EXHIBIT 4.4
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Agreement and Declaration of Trust for the RSI Retirement Trust.
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RSI RETIREMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
AS AMENDED AND RESTATED
AUGUST 1, 1990
RSI RETIREMENT TRUST
317 Madison Avenue
New York, New York 10017
(212) 503-0100
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TABLE OF CONTENTS
Trust Amendment Number One
Trust Amendment Number Two
ARTICLE PAGE
PART I
CREATION, PURPOSES, ACCEPTANCE
APPLICABILITY AND DEFINITIONS
I Creation, Purposes and Acceptance of the Trust and
Applicability of Provisions 3
II Definitions 5
PART II
CONDITIONS OF GENERAL APPLICABILITY
III Units of Beneficial Interest 11
IV Admissions to the Trust 16
V Election of Trustees: Action and Organization 18
VI Action by Trust Participants 20
VII Powers and Responsibilities of the Trustees 22
VIII Investment 27
IX Officers of the Trust 31
X Accounting 32
XI Taxes, Expenses and Compensation 33
XII Amendment or Termination 34
XIII Limitation of Liability and Indemnification 36
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PART III
PLANS OF PARTICIPATION
XIV Full Participating Employers 41
XV Plans of Participation of Full Participating Employers 47
XVI Contributions, Actuarial Assumptions 49
XVII Investment of Units Held by Plans of Participation 51
XVIII Partial Participation 56
XIX Defined Contribution Plans 59
XX Taxes and Expenses 63
XXI Refund of Contributions 65
XXII Termination of Participation by Withdrawal or Termination
of Plans of Participation 66
PART IV
XXIII Individual Retirement Accounts; Master and Prototype
Plans 71
PART V
XXIV Company Securities 73
PART VI
MISCELLANEOUS
XXV Miscellaneous Provisions 76
XXVI Situs of Trust and Jurisdiction 77
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AMENDMENT NUMBER ONE
TO THE
RSI RETIREMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
(AS AMENDED AND RESTATED AUGUST 1, 1990)
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WHEREAS, the Agreement and Declaration of Trust of The Savings
Banks Retirement System made as of October 22, 1940, as amended from
time to time, was amended and restated as of August 31, 1984 as the
Agreement and Declaration of Trust of the Retirement System for Savings
Institutions ("Prior Agreement") and said Prior Agreement as amended
from time to time was further amended and restated as of August 1, 1990
as the RSI Retirement Trust Agreement and Declaration of Trust
("Agreement"); and
WHEREAS, the Trustees of RSI Retirement Trust have reserved
the right to amend the Agreement upon the terms and conditions therein
set forth and now desire to amend the Agreement in the manner
hereinafter set forth;
NOW, THEREFORE, by action of the Board of Trustees of RSI
Retirement Trust at a meeting held on September 24, 1992, the Agreement
is amended, effective as of such date, by the addition of a new Section
22.11, immediately following Section 22.10, to read as follows:
SECTION 22.11 COMPUTATIONS BY CERTAIN FEDERAL RECEIVERS. In
the event that the Federal Deposit Insurance Corporation or the
Resolution Trust company or any successor institution (the "Federal
Receiver") is appointed as a receiver for a Full Participating Employer
and terminates the Plan of Participation of such Full Participating
Employer, the Federal Receiver shall be permitted to cause any
computation or other determination of the benefits of Participants in
such Plan of Participation or of the liabilities of such Plan of
Participation which shall be required or used in connection with such
termination or any related distribution, including, without limitation,
the purchase of annuities for any such Participants, to be made by
persons other than the Trustees or the Enrolled Actuary appointed by
them. The Federal Receiver shall in such event be solely responsible
for the correctness of any such computation or determination, and the
Trustees shall be fully protected and shall have no liability,
responsibility, or duty of inquiry with respect to any distribution
made or other action taken or omitted by the Trustees which is based on
or affected by any such computation or other determination.
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AMENDMENT NUMBER TWO
TO THE
RSI RETIREMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
(AS AMENDED AND RESTATED AUGUST 1, 1990)
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WHEREAS, the Agreement and Declaration of Trust of The Savings
Banks Retirement System made as of October 22, 1940, as amended from
time to time, was amended and restated as of August 31, 1984 as the
Agreement and Declaration of Trust of the Retirement System for Savings
Institutions ("Prior Agreement") and said Prior Agreement as amended
from time to time was further amended and restated as of August 1, 1990
as the RSI Retirement Trust Agreement and Declaration of Trust
("Agreement"); and
WHEREAS, the Trustees of RSI Retirement Trust have reserved
the right to amend the Agreement upon the terms and conditions therein
set forth and now desire to amend the Agreement in the manner
hereinafter set forth;
NOW, THEREFORE, by action of the Board of Trustees of RSI
Retirement Trust at a meeting held on December 3, 1992, the Agreement
is amended, effective as of such date, by the restatement of the first
paragraph of Section 14.4, in its entirety, to read as follows:
SECTION 14.4 ADMINISTRATION. Each Full Participating Employer
shall designate Administrators to act on behalf of the Plan of
Participation of such Full Participating Employer. Such Administrators
shall be responsible for complying with the provisions of ERISA
pertaining to such office. The duties of the Administrators shall be
allocated between the Trustee Administrator and the Plan Administrator
as provided in this Section 14.4. The Trustees shall be designated as
the Trustee Administrator. Such Trustee Administrator shall have the
power and responsibilities to: (a) designate the Enrolled Actuary with
respect to such Plan of Participation and (b) file all reports required
by the Department of Labor, the Internal Revenue Service or the Pension
Benefit Guaranty Corporation which pertain to such Participating
Employer's Plan of Participation or supply the Plan Administrator with
such reports with instructions for filing the same.
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RSI RETIREMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
This AGREEMENT AND DECLARATION OF TRUST as amended and restated August 1, 1990
W I T N E S S E T H :
WHEREAS, pursuant to an Agreement and Declaration of Trust
made as of October 22, 1940 and amended from time to time ("Original
Agreement") a retirement system, organized as a trust and known as The
Savings Banks Retirement System, was established pursuant to Section
200 of the Insurance Law of the State of New York for the benefit of
the employees of savings banks doing business in the State of New York
and the employees of certain other organizations; and
WHEREAS, the Original Agreement was amended from time to time
and was amended and restated in its entirety as of October 1, 1976 to
conform to the requirements of the Employee Retirement Income Security
Act of 1974 and to effectuate other changes set forth in such amendment
and restatement ("1976 Restated Agreement"); and
WHEREAS, as of August 31, 1984 the Trustees amended and
restated in its entirety the 1976 Restated Agreement so as (a) to
continue, maintain and operate the trust established under the Original
Agreement, as amended from time to time, as an open-end, diversified
investment company of the management type, within the meaning of the
Investment Company Act of 1940, as amended ("1984 Restated Agreement")
and (b) to change the name of the retirement system from The Savings
Banks Retirement System to Retirement System for Savings Institutions;
and
WHEREAS, the 1984 Restated Agreement was subsequently amended
from time to time; and
WHEREAS, as of August 1, 1990, the Trust (as hereinafter
defined) effectuated a reorganization through a transfer of the Trust's
operating assets and business (e.g., office furniture, computers,
files, etc.) and certain intangible assets
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to subsidiaries of a newly organized corporation, Retirement System
Group Inc. ("Company"), in exchange for shares of the common stock of
the Company and the spin off of the Company through the allocation of
such shares to the Participating Trusts (as hereinafter defined) on
such date; and
WHEREAS, as of August 1, 1990 Participating Trusts on such
date shall own outstanding shares of the Company's common stock, which
shares shall be held by a Trustee/Custodian (as hereinafter defined),
while retaining Units (as hereinafter defined) in the Investment Funds
(as hereinafter defined); and
WHEREAS, the Trustees desire hereby amend and restate in its
entirety the 1984 Restated Agreement, as amended to provide, among
other things, that effective August 1, 1990, (a) the Trust shall be
known as the RSI Retirement Trust; (b) all investment, advisory,
administrative, distribution and consulting services previously
performed by the Trustees shall be performed under contracts with the
Company and/or its subsidiaries; or such other servicing agencies as
may be selected by the Trustees from time to time and (c) certain
individual retirement accounts and master and prototype plans are
eligible to participate in the Trust;
NOW, THEREFORE, the undersigned Trustees hereby declared and
agree with the Trust Participants (as hereinafter defined) and
Participating Employers (as hereinafter defined) and with each other as
follows:
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PART I
CREATION, PURPOSES, ACCEPTANCE, APPLICABILITY
AND DEFINITIONS
ARTICLE I
CREATION, PURPOSES AND ACCEPTANCE OF THE TRUST
AND APPLICABILITY OF PROVISIONS
SECTION 1.1 CREATION AND PURPOSES. The Trust created under the
Original Agreement, and as subsequently amended from time to time,
shall continue under the terms and conditions set forth in this
Agreement and Declaration of Trust for the purpose of receiving,
holding, investing, reinvesting, disbursing and otherwise disposing of,
the funds or property contributed or received under the Trust. The
Trust maintained under this Agreement and Declaration of Trust shall
continue to operate as an open-end, diversified investment company of
the management type within the meaning of the Investment Company Act
and shall be known as the RSI Retirement trust. From and after the
Restatement Date, (a) all investment advisory, administrative,
distribution and benefit consulting services heretofore performed by
the Trustees shall be performed under contracts with the Company and/or
its subsidiaries or such other servicing agencies as may be selected by
the Trustees from time to time and (b) as of the Restatement Date, the
common stock of the Company shall be (i) distributed by the Trust to
Participating Trusts, and (ii) held by a Trustee/Custodian as provided
in this Agreement and Declaration of Trust.
SECTION 1.2 ACCEPTANCE OF TRUST. The Trustees named herein and
any successor Trustees executing a counterpart hereof, as hereinafter
provided, accept this Trust and agree to hold IN TRUST all of the funds
or property now or hereafter paid, given, transferred or assigned to or
otherwise acquired by them hereunder, subject to all the terms and
provisions of this Agreement and Declaration of Trust, and to abide by
and carry out such other rules, obligations and duties pertaining to
them as may be specified herein, including the rules, obligations and
duties of the Trustees acting as named fiduciaries pursuant to Section
14.3. The signature of any Trustee or successor Trustee to a
counterpart or copy of this Agreement and Declaration of Trust shall be
evidence of his acceptance and agreement as aforesaid.
SECTION 1.3 APPLICABILITY OF AGREEMENT AND DECLARATION OF
TRUST. The terms and conditions of participation in the Trust shall be
governed by the
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provisions of this Agreement and Declaration of Trust applicable to
such Participating Trust.
It is intended that Plans may participate in the Trust for the
sole purpose of investing in the Units of the Investment Funds
established under the Trust, without allocating to the Trustees
administrative responsibilities with respect to such Plans and, in such
event, that such Plans shall be governed by the provisions of this
Agreement and Declaration of Trust relating to investments,
administration of the Trust and the rights of the holders of Units
thereunder. It is also intended, without limitation, that Plans may
participate in the Trust, not only to invest in Units, but also to
obtain the administrative services provided by the Trustees which are
specified in this Agreement and Declaration of Trust and, in such
event, that such Plans shall be governed by the provisions of this
Agreement and Declaration of Trust relating not only to investments,
administration of the Trust and the rights of the holders of Units but
also with respect to the provisions relating to plan administration set
forth herein. It is also intended, without limitation, that Plans
established in connection with individual retirement accounts or under
master, prototype or other sponsored arrangements may participate in
the Trust in order to invest in Units on the special basis provided
under Part IV. It is also intended, without limitation, that Plans may
hold Company Securities and other assets through a Trustee/Custodian
pursuant to a Trust/Custodial Agreement as provided in Part V.
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ARTICLE II
DEFINITIONS
The following words and phrases, when used in this Agreement
and Declaration of Trust, shall have the meanings hereinafter ascribed
to them:
SECTION 2.1 "Administrator" shall mean the administrator of a
Plan of Participation designed to carry out the functions of an
administrator under ERISA and shall include both the Plan Administrator
and the Trustee Administrator.
SECTION 2.2 "Adopting Resolutions" shall mean the resolutions
adopted by the board of trustees, board of directors, or other
governing body, as the case may be, of a Participating Employer which,
among other things, adopt this Trust. Adopting Resolutions shall also
include any resolutions modifying, clarifying, supplementing or
extending any Adopting Resolutions.
SECTION 2.3 "Agreement and Declaration of Trust" shall mean
the Agreement and Declaration of Trust set forth herein as of the
Restatement Date, and as amended from time to time.
SECTION 2.4 "Code" shall mean the Internal Revenue Code of
1986, as heretofore or hereafter amended. Reference to a section of the
Code shall include that section and any comparable section or sections
of any future legislation that amends, supplements or supersedes that
section.
SECTION 2.5 "Company" shall mean Retirement System Group Inc.,
a Delaware corporation, and any successor thereto.
SECTION 2.6 "Company Securities" shall mean any securities
issued by the Company, including but not limited to the common stock of
the Company, par value $.01 per share.
SECTION 2.7 "DC Investment Classification" shall mean the
classification of Investment Funds in terms of the type of investments
thereof established by the Trustees for the investment of the assets of
DC Plans of Participation in accordance with Section 19.4.
SECTION 2.8 "DC Plan" shall mean a Plan which is a defined
contribution plan.
SECTION 2.9 "DC Plan of Participation" shall mean a Plan of
Participation which is a defined contribution plan and which
participates in the Trust in accordance with Article XIX.
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SECTION 2.10 "Distribution Period" shall mean the period
commencing immediately after the effective date of the withdrawal
termination of a Plan of Participation as determined under Section 22.2
and ending with the or completion of the distribution or transfer of
all of the assets held with respect to such Plan in accordance with the
applicable provisions of Article XXII.
SECTION 2.11 "Eligible Employer" shall mean a corporation,
partnership or association organized under the laws of any state or of
the United States; provided, however, that the participation in the
Trust of any corporation, partnership or association which is not a
bank, savings bank, credit union or savings and loan association, or
controlling, controlled by or under common control with a bank, savings
bank, credit union or savings and loan association, shall be subject to
the approval of the Trustees. Eligible Employer shall also mean an
individual for whom an individual retirement account as described in
Section 2.39(c) has been established or a self-employed individual who
has established a plan pursuant to a master, prototype or other
sponsored arrangement; provided, however that the Trustees shall have
approved the participation in the Trust of the arrangement which
includes such individual retirement account or self-employed plan.
SECTION 2.12 "Employer Fiduciaries" shall mean the named
fiduciaries (other than the Trustees) designated by a Full
Participating Employer in accordance with Section 14.3 and the
provisions of ERISA.
SECTION 2.13 "Enrolled Actuary" shall mean the enrolled
actuary, as defined in ERISA, designated in accordance with Section
14.4 by the Trustees, acting as Trustee Administrator.
SECTION 2.14 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as heretofor or hereafter amended.
SECTION 2.15 "Expense Accounts" shall mean the accounts
established under Section 20.1.
SECTION 2.16 "Full Participating Employer" shall mean a
Participating Employer which participates in the Trust with respect to
a Plan of Participation as provided in Part III.
SECTION 2.17 "Full Participating Trust" shall mean a
Participating Trust established under this Agreement and Declaration of
Trust by a Full Participating Employer with respect to (i) a Plan of
Participation as provided in Article XIV or (ii) a Plan of Partial
Participation as provided in Article XVIII.
SECTION 2.18 "Fund Guidelines" shall mean the investment
policy and objective guidelines relating to an Investment Fund
established by the Trustees pursuant to Section 8.1.
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SECTION 2.19 "Independent Trustee" shall mean the trustee or
trustees of a Participating Trust which is not a Full Participating
Trust and shall include the trustee or trustees or custodian or
custodians of an individual retirement account described in Section
2.39(c) or a self-employed plan established pursuant to a master,
prototype or other sponsored arrangement. Independent Trustee shall not
include a Trustee/Custodian.
SECTION 2.20 "Investment Classification" shall mean the
classification of Investment Funds in terms of the type of investments
thereof established by the Trustees pursuant to Section 17.2.
SECTION 2.21 "Investment company Act" shall mean the federal
Investment Company Act of 1940, as amended, and the regulations
promulgated pursuant thereto.
SECTION 2.22 "Investment Fiduciary" shall mean the Employer
fiduciaries or other named fiduciary of a Plan who has been duly vested
with the authority in accordance with the provisions of ERISA to
exercise the powers specified in Section 3.5(b) and Article XVII.
SECTION 2.23 "Investment Fund" shall mean that portion of the
assets of the Trust with respect to which a separate class of Units is
issued and which is established and maintained in accordance with
Section 3.1 of this Agreement and Declaration of Trust.
SECTION 2.24 "Investment Manager" shall mean an investment
manager designated by the Trustees in accordance with Section 8.3.
SECTION 2.25 "Liquidating Plan of Participation" shall mean a
Plan of Participation which has withdrawn or terminated in accordance
with Article XXII, any assets of which are retained by the Trustees or,
in the case of Company Securities or other assets held pursuant to a
Trust/Custodial Agreement, by the Trustee/Custodian, pending the
completion of distribution or transfer thereof.
SECTION 2.26 "Net Asset Value of Units" or "net asset value of
the respective classes" means the values determined in the manner
provided by Section 3.6.
SECTION 2.27 "Participant" shall mean any employee or former
employee of a Full Participating Employer enrolled as a participant in
the Plan of Participation of such Full Participating Employer whose
participation therein has not been terminated.
SECTION 2.28 "Participating Affiliate" shall mean an affiliate
of a Full Participating Employer which has adopted the Trust and the
Plan of Participation
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of such Full Participating Employer in accordance with the provisions
of Section 14.5.
SECTION 2.29 "Participating Employer" shall mean any Eligible
Employer which is the sponsor of any Plan or the Eligible Employer for
whom an individual retirement account described in Section 2.39(c) is
created, including but not limited to a Plan of Participation, funded
in whole or in part by a Participating Trust.
