Exhibit 10.8.2
MASTER TRUST AGREEMENT FOR
RPM, INC.
DEFERRED COMPENSATION PLAN(S)
MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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MASTER TRUST AGREEMENT
TABLE OF CONTENTS
ARTICLE PAGE
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ARTICLE 1 1
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Name, Intentions, Irrevocability, Deposit and Definitions 1
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1.1 NAME. 1
1.2 INTENTIONS. 1
1.3 IRREVOCABILITY; CREDITOR CLAIMS. 1
1.4 INITIAL DEPOSIT. 2
1.5 ADDITIONAL DEFINITIONS. 2
1.6 GRANTOR TRUST. 5
ARTICLE 2 5
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General Administration 5
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2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION BEFORE
CHANGE IN CONTROL. 5
2.2 ADMINISTRATION UPON CHANGE IN CONTROL. 6
2.3 CONTRIBUTIONS. 6
2.4 COMPANY CONTRIBUTIONS TO MEET SUBSIDIARY OBLIGATIONS. 6
2.5 TRUST FUND. 7
2.6 RECAPTURE OF TRUST FUND. 7
ARTICLE 3 10
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Powers and Duties of Trustee 10
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3.1 INVESTMENT DIRECTIONS. 10
3.2 INVESTMENT UPON CHANGE IN CONTROL. 10
3.3 MANAGEMENT OF INVESTMENTS. 10
3.4 SECURITIES. 13
3.5 SUBSTITUTION. 13
3.6 DISTRIBUTIONS. 13
3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY 17
3.8 COSTS OF ADMINISTRATION. 19
3.9 TRUSTEE COMPENSATION AND EXPENSES. 19
3.10 PROFESSIONAL ADVICE. 19
3.11 PAYMENT ON COURT ORDER. 20
3.12 PROTECTIVE PROVISIONS. 20
3.13 INDEMNIFICATIONS. 20
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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ARTICLE 4 21
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Insurance Contracts 21
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4.1 TYPES OF CONTRACTS. 21
4.2 OWNERSHIP. 22
4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS. 22
ARTICLE 5 22
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Trustee's Accounts 22
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5.1 RECORDS. 22
5.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING. 22
5.3 VALUATION. 23
5.4 DELEGATION OF DUTIES. 23
ARTICLE 6 24
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Resignation or Removal of Trustee 24
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6.1 RESIGNATION; REMOVAL. 24
6.2 SUCCESSOR TRUSTEE. 24
6.3 SETTLEMENT OF ACCOUNTS. 24
ARTICLE 7 24
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Controversies, Legal Actions and Counsel 24
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7.1 CONTROVERSY. 24
7.2 JOINDER OF PARTIES. 25
7.3 EMPLOYMENT OF COUNSEL. 25
ARTICLE 8 25
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Insurers 25
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8.1 INSURER NOT A PARTY. 25
8.2 AUTHORITY OF TRUSTEE. 25
8.3 CONTRACT OWNERSHIP. 25
8.4 LIMITATION OF LIABILITY. 25
8.5 CHANGE OF TRUSTEE. 25
ARTICLE 9 26
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Amendment and Termination 26
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9.1 AMENDMENT. 26
9.2 MERGER. 27
9.3 FINAL TERMINATION. 27
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DEFERRED COMPENSATION PLAN(S)
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ARTICLE 10 28
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Miscellaneous 28
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10.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL. 28
10.2 TAXES. 28
10.3 THIRD PERSONS. 28
10.4 NONASSIGNABILITY; NONALIENATION. 28
10.5 APPLICABLE LAW. 29
10.6 NOTICES AND DIRECTIONS. 29
10.7 SUCCESSORS AND ASSIGNS. 29
10.8 GENDER AND NUMBER. 29
10.9 HEADINGS. 29
10.10 COUNTERPARTS. 29
10.11 BENEFICIAL INTEREST. 29
10.12 THE TRUST AND PLANS. 29
10.13 EFFECTIVE DATE. 30
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MASTER TRUST AGREEMENT FOR
RPM, INC.
DEFERRED COMPENSATION PLAN(S)
THIS MASTER TRUST AGREEMENT ("Master Trust Agreement") is made and
entered into as of __________, 2002, between RPM, Inc., an Ohio corporation and
KeyBank National Association, a national banking association, to evidence the
master trust (the "Trust") to be established, pursuant to those executive
deferral plans or other arrangements of the Company listed in Exhibit A (the
"Plans") now or hereafter existing that provide for the establishment of a
trust, for the benefit of a select group of management or highly compensated
employees and/or Directors who contribute materially to the continued growth,
development and business success of the Company and those subsidiaries of the
Company, if any, that participate in the Plans (collectively, "Subsidiaries,"
or singularly, "Subsidiary").
ARTICLE 1
NAME, INTENTIONS, IRREVOCABILITY, DEPOSIT AND DEFINITIONS
1.1 NAME. The name of the Trust created by this Agreement (the "Trust")
shall be:
MASTER TRUST AGREEMENT FOR
RPM, INC.
DEFERRED COMPENSATION PLAN(S)
1.2 INTENTIONS. The Company wishes to establish the Trust and to contribute
to the Trust assets that shall be held therein, subject to the claims
of the Company's and the Subsidiaries' creditors in the event of their
Insolvency (as defined below) until paid to Participants and their
Beneficiaries in such manner and at such times as specified in the
Plans. It is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plans as unfunded plans maintained for the purpose of providing
supplemental compensation for a select group of management or highly
compensated employees and/or Directors for purposes of Title I of ERISA
(as defined below). In addition, it is the intention of the Company and
the Subsidiaries to make contributions to the Trust to provide
themselves with a source of funds to assist them in the meeting of
their liabilities under the Plans.
1.3 IRREVOCABILITY; CREDITOR CLAIMS. The Trust hereby established shall be
irrevocable. Except as otherwise provided in Sections 2.6 and 9.3, the
principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Company and the Subsidiaries
and shall be used exclusively for the uses and purposes of the
Participants and the general creditors of the Company and the
Subsidiaries as herein set forth. The Participants and their
Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plans and this Master Trust Agreement shall be mere unsecured
contractual rights of the Participants and their Beneficiaries against
the Company and the Subsidiaries. Any assets held by the Trust will be
subject to the claims of the Company's and the Subsidiaries' general
creditors under federal and state law as provided in Section 3.7(b).
MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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1.4 INITIAL DEPOSIT. The Company hereby deposits with the Trustee in trust
$100, which shall become the principal of the Trust to be held,
administered and disposed of by the Trustee as provided in this Master
Trust Agreement.
1.5 ADDITIONAL DEFINITIONS. In addition to the definitions set forth above,
for purposes hereof, unless otherwise clearly apparent from the
context, the following terms have the following indicated meanings:
(a) "Administrator" shall mean the Administrator appointed
pursuant to Section 3.6(i).
(b) "Beneficiary" shall mean one or more persons, trusts, estates
or other entities, designated in accordance with a Plan, that
are entitled to receive benefits under a Plan upon the death
of a Participant.
(c) "Board" shall mean the board of directors of the Company.
(d) "Change in Control" shall mean the occurrence, at any time, of
any of the following events:
(i) The Company is merged, consolidated or reorganized
into or with another corporation or other legal
person or entity (other than Parent or any Subsidiary
of Parent), and as a result of such merger,
consolidation or reorganization less than a majority
of the combined voting power of the then outstanding
securities of such corporation, person or entity
immediately after such transaction are held in the
aggregate by the holders of Voting Stock immediately
prior to such transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to any other
corporation or other legal person or entity (other
than Parent or any Subsidiary of Parent), and less
than a majority of the combined voting power of the
then outstanding securities of such corporation,
person or entity immediately after such sale or
transfer is held in the aggregate by the holders of
Voting Stock immediately prior to such sale or
transfer;
(iii) There is a report filed on Schedule 13D or Schedule
TO (or any successor schedule, form or report), each
as promulgated pursuant to the Exchange Act,
disclosing that any person (as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act but excluding Parent or any Subsidiary
of Parent) has become the beneficial owner (as the
term "beneficial owner" is defined under Rule l3d-3
or any successor rule or regulation promulgated under
the Exchange Act) of securities representing 15% or
more of the Voting Power;
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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(iv) The Company files a report or proxy statement with
the Securities and Exchange Commission pursuant to
the Exchange Act disclosing in response to Form 8 K
or Schedule 14A (or any successor schedule, form or
report or item therein) that a change in control of
the Company has or may have occurred or will or may
occur in the future pursuant to any then-existing
contract or transaction (excluding any change in
control in favor of Parent or any Subsidiary of
Parent);
(v) If during any period of two consecutive years,
individuals, who at the beginning of any such period,
constitute the Directors cease for any reason to
constitute at least a majority thereof, unless the
nomination for election by the Company's shareholders
of each new Director was approved by a vote of at
least two-thirds of the Directors then in office who
were Directors at the beginning of any such period;
or
(vi) Such event as the Board, in the good faith exercise
of its discretion, shall determine to be a "Change in
Control."
