustee (whether or not rendered in
connection with a judicial or administrative proceeding and whether
or not incurred while it is acting as Trustee), such compensation
to the Trustee as may be agreed upon from time to time between
the Trustee and an officer of the Company, and all other proper
20
charges and disbursements of the Trustee, shall be paid in
accordance with the provisions of the Plans but until paid
shall constitute a charge upon the Fund. Any amount paid
from the Fund which is specifically allocable to a particular
Participating Trust or Plan shall be charged against the
equitable share of such Participating Trust or Plan; any amount
paid from the Fund which is allocable to all of the Participating
Trusts shall be charged against the Fund as a whole.
ARTICLE X
---------
10.1 Whenever the provisions of this Agreement require
or permit any action to be taken by the Company or any subsidiary
or affiliate, such action may be taken by the Board of Directors of
the corporation taking the same or by any person authorized to act
on behalf of such corporation by such Board of Directors. Any re-
solution adopted by the Board of Directors of any participating
corporation shall be certified to the Trustee by the Secretary or
an Assistant Secretary of such corporation under its corporate
seal, and the Trustee may rely upon any resolution so certified
until revoked or modified by a further resolution similarly certified
to the Trustee.
10.2 The Company shall furnish the Trustee from time to
time with a certificate of its Secretary or an Assistant Secretary
as to the names and signatures of all persons designated as members
of any committee, and any other person or persons, authorized
to issue orders, requests, instructions and objections to the
21
Trustee pursuant to the provisions of this Agreement including but
not limited to the persons designated pursuant to the Plans to
direct the Trustee under Article 3.1 (d).
10.3 All orders, requests, instructions and objections
of any of the persons or committees authorized to act in accord-
ance with the provisions of this Agreement shall be in writing,
and the Trustee shall be fully protected in acting in accordance
therewith.
10.4 The Trustee shall have the right to assume in the
absence of written notice to the contrary, that no event consti-
tuting a change in membership or authority of any committee or
terminating any Investment Manager's authority has occurred.
ARTICLE XI
----------
11.1 If Bankers Trust Company is at any time acting as a
successor Trustee or succeeds to responsibilities hereunder for
management of plan assets with respect to the Fund (or any portion
thereof), the Company hereby agrees to hold Bankers Trust Company
harmless from and against all taxes, expenses (including counsel
fees), liabilities, claims, damages, actions, suits or other
charges incurred by or assessed against it as successor Trustee,
as a direct or indirect result of any act or omission of a pre-
decessor trustee or any other person charged under any agreement
affecting Fund assets for investment responsibility with respect
to such assets.
22
ARTICLE XII
-----------
12.1 Upon receipt of notice from the Company of the
termination, the disqualification under Section 401(a), or the
withdrawal from the Commingled Trust, of any Participating
Trust or Plan or any part thereof, the Trustee shall withdraw and
segregate the share of the assets of the Fund allocable to such
Participating Trust or Plan or part thereof and shall either
dispose of such segregated share in accordance with the directions
of the Company or continue to hold such segregated share, IN
TRUST, as a separate trust governed by the same provisions as
this Agreement, except that if such segregated share is equal to
an entire Participating Trust or Plan in the Fund, the company or
successor thereto which had established such Participating Trust
or Plan shall thereafter be deemed to be "the Company" for all
purposes of the Agreement. If such segregated share is less than
the entire equitable share of a Participating Trust or Plan in
the Fund, the Company shall certify to the Trustee, that portion
of the equitable share of such Participating Trust or Plan
attributable to the participants and their beneficiaries on whose
account such assets are to be segregated. The Trustee's valuation
of the assets to be withdrawn for such purpose shall be conclusive
and binding on all persons, corporations or others interested in
the Commingled Trust.