SECTION 2.30 "Participating Trust" means a Qualified Trust,
assets of which were held under this Trust immediately prior to the
Restatement Date or any other Qualified Trust which holds Units.
Without limitation of the foregoing, a Participating Trust shall
include (a) a Full Participating Trust established with respect to a
Plan of Participation or a Plan of Partial Participation, and (b) a
trust which is not a Full Participating Trust, the trustee of which is
an Independent Trustee.
SECTION 2.31 "Participation Agreement" shall mean the Adopting
Resolutions or such other instruments, agreements or documents which
the Trustees may require from time to time.
SECTION 2.32 "Plan" shall mean the particular plan of benefits
established by a Participating Employer and shall include but shall not
be limited to a Plan of Participation.
SECTION 2.33 "Plan Administrator" shall mean the plan
administrator of a Plan of Participation, other than the Trustee
Administrator, designated by a Participating Employer in accordance
with section 14.4.
SECTION 2.34 "Plan Interest" shall mean (a) the total number
of Units held by any Full Participating Trust and (b) an Company
Securities and other assets held by any Full Participating Trust
through a Trustee/Custodian pursuant to a Trust/Custodial Agreement as
provided in Article XXIV.
SECTION 2.35 "Plan of Partial Participation" shall mean a Plan
of Participation established or maintained as provided in Article
XVIII.
SECTION 2.36 "Plan of Participation" shall mean a retirement
benefit plan established by a Participating Employer which is
effectuated under the Trust, the terms of which plan shall be as set
forth in the Plan of Participation of such Participating Employer, as
amended from time to time. Plan of Participation shall also include (a)
except as otherwise provided in Article XVIII, a Plan of Partial
Participation and (b), except as otherwise provided in Article XIX, DC
Plans.
SECTION 2.37 "Plan Year" shall mean the annual fiscal period
of the Plan of Participation.
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SECTION 2.38 "Prior Plan" shall mean the Plan maintained by a
Full Participating Employer as in effect from time to time prior to its
amendment as a Plan of Participation.
SECTION 2.39 "Qualified Trust" means (a) a single or
commingled pension or profit-sharing trust established by adoption of
this Agreement and Declaration of Trust with respect to a Plan of
Participation, including any Trust/Custodial Agreement as provided in
Article XXIV, (b) a single or commingled pension or profit-sharing
trust established by a trust instrument entered into with a trustee or
trustees, other than the Trustees or any Trustee/Custodian acting as
such in each case established and maintained in conformity with Section
501(a) of the Code, or (c) an individual retirement trust or custodial
account established under a trust or custodial agreement which is
maintained in conformity with Section 408(a) of the Code and exempt
from tax under Section 408(e) of the Code.
SECTION 2.40 "Restatement Date" shall mean August 1, 1990
except for purposes of Section 3.1 wherein Restatement Date shall mean
August 31, 1984.
SECTION 2.41 "Separate Assets" shall mean that part of the
assets of a Plan of Partial Participation as provided in Article XVIII
which are not held and administered by either the Trustees or a
Trustee/Custodian.
SECTION 2.42 "Service Company" shall mean a corporation
organized by the Trustees in accordance with Section 7.14.
SECTION 2.43 "Special DC Investment Classification" shall mean
a DC Investment Classification established under Section 19.4.
SECTION 2.44 "Trust" shall mean the trust established or
maintained under this Agreement and Declaration of Trust, and shall,
except for purposes of Section 3.1, include any trust established
pursuant to a Trust/Custodial Agreement as provided in Article XXIV.
SECTION 2.45 "Trust/Custodial Agreement" shall mean any
directed trust and custodial agreement among the Trust, a
Trustee/Custodian, and Retirement System Consultants Inc., a
wholly-owned subsidiary of the Company, individually and as
attorney-in-fact and agent for one or more Plans of Participation,
established for the purpose of holding Company Securities and other
related assets on behalf of the Full Participating Trusts of such Plans
of Participation.
SECTION 2.46 "Trustee/Custodian" shall mean any eligible
person or institution, holding Company Securities and other assets on
behalf of a Participating Trust pursuant to a Trust/Custodial
Agreement.
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SECTION 2.47 "Trust Fund" shall mean the assets held by the
Trustees in accordance with this Agreement and Declaration of Trust,
and shall include any Company Securities and other assets held by a
Full Participating Trust through a Trustee/Custodian as provided in
Article XXIV.
SECTION 2.48 "Trust Participant" means the fiduciary or
fiduciaries which are vested with authority to cause a trust to become
or remain a Participating Trust, or in the case of an individual
retirement account described in Section 2.39 (c), means the individual
for whose benefit the individual retirement account is established.
SECTION 2.49 "Trust Year" shall mean the period commencing
October 1 and ending September 30.
SECTION 2.50 "Trustee Administrator" shall mean the Trustees,
acting as the Plan administrator of the Plans of Participation, other
than the Plan administrator of any such plan designated by each of the
Full Participating Employers in accordance with Section 14.4.
SECTION 2.51 "Trustees" shall mean the trustees acting under
this Agreement and Declaration of Trust but shall not include any
trustee acting as a Trustee/Custodian as provided in Article XXIV.
SECTION 2.52 "Units" shall mean the proportionate undivided
beneficial interest in any Investment Fund as determined in accordance
with Article III and shall, where appropriate, mean such proportionate
undivided beneficial interest expressed in terms of whole and
fractional units. Units shall not include any Company securities or
other assets held by a Trustee/Custodian or any beneficial interest in
such Company Securities or other assets.
SECTION 2.53 "Valuation Date" shall mean the close of business
of each business day.
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PART II
CONDITIONS OF GENERAL APPLICABILITY
ARTICLE III
UNITS OF BENEFICIAL INTEREST
SECTION 3.1 NUMBER OF AUTHORIZED UNITS; CLASSES. The
beneficial interests in the Trust shall be divided into Units and
fractions thereof. The Trust shall have the authority to issue an
unlimited number of Units without par value. The Units shall initially
be divided into classes, sometimes referred to herein as Investment
Funds, in existence on the Restatement Date.
Except as otherwise required by law, the Trustees shall have
full power and authority without obtaining any prior authorization or
vote of any of the Trust Participants, to create and establish any
additional class or classes of Units with preferences, voting powers,
rights and privileges as the Trustees may from time to time determine;
to divide or combine the Units or any class or classes thereof into a
greater or lesser number of Units; to classify or reclassify any issued
Units into one or more classes of Units so long as such classification
or reclassification will not have a material adverse effect on
Participating Trusts which own Units of any of the classes; to abolish
any one or more classes of Units if no Units of such class or classes
are outstanding; and to take such other action with respect to the
Units or any class or classes thereof as the Trustees may deem
desirable, subject to the terms of this Agreement and Declaration of
Trust.
SECTION 3.2 VOTING RIGHTS. Whenever any action requiring the
vote of Trust Participants is required in accordance with terms of this
Trust or otherwise, each full Unit shall be entitled to one vote and
each fractional Unit shall be entitled to the corresponding fractional
vote. Each trust Participant shall be entitled to exercise the voting
rights of Units owned by the Participating Trust of which he is the
Trust Participant.
SECTION 3.3 POWERS, PREFERENCES AND PARTICIPATIONS. Each class
of Units shall have the following powers, preferences and participating
or other special rights, and the qualifications, restrictions, and
limitations thereof shall be as follows:
(a) All consideration received by the Trust for the
issue of sale of Units of each class, together with all
income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation
thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may
be, shall
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irrevocably belong to the class of Units with respect to which
such assets, payments or funds were received by the Trust for
all purposes, subject only to the rights of creditors of the
Trust, and shall be so handled upon the books of account of
the Trust. Such assets, income earnings, profits and proceeds
thereof, including any proceeds derived from the sale,
exchange or liquidation thereof and any assets derived from
any reinvestment of such proceeds in whatever form the same
may be, are herein referred to as "assets belonging to" such
class.
(b) The Trustees may from time to time declare and
pay dividends or distributions to the Participating Trusts, in
Units, in cash, or in other property, on any or all classes of
Units, the amount of such dividends or distributions and the
payment of them being wholly in the discretion of the
Trustees. Dividends or distributions on any class of Units
shall be paid only out of earnings or other lawfully available
assets belonging to such class.
(c) In the event of the liquidation or dissolution of
the Trust, Participating Trust owning Units of each class
shall be entitled to receive, as a class, out of the assets of
the Trust available for distribution to Participating Trusts
the assets belonging to such class; and the assets so
distributable to the Participating Trust owning Units of any
class shall be distributed among such Participating held by
them and recorded on the books of the Trust.
(d) The assets belonging to any class of Units shall
be charged with the liability in respect of such class, and
shall also be charged with a share of the general liabilities,
and be charged with a share of the general liabilities, and be
credited with a share of the general assets, of the Trust in a
fair and equitable manner under policies and procedures
established by the Trustees. The determination of the Trustees
shall be conclusive as to the amount of liabilities, including
accrued expenses and reserves, and assets, as to the
allocation of the same as to a given class and as to whether
the same are allocable to one or more classes.
SECTION 3.4 WITHDRAWALS OF UNITS AND COMPANY SECURITIES.
(a) The Trustees and any Trustee/Custodian acting
pursuant to Article VII, XVII or XXII or the Independent
Trustee of a Participating Trust may require the Trust, (i) to
the extent that the class of Units in question has assets
lawfully available therefor, and out of such assets, to
withdraw all or any part of the Units outstanding on the books
of the Trust in the name of such Participating Trust, as the
Net Asset Value of such Units, payable as provided in the
Investment Company Act and (ii) out of
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any Company Securities and other assets held by the
Trustee/Custodian, to withdraw all or any part of such Company
Securities or other assets. Units shall be withdrawn at the
Net Asset Value next determined after receipt by the Trustees
of a request for withdrawal and receipt of all documents which
may be required in this Agreement and Declaration of Trust.
The Trust shall make payment for any such Units withdrawn in
cash, or if in the opinion of the Trustees, which opinion
shall be conclusive, conditions exist which make payment
wholly in cash unwise or undesirable, the Trust may make
payment wholly or partly in securities or other property
belonging to the class, the value of which shall be determined
as provided in Section 3.6. The Trust may, to the extent
necessary, sell or cause to be sold any assets belonging to a
class of Units to provide cash to pay for Units of such class
which are withdrawn. The Trustees may not suspend the right of
the holders of any class of Units to require the Trust to
withdraw Units of such class except as permitted by the
Investment Company Act. At no time prior to the satisfaction
of all liabilities of a Participating Trust or of the Trust
with respect to any Participant or beneficiary of the Plan of
which such Trust is a part shall that part of the corpus or
income of the Trust that equitably belongs to the
Participating Trust maintained for the benefit of such
Participant or beneficiary of the Plan of which such Trust is
a part be used for or diverted to purposes other than for the
exclusive benefit of such Participant or beneficiary of the
Plan of which such Trust is a part. All distributions from the
Trust to a Participating Trust, whether upon withdrawal of
Units or withdrawal of Company Securities or other assets held
by the Trustee/Custodian, disqualification of the
Participating Trust or otherwise, shall be deemed to be fore
the exclusive benefit of the Participants of the Plan funded
in whole or in part by such Participating Trust or the
beneficiaries thereof.
(b) If at any time it should be determined that any
Participating Trust is no longer a Qualified Trust, the
Trustees shall withdraw from the Trust all Units owned by such
Participating Trust at the Net Asset Value of such Units next
determined after the Trustees are apprised of such
disqualification and shall distribute the payment for such
Units to the disqualified Participating Trust. At such time,
any Trustee/Custodian shall withdraw all Company Securities
and other assets held for such Participating Trust by the
Trustee/Custodian and distribute such Company Securities and
other assets to the disqualified Participating Trust.
(c) Notwithstanding the foregoing provisions of this
Section 3.4, in the event of the withdrawal from the Trust by
a Participating Trust which is a Full Participating Trust of
all of the Units outstanding on the books of the Trust in the
name of such Full Participating Trust, the payment made for
such Units withdrawn shall be separately held and
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administered by the Trustees, acting as the Trustees of such
Full Participating Trust, in the manner provided under Section
22.8 unless the Trustees shall agree to maintain the Plan
Interest of such Full Participating Trust invested in Units in
accordance with section 22.8. The withdrawal of all Units
outstanding on the books of the Trust in the name of such Full
Participating Trust shall be deemed a withdrawal of all
Company Securities and other assets held by a
Trustee/Custodian on behalf of such Full Participating Trust,
and such Company Securities and other assets shall be held and
administered by the Trustee/Custodian in accordance with
Section 22.8.
SECTION 3.5 EXCHANGE.
(a) The Independent Trustee of a Participating Trust
shall be entitled, subject to such limitations as the Trustees
in their sole discretion may adopt, to convert all or any part
of the Units of any class owned by such Participating Trust,
on the basis hereinafter set forth into Units and fraction
thereof of any other class of the Trust. Units and fraction
thereof shall be exchanged at the Net Asset Value next
determined after receipt by the Trustees of a request for
exchange. The Trustees shall determine the Net Asset Value of
the Units and fraction thereof to be converted and, within
five business days after receipt of such request, shall
transfer to such Participating Trust on the books of the Trust
such number of Units and fraction thereof of the class desired
as, taken at the Net Asset Value thereof determined in the
same manner and at the same time as that of the Units and
fraction thereof exchanged, shall equal the Net Asset Value of
the Units exchanged. Upon any exchange, proper transfer shall
be made between the assets belonging to the various classes of
Units involved.
(b) The exchange of Units and any fraction thereof
owned by a Full Participating Trust shall be effected in the
same manner as provided under Section 3.5(a); provided,
however, that the right of exchange shall be solely that of
the Investment Fiduciaries, or, in the absence of Investment
Fiduciaries, the Trustees, acting as Trustees of such Full
Participating Trust. Such exchange shall be exercised in the
manner provided in Article XVII.
SECTION 3.6 VALUATION OF UNITS. The Net Asset Value of the
Units of each class shall be determined, in accordance with the
Investment Company Act and with generally accepted accounting
principles, by dividing the net asset value of the class (total value
of the assets of such class, less any liabilities allocated to such
class) by the total outstanding Units of such class. The Net Asset
Value of the Units of each class shall be determined no less frequently
than as shall be
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required by applicable provisions of the Investment Company Act and
regulations and rules thereunder and in accordance with rules of the
Trustees.
SECTION 3.7 STATUS OF UNITS. Units acquired by Participating
Trusts in the manner described in Section 4.1 shall be fully paid and
nonassessable. No Participating Trust, Trust Participant or any other
person shall have preemptive rights.
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ARTICLE IV
ADMISSIONS TO THE TRUST
SECTION 4.1 ADMISSIONS TO PARTICIPATION. Units may be owned
only by a Qualified Trust established by an Eligible Employer under a
trust instrument or a trust or custodial agreement in the case of an
individual retirement account described in Section 2.39(c), which shall
be this Agreement and Declaration of Trust in the case of a Full
Participating Trust, which specifically authorizes it to participate in
the Trust and with respect to which a Participation Agreement shall
have been provided in accordance with Section 4.2. A Qualified Trust
shall become a Participating Trust as of (a) the date on which the
transfer of all or part of its assets to the Trustees is accepted by
the Trustees for one or more of the Investment Funds or (b), if no
assets are so transferred, that date on which contributions are
accepted by the Trustees for one or more of the Investment Funds.
Pursuant to similar transfer and acceptance, additional assets may be
admitted to any Investment Fund subject to the provisions of the
Participation Agreement and this Agreement and Declaration of Trust.
The Trustees in their sole discretion may decline to accept a
Participation Agreement with respect to any Qualified Trust or to
accept any assets of any type or class of Qualified Trust or of any
Qualified Trust. The Trustees may establish minimum dollar amounts of
initial or additional assets to be admitted. Assets shall be accepted
for admission to an Investment Fund, and Units shall be issued to the
Participating Trust in consideration therefor, on the basis of the Net
Asset Value of the Unit of such Investment Fund next determined after
admission of such assets. Any Participating Trust may have an interest
in more than one than one Investment Fund, and the proportion of its
assets that is invested in each may be changed from time to time in
accordance with Section 3.5.
SECTION 4.2 PARTICIPATION AGREEMENT. Each Participating
Employer shall deliver to the Trustees a Participation Agreement
containing the terms and conditions specified in this Agreement and
Declaration of Trust and such other terms and conditions as the
Trustees may determine. Without limitation of the foregoing, the
Participation Agreement shall evidence the adoption of this Agreement
and Declaration of Trust and the Trust as a part of the Plan of the
Participating Employer, and shall provide that the terms and provisions
of this Agreement and Declaration of Trust shall be controlling with
respect to any assets held by the Trustees and shall designate or
otherwise identify the Trust Participant acting with respect to the
Participating Trust. The Participation Agreement with respect to a Full
Participating Trust shall contain such additional terms and conditions
as are required under Section 14.2. The Participation Agreement with
respect to a Participating Trust which is an individual retirement
account described in Section 2.39(c) or which has been established
under a master,
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prototype or other sponsored arrangement shall contain such additional
terms and conditions as may be required under Part IV.
SECTION 4.3 NO CERTIFICATES; NONTRANSFERABILITY OF INTEREST.
Ownership of Units shall be recorded on the books of the Trust or its
transfer agent. No certificate or other document shall be issued
evidencing any interest in the Trust. The Trustees may make such rules
as they consider appropriate for the recordation of ownership of Units
and similar matters. The record books of the Trust or any transfer
agent shall be conclusive as to Participating Trusts which are holders
of Units of each class, as to the number of Units of each class held by
each Participating Trust and as to the name of the Trust Participant to
whose account in the Participating Trust Units are at any relevant time
allocated; provided, however, that the Independent Trustee shall
certify to the Trustees the names of each Trust Participant entitled to
vote in accordance with Section 3.2 and the number of Units of each
class held by such Participating Trust which are entitled to be voted
by such Trust Participant, and the Trustees shall be fully protected in
relying upon any such certification. Except as provided in Section 3.5,
no Participating Trust shall have the power to sell, assign or
otherwise transfer any Unit or all or any part of its equity or
interest in the Trust or use it as security for a loan.