Notwithstanding the foregoing provisions of Sections
1.5(d)(iii) and 1.5(d)(iv) above, a Change in Control shall
not be deemed to have occurred for purposes of this Agreement
(i) solely because (A) the Company, (B) a Subsidiary, or (C)
any Company sponsored employee stock ownership plan or other
employee benefit plan of the Company or any Subsidiary, or any
entity holding shares of Voting Stock for or pursuant to the
terms of any such plan, either files or becomes obligated to
file a report or proxy statement under or in response to
Schedule 13D, Schedule TO, Form 8 K or Schedule 14A (or any
successor schedule, form or report or item therein) under the
Exchange Act, disclosing beneficial ownership by it of shares
of Voting Stock or because the Company reports that a change
in control of the Company has or may have occurred or will or
may occur in the future by reason of such beneficial
ownership, (ii) solely because any other person or entity
either files or becomes obligated to file a report on Schedule
13D or Schedule TO (or any successor schedule, form or report)
under the Exchange Act, disclosing beneficial ownership by it
of shares of Voting Stock, but only if both (A) the
transaction giving rise to such filing or obligation is
approved in advance of consummation thereof by the Company's
Board of Directors and (B) at least a majority of the Voting
Power immediately after such transaction is held in the
aggregate by the holders of Voting Stock immediately prior to
such transaction, or (iii) solely because of a change in
control of any Subsidiary.
Solely for purposes of this definition of Change of Control,
the capitalized terms shall have the following meanings:
"Director" means a member of the Board of Directors
of the Company.
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations
thereunder, as such law, rules and regulations may
be amended from time to time.
"Subsidiary" means a corporation, company or other
entity (a) more than 50 percent of whose outstanding
shares or securities (representing the right to vote
for the election of directors or other managing
authority) are, or (b) which does not have
outstanding shares or securities (as may be the case
in a partnership, joint venture or unincorporated
association), but more than 50 percent of whose
ownership interest representing the right generally
to make decisions for such other entity is, now or
hereafter, owned or controlled, directly or
indirectly, by the Company.
"Voting Power" means, at any time, the total votes
relating to the then outstanding securities entitled
to vote generally in the election of Directors.
"Voting Stock" means, at any time, the then
outstanding securities entitled to vote generally in
the election of Directors.
(e) "Committee" shall mean the administrative committee appointed
by the Board to administer this Trust.
(f) "Company" shall mean RPM, Inc., an Ohio corporation. If and
when Parent acquires all of the outstanding voting stock of
all classes of RPM, Inc., however, Company shall mean the
Parent.
(g) "Director" shall mean any member of the Board or of the board
of directors of any Subsidiary.
(h) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as it may be amended from time to time.
(i) "Fiscal Year" shall mean the Fiscal Year chosen for this
Master Trust Agreement by the Board.
(j) "Insolvent" shall have the meaning set forth in Section 3.7(a)
below.
(k) "Insolvent Entity" shall have the meaning set forth in Section
3.7(a) below.
(l) "IRS" shall mean the Internal Revenue Service.
(m) "Parent" shall mean any publicly-held corporation, limited
liability company or partnership that (a) is formed for the
sole purpose of acquiring, directly or indirectly (whether by
distribution or otherwise), substantially all of the
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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outstanding voting stock of all classes of RPM, Inc., (b) is
owned immediately after the acquisition described in clause
(a) of this definition by the same shareholders as were
shareholders of RPM, Inc. immediately prior to the acquisition
described in clause (a) of this definition, and (c) hereafter
owns, directly or indirectly, all of the outstanding voting
stock of all classes of RPM, Inc.
(n) "Participant" shall mean a person who is a participant in one
or more of the Plans in accordance with their terms and
conditions.
(o) "Payment Schedule" shall have the meaning set forth in Section
3.6(b) below.
(p) "Plan(s)" shall mean those executive deferral plans or other
arrangements of the Company listed in Exhibit A.
(q) "Trustee" shall mean KeyBank National Association or such
successor trustee as appointed pursuant to Section 6.2.
(r) "Trust Fund" shall mean the assets held by the Trustee
pursuant to the terms of this Master Trust Agreement and for
the purposes of the Plans.
1.6 GRANTOR TRUST. The Trust is intended to be a "grantor trust," of which
the Company and the Subsidiaries are the grantors, within the meaning
of subpart E, part I, subchapter J, chapter 1, subtitle A of the
Internal Revenue Code of 1986, as amended, and the Trust shall be
construed accordingly.
ARTICLE 2
GENERAL ADMINISTRATION
2.1 COMMITTEE DIRECTIONS AND ADMINISTRATION BEFORE CHANGE IN CONTROL.
Until a Change in Control has occurred, this Section 2.1 shall be
effective and the Committee shall direct the Trustee as to the
administration of the Trust in accordance with the following
provisions:
(a) The Committee shall be identified to the Trustee by a copy of
the resolution of the Board appointing the Committee. In the
absence thereof, the Board shall be the Committee. The
Committee may delegate its authorities and discretions.
Persons authorized to give directions to the Trustee on behalf
of the Committee shall be identified to the Trustee by written
notice from the Committee, and such notice shall contain
specimens of the authorized signatures. The Trustee shall be
entitled to rely on such written notice as evidence of the
identity and authority of the persons appointed until a
written cancellation of the appointment, or the written
appointment of a successor, is received by the Trustee.
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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(b) Directions by the Committee, or its delegate, to the Trustee
shall be in writing and signed by the Committee or persons
authorized by the Committee, or may be made by such other
method as is acceptable to the Trustee.
(c) The Trustee may conclusively rely upon directions from the
Committee in taking any action with respect to this Master
Trust Agreement, including the making of payments from the
Trust Fund and the investment of the Trust Fund pursuant to
this Master Trust Agreement. The Trustee shall have no
liability for actions taken, or for failure to act, on the
direction of the Committee. The Trustee shall have no
liability for failure to act in the absence of proper written
directions.
(d) The Trustee may request instructions from the Committee and
shall have no duty to act or liability for failure to act if
such instructions are not forthcoming from the Committee. If
requested instructions are not received within a reasonable
time, the Trustee may, but is under no duty to, act on its own
discretion to carry out the provisions of this Master Trust
Agreement in accordance with this Master Trust Agreement and
the Plans.
2.2 ADMINISTRATION UPON CHANGE IN CONTROL. In the event of a Change in
Control, the authority of the Committee, its delegate, and any person
authorized by the Committee to administer the Trust and direct the
Trustee, as set forth in Section 2.1 above, shall cease, and the
Administrator shall have complete authority to administer the Trust.
2.3 CONTRIBUTIONS. Except as provided in any Plan, the Company and the
Subsidiaries, in their sole discretion, may at any time, or from time
to time, make additional deposits of cash or other property acceptable
to the Trustee in trust with the Trustee to augment the principal to
be held, administered and disposed of by the Trustee as provided in
this Master Trust Agreement. Neither the Trustee nor any Participant
or Beneficiary shall have any right to compel such additional
deposits. The Trustee shall have no duty to collect or enforce payment
to it of any contributions or to require that any contributions be
made, and shall have no duty to compute any amount to be paid to it
nor to determine whether amounts paid comply with the terms of the
Plans. Following a Change in Control, the Administrator shall have the
right and duty to compel and collect contributions from the Company to
make-up for any shortfall between (i) the anticipated benefit
obligations and administrative expenses that are to be paid under the
Plans and Trust and (ii) the assets of the Trust Fund, unless it
determines that it is not in the best interests of the Participants
and Beneficiaries to do so.
2.4 COMPANY CONTRIBUTIONS TO MEET SUBSIDIARY OBLIGATIONS. In the event the
Company makes any contributions which may be used to assist a
Subsidiary in meeting the Subsidiary's obligations to its employees or
directors under any Plan, such contributions and any earnings thereon
shall be subject to the claims of the creditors of the Company and the
Subsidiary. Any such contributions and earnings thereon not
transferred to the
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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Subsidiary's employees or directors shall revert to the Company upon
termination of this Trust.
2.5 TRUST FUND. The contributions received by the Trustee from the Company
and the Subsidiaries shall be held and administered pursuant to the
terms of this Master Trust Agreement without distinction between
income and principal and without liability for the payment of interest
thereon except as expressly provided in this Master Trust Agreement.
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested. Except as
hereinafter provided, the assets held for the payment of benefits of
Participants and Beneficiaries of each Plan and payable by the Company
and separate Subsidiaries under the provisions of a Plan shall be
commingled. However, the Trustee shall maintain a separate account
that will show the equitable share of the assets available to pay
benefits owed by the Company and each Subsidiary under the provisions
of each Plan and the income gains and losses of the Trust Fund's
assets so held shall be allocated proportionately among the accounts.