12.2 Subject only to Article 2.6, the Company reserves
the right at any time and from time to time to terminate or to
amend, in whole or in part, any or all of the provisions of this
Agreement by notice thereof in writing delivered to the Trustee;
23
provided that, no such amendment which affects the rights, duties
or responsibilities of the Trustee may be made without its consent,
and provided further that, except as may be otherwise provided
under Section 403 (c) of ERISA, no instrument of termination or
amendment shall authorize or permit, at any time prior to the sat-
isfaction of all liabilities with respect to the members and their
beneficiaries under the Plans, any part of the corpus or income
of the Fund to be used for or diverted to purposes other than for
the exclusive benefit of such members and their beneficiaries.
12.3 In the event of the termination of the Commingled
Trust as above provided (or of all the Participating Trusts or
Plans under which it was established), the Trustee shall
continue to administer the Fund as hereinabove provided until
all of the purposes for which it has been established have been
accomplished or dispose of the Fund after the payment or other
provision of all expenses incurred in the administration and
termination of the Commingled Trust (including any compensation
to which the Trustee may be entitled), all in accordance with
the written order of the Company or the Committee or any
successor thereto. Until the final distribution of such Fund,
the Trustee shall continue to have and may exercise all of the
powers and discretions conferred upon it by this Agreement.
12.4 The Trustee may be removed by the Company at any
time upon sixty (60) days' notice in writing to the Trustee and
the Committee. The Trustee may resign at any time upon sixty (60)
days' notice in writing to the Company and the Committee. Upon
24
such removal or resignation of the Trustee, the Company shall
either appoint a successor trustee who shall have the same powers
and duties as those conferred upon the Trustee hereunder and, upon
acceptance of such appointment by the successor trustee, the
Trustee shall assign, transfer and pay over to such successor
trustee the funds and properties then constituting the Fund, or
the Company shall establish an alternative funding medium and the
Trustee shall assign, transfer and pay over the Fund, as then
constituted, upon the directions of the Company. The Trustee is
authorized, however, to reserve such amount as to it may seem
advisable for payments of its fees and expenses in connection
with the settlement of its account or otherwise, and any balance
of such reserve remaining after the payment of such fees and
expenses shall be paid over to the successor trustee or alterna-
tive funding medium, as the case may be. Notwithstanding any
provision of the Plans or this Agreement to the contrary, the
Trustee is hereby authorized to invest and reinvest such reserves
in any investment or investment vehicle (including the General
Trust) appropriate for the temporary investment of cash reserves
of trusts.
If for any reason the Company cannot or does not act in
the event of the resignation or removal of the Trustee, as herein-
above provided, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor Trustee. Any ex-
penses incurred by the Trustee in connection therewith shall be
paid from the Fund as an expense of administration.
25
12.5 Anything hereinabove to the contrary notwith-
standing, the Trustee may condition its delivery, transfer or
distribution of any asset under this Article upon the Trustee's
receiving assurances satisfactory to it that the approval of ap-
propriate governmental or other authorities has been secured and
that all notice and other procedures required by applicable law
have been complied with.
ARTICLE XIII
------------
13.1 To the extent that State Law shall not have been
preempted by the provisions of the ERISA of 1974 or any other
laws of the United States heretofore or hereafter enacted, as
the same may be amended from time to time, this Agreement shall
be administered, construed and enforced according to the laws of
the State of New York.
ARTICLE XIV
-----------
14.1 The Company shall provide the Trustee with copies
of all documents constituting the Plans at the time the Agreement
is executed by the Company or adopted under any other plan, as
provided in Article II, and all other documents amending or
supplementing the Plans promptly upon their adoption. The
Trustee shall be entitled to rely upon the Company's attention to
this obligation and shall be under no duty to inquire of the
Company as to the existence of any documents not provided by the
Company hereunder.
26
ARTICLE XV
----------
15.1 The Company recognizes that a burden of litigation
may be imposed upon the Trustee, as a result of some act or trans-
action for which it has no responsbility or over which it has no
control under this Agreement.