SECTION 4.4 INITIAL PARTICIPATION. As of the close of business
on August 31, 1984, the Trustees converted into Units the Value of the
beneficial interests of each Full Participating Trust in each
Investment Fund, as established in accordance with the provisions of
the 1984 Restated Agreement immediately prior to such conversion, and
such Units replaced the interests in the Investment Funds of such Full
Participating Trusts. Coincident with such conversion under such rules
as the Trustees established, the Trustees were empowered to effect any
reallocation of the interest of any such Full Participating Trust
between and among the Investment Funds in accordance with Article XVII
and issue Units on such reallocated basis.
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ARTICLE V
ELECTION OF TRUSTEES; ACTION AND ORGANIZATION
SECTION 5.1 NUMBER AND ELECTION OF TRUSTEES. The number of
Trustees shall be determined by the Trustees and shall be determined by
the Trustees and shall be not less than nine nor more than nineteen.
The Trustees shall be elected annually by the Trust Participants as
hereinafter provided, and each Trustee shall hold office until his
successor shall have been duly chosen and qualified, or until he shall
have resigned or for other reasons shall have ceased to be a Trustee.
The Trustees shall be divided into three classes of equal number,
provided that if the total number of Trustees fixed in accordance with
this Section does not permit such equal division, the Trustees shall
increase the number of Trustees in any class or classes in their
discretion to the extent required in order to assign each Trustee to a
class, with the members of each class to be determined by the Trustees.
Upon the expiration of the term of the Trustees in any such class,
successors to such Trustees shall be elected by the Trust Participants
for terms of three years. There shall be no limitation on the number of
terms which may be served by the Trustees. Any Trustee may be removed
at any time, with or without cause, by majority vote of the Trustees.
In the event of the death, resignation, removal, or disqualification,
of any Trustee or increase in the authorized number of Trustees or
other cause, the vacancy thereby created shall be filled by majority
vote of the remaining Trustees, and any member so chosen shall hold
office for the remainder of the term for which the Trustee was elected
and until his successor shall have been duly chosen and qualified. When
the number of Trustees is increased, the Trustees shall designate the
class or classes in which the newly elected Trustees shall serve. The
power of the Trustees to fill vacancies shall be subject to the
provisions of Section 16 of the Investment Company Act.
SECTION 5.2 QUALIFICATION OF TRUSTEES. The persons serving as
Trustees shall be eligible to serve as directors of a registered
investment company under the Investment Company Act, and a majority of
the Trustees shall not be "interested persons", as such term is defined
in the Investment Company Act.
SECTION 5.3 ACTION BY THE TRUSTEES. Except as otherwise
required by law or by this Agreement and Declaration of Trust, the
Trustees shall exercise their powers and perform their duties at such
times, in such manner and pursuant to such rules and procedures as they
may from time to time determine.
SECTION 5.4 COMPENSATION. The compensation of the Trustees
shall be as determined from time to time by vote of the Trust
Participants. No Trustee who is an officer of the Trust shall receive
compensation for services as a Trustee.
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SECTION 5.5 SERVICE IN MULTIPLE FIDUCIARY CAPACITIES. The
Trustees, the officers of the Trust, or any other person acting in a
fiduciary capacity under this Agreement and Declaration of Trust may
serve in more than one fiduciary capacity with respect to the Trust or
any Plan of Participation and any fiduciary may serve as such in
addition to being an officer, employee, or agent or other
representative of a party in interest.
SECTION 5.6 EXECUTIVE COMMITTEE. The Trustees may in their
discretion and by vote of a majority of the Trustees elect annually an
Executive Committee consisting of such number of Trustees, not less
than five, as the Trustees shall by a majority vote determine, and may
change the membership of, fill vacancies in, or dissolve such
Committee. Unless otherwise provided by resolution of the Trustees or
applicable law, Executive Committee shall have and may exercise all of
the powers of the Trustees when the Trustees are not meeting,
excepting, however, the election of Trustees, the election of officers,
and the amendment of this Agreement and Declaration of Trust. Regular
meetings of the Executive Committee shall be held at such times and
places as are fixed by such Committee. A majority of the Executive
Committee shall constitute a quorum at all meetings, and the action of
a majority of the Executive Committee present at any meting at which a
quorum is present shall be the act of the Executive Committee.
SECTION 5.7 ADMINISTRATIVE RULES. The trustees shall have the
power to adopt administrative rules and procedures consistent with this
Agreement and Declaration of Trust and from time to time may alter,
amend or repeal any such rules and procedures in all cases consistent
with the Investment Company Act.
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ARTICLE VI
ACTION BY TRUST PARTICIPANTS
SECTION 6.1 MEETINGS. Meetings of the Trust Participants for
such purposes as may be permitted or required by law or this Agreement
and Declaration of Trust shall be held at such time and place as may be
specified in the rules and procedures of the Trustees or as may be
specified by the Secretary of the Trust or officer performing similar
functions in the notice of meeting.
SECTION 6.2 NOTICE OF MEETING. The Secretary of the Trust
shall cause written or printed notice of the time, place and purpose or
purposes of each meeting of Trust Participants to be given at least 10
days, but not more than 60 days, prior to each meeting to each Trust
Participant entitled to vote at such meeting. The Trustees shall fix,
in advance, the record date for determination of entitlement to vote at
any such meeting.
SECTION 6.3 VOTING POWERS. Trust Participants shall have the
power to vote with respect to matters relating to the Trust as may be
required by law, this Agreement and Declaration of Trust or the rules
and procedures of the Trustees. Until Units of any class are issued,
the Trustees may exercise all rights of Trust Participants and may take
any action permitted or required by law, this Agreement and Declaration
of Trust or the rules and procedures of the Trustees to taken by
Participants.
SECTION 6.4 QUORUM. The presence at any meeting, in person or
by proxy, of Trust Participants under Participating Trusts which own
one-thirds of the issued and outstanding Units shall constitute a
quorum for the transaction of business, except when any provision of
law or this Declaration permits or requires that the Units be voted by
a class or by classes, then participants under Participating Trusts
which own one-thirds of the issued and outstanding Units of the class
entitled t vote shall constitute a quorum for the transaction of
business. In the absence of a quorum, the Trust Participants who are
present in person or represented by proxy, by the affirmative vote of
such Trust Participants entitled to cast a majority of the votes, may
adjourn the meeting to another time and place. No notice of adjournment
need be given, and business that might have been transacted at the
meeting originally called may be transacted at any adjourned meeting at
which a quorum is present.
SECTION 6.5 VOTING. On any matter submitted to a vote of Trust
Participants, all Units then issued and outstanding and entitled to
vote, irrespective of the class, shall be voted in the aggregate and
not by class, except (a) when required by the Investment Company Act,
Units shall be voted by individual class; and (b) when the matter
affects an interest of less than all classes,
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then only Trust Participants under Participating Trusts which own Units
of the affected class or classes shall be entitled to vote thereon. All
matters shall be decided by a majority of the votes validly cast except
as otherwise required by law or this Declaration. There shall be no
cumulative voting in the election of Trustees.
SECTION 6.6 RULES AND PROCEDURES. The Trustees may adopt
further rules and procedures for meetings and votes of Participants and
related matters.
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ARTICLE VII
POWERS AND RESPONSIBILITIES OF THE TRUSTEES
SECTION 7.1 IN GENERAL. The business and affairs of the Trust
shall be managed by the Trustees. The Trustees shall have all powers
necessary or desirable (a) to carry out that responsibility, including
the powers set forth in this Agreement and Declaration of Trust and all
other powers reasonably incidental to the accomplishment of the
purposes of this Trust and (b) to take whatever actions are required to
be taken by a board of directors of an investment company registered
under the Investment Company Act. Without limiting the generality of
the foregoing, the Trustees shall act as the Trustees of the Trust and
as the Trustees of each Full Participating Trust and shall have the
powers and responsibilities set forth in this Article and elsewhere in
this Agreement and Declaration of Trust.
SECTION 7.2 DEPOSITS. The Trustees shall have all powers
necessary or desirable to deposit the funds of the Trust in any
institution authorized by the banking laws of any State or territory of
the United States or the District of Columbia, and to receive deposits,
including any such institution which acts as investment advisor to the
Trustees or in any other fiduciary capacity with respect to the Trust.
Without limiting the generality of the foregoing, the Trustees are
specifically empowered to make arrangements with any bank or trust
company for the deposit, custodianship, safekeeping or investment of
the assets of the Trust.
SECTION 7.3 BORROWING. The Trustees shall have all powers
necessary or desirable to borrow money; to make, execute and issue
promissory notes and other obligations of the Trust for monies
borrowed; and to secure the payment of any such instrument, or by other
lien upon, assignment, pledge, deposit or hypothecation of all or any
part of the real or personal property, interest, rights, franchises, or
privileges of the Trust.
SECTION 7.4 PURCHASE AND SALE. Subject to the provisions of
Section 8.3(c), the Trustees shall have all powers necessary or
desirable to purchase, receive or subscribe for any securities or other
property and retain in trust such securities or other property, and to
sell the same for cash or on credit, to grant or purchase options,
convert, redeem, exchange for other securities or other property, to
write call options against any securities or other property or other
forms of options directly related to any call option outstanding, to
enter into stand-by agreements for future investment, either with or
without a stand-by fee, or otherwise to dispose of any securities or
other property at any time held by the Trust.
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SECTION 7.5 LITIGATION. Subject to the provisions of Section
8.3(c), the Trustees shall have all powers necessary or desirable to
settle, compromise or submit to arbitration any claims, debts, or
damages, due to owing to or from the Trust; to commence or defend suits
or legal proceedings; and to represent the Trust in all suits or legal
proceedings in any court of law or equity or before any other body or
tribunal.
SECTION 7.6 RIGHTS UNDER SECURITIES OR OTHER PROPERTY. Subject
to the provisions of Section 8.3(c), the Trustees shall have all powers
necessary or desirable to exercise any conversion privilege and/or
subscription right available in connection with any securities or other
property at any time held by the Trust; to oppose or to consent to the
reorganization, consolidation, merger or readjustment of the finances
of any corporation, company or association, or to the sale, mortgage,
pledge or lease of the property of any corporation, company or
association whose securities may at any time be held by the Trust and
to do any act with reference thereto including the exercise of options,
the making of agreements or subscriptions and the payment of expenses,
assessments or subscriptions, which may be necessary or advisable in
connection therewith, and to hold and retain any securities or other
property which the Trust may so acquire; and to deposit any property
with any protective, reorganization or similar committee, and to pay
such committee and pay any assessments levied with respect to property
so deposited.
SECTION 7.7 PROXIES. Subject to the provisions of Section
8.3(c), the Trustees shall have all powers necessary or desirable to
exercise, personally or by general or by limited power of attorney, any
right including the right to vote, appurtenant to any securities or
other property held by it at any time.
SECTION 7.8 REAL ESTATE. Subject to the provisions of Section
8.3(c), The Trustees shall have all powers necessary or desirable to
manage, administer, operate, lease for any number of years, regardless
of any restrictions on leases made by fiduciaries, develop, improve,
repair, alter, demolish, mortgage, pledge, grant options with respect
to, or otherwise deal with any real property or interest therein at any
time held by the Trust, and to hold any such real property in the name
of the Trust or in the name of the nominee, with or without the
addition of words indicating that such property is held in a fiduciary
capacity, all upon such terms and conditions as may be deemed necessary
or advisable. To renew or extend or participate in the renewal or
extension of any mortgage, upon such terms as may be deemed necessary
or advisable, and to agree to a reduction in the rate of interest on
any mortgage or to any other modification or change in the terms of any
mortgage or of any guarantee pertaining thereto in any manner and to
any extent that may be deemed necessary or advisable for the protection
of the Trust Fund or the preservation of the value of the investment;
to waive any default, whether in the performance of any covenant or
condition of any mortgage or in the performance of any guarantee, or to
enforce any such default in such
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manner and to such extent as may be deemed necessary or advisable; to
exercise and enforce any all rights of foreclosure, to bid in property
on foreclosure, to take in lieu of foreclosure with or without paying
consideration therefor and in connection therewith to release the
obligation on the bond secured by such mortgage; and to exercise and
enforce in any action, suit or proceedings at law or in equity any
rights or remedies in respect to any such mortgage or guarantee.
SECTION 7.9 HOLD ASSETS UNINVESTED. Subject to the provisions
of Section 8.3(c), the Trustees shall have all powers necessary or
desirable to hold part or all of the assets of the Trust uninvested.
SECTION 7.10 NOMINEES. The Trustees shall have all powers
necessary or desirable to register any securities held by the Trust
hereunder in the name of the Trust or in the name of a nominee with or
without the addition of words indicating that such securities or other
property in a depository or clearing corporation.
SECTION 7.11 FORM CORPORATIONS AND TRUSTS. The Trustees shall
have all powers necessary or desirable to form corporations and to
create trusts to hold title to any securities or other property, all
upon the terms and conditions as may be deemed advisable.
SECTION 7.12 LENDING SECURITIES. The Trustees shall have all
powers necessary or desirable to loan any securities to brokers or
dealers and to secure the same in any manner, and during the term of
any such loan to permit the loaned securities to be transferred unto
the name of and voted by the borrower or others; and to hold and
administer any securities or other property with respect to which the
foregoing powers have or may be exercised, including any security or
collateral received by the Trustees, in any sub-account which may be
invested in securities or other property of different types than the
securities or other property of different types than the securities or
other property otherwise held in the Investment Fund subject to the
foregoing powers.
SECTION 7.13 INSTRUMENTS. Subject to the provisions of Section
8.3(c), The Trustees shall have all powers necessary or desirable to
make, execute and deliver, as Trustees, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in
writing necessary or desirable for the accomplishment of any of the
foregoing powers.
SECTION 7.14 SERVICE CORPORATIONS. Without limitation of the
authority granted in this Article, the Trustees may form a corporation
or corporations and retain the stock thereof in the Trust. The
formation of such corporation or corporations shall be for the purpose
of providing through such corporation or corporations (a) such
advisory, recordkeeping or other services as the Trustees may deem
necessary or desirable for the operation of the Trust and (b) such
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services as they may deem necessary or advisable to perform for Full
Participating Trusts as provided in this Agreement and Declaration of
Trust , or for others.
SECTION 7.15 CONSTRUCTION. The Trustees shall have the power
to construe any provision of this Agreement and Declaration of Trust
and any Participation Agreements and to determine questions of fact
which may arise hereunder or thereunder. The Trustees shall have no
power to construe any provision of a Plan of Participation, and the
construction of any such provision shall be the sole responsibility of
the Employer Fiduciaries; provided, however, that each Plan of
Participation shall be subject to the provisions of the Agreement and
Declaration of Trust.
SECTION 7.16 AUTHORIZATION FOR ACTION RELATING TO STATE OR
FEDERAL LAWS. Without limitation of the powers otherwise granted to the
Trustees hereunder, the Trustees shall be authorized and empowered to
take such action as they may be deem necessary so that the operation
and administration of the Trust, or any aspect of such operation and
administration, shall be consistent with any applicable state or
federal law or ruling of a state or federal administrative agency;
provided, however, that any such action shall be consistent with
provisions of ERISA.
SECTION 7.17 RETENTION OF CONSULTANTS OR ADVISORS. The
Trustees, acting as Trustee Administrator in accordance with Section
14.4, shall appoint an Enrolled Actuary who shall advise the Trustees
on all technical matters of an actuarial nature and shall have all
other duties of an Enrolled Actuary under ERISA with respect to the
Trust and the Plans of Participation. The Trustees may appoint a
medical board, which may consist of one or more physicians which shall
have charge of and supervision over all medical examinations required
in connection with the operation of the Trust. The Trustees may also
appoint such other consultants, or advisors, including investment
advisors and counsel, as they may see fit.
SECTION 7.18 ACTUARIAL TABLES. The Trustees shall from time to
time upon the advice of the Enrolled Actuary adopt for the Trust and
the Plans of Participation such actuarial assumptions and tables as the
Trustees shall deem necessary or advisable. On the basis of such
actuarial assumptions and tables as the Trustees adopt, the Enrolled
Actuary shall make an annual valuation of the assets and liabilities of
the Plans of Participation.
SECTION 7.19 CONTRIBUTIONS, BENEFITS. The Trustees shall have
all powers necessary or desirable to receive contributions and to
disburse to Participants and their beneficiaries the benefits provided
under this Agreement and Declaration of Trust and a Full Participating
Employer's Plan of Participation upon application made beneficiary
provided to the Trustees in accordance with Section 14.3. Without
limiting on behalf of a Participant or the generality of the
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foregoing, the Trustees are empowered to (a) transfer or roll-over from
the Units, of a Plan of Participation amounts held with respect to a
Participant or beneficiary under such Plan to an individual retirement
account or to another plan which is qualified under Section 401(a) of
the Code and (b) transfer or roll-over amounts held with respect to a
Participant or beneficiary under an individual retirement account to
another individual retirement account. The Trustees shall make any such
transfer or roll- over only on the direction of the Employer
Fiduciaries of such Plan which shall be deemed to incorporate the
certification of such fiduciaries that such transfer or roll-over
conforms to the provisions of the Code and such transferee account or
plan and shall have no responsibility or liability for such transfer or
roll-over or with respect to the terms and conditions of any such
transferee account or plan.
SECTION 7.20 CONTRACTS WITH INSURANCE COMPANIES. The Trustees
shall have power to make, enter into, amend, perform, enforce or
terminate, in whole or in part, suitable contracts with insurance
companies, whereby such companies will underwrite the payment of all or
part of the benefits herein provided to be paid; and to deliver to such
companies all or such part of the contributions collected from the
Participants and the Full Participating Employers as are deemed proper
by the Trustees. Any such contract may be held, for the purpose of
providing solely for the funding of benefits under such Plan or Plans
of Participation, as may be designated by the Trustees.
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ARTICLE VIII
INVESTMENT
SECTION 8.1 INVESTMENT FUNDS, FUND GUIDELINES AND
CLASSIFICATIONS.