The Trustee, however, shall establish a separate sub-account
("Subtrust") to hold assets contributed by the Company to meet the
obligations of a Subsidiary under any Plan and such other Subtrusts as
directed by the Committee in writing. Assets held in a Subtrust shall
be commingled and the Trustee shall maintain a separate account that
will show the equitable share of the assets available to pay benefits
owed by the Company and each Subsidiary under the provisions of each
Plan and the income gains and losses of the Subtrust's assets so held
shall be allocated proportionately among the accounts. In the event
Parent acquires all of the outstanding voting stock of all classes of
RPM, Inc., any separate account evidencing an equitable share for RPM,
Inc. or any Subtrust holding assets contributed by RPM, Inc. shall
continue to be so maintained and held and shall be transferred to the
Parent only upon and to the extent such interest is assigned to Parent
by RPM, Inc.
2.6 RECAPTURE OF TRUST FUND. The Company shall have no right or power to
direct the Trustee to return to the Company or any Subsidiary, or to
divert to others any portion of the Trust Fund except upon occurrence
of the following events:
(a) Final Termination. In the event of final termination of the
Trust as provided in Section 9.3, the assets of the Trust or
of each Subtrust shall be returned to the Company or
Subsidiary that made contributions to the Trust or Subtrust in
accordance with the instructions of the Company;
(b) An Insolvency occurs. In the event of Insolvency, assets of
the Trust shall be paid and administered in accordance with
Section 3.7;
(c) Benefits become insured or guaranteed. If benefits of a
Participant or Beneficiary that have become payable under the
terms of a Plan become insured or guaranteed pursuant to a
contract with an insurance company, guaranty company or
similar organization irrespective of whether such contract has
been purchased by the Company, Participant or other person,
the Company or Subsidiary shall be
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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entitled to demand from the Trustee a repayment from the Trust
Fund in an amount which does not exceed the actuarial present
value of the benefits that are so insured or guaranteed, to
the extent that such benefits would be payable by the Company
or Subsidiary in accordance with the terms of the Plan; and if
all of the benefit payments due under the Plan with respect to
the Company or Subsidiary are so insured or guaranteed, the
Company or Subsidiary may also demand repayment of any portion
of the Trust Fund an amount that does not exceed the actuarial
present value of such benefits insured or guaranteed. The
Company shall determine such amount and provide a written
demand therefore from the Trustee. The Trustee shall have no
liability to any person for making such payment in such
amount;
(d) The Company or Subsidiary pays the Participant's benefit. If,
pursuant to Section 3.6(d), the Company makes payment directly
to a Participant or Beneficiary (in lieu of such payment being
made directly by the Trustee), the Company may request the
Trustee to provide it or the Subsidiary reimbursement for the
amount paid by the Company or the Subsidiary; and such
reimbursement shall be paid by the Trustee from the Trust
Fund;
(e) The Participant incurs a forfeiture or penalty. If a
Participant or Beneficiary forfeits all or a portion of his
benefit, incurs a penalty for an accelerated distribution
under the terms of the Plan, or makes a voluntary written
election to forego and relinquish amounts payable to him
pursuant to the Plan, the Company may demand that the Trustee
return the present value of the benefit to the Company or
Subsidiary that would be obligated to make payment of the
benefit had the forfeiture, penalty or relinquishment not
occurred, or direct that the amounts be used to pay fees or
expenses of the Trust or Plan;
(f) The maintenance of the Trust is not warranted by expense.
Prior to a Change in Control, if the value of the assets
comprising the Trust is such that the continuation of the
Trust is not warranted by its administrative expenses, the
Committee may direct that the Trust be terminated and assets
shall be distributed in accordance with Subsection (a) of this
Section 2.6; or
(g) The Trust has Excess Assets. In the event the Trust holds
Excess Assets, the Trustee, at the direction of the Committee
prior to a Change in Control, or the Administrator upon and
after a Change in Control, shall distribute to the Company and
the Subsidiaries such excess portion of the Trust Fund.
(i) "Excess Assets" are assets of the Trust exceeding the
sum of: one hundred twenty-five percent (125%) of the
anticipated benefit obligations and administrative
obligations that are to be paid under the Plans.
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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(ii) Unless otherwise directed by the Committee or the
Administrator after a Change in Control, Excess
Assets shall be returned to the Company or a
Subsidiary in the following order of priority:
(A) Cash and cash equivalents;
(B) All taxable investments of the
Trust (other than cash and cash
equivalents, securities and
obligations issued by the Company
or Subsidiaries and Contracts with
insurers), in such order as the
Committee may request;
(C) All nontaxable investments of the
Trust (other than cash and cash
equivalents, securities and
obligations issued by the Company
or Subsidiaries and Contracts with
insurers), in such order as the
Committee may request;
(D) Securities and obligations issued
by the Company or Subsidiaries in
such order as the Committee may
request; and
(E) Contracts with insurers, proceeding
in order of Contracts on insureds
from the youngest to the oldest
ages based on the insured's
attained age on the date of return
of Excess Assets.
Notwithstanding the foregoing, Excess Assets may be
returned in any other order of priority directed by
the Committee prior to a Change in Control.
(iii) If any Subtrust holds Excess Assets, the Committee
may direct the Trustee to transfer such Excess Assets
to other Subtrusts, either ratably in proportion to
the unfunded liabilities to Participants for Plan
benefits of all other Subtrusts or first to the other
Subtrust(s) with the largest percentage of such
unfunded liabilities except that any excess assets of
a Subtrust holding assets resulting from
contributions by the Company to pay benefits
attributable solely to services rendered by a
Participant for the Company may only be transferred
to a Subtrust holding assets for such purposes, any
excess assets of a Subtrust holding assets resulting
from contributions by a Subsidiary to pay benefits
attributable solely to services rendered by a
Participant for the Subsidiary may only be
transferred to a Subtrust holding assets for such
purposes, and any excess assets of a Subtrust to
which the Company made contributions and which holds
assets
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MASTER TRUST AGREEMENT FOR RPM, INC.
DEFERRED COMPENSATION PLAN(S)
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to pay benefits attributable solely to services
rendered by a Participant for a Subsidiary may only
be transferred to a Subtrust established to receive
assets from the Company for such purposes. After a
Change in Control, the Administrator may also direct
a transfer of Excess Assets of a Subtrust to other
Subtrusts upon its own initiative in such amounts as
it may determine in its sole discretion. Excess
Assets of a Subtrust for a Plan shall be determined
in the same manner as Excess Assets of the Trust are
determined.
ARTICLE 3
POWERS AND DUTIES OF TRUSTEE
3.1 INVESTMENT DIRECTIONS. Except as provided in this Section and Section
3.2 below, the Committee shall provide the Trustee with all investment
instructions. The Trustee shall neither affect nor change investments
of the Trust Fund, except as directed in writing by the Committee;
provided, that the Trustee may (i) deposit cash on hand from time to
time in any bank savings account, certificate of deposit, or other
instrument creating a deposit liability for a bank, including the
Trustee's own banking department, if the Trustee is a bank, without
such prior direction, or (ii) invest in government securities, bonds
with specific ratings, equities, or mutual funds composed of such
investments, all within broad investment guidelines established by the
Committee from time to time. The Trustee shall have no right, duty or
responsibility to recommend investments or investment changes. The
Trustee shall not be liable in any manner for any reason for any loss
or other unfavorable investment results arising from its compliance
with the investment instructions of the Committee and shall not
indemnify the Company or any Subsidiaries for any damages, costs or
attorney's fees arising from or attributable to any investment
directed by the Committee prior to a Change in Control.
3.2 INVESTMENT UPON CHANGE IN CONTROL. In the event of a Change in
Control, the authority of the Committee, its delegate and any person
authorized by the Committee to direct investments of the Trust Fund
shall cease and the Trustee shall have complete authority to direct
investments of the Trust Fund. The president of the Company shall
notify the Trustee in writing when a Change in Control has occurred.
The Trustee has no duty to inquire whether a Change in Control has
occurred and may rely on notification by the president of the Company
of a Change in Control; provided, however, that if any officer, former
officer, director or former director of the Company or any Subsidiary
(other than the president of the Company), or any Participant notifies
the Trustee that there has been or there may be a Change in Control,
the Trustee shall have the duty to satisfy itself as to whether a
Change in Control has in fact occurred. The Company shall indemnify
and hold harmless the Trustee for any damages or costs (including
attorneys' fees) that may be incurred because of reliance on the
president's notice or lack thereof or because of actions taken to
determine whether a Change in Control has occurred. The Trustee shall
indemnify and hold harmless the Company and the Subsidiaries for any
damages or costs (including attorney's fees) that may be incurred in
the event that the
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MASTER TRUST AGREEMENT FOR RPM, INC.
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Trustee fails to timely perform its duties as required by this Master
Trust Agreement upon receipt of the President's notice.