Therefore, pursuant to a resolution of its Board of
Directors and in consideration of the Trustee's agreeing to enter
into this Agreement, the Company hereby agrees to hold harmless
Bankers Trust Company, individually and as Trustee under said
Agreement, and Bankers Trust Company's directors, officers, and
employees from and against all amounts, including without limita-
tion taxes, expenses (including reasonable counsel fees), liabili-
ties, claims, damages, actions, suits or other charges, incurred
by or assessed against Bankers Trust Company, individually or as
Trustee, or its directors, officers or employees, (i) as a direct
or indirect result of anything done in good faith, or alleged to
have been done, by or on behalf of Bankers Trust Company in
reliance upon the directions of any Investment Manager appointed
by the Company, or any person or committee authorized to act on
behalf of the Company or to appoint such Investment Manager under
such Plans, or anything omitted to be done in good faith, or
alleged to have been omitted, in the absence of such directions,
or (ii) as a direct or indirect result of the failure of the
Company or such person or committee, as a co-fiduciary under said
Plans, directly or through its agents, to adequately, carefully
and diligently discharge its responsibilities with respect to the
selection, supervision and/or retention of any Investment Manager.
27
Anything hereinabove to the contrary notwithstanding,
the Company shall have no responsibility to Bankers Trust Company
under the foregoing investment manager undertaking if Bankers
Trust Company knowingly participated in or knowingly concealed
any act or omission of any Investment Manager knowing that such
act or omission constituted a breach of such Investment Manager's
responsibilities under said Plan, or if Bankers Trust Company
fails to perform any of the duties specifically undertaken by it
under the provisions of said Agreement, or if Bankers Trust Com-
pany fails to act in conformity with the directions of an
authorized representative of the Investment Manager. PROVIDED,
HOWEVER, Bankers Trust Company shall not be deemed to have "parti-
cipated" in a breach by an Investment Manager for the purposes of
this undertaking as a result of the performance by Bankers Trust
Company or its officers, employees or agents of any custodial,
reporting, recording, and bookkeeping functions with respect to
any assets of any Plan managed by an Investment Manager or as a
result of settling purchase and sale transactions entered into by
the Investment Manager, or to have "knowledge" of any such breach
as a result of the information received by Bankers Trust Company
or its officers, employees or agents in the normal course in per-
forming such functions or settling such transactions.
The Company further agrees that the undertakings made
in this Article of this Agreement shall be binding on its suc-
cessors or assigned and shall survive termination, amendment or
28
restatement of this Agreement, or the resignation or removal of
the Trustee, and that this Article shall be construed as a con-
tract between the Company and the Trustee according to the laws
of the State of New York in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized and their corporate seals to be
hereunto affixed and attested to as of the day and year first
above written.
(Corporate Seal)
THE GOODYEAR TIRE & RUBBER COMPANY
Attest: By /s/ James R. Glass
/s/ John Davies ----------------------------------
Assistant Secretary Executive Vice President (Title)
(Corporate Seal) BANKERS TRUST COMPANY
Attest: By /s/ Robert E. Isaacson
----------------------------------
/s/ J. Torn Vice President
Vice President
29
STATE OF OHIO )
:
COUNTY OF SUMMIT )
On this 28TH day of December, in the year 1984,
before me personally came James R. Glass to me known, who, being by
me duly sworn, did depose and say that he resides at Akron, Ohio
that he is Executive Vice President of The Goodyear Tire & Rubber
Company the corporation described in and which executed the above
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by
like order.
/s/ Linda A. Fleming
-------------------------------------------
Notary Public
LINDA A. FLEMING, Notary Public
Residence-Summit County
State Wide Jurisdiction, Ohio
My Commission Expires May 14, 1986
STATE OF NEW YORK )
:
COUNTY OF NEW YORK)
On this 13th day of August , in the year 1984
before me personally came Robert E. Isaacson to me known, who, being
by me duly sworn, did depose and say that he resides at Valley
Stream, N.Y. that he is Vice President of BANKERS TRUST COMPANY, the
corporation described in and which executed the above in-
strument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by
like order.
/s/ Laura Breen
-------------------------------------------
Notary Public
LAURA BREEN
Notary Public, State of New York
No. 41-4757699
Qualified in Queens County
Commission Expires March 30, 1986