(a) The Trustees shall divide the Units for the
purposes of investment into such number of Investment Fund, as
they may deem desirable in accordance with Section 3.1. The
Trustees shall establish such Fund Guidelines as they may deem
desirable to govern the investment policy to be followed with
respect to each Investment Fund by the Trustees or by the
Investment Manager having investment authority over such
Investment Fund. Such Fund Guidelines may establish the
investment policy and objectives of an Investment Fund in
terms of authorized types or classifications of securities or
other property, of types or styles of investment management,
or such other investment criteria or limitations as the
Trustees may determine.
(b) Without limitation of any other authority of the
Trustees under this Agreement and Declaration of Trust, the
Trustees may retain such advisors or consultants as they may
deem necessary or desirable in order to assist them in the
selection of Investment Managers, in any allocations,
classifications and establishment of guidelines contemplated
in this Section or in the review, evaluation, and monitoring
of any Investment Fund managed by the Trustees, if any.
SECTION 8.2 DISCRETION TO INVEST. The assets of each
Investment Fund shall be invested by the Trustees or by an Investment
manager designated by the Trustees to manage such Investment Fund in
accordance with Section 8.3 in the sole and absolute discretion of the
Trustees or such Investment Manager, as the case may be, in such
securities or other property as they may deem appropriate under the
requirements of ERISA for the investment of such Investment Fund,
subject, however, to such Fund Guidelines as the Trustees may establish
with respect to such Investment Fund in accordance with Section 8.1.
Subject to the provisions of the foregoing sentence, the term
"securities or other property" shall be deemed to refer to any
property, real or personal, or part interest therein, wherever situate,
including but without being limited to governmental, corporate or
personal obligations, trust and participation certificates, leaseholds,
fee titles, mortgages and other interests in realty preferred and
common stocks, shares of investment companies, certificates of deposit,
call options as provided in Section 7.4 or any other option,
partnership interests, contracts relating to the lending of property,
futures contracts including contracts for the purchase or sale of
commodities, variable amount notes, repurchase agreements, evidences of
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indebtedness or ownership in foreign corporations or indebtedness of
foreign governments or any other evidences of indebtedness or
ownership.
SECTION 8.3 MANAGEMENT AND CONTROL OF INVESTMENT FUNDS.
(a) DESIGNATION OF INVESTMENT MANAGERS. The Trustees
may designate an Investment Manager to manage and control
(including the power to acquire and dispose of) the assets of
any of the Investment Funds or may retain as Trustees the
management and control of any of the Investment Funds. To the
extent provided in Article XVII, the Trustees shall direct the
manner of allocation of assets between the Investment Funds
and may direct the transfer of assets between or among any
such Investment Funds on reasonable prior notice to any
affected Investment Manager. The Trustees shall be the named
fiduciaries of each Plan of Participation, within the
contemplation of ERISA, for the purpose of designating
Investment Managers in accordance with the provisions of this
Section.
(b) QUALIFICATION OF INVESTMENT MANAGERS. Any
Investment Manager shall be either (i) an investment adviser
registered as such under the Investment Advisers Act of 1940;
or (ii) a bank, as defined in that Act; or (iii) an insurance
company qualified to perform investment management services
under the laws of more than one state. Any Investment Manager
shall in writing certify to the Trustees that it is qualified
to act in such capacity under clause (i), (ii) or (iii) of the
preceding sentence, shall accept its appointment as such
Investment Manager, shall acknowledge that it is a fiduciary
under this Agreement and Declaration of Trust and the Plans,
shall certify the identity of the person or persons authorized
to give instructions or directions on its behalf, and shall
undertake to perform the duties imposed on it under this
Agreement and Declaration of Trust.
(c) POWERS AND RESPONSIBILITIES OF INVESTMENT
MANAGERS. The Investment Manager designated to manage any
Investment Fund shall have exclusive authority to manage,
acquire and dispose of any assets of such Fund. The Trustees
shall exercise the powers set forth in Sections 7.4, 7.5
(where such power relates to an investment subject to the
management of an Investment Manager), 7.6, 7.7, 7.8, 7.9 and
7.13 only when, if and in the manner directed in writing by
such Investment Manager.
An Investment Manager shall have the power and
authority to be exercised in its sole discretion at any time
and from time to time issue orders for the purchase or sale of
securities directly to a broker. Upon the
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directions of the Investment Manager, the Trustees shall
execute and deliver appropriate trading authorizations, but no
such authorization shall be deemed to increase the liability
or responsibility of the Trustees under this Agreement and
Declaration of Trust. The Trustees shall have authority to
establish such trading rules or guidelines applicable to the
Investment to the Investment Managers as they may deem
necessary or desirable.
(d) RESPONSIBILITIES RELATING TO INVESTMENT FUNDS
INVESTED BY INVESTMENT Managers. The Trustee shall not be
under any obligation to invest or otherwise manage any assets
of any Investment Fund subject to the management of any
Investment Manager. Unless the Trustees participate knowingly
in, or knowingly undertake to conceal, an act or omission of
an Investment Manager, knowing such act or omission to be a
breach of the fiduciary responsibility of such Investment
Manager, the Trustees shall be under no liability for any loss
of any kind which may result (i) by reason of any action taken
by them in accordance with any direction of such Investment
Manager, (ii) by reason of their failure to exercise any power
or authority because of the failure of such Investment Manager
to give directions in accordance with this Section 8.3, or
(iii) by reason of any act or omission of an Investment
Manager under the second paragraph of Section 8.3(c).
(e) DEPOSITS WITH INVESTMENT MANAGER. Any Investment
Manager which is a bank may deposit assets of which it is
given custody in a deposit or savings account with itself or
an affiliate; provided, however, that any such deposit or
account shall bear a reasonable rate of interest.
(f) INVESTMENT IN COLLECTIVE FUND OF INVESTMENT
MANAGER WHICH IS A BANK. Any Investment Manager which is a
bank may invest any assets subject to its management in any
collective investment fund maintained by it for the investment
of assets of trusts which are exempt from taxation under
Section 501(a) of the Code. To the extent of such investment,
the terms of any instrument establishing such collective
investment fund shall be a part of this Agreement and
Declaration of Trust and of the Plans maintaining an interest
in any Investment Fund invested in accordance with this
subsection (f).
(g) AUTHORIZATION OF INVESTMENT MANAGERS TO EXERCISE
SPECIFIC POWERS. Notwithstanding the foregoing provisions of
this Section 8.3, the Trustees may designate an Investment
Manager (i) to exercise (or direct the Trustees in the
exercise of) the powers set forth in Section 7.12, or (ii) to
invest assets on a short-term or temporary basis pending
permanent
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investment or distribution, with respect to any Investment
Fund or any portion thereof. In the event of a designation
under this subparagraph, the Investment Manager or Managers
designated generally to manage such Fund pursuant to Section
8.3(c) shall, subject to the requirements of ERISA, have no
responsibility or liability with respect to the authorities
vested in any Investment Manager designated under this
subsection. The provisions of Section 8.3(f) shall be
applicable to any Investment Manager designated under this
subsection (g) which is a bank.
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ARTICLE IX
OFFICERS OF THE TRUST
SECTION 9.1 CHAIRMAN AND AUTHORIZED OFFICERS. The Trustees may
elect a Chairman (who may or may not be an officer of the Trust), and
shall elect a President, one or more Vice Presidents, a Secretary, a
Treasurer and an Auditor, together with such other officers as they may
see fit and may delegate to and allocate among such officers any
specified fiduciary responsibilities. The officers of the Trust shall
report to the Trustees on a regular basis, not less often than
annually, as determined by the Trustees, on the performance of their
responsibilities in connection with the Trust. Any two or more offices
may be held by the same person except that the office of Secretary
shall not be held by the Chairman or by the President.
SECTION 9.2 POWERS OF OFFICERS. The officers of the Trust
shall have such fiduciary responsibilities as may be delegated to or
allocated among them by the Trustees under this Agreement and
Declaration of Trust and shall have all powers reasonably incidental to
the performance of such fiduciary responsibilities. Without limiting
the generality of the foregoing, the officers of the Trust so
designated (a) shall approve, on behalf of the Trustees, any Plan of
Participation or amendment thereof pursuant to Article XV, and (b) may
retain agents to perform any ministerial acts in connection with the
operation and administration of the Trust and shall provide such agents
with such framework of policies, rules, guidelines, interpretations,
practices and procedures as they may deem necessary or desirable. The
Trustees and officers of the Trust may rely upon any information, data,
computations, statistics, reports or analyses supplied by any agents so
designated.
SECTION 9.3 RETENTION OF SERVICING AGENCIES. Without
limitation of the foregoing provisions of this Article IX, the Trustees
may delegate to the Chairman and/or President of the Trust the
authority to designate and retain in his sole discretion servicing
agencies to perform such types of services as may be specified by the
Trustees, other than services relating to the selection of the
Investments of the Trust, including but not limited to, recordkeeping,
custody, transfer agent, fund distribution, accounting, administration,
banking or office services.
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ARTICLE X
ACCOUNTING
SECTION 10.1 TRUSTEES' ACCOUNTS. The Trustees shall keep full
accounts of all of their receipts and disbursements.
SECTION 10.2 AUDITS AND REPORTS OF INVESTMENT PORTFOLIOS. At
least once during each period of 12 months the Trustees shall cause an
audit to be made of the Trust by independent certified public
accountants and shall provide copies of such audits to the Trust
Participants or the Investment Fiduciary (as determined by the
Participating Employer) on an annual basis. The Trustees shall make
such reports a required by law.
SECTION 10.3 ACCOUNTS OF PARTICIPATING TRUSTS. The Trustees
shall maintain a separate account or accounts on the books of the Trust
for each Participating Trust. All transactions for such participating
Trust shall be recorded by the Trustee in such account(s). Statements
showing transactions of and the number of Units held by each
Participating Trust shall be rendered by the Trustees to the Trust
Participants or the Investment fiduciary (as determined by the
Participating Employer) thereof on a regular periodic basis as
determined by the Trustee from time to time, but not less often than
annually.
Separate accounts referred to in this Section 10.3 and the
audits referred to in Section 10.2 shall constitute the report of the
Trustees with respect to each Participating Trust. Except to the extent
otherwise required by applicable law, the Trustees shall not have any
obligation to render any other report or accounting to any person.
Unless the Trust Participant or Investment Fiduciary shall have filed
with the Trustees written acceptances or objections to any such report
within 60 days after receipt thereof, such Trust Participant or
Investment Fiduciary, as the case may be, shall be deemed to have
approved such report, and in such case or upon written approval by the
Trust Participant or Investment Fiduciary, as the case may be, of any
such report, the Trustees shall, to the maximum extent permitted by
ERISA, be forever released and discharged with respect to all matters
and things embraced in such report. To the extent permitted by ERISA,
in the event of objections to any such report, the Trustees shall apply
to a court of competent jurisdiction for the judicial settlement of the
Trustees', account, as set forth in the reports of the Trustees, and in
any such action or proceeding, it shall be necessary to join as parties
only the Trustees, Participating Employers, Trust Participants and
Investment Fiduciaries if any; and any judgment or decree which may be
entered shall be conclusive.
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ARTICLE XI
TAXES, EXPENSES AND COMPENSATION
SECTION 11.1 TAXES. The Trustees shall deduct from and charge
against the Trust any taxes paid by them which may be imposed upon the
Trust or the income thereof or which the Trustees may be required to
pay with respect to the interest of any Participating Trust, equitably
allocating the same among the various Investment Funds.
SECTION 11.2 EXPENSES AND TRUSTEES' COMPENSATION. The Trustees
may charge against the Trust the fees and expenses incurred by them in
the administration of the Trust, including without limitation, interest
expense; expenses of valuing assets; fees of any person or entity
(including the Trustees or any service corporation established pursuant
to Section 7.14) providing consultation, investment advisory or
management services to the Trust; fees and commissions of every kind;
expenses of issue, withdrawal and exchange of Units; expenses of
registration and qualification of the Trust and its Units under federal
and state laws and regulations; fees and disbursements of independent
certified public accountants and counsel; fees and expenses of
custodians, transfer agents and registrars; expenses of preparing,
printing and mailing prospectuses, reports, proxies, notices and
statements sent to Participating Trusts; expenses of meetings of Trust
Participants; insurance expenses; association membership dues and such
non-recurring items as may arise, including litigation to which the
Trust is a party and for all losses and liabilities, incurred by it in
administering the Trust; and for the payment of such fees, expenses,
disbursements, losses and liabilities, the Trustees shall have a lien
on the Trust estate prior to any rights or interests of the
Participating Trustees. Notwithstanding the preceding provisions of
this Section, the Trustees shall allocate among and charge to
Participating Employers for whom participating Trusts constituting
individual retirement accounts described in Section 2.39(c) have been
created, that portion, as determined by the Trustees in their sole
discretion, of the fees and expenses incurred in the administration of
the Trust with respect to such Participating Trusts that exceeds the
portion of such expenses attributable to such accounts that is
otherwise charged against the Trust in accordance with the preceding
provisions of this Section.
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ARTICLE XII
AMENDMENT OR TERMINATION
SECTION 12.1 AMENDMENT. This Agreement and Declaration of
Trust may be amended by the Trustees at any time or from time to time
and in any respect; provided, however, that if such amendment amends
Section 3.1. 3.2. 3.3 or 3.7, Article VI, or Section 12.2, 13.3 or
13.5, such amendment shall be submitted to a vote of the Trust
Participants and shall become effective upon approval of the Trust
Participants. No such amendment shall divert any part of the Trust Fund
that equitably belongs to any Participating Trust for purposes other
than the exclusive benefit of the Participants and beneficiaries of the
Plans funded thereunder at any time prior to the satisfaction of all
liabilities with respect to such Participants. A copy of each
amendment, approved by the Trustees, shall be mailed to each Trust
Participant as soon as practicable after approval.
SECTION 12.2 DURATION AND TERMINATION. The Trust shall
continue for such time as may be necessary to accomplish the purpose
for which it was created; provided, however, that:
(a) The Trustees, with the approval of Trust
Participants which have voting authority over at least a
majority of the outstanding Units of any class of Units, may
sell and convey the assets of such class to another trust or
corporation organized under the laws of any state of the
United States for a consideration which may include the
assumption of all or a part of the outstanding obligations,
taxes and other liabilities, accrued or contingent, of the
class and which may include shares of beneficial interest or
stock or other securities of such trust or corporation. Upon
making provision for the payment of all such liabilities, by
such assumption or otherwise, the Trustees shall distribute
the remaining proceeds ratably among the Participating Trusts
owning outstanding Units of the class.
(b) The Trustees, with the approval of Trust
Participants who are beneficiaries of Participating Trusts
which have voting authority over at least a majority of the
outstanding Units of any class of Units, may terminate such
class. Upon such approval the Trustees shall sell and convert
into money all the assets of such class. Upon making provision
for the payment of all outstanding obligations, taxes and
other liabilities, accrued or contingent, of the class, the
Trustees shall distribute the remaining assets of the class
ratably among the Participating Trusts owning outstanding
Units of the class.
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(c) Upon completion of the distribution of the
remaining proceeds or the remaining assets as provided in
subsections 12.2(a) and (b), the Trust shall terminate as to
that class and the Trustees shall, to the extent permitted
under applicable law, be discharged of any and all further
liabilities and duties hereunder and the right, title and
interest of all parties shall be cancelled and discharged.
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ARTICLE XIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 13.1 EXTENT OF TRUSTEES' RESPONSIBILITY. The Trustees
shall discharge their duties under this Agreement and Declaration of
Trust with the care, skill prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims. The Trustees shall
not be liable for any loss sustained by the Trust by reason of the
purchase, retention, sale or exchange of any investment in good faith
and in accordance with the provisions of this Agreement and Declaration
of Trust and of any applicable law. The Trustee shall have no
responsibility with respect to the terms, qualified status, operation
or administration of any Plan, except to the extent provided with
respect to Plans of Participation under Part III or Part IV.
SECTION 13.2 LIMITATION OF LIABILITY OF TRUSTEES. None of the
Trustees shall be responsible for or liable in any event for neglect or
wrongdoing of any other Trustees or of any officer, person, consultant,
servicing or other agent, or investment advisor of the Trust, but
nothing contained herein shall protect any of the Trustees against any
liability to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
SECTION 13.3 LIMITATION OF PARTICIPATING TRUSTS', TRUST
PARTICIPANTS' AND PARTICIPATING AND EMPLOYERS' LIABILITY. The Trustees
shall have no power to bind any Participating Trust, Trust Participant
or Participating Employer personally or to call upon any Participating
Trust or Trust Participant for the payment of any sum of money or
assessment whatsoever other than such as the Participating Trust, Trust
Participant or Participating Employer may at any time personally agree
to pay by way of subscription for any Units or otherwise. Every note,
bond, contract or other undertaking issued by or on behalf of the Trust
or the Trustees relating to the Trust shall include a recitation
limiting the obligation represented thereby to the Trust and its assets
(but the omission of such a recitation shall not operate to bind any
Participating Trust, Trust Participant or Participating Employer).
SECTION 13.4 INDEMNIFICATION OF TRUSTEES AND OFFICERS.
(a) The Trust shall indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding
whether civil, criminal, administration or investigative
(other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Trustee or officer of
the
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Trust or is or was serving at the request of the Trustees as a
director, officer or employee of another corporation, or as an
official of a partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best
interests of the Trust, and, with respect to any criminal
action or proceeding, and had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be
in, or not opposed to, the best interest of the Trust, and,
with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
(b) The Trust shall indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Trustee or officer of
the Trust or is or was serving at the request of the Trustees
as a director, officer or employee of another corporation, or
as an official of a partnership , joint venture , trust or
other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Trust; provided,
however, that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Trust unless and only to the
extent that an appropriate court shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
(c) To the extent that a Trustee or officer of the
Trust has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
Section 13.4(a) or (b) or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses
incurred by him in connection therewith.