3.3 MANAGEMENT OF INVESTMENTS. Subject to Section 3.1 above, the Trustee
shall have, without exclusion, all powers conferred on the Trustee by
applicable law, unless expressly provided otherwise herein, and all
rights associated with assets of the Trust shall be exercised by the
Trustee or the person designated by the Trustee. The Trustee shall
have full power and authority to invest and reinvest the Trust Fund in
any investment permitted by law, exercising the judgment and care that
persons of prudence, discretion and intelligence would exercise under
the circumstances then prevailing, considering the probable income and
safety of their capital, including, without limiting the generality of
the foregoing, the power:
(a) To invest and reinvest the Trust Fund, together with the
income therefrom, in common stock, preferred stock,
convertible preferred stock, mutual funds (including, without
limitation, mutual funds for which the Trustee or its
affiliates receive fees for acting as investment advisor or
providing other services), bonds, debentures, convertible
debentures and bonds, mortgages, notes, time certificates of
deposit, commercial paper and other evidences of indebtedness
(including those issued by the Trustee or any of its
affiliates), other securities (including stock, rights to
acquire stock or obligations issued by the Company or a
Subsidiary), policies of life insurance, annuity contracts,
options to buy or sell securities or other assets, and other
property of any kind (personal, real, or mixed, and tangible
or intangible);
(b) To deposit or invest all or any part of the assets of the
Trust Fund in savings accounts or certificates of deposit or
other deposits which bear a reasonable interest rate in a
bank, including the commercial department of the Trustee, if
such bank is supervised by the United States or any State;
(c) To hold, manage, improve, repair and control all property,
real or personal, forming part of the Trust Fund and to sell,
convey, transfer, exchange, partition, lease for any term,
even extending beyond the duration of this Trust, and
otherwise dispose of the same from time to time in such
manner, for such consideration, and upon such terms and
conditions as the Trustee shall determine;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies,
pay assessments and other sums deemed by the Trustee to be
necessary for the protection of the Trust Fund, to vote any
corporate stock either in person or by proxy, with or without
power of substitution, for any purpose; to participate in
voting trusts, pooling agreements, foreclosures,
reorganizations, consolidations, mergers and liquidations, and
in connection therewith to deposit securities with and
transfer title to any protective or other committee under such
terms as the Trustee may deem advisable; to
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MASTER TRUST AGREEMENT FOR RPM, INC.
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exercise or sell stock subscriptions or conversion rights;
and, regardless of any limitation elsewhere in this instrument
relative to investment by the Trustee, to accept and retain as
an investment any securities or other property received
through the exercise of any of the foregoing powers;
(e) To hold in cash, without liability for interest, such portion
of the Trust Fund which, in its discretion, shall be
reasonable under the circumstances, pending investments, or
payment of expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to
protect the Trust Fund from loss due to the default on
mortgages held in the Trust including the appointment of
agents or trustees in such other jurisdictions as may seem
desirable, to transfer property to such agents or trustees, to
grant such powers as are necessary or desirable to protect the
Trust or its assets, to direct such agents or trustees, or to
delegate such power to direct, and to remove such agents or
trustees;
(g) To employ such agents including custodians and counsel as may
be reasonably necessary and to pay them reasonable
compensation; to settle, compromise or abandon all claims and
demands in favor of or against the Trust assets;
(h) To cause title to property of the Trust to be issued, held or
registered in the individual name of the Trustee, or in the
name of its nominee(s) or agents, or in such form that title
will pass by delivery;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees
generally under the laws of the State whose laws are
applicable to this Master Trust Agreement, as provided in
Section 10.5 below, so that the powers conferred upon the
Trustee herein shall not be in limitation of any authority
conferred by law, but shall be in addition thereto;
(j) To borrow money from any source (including the Trustee) and to
execute promissory notes, mortgages or other obligations and
to pledge or mortgage any Trust assets as security;
(k) To lend certificates representing stocks, bonds, or other
securities to any brokerage or other firm selected by the
Trustee;
(l) To institute, compromise and defend actions and proceedings;
to pay or contest any claim; to settle a claim of or against
the Trust by compromise, arbitration, or otherwise; to
release, in whole or in part, any claim belonging to the Trust
to the extent that the claim is uncollectible;
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(m) To use securities depositories or custodians and to allow such
securities as may be held by a depository or custodian to be
registered in the name of such depository or its nominee or in
the name of such custodian or its nominee;
(n) To invest the Trust Fund from time to time in one or more
investment funds, which funds shall be registered under the
Investment Company Act of 1940; and
(o) To do all other acts necessary or desirable for the proper
administration of the Trust Fund, as if the Trustee were the
absolute owner thereof.
However, nothing in this section shall be construed to mean the
Trustee assumes any responsibility for the performance of any
investment made by the Trustee in its capacity as trustee under the
operations of this Master Trust Agreement. Notwithstanding any powers
granted to the Trustee pursuant to this Master Trust Agreement or to
applicable law, the Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701 2 of the
Procedure and Administrative Regulations promulgated pursuant to the
Internal Revenue Code of 1986, as amended.
3.4 SECURITIES. Voting or other rights in securities shall be exercised by
the person or entity responsible for directing such investments, and
the Trustee shall have no duty to exercise voting or proxy or other
rights relating to any investment managed or directed by the
Committee. In no event shall any voting or other rights in securities
be exercised by or rest with Participants or Beneficiaries. If any
foreign securities are purchased pursuant to the direction of the
Committee, it shall be the responsibility of the person or entity
responsible for directing such investments to advise the Trustee in
writing of any laws or regulations, either foreign or domestic, that
apply to such foreign securities or to the receipt of dividends or
interest on such securities.
3.5 SUBSTITUTION. Notwithstanding any provision of any Plan or the Trust
to the contrary, the Company and/or any Subsidiary shall at all times
have the power to reacquire the Trust Fund by substituting readily
marketable securities (other than stock, a debt obligation or other
security issued by the Company or any Subsidiary) and/or cash of an
equivalent value and such other property shall, following such
substitution, constitute the Trust Fund. Notwithstanding the
foregoing, after a Change in Control, any such substitution shall be
subject to the approval of the Trustee.
3.6 DISTRIBUTIONS.
(a) The establishment of the Trust and the payment or delivery to
the Trustee of money or other property shall not vest in any
Participant or Beneficiary any right, title, or interest in
and to any assets of the Trust. To the extent that any
Participant or Beneficiary acquires the right to receive
payments under any of the Plans, such right shall be no
greater than the right of an unsecured general creditor
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of the Company and the Subsidiaries and such Participant or
Beneficiary shall have only the unsecured promise of the
Company and the Subsidiaries that such payments shall be made.
(b) Concurrent with the establishment of this Trust, the Company
shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of
each Participant (and his or her Beneficiaries) on a Plan by
Plan basis, provides a formula or formulas or other
instructions acceptable to the Trustee for determining the
amounts so payable, specifies the form in which such amount is
to be paid (as provided for or available under the applicable
Plans), and the time of commencement for payment of such
amounts. If, during a Fiscal Year, there is a new Participant,
the Company shall deliver a Payment Schedule with respect to
the new Participant within sixty (60) days of the last day of
the Fiscal Year. The Company shall provide a modified Payment
Schedule when the Committee directs that a distribution be
made to a Participant or Beneficiary, upon a Change in
Control, and within sixty (60) days of the last day of each
Fiscal Year ending after a Change in Control. After a Change
in Control, the Company shall also provide a Payment Schedule
or modified payment Schedule for any or all Plans upon request
by the Trustee at any time. Except as otherwise provided
herein, prior to a Change in Control, the Trustee shall make
payments to the Participants and their Beneficiaries in
accordance with such Payment Schedule. Despite the foregoing,
after a Change in Control, the Trustee shall make payments in
accordance with the terms and provisions of each of the Plans
and related plan agreements as directed by the Administrator.
The Trustee, at the direction of the Committee or, after a
Change in Control, as directed by the Administrator, may make
any distribution required to be made by it hereunder by
delivering:
(i) Its check payable to the person to whom such
distribution is to be made, to the person, or, if
prior to a Change in Control, to the Company for
redelivery to such person; provided that before a
Change in Control, the Committee may direct the
Trustee to deliver one or more lump sum checks
payable to the Company, and the Company shall prepare
and deliver individual checks for each Participant or
Beneficiary; or
(ii) Its check payable to an insurer for the benefit of
such person, to the insurer, or, if prior to a Change
in Control, to the Company for redelivery to the
insurer; or
(iii) Contracts held on the life of the Participant to whom
or with respect to whom the distribution is being
made, to the Participant or Beneficiary, or, if prior
to a Change in Control, to the Company for redelivery
to the person to whom such distribution is to be
made; or
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MASTER TRUST AGREEMENT FOR RPM, INC.
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(iv) If a distribution is being made, in whole or in part,
of other assets, assignments or other appropriate
documents or certificates necessary to effect a
transfer of title, to the Participant or Beneficiary,
or, if prior to a Change in Control, to the Company
for redelivery to such person.
(c) If the principal of the Trust, and any earnings thereon, are
not sufficient, determined on a Plan by Plan basis, to make
payments of benefits in accordance with the terms of the
Plans, the Company and the Subsidiaries shall make the balance
of each such payment as it falls due. If the Trustee knows
that principal and earnings are not sufficient to make
payments of benefits in accordance with the terms of the
Plans, the Trustee shall notify the Company and the
Subsidiaries of the insufficiency. To the extent that the
total Trust assets available to make benefit payments to
Participants or Beneficiaries who are currently entitled to
payment are less than the liabilities of the Plans, the
Trustee shall make benefit payments proportionate to the ratio
of assets available to pay benefits to the total values of the
liabilities.