(d) Except as provided in Section 13.4(c), any
indemnification under Section 13.4(a) or (b) (unless ordered
by a court) shall be made by
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the Trust only as permitted under any applicable provisions of
Title I of ERISA, and as authorized in the specific case upon
a determination that indemnification of a Trustee or officer
is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 13.4(a) or
(b). Such determination shall be made (i) by the Trustees by a
majority vote of a quorum consisting of members who were not
parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if such a quorum is
obtainable and such quorum so directs, by independent legal
counsel in a written opinion, or (iii) by the Trust
Participants.
(e) Expenses (including attorney's fees) incurred in
defending a civil or criminal action, suit or proceeding may
be paid by the Trust in advance of the final disposition of
such action, suit or proceeding as authorized by the Trustees
upon receipt of an undertaking by or on behalf of the Trustee
or officer to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Trust
as authorized in this Article; provided, however, that such an
undertaking must be secured by a surety bond or other suitable
insurance.
(f) The indemnification provided by this article
shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any rule,
agreement, vote of Trust Participants or disinterested
Trustees or otherwise, both as to action in his official
capacity and as to action in any capacity while holding such
office, and shall continue as to a person who has ceased to be
a Trustee, or officer and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(g) The Trust may purchase and maintain insurance on
behalf of any person who is or was a Trustee or officer of the
Trust or is or was a Trustee or officer of the Trust or is or
was serving at the request of the Trustees as a director,
officer or employee of another corporation, or as an official
of a partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such,
whether or not the Trust would have the power to indemnify him
against such liability under the provisions of this Article;
provided, however, that the Trust shall not purchase or
maintain any such insurance in contravention of any of any
applicable provision, however, that the Trust shall not
purchase or maintain any such insurance in contravention of
any applicable provision of Title I of ERISA.
(h) Anything to the contrary in the foregoing
subsections (a) through (g) notwithstanding, no Trustee or
officer shall be indemnified
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against any liability to the Trust or its Participating Trusts
to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, and no
Trustee or officer shall be indemnified in any other case in
which the Investment Company Act would restrict or prohibit
such indemnification.
SECTION 13.5 INDEMNIFICATION OF PARTICIPATING TRUSTS AND
PARTICIPANTS. In case any Participating Trust or Trust Participant or
former Participating Trust or Trust Participant shall be held to be
personally liable solely by reason of his being or having been a
Participating Trust or Trust Participant and not because of his acts or
omissions or for some other reason, the Participating Trust or Trust
Participant or former Participating Trust or Trust Participant (or its
successor, in the case of the Participating Trust, or his heirs,
executors, administrators or other legal representatives in the case of
the Trust Participant) shall be entitled out of the Trust estate to be
held harmless from and indemnified against all loss and expenses
arising from such liability. The Trust shall, upon request by the
Participating Trust or Trust Participant, assume the defense of any
claim made against any Participating Trust or Trust Participant for any
act or obligation of the Trust and satisfy any judgment thereon.
SECTION 13.6 CONTRACTS OF TRUSTEES. Except as otherwise
provided by ERISA and the Investment Company Act, no contract or other
transaction between the Trust and any party shall be affected or
invalidated by the fact that any one or more of the Trustees is or are
interested in, or is a trustee, director, officer or employee of such
party and any Trustee or Trustees individually or jointly may be a
party or parties to or may be interested in any contract or transaction
of the Trust or in which the Trust is interested, and no contract, act
or transaction of the Trust with any person or party shall be affected
or invalidated by the fact that any Trustee or Trustees of the Trust is
a party or are parties to or interested in such person or party and
each and every person who may become a Trustee of the Trust is hereby
relieved from any liability that might be otherwise exist from
contracting with the Trust for the benefit of himself or any party in
which he may be in any way interested.
SECTION 13.7 RELIANCE ON COMMUNICATION. The Trustees shall be
fully protected in acting upon any instrument, certificate, paper or
other communication believed by them to be genuine and to be signed or
presented by the proper person or persons, and the Trustees shall be
under no duty to make any investigation or inquiry as to any statement
contained in any such writing but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein contained.
The Trustees shall not be liable for the proper application of
any part of the Trust Fund if payments are made in accordance with the
written directions of
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the Employer Fiduciaries or on the basis of information supplied by
them as herein provided, nor shall the Trustees be responsible for the
adequacy of the Trust Fund to meet and discharge any and all payments
and liabilities under any Plan of Participation. All persons dealing
with the Trustees are released from inquiry into the decision or
authority of the Trustees and from seeing to the application of any
monies, securities or other property paid or delivered to the Trustees.
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PART III
PLANS OF PARTICIPATION
ARTICLE XIV
FULL PARTICIPATING EMPLOYERS
SECTION 14.1 REQUIREMENTS FOR PARTICIPATION-GENERALLY. An
Eligible Employer which has adopted a Plan of Participation approved by
the Trustees in accordance Article XV, and delivered Adopting
Resolutions containing the undertakings and agreements specified in
Section 14.2, may, with the consent of the Trustees, become a Full
Participating Employer.
SECTION 14.2 Adopting Resolutions. Any Eligible Employer
desiring to become a Full Participating Employer shall file with the
Trustees Adopting Resolutions, under which it shall or shall agree to:
(a) adopt this Agreement and Declaration of Trust as
a part of its Plan of Participation and designate the Trustees
to act as the Trustees thereof;
(b) comply with this Agreement and Declaration of
Trust and any amendment thereof and any and all actions
lawfully taken by the Trustees thereunder;
(c) designate named fiduciaries and plan
administrators in accordance with Sections 14.3 and 14.4 and
to maintain in office such named fiduciaries and plan
administrators, or their duly designated successors, so long
as its Plan of Participation in the Trust shall continue;
(d) make the contributions required of Full
Participating Employers;
(e) deduct from the salaries of employees who may
become Participants in is Plan of Participants, and to
transmit such contribution to the Trustees, so long as its
Plan of Participation in the Trust shall continue;
(f) elect, if applicable and if it so desires, that
its Units shall be allocated between the Investment Funds in
accordance with Section 17.3(b);
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(g) elect, if applicable and if it so desires, that,
the actuarial assumptions and/or valuation method shall be
established in accordance with Section 16.2(b);
(h) establish if applicable, any special conditions
of participation required by the Trustees in accordance with
Section 15.4.
The Trustees may modify or add to the provisions required to
be contained in the Adopting Resolutions and may waive any provisions
thereof with respect to Plans of Participation.
SECTION 14.3 NAMED FIDUCIARIES.
(a) Each Full Participating Employer shall duly
designate the following named fiduciaries who shall have the
authority to control and manage the operation and
administration of its Plan of Participation:
(i) The Trustees shall be designated as a
named fiduciary of each Plan of Participation to
perform with respect to such Plan of Participation
the functions specified in this Agreement and
Declaration of Trust; and
(ii) A person or persons other than the
Trustees shall be designated as Employer Fiduciaries
to perform with respect to such Plan of
Participation the functions specified in this
Agreement and Declaration of Trust and/or in the
Plan of Participation and Adopting resolutions.
(b) In addition to the designations required under
Section 4.3(a), a person or persons other than the Trustees
shall be designated as Investment Fiduciary to perform with
respect to a Plan of Partial Participation the functions
specified in this Agreement and Declaration of Trust and/or in
the Plan of Participation and Adopting Resolutions. In the
event the Plan of Participation established by a Full
Participating Employer is not a Plan of Partial Participation,
a person or persons other than the Trustees may be designated
as Investment Fiduciary to perform the functions specified in
this Agreement and Declaration of Trust and/or in the Plan of
Participation and Adopting Resolutions. If so specified in the
Adopting Resolutions, the Employer Fiduciaries designated in
accordance with Section 14.3(a)(ii) may be designated to act
as Investment Fiduciary. The term "Employer Fiduciaries" as
used in Section 14.3(c), (d), (e) and (f) and Article XVIII
shall include any Investment Fiduciary designated under this
subsection.
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(c) Except to the extent provided by ERISA, neither
the Trustees nor any Employer Fiduciaries shall have any
liability or responsibility for any action or omission by the
other. The designation of the Trustees as named fiduciary of a
Plan of Participation as provided in this Section 14.3 shall
neither increase nor diminish the responsibilities of the
Trustees acting in their capacity as Trustees of the Trust and
of each Full Participating Trust in accordance with the
provisions of this Agreement and Declaration of Trust.
(d) Each Participating Employer shall certify to the
Trustees the identity of its Employer Fiduciaries, and the
Trustees shall be fully protected in acting in reliance upon
any such certification and in continuing to act in reliance
thereon until it shall have received a subsequent
certification. The Employer Fiduciaries shall acknowledge to
the Trustees in writing their acceptance of designation as
such fiduciaries, and the Trustees shall be fully protected in
relying and in continuing to rely on such acknowledgments
until they shall receive written notification that any
Employer Fiduciary has ceased to act as such.
(e) Any Employer Fiduciary may, without increase or
decrease of liability, be constituted and act with respect to
any Plan of Participation as and under the name of a board,
committee or other body. Any reference to Employer
Fiduciaries, their identities, their term of office,
procedures and other rules relating to their incumbency shall
be established by the Participating Employer and incorporated
in its Adopting Resolutions and/or Plan of Participation, and
the Trustees shall have no liability or responsibility
therefor. The Participating Employer and its Employer
Fiduciaries shall agree with the Trustees upon the manner in
which any actions of such Employer Fiduciaries, acting
individually or as a committee or other body, shall be
evidenced and the Trustees and all other persons may rely upon
any instrument or document executed in a manner provided in
such agreement.
(f) The Employer Fiduciaries shall have the
responsibilities and powers not inconsistent with this
Agreement and Declaration of Trust specified in the Adopting
Resolutions and/or Plan of Participation of the Full
Participating Employer which has designated them. In addition
to any other responsibilities so specified, the Employer
Fiduciaries shall be responsible for providing the Trustees
with information reasonably required by them in order to
determine the benefits of each Participant in the Full
Participating Employer's Plan of Participation or such
Participant's beneficiary and the amount required to be
contributed by the Participating employer, including, without
limitation, information relating to age, dates of employment,
compensation as the same may be changed
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from time to time, leave of absence or military absence
status, Social Security status, termination of employment, and
the amount of and any investment designations applicable under
the Plan of Participation with respect to contributions of the
Participating Employer or Participants or such Participants'
beneficiaries. The Trustees may require any additional
information as they may deem necessary or desirable. On the
basis of such information, the Trustees shall determine the
amount of benefits to which a Participant or such
Participant's beneficiary is entitled under the Plan of
Participation and shall provide the Employer Fiduciaries with
appropriate application or election forms required in order to
effectuate such benefits. The Employer Fiduciaries shall be
responsible for providing Participants or such Participants'
beneficiaries, on a timely basis, with any information or
forms provided to them by the Trustees.
(g) Any Plan of Participation (i) adopted by a Full
Participating Employer on or after August 31, 1984 or (ii)
amended and restated on or after October 1, 1989, shall
contain a claims procedure as contemplated by ERISA, which
shall, without limitation, provide for the hearing of claims
appeals by those Employer Fiduciaries who did not render an
initial decision with respect to such claim.
SECTION 14.4 ADMINISTRATION. Each Full Participating Employer
shall designate Administrators to act on behalf of the Plan of
Participation of such Full Participating Employer. Such Administrators
shall be responsible for complying with the provisions of ERISA
pertaining to such office. The duties of the Administrators shall be
allocated between the Trustee Administrator and the Plan Administrator
as provided in this Section 14.4. The Trustees shall be designated as
the Trustee Administrator. Such Trustee Administrator shall have the
power and responsibilities to: (a) designate the Enrolled Actuary with
respect to such Plan of Participation, (b) remit premiums for plan
termination insurance and (c) file all reports required by the
Department of Labor, the Internal Revenue Service or the Pension
Benefit Guaranty Corporation which pertain to such Participating
Employer's Plan of Participation or supply the Plan Administrator with
such reports with instructions for filing the same.
Each Full Participating Employer shall designate a person or
persons other than the Trustees as Plan Administrator. Such Plan
Administrator shall have the power and responsibility to: (i) furnish
summary plan descriptions, annual reports and other notifications and
disclosure statements to Participants and beneficiaries, (ii) maintain
records and addresses of Participants and beneficiaries, (iii)
designate any independent qualified accountant required to act with
respect to such Plan of Participation under ERISA, (iv) provide
notification of determinations under the claim procedure of such Plan
of Participation and (v) receive service of process on the Plan of
Participation. The Plan Administrator
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shall also have the power and responsibility to fulfill those duties
allocated to the Plan Administrator under Article XXIV with regard to
any Company Securities held by the Trustees/Custodian on behalf of the
Plan of Participation. The Trustees shall, at the request of the Plan
Administrator, provide any information available to them which such
Plan Administrator requires to comply with ERISA, and may agree to
prepare any reports, forms, descriptions, summaries or other documents
for the use of the Plan Administrator.
Notwithstanding the foregoing, any, Full Participating
Employer, may provide for such other allocation of the powers and
duties of the Administrator between the Trustee Administrator and the
Plan Administrator designated by it and may provide for additional
powers and duties of the Trustee Administrator or the Plan
Administrator as may be acceptable to the Trustees and specified in the
Adopting Resolutions of such Full Participating Employer. Except to the
extent provided by ERISA, neither the Trustee Administrator nor any
Plan Administrator shall have any liability or responsibility for any
action or omission by the other. The Plan Administrator or the Trustee
Administrator may execute any documents or certificates as the
Administrator of a Plan of Participation, and any party dealing with
such Plan of Participation may rely on such execution as the act of the
Administrator thereof.
SECTION 14.5 PARTICIPATION BY SUBSIDIARIES OR AFFILIATES OF
PARTICIPATING EMPLOYERS. Any Eligible Employer which is a subsidiary or
affiliate of a Full Participating Employer may, with the consent of the
Trustees and of such Full Participating Employer, by resolution adopted
by its governing body ("Affiliate Adopting Resolutions"), adopt the
Trust and the Plan of Participation of such Participating Employer in
accordance with the provisions of this Section 14.5 and upon such terms
and conditions as may be specified in such Plan of Participation. The
Plan established by a Participation Affiliate through its adoption of a
Plan of Participation as provided in this Section 14.5 is hereinafter
referred to as an "Affiliated Plan of Participation". Any eligible
organization desiring to become a Participating Affiliate shall file
with the Trustees Affiliate Adopting Resolutions which meet the
requirements set forth on Section 14.2, as applied and modified by the
Trustees mutatis mutandis with respect to such Participating Affiliate;
provided, however, that (a) no such Participating Affiliate shall be
treated as a Full Participating Employer hereunder, (b) Sections
14.2(e) and (f) shall be inapplicable with respect to such
Participating Affiliate, (c) the Participating Affiliate shall accept
and designate as the named fiduciaries and plan administrators with
respect to its Affiliated Plan of Participation, the named fiduciaries
and Plan Administrator designated by the Full Participating Employer
which had established the Plan of Participation, and (d) the
Participating Affiliate shall designate the Full Participating Employer
to exercise on its behalf with respect to a Plan of Participation. The
named fiduciaries and plan administrators so designated shall act with
respect to the Affiliated Plan of Participation with the same powers
and responsibilities as apply with respect to the Plan of
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Participation. All reference in this Agreement and Declaration of Trust
to employees of the Full Participating Employer shall be deemed to
include the employees of each Participating Affiliate. The benefits of
an Affiliated Plan of Participation shall be funded under and as a part
of the Plan Interest in the Trust of the Plan of Participation adopted
under this Section 14.5.
Any Participating Affiliate may at any time segregate from
future participation in the Plan Interest of the Plan of Participation
which it has adopted. Such Participating Affiliate shall file with the
Trustees Affiliate Adopting Resolutions evidencing its segregation from
the Units of the adopted Plan of Participation and its continuance of a
trust in accordance with the provisions of this Agreement and
Declaration of Trust as though such Participating Affiliate were the
sole creator thereof. In such event, the Trustees shall deliver to
themselves as Trustees of such Trust such part of the Plan Interest and
Expense Accounts as may be determined by them in accordance with the
advice of the Enrolled Actuary, to constitute the appropriate share of
the Units and Expense Accounts then held with respect to the Affiliated
Plan of Participation. Such Participating Affiliate shall thereafter
become a Full Participating Employer and the Affiliated Plan of
Participation shall become a Plan of Participation hereunder. In lieu
of the establishment of a separate Plan of Participation as provided in
the preceding sentence, the Participating Affiliate may elect to
continue through another funding agency a plan qualified under Section
401(a) of the Code for the benefit of its employees in accordance with
the provisions of Section 22.3 of this Agreement and Declaration of
Trust.
A Participating Affiliate may segregate from future
participation, in the manner provided in the preceding paragraph of
this Section 14.6 as applied and modified by the Trustees mutatis
mutandis with respect to such Participating Affiliate, for the purpose
of terminating the Affiliated Plan of Participation. In such event, the
segregation of the share of the Plan Interest and Expense Accounts of
the Plan of Participation attributable to such Affiliated Plan of
Participation shall be effected as provided in this Section 14.6
whereupon the Affiliated Plan of Participation shall terminate and the
assets thereof shall be allocated and applied in the manner provided in
such Affiliated Plan of Participation and this Agreement and
Declaration of Trust as if such Affiliated Plan of Participation were a
Plan of Participation.
In the event that a Participating Affiliate is merged with the
Full Participating Employer, is dissolved, or its employees are
transferred to the employment of the Full Participating Employer, the
Affiliated Plan of Participation shall replaced and superseded by the
Plan of Participation of the Full Participating Employer upon such
terms and conditions as may be established by the Trustees consistent
with the Affiliated Plan of Participation, Plan of Participation, and
this Agreement and Declaration of Trust.