(d) The Company and the Subsidiaries may make payment of benefits
directly to Participants or their Beneficiaries as they become
due under the terms of the Plans. The Company and the
Subsidiaries shall notify the Trustee of their decisions to
make payment of benefits directly prior to the time amounts
are payable to Participants or their Beneficiaries.
(e) Notwithstanding anything contained in this Master Trust
Agreement to the contrary, if at any time the Trust is finally
determined by the IRS not to be a "grantor trust" with the
result that the income of the Trust Fund is not treated as
income of the Company or the Subsidiaries pursuant to Sections
671 through 679 of the Internal Revenue Code of 1986, as
amended, or if a tax is finally determined by the IRS to be
payable by one or more Participants or Beneficiaries with
respect to any interest in the Plans or the Trust Fund prior
to payment of such interest to any such Participant or
Beneficiary, the Committee shall immediately determine each
Participant's share of the Trust Fund in accordance with the
Plans, and the Trustee shall immediately distribute such share
in a lump sum to each Participant or Beneficiary entitled
thereto, regardless of whether such Participant's employment
has terminated (provided such Participant has a vested
interest in his or her accrued benefits under the Plans) and
regardless of form and time of payments specified in or
pursuant to the Plans. Any remaining assets (less any expenses
or costs due under Sections 3.8 and 3.9 of this Master Trust
Agreement) shall then be paid by the Trustee to the Company
and the Subsidiaries in such amounts, and in the manner
instructed by the Committee. If the value of the Trust Fund is
less than the benefit obligations under the Plans, the
foregoing described distributions will be limited to a
Participant's share of the Trust Fund, determined by
allocating assets to the Participant based on the ratio of the
Participant's benefit obligations under the Plans to the total
benefit obligations
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MASTER TRUST AGREEMENT FOR RPM, INC.
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under the Plans. The Trustee shall rely solely on the
directions of the Committee prior to a Change in Control, and
on the directions of the Administrator upon and after a Change
in Control, with respect to the occurrence of the foregoing
events and the resulting distributions to be made, and the
Trustee shall not be responsible for any failure to act in the
absence of such direction.
(f) The Company or the Subsidiary obligated to pay a benefit
pursuant to the terms of a Plan, shall make provision for the
reporting and withholding of any federal, state or local taxes
that may be required to be withheld with respect to the
payment of the benefit made to Participants and Beneficiaries
and shall pay amounts withheld to the appropriate taxing
authorities, or shall designate and appoint another party to
perform such responsibilities. The Trustee shall deliver any
withholding amount to the Company or Subsidiary as provided in
instructions from the Company.
(g) Prior to a Change in Control, payments by the Trustee shall be
delivered or mailed to addresses supplied by the Committee and
the Trustee's obligation to make such payments shall be
satisfied upon such delivery or mailing. Prior to a Change in
Control, the Trustee shall have no obligation to determine the
identity of persons entitled to benefits or their mailing
addresses. After a Change in Control, the Administrator shall
have such obligations.
(h) Prior to a Change in Control, the entitlement of a Participant
or his or her Beneficiaries to benefits under the Plans shall
be determined by the Committee or such party as designated
under the Plans, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the
Plans.
(i) Upon and after the occurrence of a Change in Control, this
Trust shall be administered by an independent third party (the
"Administrator") selected by the individual who, immediately
prior to such event, was the Company's Chief Executive Officer
or, if not so identified, the Company's highest ranking
officer (the "Ex-CEO"). In the event the Chief Executive
Officer or highest ranking officer is not able to perform the
duties and responsibilities of the Ex-CEO, the next highest
ranking officer of the Company able to perform such duties and
responsibilities shall act as the Ex-CEO. Until the date on
which the independent third party that is selected by the
Ex-CEO accepts the responsibilities of Administrator under
this Master Trust Agreement, the Committee as constituted
immediately prior to a Change in Control shall be the
Administrator and shall have the powers, duties and
discretionary authority of the Administrator. The
Administrator shall have the discretionary power to determine
all questions arising in connection with the administration of
the Trust and the interpretation of the Trust; provided,
however, upon and after the occurrence of a Change in Control,
the Administrator shall have no power to direct the investment
of Plan or Trust assets or select any investment manager or
custodial firm for the Plan or
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Trust, which powers shall be held and exercised solely by the
Trustee. With respect to any power held by the Administrator,
the Trustee shall act only in accordance with the
Administrator's written directions and shall take no action in
the absence of such directions. Upon and after the occurrence
of a Change in Control, the Company shall: (1) pay all
reasonable administrative expenses and fees of the
Administrator; (2) indemnify the Administrator against any
costs, expenses and liabilities including, without limitation,
attorney's fees and expenses arising in connection with the
performance of the Administrator hereunder, except with
respect to matters resulting from the negligence or willful
misconduct of the Administrator or its employees or agents;
and (3) supply full and timely information to the
Administrator or all matters relating to the Plan, the Trust,
the Participants and their Beneficiaries, the Account Balances
of the Participants, the date of circumstances of the
Retirement, Disability, death or Termination of Employment of
the Participants, and such other pertinent information as the
Administrator may reasonably require. Upon and after a Change
in Control, the Administrator may be terminated (and a
replacement appointed) by the Ex-CEO. Upon and after a Change
in Control, the Administrator may not be terminated by the
Company.
3.7 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS ON INSOLVENCY.
(a) If the Company, or any Subsidiary is Insolvent (the "Insolvent
Entity"), the Trustee shall cease payments of benefits to
Participants and Beneficiaries otherwise entitled to payment
by the Insolvent Entity under the provisions of any Plan as
provided in this Section 3.7. The Company or Subsidiary shall
be considered "Insolvent" for purposes of this Master Trust
Agreement if:
(i) the entity is unable to pay its debts as they become
due, or
(ii) the entity is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided
in Section 1.3 above, the principal and income of the Trust
shall be subject to claims of the general creditors of the
Company and its Subsidiaries under federal and state law as
set forth below:
(i) The Board and the president of the Company shall have
the duty to inform the Trustee in writing of the
Company's or any Subsidiary's Insolvency. If a person
claiming to be a creditor of the Company or any
Subsidiary alleges in writing to the Trustee that the
Company or any Subsidiary has become Insolvent, the
Trustee shall determine whether the Company or any
Subsidiary is Insolvent and, pending such
determination, the Trustee shall discontinue payment
of benefits to the Insolvent Entity's Participants
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MASTER TRUST AGREEMENT FOR RPM, INC.
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or their Beneficiaries. Prior to a Change in Control,
the Trustee may conclusively rely on any
determination it receives from the Board or the
president of the Company with respect to the
Insolvency of the Company or any Subsidiary.
(ii) Unless the Trustee has actual knowledge of the
Company's or a Subsidiary's Insolvency, or has
received notice from the Company, a Subsidiary, or a
person claiming to be a creditor alleging that the
Company or a Subsidiary is Insolvent, the Trustee
shall have no duty to inquire whether the Company or
any Subsidiary is Insolvent. The Trustee may in all
events rely on such evidence concerning the Company's
or any Subsidiary's solvency as may be furnished to
the Trustee and that provides the Trustee with a
reasonable basis for making a determination
concerning the Company's or any Subsidiary's
solvency. In this regard, the Trustee may rely upon a
letter from the Company's or a Subsidiary's auditors
as to the Company's or any Subsidiary's financial
status. In determining whether the Company or any
Subsidiary is Insolvent for purposes of this Section
3.7, the Trustee may engage the services of legal,
accounting, financial and other advisors which may be
advisors to the Company or any Subsidiary, to assist
it in the determination. The Company and each
Subsidiary agree to cooperate fully with any
reasonable inquiry of the Trustee or such advisor in
making the determination of whether the Company or
any Subsidiary is Insolvent. To the extent that the
Trustee engages the services of an advisor to the
Company or any Subsidiary, the Trustee may rely,
without further inquiry, on the written determination
of that advisor as to whether or not the Company or
the Subsidiary is Insolvent. All costs which are
reasonably incurred by the Trustee in making the
determination of whether the Company or any
Subsidiary is Insolvent shall be reimbursed to the
Trustee by the Company and the Subsidiary, and if not
so reimbursed, shall be chargeable against the Trust
Fund.
(iii) If at any time the Trustee determines that the
Company or any Subsidiary is Insolvent, the Trustee
shall discontinue payments to Participants and
Beneficiaries otherwise entitled to payment by the
Insolvent Entity under the provisions of any Plan,
and shall hold the portion of the assets of the Trust
allocable to the Insolvent Entity or otherwise held
for the benefit of the Insolvent Entity's
Participants and Beneficiaries for the benefit of the
Insolvent Entity's general creditors. Nothing in this
Master Trust Agreement shall in any way diminish any
rights of Participants or their Beneficiaries to
pursue their rights as general creditors of the
Insolvent Entity with respect to benefits due under
the Plans or otherwise.
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(iv) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance
with this Article 3 of this Master Trust Agreement
only after the Trustee has determined that the
alleged Insolvent Entity is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant
to Section 3.7(b) hereof and subsequently resumes such
payments, the first payment following such discontinuance
shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the
Plans for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their
Beneficiaries by the Company or any Subsidiary in lieu of the
payments provided for hereunder during any such period of
discontinuance. Prior to a Change in Control, the Committee
shall instruct the Trustee as to such amounts, and after a
Change in Control, the Administrator shall determine such
amounts in accordance with the terms and provisions of the
Plans.
3.8 COSTS OF ADMINISTRATION. The Trustee is authorized to incur reasonable
obligations in connection with the administration of the Trust,
including attorneys' fees, Administrator fees, other administrative
fees and appraisal fees. Such obligations shall be paid by the Company
and the Subsidiaries. The Trustee is authorized to pay such amounts
from the Trust Fund if the Company or the Subsidiaries fail to pay them
within sixty (60) days of presentation of a statement of the amounts
due and is authorized to pay amounts incurred in connection with the
administration of the Plans if such amount is approved by the Committee
prior to a Change in Control or by the Administrator upon and after a
Change in Control.
3.9 TRUSTEE COMPENSATION AND EXPENSES. The Trustee shall be entitled to
reasonable compensation for its services as from time to time agreed
upon between the Trustee and the Company. Any amount received by the
Trustee or any affiliate of the Trustee from any mutual fund or other
investment vehicle, or any distributor or sponsor of any mutual fund
or other investment vehicle including investment advisory fees, 12b-1
fees, and sub-transfer agent fees shall be applied toward the payment
of such reasonable compensation and shall reduce, on a
dollar-for-dollar basis, the amount owed for the performance of
services under this Master Trust Agreement. If the Trustee and the
Company fail to agree upon a compensation, or following a Change in
Control, the Trustee shall be entitled to compensation at a rate equal
to the rate charged by the Trustee for similar services rendered by it
during the current fiscal year for other trusts similar to this Trust.
The Trustee shall be entitled to reimbursement for reasonable expenses
incurred by it in the performance of its duties as the Trustee,
including reasonable fees for legal counsel, accountants and financial
advisors. The Trustee's compensation and expenses shall be paid by the
Company and the Subsidiaries. The Trustee is authorized to withdraw
such amounts from the Trust Fund if the Company or the Subsidiaries
fail to pay them within sixty (60) days of presentation of a statement
of the amounts due.
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3.10 PROFESSIONAL ADVICE. The Company and the Subsidiaries specifically
acknowledge that the Trustee and/or the Administrator may find it
desirable or expedient to retain legal counsel (who, prior to a Change
in Control, but not upon or after a Change in Control, may also be
legal counsel for the Company or any Subsidiary) or other professional
advisors to advise it in connection with the exercise of any duty
under this Master Trust Agreement, including, but not limited to, any
matter relating to or following a Change in Control or the Insolvency
of the Company or any Subsidiary. The Trustee and/or Administrator
shall be fully protected with respect to any action taken or omitted
by either in good faith pursuant to the professional advice.
3.11 PAYMENT ON COURT ORDER. To the extent permitted by law, the Trustee is
authorized to make any payments directed by court order in any action
in which the Trustee in its capacity as trustee of this Trust has been
named as a party. The Trustee is not obligated to defend actions in
which the Trustee is so named, but shall notify the Company or
Committee of any such action and may tender defense of the action to
the Company, Committee, Participant or Beneficiary whose interest is
affected. The Trustee may in its discretion defend any action in which
the Trustee in its capacity as trustee of this Trust is named, and any
expenses incurred by the Trustee shall be paid by the Company and the
Subsidiaries. The Trustee is authorized to pay such amounts from the
Trust Fund if the Company or the Subsidiaries fail to pay them within
sixty (60) days of presentation of a statement of the amounts due.
This Section 3.11 shall have no application to any action in which the
Trustee is named other than in its capacity as trustee of this Trust.
3.12 PROTECTIVE PROVISIONS. Notwithstanding any other provision contained
in this Master Trust Agreement to the contrary, the Trustee shall have
no obligation to (i) determine the existence of any conversion,
redemption, exchange, subscription or other right relating to any
securities purchased of which notice was given prior to the purchase
of such securities and shall have no obligation to exercise any such
right unless the Trustee is advised in writing by the Committee both
of the existence of the right and the desired exercise thereof within
a reasonable time prior to the expiration of the right to exercise, or
(ii) advance any funds to the Trust. Furthermore, the Trustee is not a
party to the Plans.
3.13 INDEMNIFICATIONS.
(a) The Company shall indemnify and hold the Trustee harmless from
and against all loss or liability (including expenses and
reasonable attorneys' fees) to which it may be subject by
reason of its execution of its duties under this Trust, or by
reason of any acts taken in good faith in accordance with any
directions, or acts omitted in good faith due to absence of
directions, from the Company, the Committee, a delegate of the
Committee, any person authorized by the Committee to
administer the Trust or direct the Trustee or the
Administrator unless such loss or liability is due to the
Trustee's negligence or willful misconduct. The indemnity
described herein shall be provided by the Company. In
addition, the Company shall protect, defend, indemnify and
hold the Trustee harmless from
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MASTER TRUST AGREEMENT FOR RPM, INC.
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any loss, liability or expense including reasonable attorney
fees in connection with any allegation, suit, or cause of
action claiming that any computer software programs or
tutorials used by the Company and the Subsidiaries in
connection with this Master Trust Agreement infringe upon any
United States patent, copyright, trade secret, or other
proprietary right of a third party and the Company further
agrees that it will use its best efforts to require the
Administrator to provide the same indemnification protection
to the Trustee with respect to any such programs or tutorials
used by the Administrator.
(b) The Company shall indemnify and hold the Administrator
harmless from and against all loss or liability (including
expenses and reasonable attorneys' fees) to which it may be
subject by reason of its execution of its duties under this
Trust, or by reason of any acts taken in good faith in
accordance with any directions, or acts omitted in good faith
due to absence of directions, from the Company or the
Committee, unless such loss or liability is due to the
Administrator's negligence or willful misconduct. The
indemnity described herein shall be provided by the Company.
(c) The Trustee shall indemnify and hold harmless the Company and
all Subsidiaries from and against any loss, cost, damage,
expense or liability (including expenses and reasonable
attorneys' fees) which arises from or is based on the
negligence or a breach of trust by the Trustee, its
affiliates, and their respective subsidiaries, parents, and
employees. In addition, the Trustee shall protect, defend,
indemnify and hold the Company and all Subsidiaries harmless
from any loss, liability or expense including reasonable
attorneys' fees in connection with any allegation, suit, or
cause of action claiming that any computer software programs
or tutorials used by the Trustee to provide any services under
this Master Trust Agreement infringe upon any United States
patent, copyright, trade secret, or other proprietary right of
a third party. Upon request by the Company, the Trustee will
correct any error or omission made by the Trustee in
connection with services provided under this Master Trust
Agreement at no additional charge or fee unless such error or
omission is due to the negligence or willful misconduct of the
Company and the Subsidiaries in discharging their duties and
responsibilities under this Master Trust Agreement.
(d) All releases and indemnities provided in this Master Trust
Agreement shall survive the termination of this Master Trust
Agreement.
ARTICLE 4
INSURANCE CONTRACTS
4.1 TYPES OF CONTRACTS. To the extent that the Trustee is directed by the
Committee, its delegate or any person authorized by the Committee
prior to a Change in Control to invest part or all of the Trust Fund
in insurance contracts, the type and amount thereof
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shall be specified in the direction. The Trustee shall be under no duty
to make inquiry as to the propriety of the type or amount so specified.
4.2 OWNERSHIP. Each insurance contract issued shall provide that the
Trustee shall be the owner thereof with the power to exercise all
rights, privileges, options and elections granted by or permitted
under such contract or under the rules of the insurer. The exercise by
the Trustee of any incidents of ownership under any contract shall,
prior to a Change in Control, be subject to the direction of the
Committee or its delegate.
4.3 RESTRICTIONS ON TRUSTEE'S RIGHTS. The Trustee shall have no power to
name a beneficiary of the policy other than the Trust, to assign the
policy (as distinct from conversion of the policy to a different form)
other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy. Despite the foregoing,
the Trustee may (i) loan to the Company or any Subsidiary the proceeds
of any borrowing against an insurance policy held in the Trust Fund or
(ii) assign all, or any portion, of a policy to the Company or any
Subsidiary if under other provisions of this Master Trust Agreement
the Company or any Subsidiary is entitled to receive assets from the
Trust.