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ARTICLE XV
PLANS OF PARTICIPATION OF FULL PARTICIPATING EMPLOYERS
SECTION 15.1 ESTABLISHMENT. Each Full Participating Employer
shall establish a Plan of Participation complying with ERISA which
shall set forth, among other things, the conditions of eligibility for
participation and vesting and the level of benefits payable to or on
behalf of Participants and the manner of payment thereof. The terms and
provisions of any Plan of Participation shall be established solely in
the discretion of the Full Participating Employer; provided, however,
that a plan shall be permitted to become a Plan of Participation only
with the approval of the Trustees acting by the officers of the Trust
in accordance with Section 9.2, but such approval shall not constitute
a determination by the Trustees of the legality, legal effect or the
appropriateness of a Plan of Participation or any Plan of Participation
to comply with any state or federal law or regulation relating to such
Plan, to the Participants and beneficiaries thereunder, or to the Full
Participating Employer and the Trustees shall have no duty of review or
inquiry with respect to such compliance. This Agreement and Declaration
of Trust shall be a part of any such Plan of Participation which shall
be in all respects subject to the terms and provisions hereof.
SECTION 15.2 BENEFITS. The benefits of each Plan of
Participation shall be provided solely from the Plan Interest of such
Plan of Participation (and any Separate Assets in the case of a Plan of
Partial Participation) to the extent of the sufficiency thereof, and
the Participants and beneficiaries shall look only to such Plan
Interest (and any Separate Assets in the case of a Plan of Partial
Participation) for the provision of their benefits. Neither the Trust
nor the Trustees shall be responsible for the sufficiency of any Plan
Interest (and any Separate Assets in the case of a Plan of Partial
Participation) to provide the benefits of the Plan of Participation
funded thereby.
SECTION 15.3 AMENDMENT. Each Full Participating Employer shall
retain the right to amend its Plan of Participation; provided, however,
that the Plan of Participation as amended complies with the Code and;
provided, further, that any such amendment shall be subject to the
approval of the Trustees, acting as provided in Section 15.1, which
shall have the same effect as set forth in Section 15.1 with respect to
the Plan of Participation.
SECTION 15.4 ASSUMPTION OF OTHER PLANS. Any corporation or
organization which is an Eligible Employer, and, at the time it files
Adopting Resolutions in accordance with Section 14.2, is maintaining a
separate plan qualified under Section 401(a) of the Code which at such
time is not a Plan of
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Participation, may with the approval of the Trustees, and after
appropriate amendment to such existing plan, become a Full
Participating Employer upon the conditions included in this Agreement
and Declaration of Trust with such modifications therein applicable to
the Plan of Participation of such Full Participating employer. Any
assets acceptable to the Trustees constituting the reserves or any
portion thereof held with respect to any such existing plan may be
transferred to the Trustees upon such terms and conditions as shall be
determined by the Trustees, and such assets so transferred shall be
converted to Units and held and administered hereunder in the
appropriate Investment Funds maintained pursuant to this Agreement and
Declaration of Trust.
SECTION 15.5 Termination. A Full Participating Employer may
terminate its Plan of Participation subject to the provisions of
Article XXII.
SECTION 15.6 CERTAIN PLANS OF PARTICIPATION. The term "Plan of
Participation" as used herein shall mean (a) the Plan established under
Section 15.1, and (b) the Plan established by a Participating Employer
which is effectuated under the Trust in accordance with Section 15.4,
the terms of which Plan shall be as set forth in the Plan as amended
from time to time.
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ARTICLE XVI
CONTRIBUTIONS, ACTUARIAL ASSUMPTIONS
SECTION 16.1 CONTRIBUTIONS. The Trustees shall, on the basis
of the advice of the Enrolled Actuary and on the basis of information
supplied by the Employer Fiduciaries, establish the amount of
contributions required by ERISA to be made under each Plan of
Participation. In addition to those contributions required by ERISA to
fund benefits for each Plan of Participation, the Trustees shall
require contributions to cover the expense of administering the Plan of
Participation of a Participating Employer in accordance with Section
20.1. A Plan of Participation may provide that any specified portion of
the contributions required under it shall be made by Participants and
may provide for voluntary contributions by Participants. Each
Participating Employer shall determine the time and manner in which the
contributions required with respect to its Plan of Participation shall
be made; provided, however, that all such contributions shall be made
in accordance with the provisions of ERISA. Notwithstanding the
foregoing, the Trustees shall have no duty or responsibility to enforce
the collection of any contribution required to be made by a
Participating Employer or required or permitted to be made by any
Participant under a Plan of Participation.
SECTION 16.2 ACTUARIAL ASSUMPTIONS.
(a) Based on the advice of the Enrolled Actuary and
subject to the provisions of Section 16.2 (b), the Trustees
shall establish the actuarial assumptions and/or valuation
method to be used in determining the reserves required to fund
the plan benefits of the Plans of Participation and the
contributions of the Participating Employers. In connection
with the establishment of these assumptions, the Trustees may
establish categories or guidelines pertaining to such
assumptions, taking into account such characteristics of the
Plans of Participation, Participating Employers or
Participants or such factors as they may deem relevant. At the
request of a Participating Employer, the Trustees may, in
their discretion with the concurrence of the Enrolled Actuary,
establish individual guidelines applicable to such
Participating Employer's Plan of Participation.
(b) A Participating Employer may elect under its
Adopting Resolutions to authorize the Employer Fiduciaries
designated by it, or certain of such Employer Fiduciaries, to
select, within such guidelines as may be established by the
Trustees as applicable to this subsection (b), the actuarial
assumptions and/or valuation method to be used in determining
the reserves required to fund the Plan benefits of its Plan of
Participation and the contributions by the Participating
Employer.
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In the event of an election by a
Participating Employer under this subsection (b), the Employer
Fiduciaries so authorized by it shall have sole and absolute
discretion, authority and responsibility for the selection of
the above mentioned actuarial assumptions and /or valuation
method, subject to such rules or guidelines as may be
established by the Trustees as provided in this subsection
(b), and further subject to the approval of the Enrolled
Actuary.
(c) The election described under Section 16.2(b)
shall be extended with respect to the Participating Employers
only at such time or times and in such manner as the Trustees,
or the Chairman or the President of the Trust acting pursuant
to authorization by the Trustees, may determine.
Notwithstanding anything herein to the contrary, the Trustees
may establish such rules and guidelines with respect to any
such authorizing election by a Participating Employer or any
modification or termination thereof or with respect to the
exercise of such authority by the Employer Fiduciaries as they
may deem desirable.
A Participating Employer which has
authorized its Employer Fiduciaries, or any of them, to direct
the selection of the actuarial assumptions and/or valuation
method of a Plan of Participation pursuant to Section 16.2(b)
may terminate such authority by resolutions filed with the
Trustees, not less than 30 days prior to the date of the
annual actuarial valuation of the Plan, and in such event the
Trustees shall, upon such termination, assume sole authority
and responsibility for the selection of the actuarial
assumptions and/or valuation methods in accordance with
Section 16.2(a) effective for the next following Plan Year.
(d) Notwithstanding the foregoing provisions of this
Section 16.2, the selection of the actuarial assumptions
and/or valuation method by the Employer Fiduciaries shall be
made solely in terms of any guidelines established by the
Trustees, and nothing in this Agreement and Declaration of
Trust shall be deemed to give the Employer Fiduciaries any
authority or responsibility to elect the actuarial assumptions
and/or valuation method other than specified in such
guidelines.
(e) To the extent permitted by ERISA, the Trustees
shall have no liability or responsibility with respect to any
act or omission relating to any powers or duties vested in the
Participating Employer or Employer Fiduciaries under this
subsection.
SECTION 16.3 ACTUARIAL RECORDS. The Trustees, in accordance
with the advice of the Enrolled Actuary, shall maintain such actuarial
records with respect to each Plan of Participation as shall enable them
to determine the contributions required to be made thereunder pursuant
to Section 16.1.
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ARTICLE XVII
INVESTMENT OF UNITS HELD BY
PLANS OF PARTICIPATION
SECTION 17.1 UNITS HELD BY PLANS OF PARTICIPATION. The Units
held by a Full Participating Trust maintained under a Plan of
Participation shall be issued to the Trustees, acting as Trustees of
such Full Participating Trust, in accordance with the provisions of
Article III. The Trustees, acting as Trustees of such Full
Participating Trust, shall acquire, exchange, and dispose of Units as
provided in this Agreement and Declaration of Trust.
SECTION 17.2 CLASSIFICATION OF INVESTMENT FUNDS. The Trustees
shall classify the Investment Funds either as intended to be primarily
invested in securities or other property providing a fixed return, or
as intended to be invested primarily in equity securities, and shall
establish from time to time the proportion of the total assets under
each such Investment Classification which is to be held under each of
the Investment Funds falling within each such Investment
Classification. The Trustees may, without amendment to this Agreement
and Declaration of Trust and under such rules as they may establish,
modify the foregoing Investment Classifications or establish such
additional Investment Classifications as they may deem necessary or
advisable.
SECTION 17.3 ALLOCATION BETWEEN INVESTMENT FUNDS.
(a) The Units of each Plan of Participation shall be
acquired by the Trustees from the classes of Units established
by them pursuant to Article III and may be converted from time
to time into other classes of Unit, in such proportions as the
Trustees shall determine in their sole discretion; provided,
however, that any such allocation of Units shall be consistent
with the funding policy established with respect to such Plan
of Participation pursuant to Section 17.4(a). In connection
with the allocation of Units under this subsection (a), the
Trustees may establish categories or guidelines pertaining to
such allocation taking into account such characteristics of
the Plans of Participation or such others factors as they may
deem relevant.
No Employer Fiduciaries shall have any
liability or responsibility with respect to (i) the manner of
investment of the assets held in the Investment Funds or, (ii)
except as provided in Section 17.3(b),
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the manner in which the Units of the Plan of Participation of
which they act as Employer Fiduciaries is allocated between
classes of Units.
(b) A Full Participating Employer may elect under its
Adopting Resolutions to authorize Employer Fiduciaries to
direct the manner in which the Units of the Plan of
Participation of such Participating Employer shall be
allocated
(i) between Units of Investments Funds
invested in the types of property described in the
Investment Classifications, and/or
(ii) among Units of any of the Investment
Funds.
Subject to such rules or guidelines as may
be established by the Trustees as provided in the event of an
election by a Full Participating Employer under this
subsection (b), in the event of an election by a Full
Participating Employer under this subsection (b), the Employer
Fiduciaries so authorized by its shall have sole and absolute
discretion, authority and responsibility for the allocation of
the Plan Interest under clause (i) or (ii), as the case may
be.
The authorization described under clause
(ii) above shall be extended with respect to the Full
Participating Employers only at such time or times and in such
manner as the Trustees, or the Chairman or the President of
the Trust acting pursuant to authorization by the Trustees,
may determine. Notwithstanding the foregoing provisions of
this subsection (b), the Trustees may establish such rules or
guidelines with respect to any such authorizing election by a
Full Participating Employer or any modification or termination
thereof or with respect to the exercise of such authority by
the Employer Fiduciaries as they may deem necessary or
desirable. Such rules or guidelines may, without limitations,
require that a specified portion of a Plan Interest shall be
allocated to Units of Investment Funds invested in the type of
property described in an Investment Classification or may
establish any maximum or minimum proportion of Units to be
invested in any or all of the Investment Funds.
The Employer Fiduciaries shall exercise
their authority under this subsection (b) in a manner
consistent with the funding policy established with respect to
such Plan of Participation pursuant to Section 17.4(b). A Full
Participating Employer which has authorized Employer
Fiduciaries, or any of them, to direct the allocation of the
Plan Interest of a Plan of Participation pursuant to this
subsection (b) may terminate such authority by resolutions
filed with the Trustees, effective not less than 30
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days following the filing of such resolutions, and in such
event the Trustees shall, upon the effectiveness of such
termination, thereafter assume sole authority and
responsibility for the allocation with Section 17.3(a).
Notwithstanding the foregoing provisions of this subsection
(b), the allocation of Units among Investment Funds by the
Fiduciaries shall be made solely in terms of the Fund
Guidelines, and nothing herein shall be deemed to give the
Employer Fiduciaries any authority or responsibility with
respect to the identity of the person or persons designated by
the Trustees to manage any Investment Fund, and no change of
Investment Managers or assumption or relinquishment of
investment authority by the Trustees in accordance with
Section 8.3(a) shall affect any allocation made pursuant to
this subsection (b).
To the extent permitted by ERISA, the
Trustees shall have no liability or responsibility with
respect to any act or omission relating to any powers or
duties of a Full Participating Employer or Employer
Fiduciaries under this subsection (b).
(c) Nothing contained in this Section 17.3 shall be
deemed to require the segregation or separate investment of
any assets of a Plan of Participation except to the extent of
the allocation of the Units thereof among the Investment Funds
as authorized in this Agreement and Declaration of Trust.
(d) Notwithstanding the foregoing provisions of this
Section 17.3, a Full Participating Employer which has not
elected to direct the allocation of Units in the manner
provided under Section 17.3(b) (ii) may elect under its
Adopting Resolutions a dedication program with respect to the
benefits payable to or with respect to terminated, deceased or
retired Participants or beneficiaries under the Plan of
Participation of such Full Participating Employer. In order to
effectuate such program, such Full Participating Employer
shall direct the investment of any of the assets of its Plan
of Participation in Units of any Investment Fund or Funds
classified by the Trustees as appropriate for such dedication.
In such event, the Trustees shall retain full allocation
authority as provided in Section 17.3(a), except with respect
to amounts invested in such Units pursuant to such direction;
provided, however, that the number of Units so directed shall
be subject to adjustment at the discretion of the Trustees who
may apply other assets of the Plan of Participation to the
purchase of additional such Units to the extent they may deem
appropriate in order to optimize or maintain the dedication so
directed. The funding policy of such Plan of Participation
shall be established in accordance with Section 17.4(a).
Elections under this subsection (d), the manner of allocation
of Units as to which the Trustees retain discretion, and the
manner of
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optimization of any dedicated assets shall be subject to the
approval of the Trustees and to such guidelines or rules as
the Trustees may establish. To the extent permitted by ERISA,
the Trustees shall have no liability or responsibility with
respect to any act or omission relating to any powers or
duties of a Full Participating Employer or Employer
Fiduciaries under this subsection (d).
SECTION 17.4 FUNDING POLICY.
(a) The Trustees shall, pursuant to the procedure set
forth in this subsection, establish a funding policy for each
Plan of Participation the Plan Interest of which is invested
in accordance with the provisions of Section 17.3(a). The
Trustees shall determine the short-term and long-term
financial needs of such Plan of Participation, giving regard
to the objectives of such Plan, its need for liquidity and
such other factors as they deem appropriate and on the basis
of such factor shall establish a funding policy. The Trustees
shall review the funding policy and all or any portions of the
information on which it is based not less often than annually.
The Trustees shall effectuate their responsibility for such
funding policy by their direction of the portion of the Units
of such Plan of Participation which shall be invested in each
Investment Fund in accordance with the provisions of Section
17.3(b). The Employer Fiduciaries shall provide the Trustees
with any information which the Trustees may reasonably require
in order to establish such funding policy.
(b) The Employer Fiduciaries and the Trustees shall,
pursuant to the procedure set forth in this subsection (b),
establish a funding policy for each Plan of Participation, the
Units for which are invested in accordance with the provisions
of Section 17.3(b). The Employer Fiduciaries and the Trustees
shall determine the short-term and long-term financial needs
of the Plan of Participation, giving regard to the objectives
of such Plan, its need for liquidity and such other factors as
they deem appropriate and on the basis of such factors shall
establish a funding policy. The Employer Fiduciaries of each
such Full Participating Employer shall effectuate their
responsibility for such funding policy by their direction of
the portion of the Plan Interest of such Plan of Participation
which shall be invested in each Investment Fund in accordance
with the provisions of Section 17.3(b). The Employer
Fiduciaries of such Participating Employer and the Trustees
shall review the funding policy and all or any portion of the
information on which it is based not less often than annually.
(c) The Trustees shall be responsible for the manner
in which the Trust Fund, considered collectively, shall be
diversified and shall
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specify such rules or guidelines for the manner of investment
of each Investment Fund subject to the management of an
Investment Manager as the Trustees may deem necessary or
desirable in order to meet the diversification requirements of
ERISA applicable to the Plans of Participation, as the same
effect the management of such Investment Fund.
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ARTICLE XVIII
PARTIAL PARTICIPATION
18. PARTIAL PARTICIPATION.
Notwithstanding anything to the contrary contained in this
Agreement and Declaration of Trust, subject to the approval of the
Trustees, an Eligible Employer (a) adopting a Plan of Participation,
the benefits of which are funded through one or more funding agencies
in addition to the Trust (sometimes referred to in this Agreement and
Declaration of Trust as a "Plan of Participation") or (b) modifying a
Plan of Participation to provide for funding of benefits through such
funding agencies, may elect to participate or continue participation in
the Trust upon the basis provided in this Article.
An Eligible Employer which has elected participation under
this Article shall be a Full Participating Employer and its Plan of
Partial Participation shall be a Plan of Participation subject to the
provisions of this Agreement and Declaration of Trust in all respects,
except that:
(i) The term "Plan Interest" shall mean with respect
to a Plan of Partial Participation, the Units held by the
Trustees with respect to such Plan and any Company Securities
and other assets held by a Trustee/Custodian pursuant to a
Trust/Custodial Agreement as provided in Article XXIV. Plan
Interest shall not include any assets or interests in any
assets which are not held and administered by (A) the Trustees
under this Agreement and Declaration of Trust or (B) the
Trustee/Custodian (sometimes referred to in this Article as
"Separate Assets").
(ii) Notwithstanding the provisions of Section
17.4(a), in the event that the Units of any Plan of Partial
Participation is invested in accordance with the provisions of
Section 17.3 (a), the funding policy of such Plan of Partial
Participation shall be established, by the Employer
Fiduciaries of such Plan of Participation, taking into account
the manner of investment of any portion of the assets of such
Plan of Partial Participation which are not included in its
Plan Interest.