ARTICLE 5
TRUSTEE'S ACCOUNTS
5.1 RECORDS. The Trustee shall maintain accurate records and detailed
accounts of all investments, receipts, disbursements and other
transactions hereunder. Such records shall be available at all
reasonable times for inspection by the Company, Subsidiaries, and the
Administrator or their authorized representative. The Trustee shall
maintain a disaster recovery plan and shall maintain copies of all
records at an off-site location. The Trustee, at the direction of the
Committee, shall submit to the Committee and to any insurer such
valuations, reports or other information as the Committee may
reasonably require and, in the absence of fraud or bad faith, the
valuation of the Trust Fund by the Trustee shall be conclusive. The
Trustee shall have no responsibility for maintaining any records
relating to the interest of any Participant or Beneficiary in the
Trust Fund.
5.2 ANNUAL ACCOUNTING; FINAL ACCOUNTING.
(a) Within 45 days following the end of each Fiscal Year and
within 60 days after the removal or resignation of the Trustee
or the termination of the Trust, the Trustee shall file with
the Committee or Administrator a written account setting forth
a description of all properties purchased and sold, all
receipts, disbursements and other transactions effected by it
during the Fiscal Year or, in the case of removal, resignation
or termination, since the close of the previous Fiscal Year,
and listing the properties held in the Trust Fund as of the
last day of the Fiscal Year or other period and indicating
their market values.
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(b) The Committee or Administrator may approve such account either
by written notice of approval delivered to the Trustee or by
its failure to express written objection to such account
delivered to the Trustee within one (1) year after the date of
which such account was delivered to the Committee.
(c) The approval by the Committee or Administrator of an
accounting shall be binding as to all matters embraced in such
accounting on all parties to this Master Trust Agreement and
on all Participants and Beneficiaries, to the same extent as
if such accounting had been settled by a judgment or decree of
a court of competent jurisdiction in which the Trustee, the
Committee, the Administrator, the Company, the Subsidiaries
and all persons having or claiming any interest in any Plan or
the Trust Fund were made parties.
(d) Despite the foregoing, nothing contained in this Master Trust
Agreement shall deprive the Trustee of the right to have an
accounting judicially settled, if the Trustee, in the
Trustee's sole discretion, desires such a settlement.
5.3 VALUATION. The assets of the Trust Fund shall be valued at their
respective fair market values on the date of valuation, as determined
by the Trustee based upon such sources of information as it may deem
reliable, including, but not limited to, stock market quotations,
statistical valuation services, newspapers of general circulation,
financial publications, advice from investment counselors, brokerage
firms or insurance companies, or any combination of sources. Prior to
a Change in Control, the Committee shall instruct the Trustee as to
the value of assets for which market values are not readily obtainable
by the Trustee. If the Committee fails to provide such values, the
Trustee may take whatever action it deems reasonable, including
employment of attorneys, appraisers, life insurance companies or other
professionals, the expense of which shall be an expense of
administration of the Trust Fund and payable by the Company and the
Subsidiaries. The Trustee may rely upon information from the Company
and the Subsidiaries, the Committee, appraisers or other reasonable
sources and shall be held harmless and shall not incur any liability
for an inaccurate valuation based in good faith upon such information.
5.4 DELEGATION OF DUTIES. The Company, a Subsidiary, the Committee, and
the Administrator may at any time employ the Trustee as their agent to
perform any act, keep any records or accounts and make any
computations that are required of the Company, any Subsidiary or the
Committee by this Master Trust Agreement or the Plans. The Trustee may
be compensated for such employment and such employment shall not be
deemed to be contrary to the Trust. Nothing done by the Trustee as
such agent shall change or increase its responsibility or liability as
Trustee hereunder.
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ARTICLE 6
RESIGNATION OR REMOVAL OF TRUSTEE
6.1 RESIGNATION; REMOVAL. The Trustee may resign at any time by written
notice to the Company, which shall be effective sixty (60) days after
receipt of such notice unless the Company and the Trustee agree
otherwise. Prior to a Change in Control, the Trustee may be removed by
the Company on sixty (60) days notice or upon shorter notice accepted
by the Trustee. In the event of gross negligence or willful misconduct
by the Trustee, however, the Company, prior to a Change in Control,
may remove the Trustee immediately. Upon and after a Change in
Control, the Trustee may be removed by a majority vote of the
Participants, and if a Participant is dead, his or her Beneficiaries
(who collectively shall have one vote among them and shall vote in
place of such deceased Participant), on sixty (60) days notice or upon
shorter notice accepted by the Trustee.
6.2 SUCCESSOR TRUSTEE. If the Trustee resigns or is removed, a successor
shall be appointed by the Company, in accordance with this Section, by
the effective date of the resignation or removal under Section 6.1
above. The successor shall be a bank, trust company, or similar
independent third party that is granted corporate trustee powers under
state or federal law. Upon and after the occurrence of a Change in
Control, a successor Trustee may not be appointed without the consent
of a majority of the Participants. If no such appointment has been
made within six (6) months, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
6.3 SETTLEMENT OF ACCOUNTS. Upon resignation or removal of the Trustee and
appointment of a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be completed
within ninety (90) days after receipt of notice of resignation,
removal or transfer, unless the Company extends the time limit. Upon
the transfer of the assets, the successor Trustee shall succeed to all
of the powers and duties given to the Trustee in this Master Trust
Agreement. The resigning or removed Trustee shall render to the
Committee or Administrator an account in the form and manner and at
the time prescribed in Section 5.2. The approval of such accounting
and discharge of the Trustee shall be as provided in such Section.
ARTICLE 7
CONTROVERSIES, LEGAL ACTIONS AND COUNSEL
7.1 CONTROVERSY. If any controversy arises with respect to the Trust, the
Trustee shall take action as directed by the Committee or, in the
absence of such direction or upon or after a Change in Control, as it
deems advisable, whether by legal proceedings, compromise or
otherwise. The Trustee may retain the funds or property involved
without liability pending settlement of the controversy. The Trustee
shall be under no obligation to take
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any legal action of whatever nature unless there shall be sufficient
property in the Trust to indemnify the Trustee with respect to any
expenses or losses to which it may be subjected.
7.2 JOINDER OF PARTIES. In any action or other judicial proceedings
affecting the Trust, it shall be necessary to join as parties the
Trustee, the Committee, the Administrator, the Company and the
Subsidiaries. No Participant or other person shall be entitled to any
notice or service of process. Any judgment entered in such a
proceeding or action shall be binding on all persons claiming under
the Trust. Nothing in this Master Trust Agreement shall be construed
as to deprive a Participant or Beneficiary of his or her right to seek
adjudication of his or her rights by administrative process or by a
court of competent jurisdiction.
7.3 EMPLOYMENT OF COUNSEL. The Trustee may consult with legal counsel
(who, prior to a Change in Control, but not upon or after a Change in
Control, may be counsel for the Company or any Subsidiary) and shall
be fully protected with respect to any action taken or omitted by it
in good faith pursuant to the advice of counsel.
ARTICLE 8
INSURERS
8.1 INSURER NOT A PARTY. No insurer shall be deemed to be a party to the
Trust and an insurer's obligations shall be measured and determined
solely by the terms of contracts and other agreements executed by it.
8.2 AUTHORITY OF TRUSTEE. An insurer shall accept the signature of the
Trustee to any documents or papers executed in connection with such
contracts. The signature of the Trustee shall be conclusive proof to
the insurer that the person on whose life an application is being made
is eligible to have a contract issued on his or her life and is
eligible for a contract of the type and amount requested.
8.3 CONTRACT OWNERSHIP. An insurer shall deal with the Trustee as the sole
and absolute owner of any insurance contracts and shall have no
obligation to inquire whether any action or failure to act on the part
of the Trustee is in accordance with or authorized by the terms of the
Plans or this Master Trust Agreement.
8.4 LIMITATION OF LIABILITY. An insurer shall be fully discharged from any
and all liability for any action taken or any amount paid in
accordance with the direction of the Trustee and shall have no
obligation to see to the proper application of the amounts so paid. An
insurer shall have no liability for the operation of the Trust or the
Plans, whether or not in accordance with their terms and provisions.
8.5 CHANGE OF TRUSTEE. An insurer shall be fully discharged from any and
all liability for dealing with a party or parties indicated on its
records to be the Trustee until such time as
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it shall receive at its home office written notice of the appointment
and qualification of a successor Trustee.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 AMENDMENT. Subject to the limitations set forth in this Section 9.1,
this Master Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Action to amend the Master
Trust Agreement shall be taken by the Company either by resolution
duly adopted by the Board or by an instrument in writing executed by
an officer of the Company to whom authority to adopt or approve
amendments to the Master Trust Agreement has been delegated pursuant
to a resolution duly adopted by the Board. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the
Plans or shall make the Trust revocable. Any amendment, change or
modification shall be subject to the following rules:
(a) GENERAL RULE. Subject to Sections 9.1(b), (c) and (d) below,
this Master Trust Agreement may be amended:
(i) By the Company and the Trustee, provided, however,
that if an amendment would in any way adversely
affect the rights accrued under the Plans in the
Trust Fund by any Participant or Beneficiary, each
and every Participant and Beneficiary whose rights in
the Trust Fund would be adversely affected must
consent to the amendment before this Master Trust
Agreement may be so amended; and
(ii) By the Company and the Trustee as may be necessary to
comply with laws which would otherwise render the
Trust void, voidable or invalid in whole or in part.
(b) LIMITATION. Notwithstanding that an amendment may be
permissible under Section 9.1(a) above, this Master Trust
Agreement shall not be amended by an amendment that would:
(i) Cause any of the assets of the Trust to be used for
or diverted to purposes other than for the exclusive
benefit of Participants and Beneficiaries as set
forth in the Plans, or payment of expenses of the
Trust, except as is required to satisfy the claims of
the Company's or a Subsidiary's general creditors; or
(ii) Be inconsistent with the terms of any Plan, including
the terms of any Plan regarding termination,
amendment or modification of the Plan.
(c) WRITING AND CONSENT. Any amendment to this Master Trust
Agreement shall be set forth in writing and signed by the
Company and the Trustee and, if consent of
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any Participant or Beneficiary is required under Section
9.1(a), the Participant or Beneficiary whose consent is
required. Any amendment may be current, retroactive or
prospective, in each case as provided therein.
(d) THE COMPANY AND TRUSTEE. In connection with the exercise of
the rights under this Section 9.1:
(i) prior to a Change in Control, the Trustee shall have
no responsibility to determine whether any proposed
amendment complies with the terms and conditions set
forth in Sections 9.1(a) and (b) above and may
conclusively rely on the directions of the Committee
with respect thereto, unless the Trustee has
knowledge of a proposed transaction or transactions
that would result in a Change in Control; and
(ii) upon and after a Change in Control, the power of the
Company to amend this Master Trust Agreement shall
cease, and the power to amend that was previously
held by the Company shall, instead, be exercised by a
majority of the Participants and, if a Participant is
dead, his or her Beneficiaries (who collectively
shall have one vote among them and shall vote in
place of such deceased Participant), provided that
such amendment otherwise complies with the
requirements of Sections 9.1(a), (b) and (c) above.
The eligibility to vote of any person claiming to be
a Participant or Beneficiary shall be determined by
the Administrator.
(e) Taxation. This Master Trust Agreement shall not be amended,
altered, changed or modified in a manner that would cause the
Participants and/or Beneficiaries under any Plan to be taxed
on the benefits under any Plan in a year other than the year
of actual receipt of benefits.
9.2 MERGER. The Company or any Subsidiary may merge into this Master Trust
another trust of which the Company, a Subsidiary, or the Company and
any Subsidiary or Subsidiaries are grantors under the Internal Revenue
Code and which provides funds exclusively for the uses and purposes of
Participants, Beneficiaries, and general creditors of the Company and
Subsidiaries. The terms of this Master Trust Agreement shall be
amended to reflect any protected interest of a Participant or
Beneficiary of the trust so merged.
9.3 FINAL TERMINATION. The Trust shall not terminate until the date on
which Participants and their Beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plans and all of the expenses of
the Trust have been paid, and on such date the Trust shall terminate.
Upon termination of the Trust, any assets remaining in the Trust shall
be returned to the Company and the Subsidiaries that made
contributions to the Trust. Such remaining assets shall be paid by the
Trustee to the Company and the Subsidiaries in such amounts and in the
manner instructed by the Company, whereupon the Trustee shall be
released and discharged from all obligations hereunder. From and after
the date of
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termination and until final distribution of the Trust Fund, the Trustee
shall continue to have all of the powers provided herein as are
necessary or expedient for the orderly liquidation and distribution of
the Trust Fund.
ARTICLE 10
MISCELLANEOUS
10.1 DIRECTIONS FOLLOWING CHANGE IN CONTROL. Despite any other provision of
this Master Trust Agreement that may be construed to the contrary,
following a Change in Control, all powers of the Committee, a delegate
of the Committee, a Subsidiary, the Company, the Board and any person
authorized by any of the foregoing to direct the Trustee under this
Master Trust Agreement shall terminate. The Administrator shall have
complete authority to administer the Trust and the Trustee shall act
on its own discretion to invest the assets of the Trust Fund in
accordance with the Plans and this Master Trust Agreement. The
Trustee's discretion may be limited, however, in accordance with any
investment guidelines that the Committee delivers to the Trustee prior
to a Change in Control and which are approved and accepted by the
Trustee in writing. The approval and acceptance of the Trustee shall
not be unreasonably withheld.
10.2 TAXES. The Company and the Subsidiaries shall from time to time pay
taxes of any and all kinds whatsoever that at any time are lawfully
levied or assessed upon or become payable in respect of the Trust
Fund, the income or any property forming a part thereof, or any
security transaction pertaining thereto. To the extent that any taxes
lawfully levied or assessed upon the Trust Fund are not paid by the
Company and the Subsidiaries, the Trustee shall have the power to pay
such taxes out of the Trust Fund and shall seek reimbursement from the
Company and the Subsidiaries. Prior to making any payment, the Trustee
may require such releases or other documents from any lawful taxing
authority as it shall deem necessary. The Trustee shall contest the
validity of taxes in any manner deemed appropriate by the Company or
its counsel, but at the Company's and the Subsidiaries' expense, and
only if it has received an indemnity bond or other security
satisfactory to it to pay any such expenses. The Trustee shall not be
liable for any nonpayment of tax when it distributes an interest
hereunder on directions from the Committee. The Trustee shall have no
obligation to prepare or file any tax return on behalf of the Trust
Fund, any such return being the sole responsibility of the Company or
its successors and assigns. The Trustee shall cooperate with the
Company or its successors and assigns in connection with the
preparation and filing of any such return.
10.3 THIRD PERSONS. All persons dealing with the Trustee are released from
inquiring into the decisions or authority of the Trustee and from
seeing to the application of any moneys, securities or other property
paid or delivered to the Trustee.
10.4 NONASSIGNABILITY; NONALIENATION. Benefits payable to Participants and
their Beneficiaries under this Master Trust Agreement may not be
anticipated, assigned (either
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at law or in equity), alienated, pledged, encumbered or subjected to
attachment, garnishment, levy, execution or other legal or equitable
process.
10.5 APPLICABLE LAW. Except to the extent, if any, preempted by ERISA, this
Master Trust Agreement shall be governed by and construed in
accordance with the internal laws of the State of Ohio. Any provision
of this Master Trust Agreement prohibited by law shall be ineffective
to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
10.6 NOTICES AND DIRECTIONS. Whenever a notice or direction is given by the
Committee to the Trustee, it shall be in the form required by Section
2.1. Actions by the Company shall be by the Board or a duly authorized
officer, with such actions certified to the Trustee by an
appropriately certified copy of the action taken. The Trustee shall be
protected in acting upon any such notice, resolution, order,
certificate or other communication believed by it to be genuine and to
have been signed by the proper party or parties.
10.7 SUCCESSORS AND ASSIGNS. This Master Trust Agreement shall be binding
upon and inure to the benefit of the Company, the Subsidiaries and the
Trustee and their respective successors and assigns.
10.8 GENDER AND NUMBER. Words used in the masculine shall apply to the
feminine where applicable, and when the context requires, the plural
shall be read as the singular and the singular as the plural.
10.9 HEADINGS. Headings in this Master Trust Agreement are inserted for
convenience of reference only and any conflict between such headings
and the text shall be resolved in favor of the text.
10.10 COUNTERPARTS. This Master Trust Agreement may be executed in an
original and any number of counterparts, each of which shall be deemed
to be an original of one and the same instrument.
10.11 BENEFICIAL INTEREST. The Company and the Subsidiaries are the true
beneficiaries hereunder in that the payment of benefits, directly or
indirectly to or for a Participant or Beneficiary by the Trustee, is
in satisfaction of the Company's and the Subsidiaries' liability
therefore under the Plans. Nothing in this Master Trust Agreement
shall establish any beneficial interest in any person other than the
Company and the Subsidiaries.
10.12 THE TRUST AND PLANS. This Trust, the Plans and each Participant's Plan
Agreement are part of and constitute a single, integrated employee
benefit plan and trust, shall be construed together as the entire
agreement between the Company, the Trustee, the Participants and the
Beneficiaries with regard to the subject matter thereof, and shall
supersede all previous negotiations, agreements and commitments with
respect thereto.
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10.13 EFFECTIVE DATE. The effective date of this Master Trust Agreement shall
be _________, 2002.
IN WITNESS WHEREOF the Company and the Trustee have signed this Master
Trust Agreement as of the date first written above.
TRUSTEE: THE COMPANY:
- ------- -----------
KeyBank National Association RPM, Inc.,
A National Banking Association, An Ohio Corporation,
By: By: /s/ Ronald A. Rice
------------------------------ ------------------------------------
Title: Title: Vice President Administration
--------------------------- ---------------------------------
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EXHIBIT A
PLANS
1. RPM, Inc. Deferred Compensation Plan
2. RPM, Inc. Non-Employee Deferred Compensation Plan