(iii) The Employer Fiduciaries of a Plan of Partial
Participation shall be solely responsible for the manner in
which the Plan assets of such Plan shall be diversified, and a
Participating Employer establishing a Plan of Partial
participation shall elect to direct the manner in which the
Units of such Plan of Partial Participation shall be allocated
among Investment Funds as provided in Section 17.3(b);
provided, however, that the
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responsibility of the Trustees for the diversification of
assets within the Investment Funds to the extent provided in
this Agreement and Declaration of Trust shall be unaffected by
the provisions of this paragraph (iii). Upon approval of the
Trustees, the Employer Fiduciaries of a Plan of Partial
Participation may elect another manner of allocation other
than as provided in the preceding sentence provided; however,
that the Employer Fiduciaries shall provide such information
to the Trustees as the Trustees may deem necessary or
advisable with respect to any and all information concerning
the diversification of the Plan assets.
(iv) The Trustees shall, at the direction of the
Employer Fiduciaries of a Plan of Participation, receive from
any funding agency holding Separate Assets of such Plan any
assets acceptable to the Trustees or, on such direction, shall
transfer cash or assets determined by the Trustees to any
other funding agency of such Plan of Partial Participation.
The Trustees shall have no duty of inquiry with respect to any
such transfer but may accept the direction of such Employer
Fiduciaries as a certification that any such transfer complies
with (A) the Plan of Partial Participation, (B) the provisions
of all applicable agreements with such funding agency, and (C)
the requirements of the Code and applicable laws. Nothing
herein shall prohibit the payment of contributions by a
Participating Employer or any Participants to such other
funding agency; provided, however, that the Trustees shall
have no liability or responsibility with respect thereto.
(v) To the extent that the Trustees shall have any
responsibility under this Agreement and Declaration of Trust
which relates to the amount, kind, or value of the Separate
Assets of a Plan of Partial Participation including, without
limitation, any such responsibility with respect to the
determination of the amount of contributions or to reporting
and disclosure, the Trustees shall be entitled to rely
conclusively upon the certification of the Employer
Fiduciaries of such Plan of Participation with respect
thereto.
(vi) A Participating Employer which has established a
Plan of Partial Participation and the Employer Fiduciaries of
such Plan shall enter into such agreements as may be required
by the Trustees in order to provide for the payment of
benefits from or receipt of contributions to the Plan of
Partial Participation or such other matters relating to the
manner of administration thereof as the Trustees may deem
necessary or desirable.
(vii) The Trustees may treat a transfer of all or
substantially all of the Plan Interest of a Plan of Partial
Participation to any funding agency as a withdrawal from the
Trust under Article XXII.
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(viii) The investment authority and responsibility of
the Trustees with respect to a Plan of Partial Participation
shall extend only to the Units of such Plan, and to the extent
permitted by ERISA, the Trustees shall have no liability or
responsibility whatsoever with respect to any Separate Assets
of such Plan, including, without limitation, any duty to
review or make suggestions with respect thereto.
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ARTICLE XIX
DEFINED CONTRIBUTION PLANS
SECTION 19.1 SCOPE OF ARTICLE. Except to the extent and as
provided in this Article, the provisions of this Agreement and
Declaration of Trust otherwise applicable to Plans of Participation
shall apply to each DC Plan of Participation. Without limitation of any
other powers vested in them under this Agreement and Declaration of
Trust, the Trustees shall have authority to adopt rules and regulations
of uniform application in order to provide for the administration of DC
Plans of Participation and for the application of the provisions of
this Agreement and Declaration of Trust with respect to DC Plans of
Participation, mutatis mutandis, in order to effectuate the intent of
this Article.
SECTION 19.2 REQUIREMENTS FOR PARTICIPATION OF DC PLANS OF
PARTICIPATION. An Eligible Employer may become a Participating Employer
with respect to a DC Plan of Participation in the manner provided for
the adoption of a Plan of Participation under Article XIV; provided,
however, that Sections 14.2(f), (g) shall be inapplicable. The Adopting
Resolutions of the Full Participating Employer establishing a DC Plan
of Participation may, in lieu of the election set forth in Section
14.2(f), provide, if so permitted by the Trustees, for the exercise of
the discretion authorized under Section 19.4(d) or (e).
SECTION 19.3 CONTRIBUTIONS. The provisions of Article XVI
shall be inapplicable to DC Plans of Participation. The contributions
required or permitted to be made by or on behalf of a Participating
Employer or any Participants under a DC Plan of Participation shall be
as provided in such Plan.
SECTION 19.4 INVESTMENT.
(a) The assets of each DC Plan of Participation shall
be invested in accordance with the provisions of this Section
19.4 and the provisions of Article III; provided, however,
that Section 17.3 shall be applicable with respect to such
investment.
(b) The Trustees shall establish such DC Investment
Classifications under such Investment Classifications as they
may deem desirable in order to provide for the investment of
the contributions of Full Participating Employers and
Participants under DC Plans of Participation.
Except as otherwise provided under Section
19.4(d), the Trustees shall establish from time to time the
proportion of the total assets under each DC Investment
Classification which is to be invested in each
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of the Investment Funds falling within the Investment
Classification established for such DC Investment
Classification. The Trustees shall exercise their authority
under this subsection (b) in a manner consistent with the
funding policy which shall be established with respect to the
DC Plans of Participation in the manner provided under Section
17.4(a)
(c) Without limitation of the foregoing provisions of
this Section 19.4, the Trustees may establish a DC Investment
Classification or Classifications, sometimes referred to
herein as "Special DC Investment Classification", for the
investment of the assets of any individual DC Plan of
Participation which has requested such establishment under
Section 19.4(d)(ii). Such Special DC Investment Classification
shall be invested in securities or other property with such
Investment Classifications and the assets thereof shall be
invested under such Investment Funds as may be established in
accordance with the provisions of Section 19.4(d)(ii). Nothing
herein shall prohibit the investment of the assets of ore than
one DC Plan of Participation in a Special DC Investment
Classification.
(d)(i) A Full Participating Employer shall elect
under its Adopting Resolutions, or shall authorize its
Employer Fiduciaries or certain of such Employer Fiduciaries
to elect, the DC Investment Classifications established by the
Trustees under Section 19.4(b) in which the assets of its DC
Plan of Participation shall be invested. The Trustees may
establish guidelines with respect to such elections,
including, without limitation, requirements for the election
of a minimum number of DC Investment Classification which
shall be offered by a DC Plan of Participation.
(ii) Without limitation of its election
under Section 19.4(d) (i), a Full Participating Employer may
request under its Adopting Resolutions, or may authorize its
Employer Fiduciaries or certain of such Employer Fiduciaries
to request, that the Trustees establish in accordance with
Section 19.4(c) a Special DC Investment Classification or
Classifications in addition to or in lieu of the DC Investment
Classification established by the Trustees under Section
19.4(b). Any such request shall specify the proportion of the
total assets under each Special DC Investment Classification
which is to be invested in each of the Investment Funds
falling within such classification. In the event of such a
request by a Full Participating Employer, Full Participating
Employer or the Employer Fiduciaries so authorized by it shall
have sole and absolute discretion, authority and
responsibility, subject to such rules or guidelines as may be
established by the Trustees, as provided in this subsection
(d), for the specifications referred to in this subsection
(d).
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The request described in this
subsection (d) shall be granted with respect to the Full
Participating Employers or any of them only at such time or
times and in such manner as the Trustees, or the Chairman or
the President of the Trust acting pursuant to authorization by
the Trustees, may determine. Notwithstanding the foregoing
provisions of this subsection (d), the Trustees may establish
such rules and limitations with respect to any such
specifications or any modification or termination thereof or
with respect to the exercise of such authority by the Full
Participating Employer or the Employer Fiduciaries as they may
deem necessary or desirable. Such rules may, without
limitation, require that a specified portion of a Plan
Interest shall be allocated to the type of assets described in
an Investment Classification or may establish any maximum or
minimum required participation of such Special DC Investment
Classification in any all of the Investment Funds.
The Employer Fiduciaries shall
exercise their authority under this subsection (d) in a manner
consistent with the funding policy which shall be established
with respect to such DC Plan of Participation in the same
manner as provided under Section 17.4(b).
(e) A Full Participating Employer which has
authorized Employer Fiduciaries, or any of them, to establish
the allocation of the Plan Interest of a DC Plan of
Participation pursuant to Section 19.4(d) may terminate such
authority by Adopting Resolutions filed with the Trustees,
effective not less than 30 business days following the filing
of such resolutions, and in such event the Trustees shall,
upon the effectiveness of such termination, thereafter assume
sole authority and responsibility for the allocation of such
Plan Interest in accordance with Section 19.4(c).
Notwithstanding the foregoing provisions of Sections 19.4(d)
and (e), the allocation of a Plan Interest among Investment
Funds by the Employer Fiduciaries shall be made solely in
terms of the Fund Guidelines; and nothing herein shall be
deemed to give the Participating Employer or Employer
Fiduciaries any authority or responsibility with respect to
the identity of the person or persons designated by the
Trustees to manage any Investment Fund, and no change of
Investment Managers or assumption or relinquishment of
investment authority by the Trustees in accordance with
Section 8.3(a) shall affect any allocation made pursuant to
Section 19.4(d).
The Employer Fiduciaries shall exercise
their authority under this subsection (e) in a manner
consistent with the funding policy which shall be established
with respect to such DC Plan of Participation in the same
manner as provided under Section 17.4(b).
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(f) To the extent permitted by ERISA, the Trustees
shall have no liability or responsibility with respect to any
act or omission relating to any powers or duties vested in the
Full Participating Employer or Employer Fiduciaries under this
Section 19.4.
(g) Contributions under each DC Plan of Participation
designated for investment in a DC Investment Classification
shall be applied by the Trustees to the acquisition of Units
in the Investment Funds under the DC Investment Classification
in the proportions established for such classification. Unless
otherwise agreed by the Trustees and without limitation of
Section 14.3(f), the Employer Fiduciaries of a DC Plan of
Participation shall certify to the Trustees at such time or
times as the Trustees shall determine the amount and
allocation of contributions by the Participating Employer and
Participants, the investments directions and changes therein
applicable under the DC Plan of Participation, withdrawals
from the accounts maintained under such Plan and any other
facts required in the administration of the account records
for such Plan. The Trustees shall be able conclusively to rely
upon any such certification and shall have no duty of inquiry
or investigation with respect thereto.
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ARTICLE XX
TAXES AND EXPENSES
SECTION 20.1 EXPENSES. Subject to the provisions of Article
III and Article XI, the Trustees shall in their sole discretion
classify the expenses of the Trust relating to Plans of Participation
as (a) administrative expenses, which shall include but shall not be
limited to expenses in connection with the collection of contributions,
the administration of the affairs of the Trust, the employment of an
administrative staff, legal, actuarial, expert and clerical assistance,
and the purchase or leasing of materials, space, supplies and
equipment, and (b) investment expenses as provided in Article III and
Article XI. The administrative expenses and investment expenses of the
Trust as determined as aforesaid, shall be paid as hereinafter set
forth:
(a) ADMINISTRATIVE EXPENSES. The Trustees shall
establish such reasonable reserves and retain the same,
invested and uninvested, in a separate Expense Account for
each Full Participating Employer as the Trustees shall in
their sole discretion determine to be advisable or necessary
and may require that there be added to any Full Participating
Employer contributions such amount as determined in the sole
discretion of the Trustees, as they may deem necessary or
desirable to pay or provide for the payment of such Full
Participating Employer's share of the administrative expenses
of the Trust. For the payment of expenses under this
subsection (a), the Trustees shall withdraw monthly from the
Expense Account those amounts allocable to each Full
Participating employer. If expenses allocable to a Full
Participating Employer exceed the amounts collected for
expenses, the insufficiency may be billed separately. Any
excess in the Expense Account at the end of the Trust Year may
be applied to the allocable Full Participating Employer's
expense for the following Trust Year.
The Expense Accounts shall be maintained for
the Full Participating Employers and shall not be a part of
the Plan Interest of any Plan of Participation.
(b) INVESTMENT EXPENSES. The investment expenses of
the Trust shall be allocated to and among the classes of Units
and paid therefrom or from the income thereon on such
equitable basis as the Trustees shall determine in accordance
with Article III and Article XI.
SECTION 20.2 RETAINED RIGHTS OF TRUSTEES. Notwithstanding the
preceding provisions of this Article, but subject to the provisions of
Article III and
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Article XI, the Trustees shall retain the right to withdraw from the
Trust Fund all expenses of administration or investment of the Trust
Fund, including counsel fees, unless the same shall have been paid by
the Participating Employers in accordance with Section 20.1. All
payments under this Section 20.2 may be made without the approval or
direction of the Employer Fiduciaries. The Trustees may adjust the
Units in such equitable manner as they may determine in order to
reflect such payments and may charge to the Units of any Plan of
Participation or allocate among all or any Units of Plans of
Participation any expenses which they determine in their discretion to
be attributable thereto. Notwithstanding anything herein contained to
the contrary, in order to effectuate such adjustment, the Trustees may
withdraw Units held by any Plan of Participation in such proportions as
the Trustees may determine in order to effect such expenses
adjustments. The lien for expenses provided in this Section 20.2 shall
follow and apply to the affected Units without regard to any withdrawal
of such Units pursuant to Article XXII.
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ARTICLE XXI
REFUND OF CONTRIBUTIONS
SECTION 21.1 REFUNDS. Notwithstanding anything to the contrary
contained in this Agreement and Declaration of Trust, in the event that
the Employer Fiduciaries (a) shall certify that (i) any contribution
has been made by a Full Participating Employer by a mistake of fact, or
(ii) a contribution to the Trust has been conditioned on initial
qualification of the Plan of Participation under Section 401(a) of the
Code and such qualification has been denied, or (iii) a contribution
has been conditioned upon deductibility thereof under Section 404 of
the Code and such deduction has been disallowed, and (b) shall direct
the return of any such contribution, the Trustees shall return such
contribution (or the value thereof) to the Full Participating Employer
in accordance with such direction. In no event, however, shall a return
of a contribution be made subsequent to one year following the payment
thereof in the case of a direction under clause (i) above, the denial
of qualification in the case of a direction under clause (ii) above, or
the disallowance of the deduction in the case of a direction under
clause (iii) above. Without limitation of the foregoing and
notwithstanding the provisions of any Plan of Participation, unless
otherwise directed by the Full Participating Employer, in the event of
the termination of a Plan of Participation, other than a DC Plan of
Participation, and the distribution of the Plan Interest thereof in
accordance with Section 22.5, there shall remain any assets of the Plan
Interest attributable to actuarial error which are not required to meet
the liabilities or expenses of the Plan of Participation, such amount
shall be returned to the Full Participating Employer.
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ARTICLE XXII
TERMINATION OF PARTICIPATION BY WITHDRAWAL OR
TERMINATION OF PLANS OF PARTICIPATION
SECTION 22.1 TERMINATION OF PLANS OF PARTICIPATION -
GENERALLY. Subject to the provisions of this Article XXII, a Full
Participating Employer may, by action of its Board of Trustees or other
governing body, terminate its Plan of Participation, in whole or in
part:
(a) by withdrawing such Plan of Participation, part
thereof, from the Trust and continuing the plan effectuated
thereunder as provided in Section 22.3 or 22.4, or
(b) by terminating its Plan of Participation and the
Plan effectuated thereunder, or part thereof, as provided in
Section 22.5 or 22.6.
Notwithstanding anything herein contained to the contrary, the
Employer Fiduciaries shall have full responsibility to determine
whether any withdrawal under Section 22.1 (a) shall be in conformity
with the provisions of any Plan of Participation, successor plan or
ERISA. The Employer Fiduciaries shall certify that such withdrawal is
in full conformity with such provisions, and the Trustees and any
Trustee/Custodian shall be fully protected in reliance upon such
certification.
SECTION 22.2 TIMING AND MANNER OF WITHDRAWAL OR TERMINATION;
GENERALLY. Termination of a Plan of Participation or part thereof under
Section 22.1(a) or (b) shall be effectuated by (a) direction of the
Full Participating Employer and its Employer Fiduciaries to withdraw
the Units and any Company Securities and other assets held by a
Trustee/Custodian comprising the Plan Interest of such Plan of
Participation in accordance with the provisions of 3.4(b) the payment
to the Trustees, acting as Trustees of the Full Participating Trust
under such Plan of Participation, of the Net Asset Value of such Units,
(c) the retention of any Company Securities and other assets held by a
Trustee/Custodian and (d) the administration and distribution of such
Units, Company Securities and other assets in accordance with the
provisions of this Article XXII.
SECTION 22.3 WITHDRAWAL OF PLAN. In the event that a Full
Participating Employer withdraws its Plan of Participation in order to
continue through another funding agency a plan qualified under Section
401(a) of the Code, the Plan Interest of such Plan of Participation
shall, at the direction of such Full Participating Employer and
Employer Fiduciaries, be transferred by the Trustees
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and any Trustee/Custodian holding any Company Securities and other
assets to such other funding agency after it has been determined that
all allocable expenses have been paid by the Full Participating
Employer. Pending completion of such transfer, the Plan Interest of
such former Plan of Participation shall be maintained as provided in
Section 22.8. The Trustees and the Trustee/Custodian shall have no
liability or responsibility with respect to any withdrawal under this
Section 22.3 or with respect to any assets transferred to any funding
agency pursuant to this Section 22.3, and any such responsibility shall
be borne solely by the Full Participating Employer and Employer
Fiduciaries.
SECTION 22.4 PARTIAL PLAN WITHDRAWAL. In the event that a Full
Participating Employer elects in accordance with its Plan of
Participation to continue through another funding agency a retirement
plan qualified under Section 401(a) of the Code for the benefit of it
employees in any division, plant, operation, location or other
identifiable group or unit of such Participating Employer or any
subsidiary or affiliate, the Trustees shall (a) in accordance with the
advice of the Enrolled Actuary, if applicable, and subject to the
provisions of this Article, determine the affected share of the Plan
Interest of such of Participation, (b) at the direction of such Full
Participating Employer and Employer Fiduciaries, cause the Units and
Company Securities and other assets held by a Trustee/Custodian
representing such share to be withdrawn as provided in Section 22.3 and
(c) transfer the amounts held in the Trust Fund with respect to such
share to such other funding agency in the manner provided under Section
22.3 hereof.
In the event that a Participating Employer elects in
accordance with its Plan of Participation that benefits be funded
through one or more funding agencies in addition to the Trust, the
amount and manner in which the Plan Interest is to be transferred to
such other funding agency shall be determined as provided in the
preceding paragraph., mutatis mutandis. Such Plan of Participation
shall be a Plan of Partial Participation under Article XVIII.
The Trustees and the Trustee/Custodian shall have no liability
or responsibility with respect to any withdrawal under this Section
22.4 or with respect to any assets transferred to any funding agency
pursuant to this Section 22.4, and any such responsibility shall be
borne solely by the Full Participating Employer and Employer
Fiduciaries.
SECTION 22.5 PLAN TERMINATION AND PARTIAL PLAN TERMINATION. In
the event that a Full Participating Employer terminates the defined
benefit retirement plan which it maintains through its Plan of
Participation, the Plan Interest of such Plan of Participation shall to
the extent of the sufficiency thereof be applied by the Trustees to
provide distributions to the Participants and beneficiaries in the
order and manner provided under such Plan of Participation after it has
been determined that all allocable expenses have been paid by the Full
Participating Employer.
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In the event that a Full Participating Employer terminates the
defined contribution plan which it maintains through its Plan of
Participation, the Plan Interest of such Plan of Participation shall be
applied by the Trustees to provide distributions to the Participants
and beneficiaries in the manner provided under such Plan of
Participation after it has been determined that all allocable expenses
have been paid by the Full Participating Employer.
In the event of a partial termination of a Plan of
Participation, the appropriate portion of the Plan Interest affected by
such termination, as established by the Enrolled Actuary, of
applicable, shall be distributed as provided in such Plan of
Participation.
SECTION 22.6 PROSPECTIVE TERMINATION. In the event that a Full
Participating Employer shall amend its Plan of Participation so as to
replace and supersede the same or any part thereof with respect to
benefits accrued from and after such amendment by another plan
qualified under Section 401(a) of Code, its Plan of Participation or
applicable part thereof may, with the consent of the Trustees, continue
to be maintained as a Plan of Participation hereunder with respect to
benefits accrued prior to such amendment under the provisions of this
Agreement and Declaration of Trust on such terms and conditions as
shall be established by the Trustees.
SECTION 22.7 ADMINISTRATIVE DETERMINATION; RELEASE. The
Trustees and any Trustee/Custodian shall not be required to transfer or
distribute any assets of the Trust Fund (or, in the case of the
Trustees, to receive any assets or establish a Plan of Participation
pursuant to Section 15.4) until they shall have received such rulings
or determinations of the Internal Revenue Service, Labor Department,
Pension Benefit Guaranty Corporation or any other administrative agency
as the Trustees/Custodian may deem necessary or desirable in order to
insure that any such payment (or receipt of establishment) is made in
accordance with the provisions of law or that it will not subject the
Trust or the Trustees, individually or as such Trustees, or
Trustee/Custodian, to liability. Subject to the requirements of ERISA
and the Investment Company Act, the Trustees may require the Full
Participating Employer and Employer Fiduciaries to execute and deliver
to the Trustees an instrument of ratification and release approving the
actions of the Trustees and the prior reports thereof; provided,
however, that the Full Participating Employer and Employer Fiduciaries
shall be permitted to set forth in writing any and all objections to
the actions of the Trustees and prior reports. Subject to the
requirements of ERISA and the Investment Company Act, the
Trustee/Custodian may require the Full Participating Employer and
Employer Fiduciaries to execute and deliver to the Trustee/Custodian an
instrument of ratification and release approving the actions of the
Trustee/Custodian and the prior reports, thereof; provided, however,
that the Full Participating Employer and Employer Fiduciaries shall be
permitted to set forth in writing any and all objections to the actions
of the Trustee/Custodian and prior reports. In the
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absence of such objections, the Trustees and the Trustee/Custodian
shall be fully released and discharged in accordance with the
provisions of the ratification and release.
SECTION 22.8 ADMINISTRATION PENDING TRANSFER OF DISTRIBUTION;
SERVICES SUBSEQUENTLY PROVIDED. The interest in the Trust Fund of a
Liquidating Plan of Participation shall be maintained in accordance
with the provisions of this Section 22.8 during the Distribution
Period. The provisions of Article III shall be inapplicable with
respect to such Liquidating Plan of Participation during the
Distribution Period, and interest thereof in the Trust Fund shall be
held and maintained under rules of uniform application established by
the Trustees and any Trustee/Custodian. The Trustees and any
Trustee/Custodian may require that the terminating or withdrawing Full
Participating Employer and its Employer Fiduciaries and, where a
transfer to another plan is involved, the sponsor and appropriate
fiduciaries of such plan is involved, shall enter into written
agreements with the Trustees and the Trustee/Custodian, where
applicable, consistent with this Section 22.8, providing for the manner
of the administration of the Liquidating Plan of Participation and
establishing such conditions of the transfer of assets of such
Liquidating Plan of Participation from the Trust as may be required
under this Agreement and Declaration of Trust, under the Plan of
Participation, or by the law. The Trustees may elect to segregate all
or any part of the assets attributable to Units held by such
Liquidating Plan of Participation and to invest the same separately in
such securities or other property as they may determine, and, in such
event, such interest of such Liquidating Plan of Participation shall be
subject to the gains or losses on such segregated assets and any
expenses attributable thereto. Notwithstanding the foregoing, the Full
Participating Employer and Employer Fiduciaries may request the
Trustees to maintain all or part of the interests of such Liquidating
Plan of Participation attributable to Units invested in accordance with
Article III pending the receipt of the rulings, determinations or
release referred to in Section 22.7 in accordance with such rules of
uniform application as may be established by the Trustees. Any Company
Securities and other assets held by a Trustee/Custodian shall continue
to be held by the Trustee/Custodian pursuant to the Trust/Custodial
Agreement, pending the receipt of the rulings, determinations, or
release referred to in Section 22.7.
The Trustees and any Trustee/Custodian may assess a reasonable
charge for all information, records, service or assistance provided by
them with respect to a terminating or withdrawing Plan of
Participation, following the distribution or transfer of the assets of
such Plan.
SECTION 22.9 FAILURE OF QUALIFICATION. A Plan of Participation
shall be a plan qualified under Section 401(a) of the Code. The Plan
Administrator of a Plan of Participation shall notify the Trustees and
any Trustee/Custodian in the event that such Plan is determined by the
Internal Revenue Service not to be such
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a qualified plan and in such event, or in the event the Trustees or the
Trustee/Custodian are otherwise notified of such disqualification, the
Trustees and the Trustee/Custodian shall cause the Units and any
Company Securities and other assets held by the Trustee/Custodian
comprising the Plan Interest of such Plan of Participation to be
segregated from the Trust Fund and separately administered in
accordance with the terms of this Agreement and Declaration of Trust
pending disposition at the direction of the Participating Employer and
Employer Fiduciaries, subject to the applicable provisions of this
Article XXII.
SECTION 22.10 TERMINATION BY THE TRUSTEES. Notwithstanding
anything herein contained to the contrary, the Trustees may in their
sole and absolute discretion on not less than 30 days prior written
notice to the Participating Employer and the Employer Fiduciaries
terminate any Plan of Participation by resigning as Trustees thereof
and requiring the withdrawal thereof from the Trust in the manner
provided in this Article XXII with respect to a withdrawal under
Sections 22.1(a) and 22.3. In the event that the Trustees terminate any
Plan of Participation pursuant to this Section 22.10, any
Trustee/Custodian holding Company Securities and other assets pursuant
to a Trust/Custodial Agreement shall administer such Company Securities
and other assets in the manner provided in this Article XXII with
respect to a withdrawal under Section 22.1(a) and 22.3.
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PART IV
ARTICLE XXIII
INDIVIDUAL RETIREMENTS ACCOUNTS:
MASTER AND PROTOTYPE PLANS
SECTION 23.1 PARTICIPATION OF INDIVIDUAL RETIREMENT ACCOUNTS
OR MASTER AND PROTOTYPE PLANS - GENERALLY. A Participating Trust which
is an individual retirement account described in Section 2.39(c) or
which has been established pursuant to a master, prototype or other
sponsored arrangement shall be governed by the applicable provisions of
Part I and Part II, the provisions of this Part IV and Part VI.
Notwithstanding the foregoing, subject to the provisions of the
Investment Company Act, the applicability of any provisions of Part I
or Part II to any such Participating Trust may be modified by the
Trustees under Rules of Participation established pursuant to section
23.2.
SECTION 23.2 RULES OF PARTICIPATION. A Participating Trust
which is an individual retirement account described in Section 2.39(c)
or which has been established under a master, prototype or other
sponsored arrangement shall be subject to such Rules of Participation
as the Trustees may establish. Without limitation, the Rules of
Participation may, but shall not be required to, provide for;
(a) the documentation, including the form of
Participation Agreement required for the participation of any
such Participating Trust;
(b) the authority of the trustee or custodian of the
assets of such a Participating Trust or the sponsor of a
master, prototype or other sponsored arrangement, to impose,
without limitation, (i) requirements for participation in the
Trust in addition to those imposed by the Trustees under this
Agreement and Declaration of Trust or under the Rules of
Participation adopted under this Section 23.2, (ii)
restrictions on the availability for any such Participating
Trust of any of the Investment Funds, (iii) requirements as to
diversification among the Investment Funds, and (iv)
requirements with respect to actions to be taken by such
trustee, custodian or sponsor on behalf of such Participating
Trust under this Agreement and Declaration of Trust;
(c) the manner of withdrawal of any such
Participating Trust;
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(d) the manner of communication between the Trustees
and the individual for whom such Participating Trust was
established or with any other person having relationship to
such Participating Trust;
(e) the reports and accounts to be given by the
Trustees to or with respect to such Participating Trust;
(f) the allocation of any duties, responsibilities or
functions as between the Trustees, the Eligible Employer, the
trustee or custodian of such Participating Trust, the
individual for whom such Participating Trust was established,
the sponsor of any master, prototype or other sponsored
arrangement, or any other person;
(g) rights of resignation by the Trustees and
authority for the discontinuance of participation of any such
Participation Trust.
SECTION 23.3 RESPONSIBILITY WITH RESPECT TO TERMS OF
INDIVIDUAL RETIREMENT ACCOUNTS OR MASTER AND PROTOTYPE PLANS. The terms
of any individual retirement accounts or plans established under
master, prototype or other sponsored arrangements which are
Participating Trusts shall be established by agreement between the
trustee or custodian or sponsor of such account or plan and the
individual for whom such account or plan was established, and the
Trustees shall have no duties or responsibilities with respect to such
terms nor for its status under the Code and shall have no duty to
inquire or make suggestion with respect to such terms or status. The
Trustees shall be fully protected in relying upon such trustee,
custodian or sponsor with respect to the continuing compliance of such
account or plan with the requirements for status as a Participating
Trust under this Agreement and Declaration of Trust.
SECTION 23.4 ADMINISTRATION OF INDIVIDUAL RETIREMENT ACCOUNTS
OR MASTER AND PROTOTYPE Plans. The Trustees shall have no duties,
responsibility or liabilities for any act or omission in connection
with the administration, operation or investment of any individual
retirement account or any plan established pursuant to a master,
prototype or other sponsored arrangement which is a Participating Trust
except to the extent that they shall have specifically undertaken such
liabilities, duties or responsibilities under the terms of this
Agreement and Declaration of Trust or under the Rules of Participation.
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PART V
ARTICLE XXIV
COMPANY SECURITIES
SECTION 24.1 COMPANY SECURITIES. Notwithstanding anything to
the contrary contained in this Agreement and Declaration of Trust, (a)
any Company Securities and other assets held by a Plan of Participation
through a Trustee/Custodian shall not constitute Separate Assets within
the meaning of Article XVIII; (b) the holding of such Company
Securities and other assets through the Trustee/Custodian shall not in
and of itself make a Plan of Partial Participation within the meaning
of such Article XVIII; and (c) the Participating Trust established with
respect to the Plan of Participation holding such Company Securities
and other assets through the Trustee/Custodian shall continue to be
deemed a Full Participating Trust for all purposes of this Agreement
and Declaration of Trust.
Company Securities and other assets held by a Plan of
Participation through a Trustee/Custodian shall be treated for purposes
of the provisions of this Agreement and Declaration of Trust in all
respects as a Plan Interest, except that:
(i) In the event that the Plan Interest of any Plan
of Participation includes Company Securities and other assets
held through a Trustee/Custodian, for purposes of the funding
policy of such Plan of Participation established pursuant to
Section 17.4 of this Agreement and Declaration of Trust such
Company Securities and other assets shall for all purposes be
deemed to be equity securities.
(ii) Notwithstanding anything to the contrary
contained in this Agreement and Declaration of Trust, the Plan
Administrator of a Plan of Participation holding Company
Securities and other assets through a Trustee/Custodian shall
be solely responsible for the manner in which such Company
Securities and other assets shall be administered, including
having sole responsibility for all investment, management,
disposition, and voting decisions with respect to such Company
Securities and other assets pursuant to the applicable
Trust/Custodial Agreement. The Plan Administrator of a Plan of
Participation holding Company Securities and other assets
through a Trustee/Custodian shall ensure that any Company
Securities and other assets acquired by the Plan of
Participation , through purchase, merger with another Plan of
Participation, stock dividend, stock split, or other
distribution in respect of such Company Securities, or
otherwise, are held pursuant to the applicable Trust/Custodial
Agreement
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and administered in accordance with the terms thereof and of
this Article XXIV.
(iii) The Trustees shall, at the direction of the
Plan Administrator of a Plan of Participation holding Company
Securities and other assets through a Trustee/Custodian
receive from the Trustee/Custodian any assets acceptable to
the Trustees or, upon such direction, transfer cash or assets
determined by the Trustees to the Trustee/Custodian for the
benefit of such Plan of Participation, in order to effect,
respectively, a disposition or acquisition of Company,
Securities and other assets held pursuant to the applicable
Trust/Custodial Agreement. In acting upon the direction of the
Plan Administrator in this manner, the Trustees shall have no
duty of inquiry with respect to any such transfer, but may
accept the direction of such Plan Administrator as a
certification that any such transfer complies with the Plan of
Participation, the provisions of all applicable agreements,
including the applicable Trust/Custodial Agreement and any
applicable stockholders' agreement, and the requirements of
the Code and applicable laws. Nothing herein shall prohibit
the payment of contributions by a Participating Employer
directly to a Trustee/Custodian solely for the purpose of
purchasing on behalf of a Plan of Participation Company
Securities and other assets to be held through the Trustee
/Custodian; provided, however, that the Trustees shall have no
liability or responsibility with respect thereto other than as
provided in subsection (i) above.
(iv) To the extent that the Trustees shall have any
responsibility under this Agreement and Declaration of Trust
which relates to the amount, kind, or value of the Company
Securities and other assets held by a Plan of Participation
through a Trustee/Custodian, including, without limitation,
any such responsibility with respect to the determination of
the amount of contributions or to reporting and disclosure,
the Trustees shall be entitled to rely conclusively upon the
certification of the Plan Administrator of such Plan of
Participation with respect thereto.
(v) A Participating Employer and the Plan
Administrator of a Plan of Participation which holds Company
Securities and other assets through a Trustee/Custodian shall
enter into such agreements as may be required by the Trustees,
the Trustee/Custodian, or otherwise, in order to provide for
the payment of benefits from or receipt of contributions to
the Plan of Participation or such other matters relating to
the administration thereof as the Trustees or such
Trustee/Custodian may deem necessary or desirable.
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(vi) The investment authority and responsibility of
the Trustees with respect to the Company Securities and other
assets held by a Plan of Participation through a
Trustee/Custodian is expressly limited as set forth in this
Article XXIV, and to the extent permitted by ERISA, the
Trustees shall have no liability or responsibility whatsoever
with respect to any such Company Securities or other assets
held through a Trustee/Custodian, including, without
limitation, the duty to review or make suggestions with
respect thereto.
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PART VI
ARTICLE XXV
MISCELLANEOUS PROVISIONS
SECTION 25.1 NONALIENATION OF BENEFITS.
(a) No benefit payable under the provisions of this
Agreement and Declaration of Trust shall be subject in any
manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance , or charge, and any attempt
to so anticipate, alienate, sell, transfer, assign, pledge,
encumber, or charge the same shall be void nor shall any such
benefit be in any manner liable for or subject to the debts,
contracts, liabilities, engagements, or torts of any active,
retired or former employee or of a beneficiary of such
employee, except as specifically provided herein.
(b) Notwithstanding the foregoing, any active,
retired or former employee or beneficiary of any such employee
who has created a trust for the benefit of himself or his
immediate family may direct that benefit payments due him
shall be paid to such trust.
SECTION 25.2 HEADINGS. The titles and headings of Articles and
Sections in this Agreement and Declaration of Trust are for the
convenience of reference only, and in case of any conflict, the text,
rather than such titles or headings, shall be controlling.
SECTION 25.3 COUNTERPARTS. This Agreement and Declaration of
Trust shall be executed in any number of counterparts, and each one
shall be deemed to be the original although the others shall not be
produced.
SECTION 25.4 GENDER AND NUMBER. Words used in the masculine
shall be read and construed in the feminine where applicable. Wherever
required, the singular of any word used in this Agreement and
Declaration of Trust shall include the plural and the plural may be
read in the singular.
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ARTICLE XXVI
SITUS OF TRUST AND JURISDICTION
SECTION 26.1 SITUS. This Agreement and Declaration of Trust
created hereby shall be construed, regulated and administered under the
laws of the State of New York, except to the extent such laws may be
preempted by the laws of the United States under the provision of
ERISA.
IN WITNESS WHEREOF, the Trustees have executed this Agreement
and Declaration of Trust, effective as of the Restatement Date.
William Dannecker
Edward J. Kowatch
Russell C. Carlson
Eugene C. Ecker
Covington Hardee
Ralph L. Hodgkins, Jr.
Maurice E. Kinkade
William G. Lillis
William F. Olson
Nicholas J. Scali
William L. Schrauth
Raymond L. Willis
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