<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Westinghouse Electric Corporation
------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $1.00 per share
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(Title of Class of Securities)
960402
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(CUSIP Number)
James M. Plasynski
Assistant General Counsel
Westinghouse Electric Corporation
Westinghouse Building
11 Stanwix Street
Pittsburgh, Pennsylvania 15222
(412) 642-2591
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 23, 1995
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [x]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 3d-1(a) for other parties to whom copies are to
be sent.
__________________________________
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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<TABLE>
<CAPTION>
CUSIP NO. 960402 SCHEDULE 13D PAGE OF PAGES
-----------
<S> <C>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Westinghouse Pension Investments Corporation 25-1350122
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00 (See Item 3)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Incorporated in Delaware
7 SOLE VOTING POWER
22,059,970 (See Item 5)
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY --
EACH REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
22,059,970 (See Item 5)
10 SHARED DISPOSITIVE POWER
--
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,059,970
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.9 % (See Item 5)
14 TYPE OF REPORTING PERSON*
CO
<FN>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
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Item 1. Security and Issuer
-------------------
The issuer is Westinghouse Electric Corporation ("Westinghouse").
Westinghouse is organized under the laws of Pennsylvania and its principal
executive offices are located at 11 Stanwix Street, Pittsburgh, PA 15222. The
equity securities to which this statement relates are shares of common stock,
$1.00 par value, of Westinghouse ("Common Stock").
Item 2. Identity and Background
-----------------------
This statement is being filed by WPIC Corporation, a Delaware
corporation ("WPIC") and a wholly-owned subsidiary of Westinghouse. WPIC's
principal business is providing investment advice and investment management
services for the assets of employee benefit plans of Westinghouse and certain
of its subsidiaries.
WPIC's principal business address is, and its principal executive office is
located at, 11 Stanwix Street, Pittsburgh, Pennsylvania 15222.
Attached hereto as Schedule I and incorporated herein by reference is a list
of the directors and executive officers of WPIC, setting forth the following
information with respect to each such person: (i) name, (ii) business address
and (iii) present principal occupation or employment and the name and address
of any corporation or other organization in which such employment is conducted.
Claudia E. Morf and Fredric G. Reynolds are citizens of the United States.
Julie Forsythe is a citizen of the United Kingdom.
During the last five years, neither WPIC nor, to the best of WPIC's
knowledge, any person identified in Schedule I hereto, has been convicted in a
criminal proceeding (excluding traffic violations and similar misdemeanors) or
has been subject to a judgment, decree or final order of a judicial or
administrative body of competent jurisdiction enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
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Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
This statement relates to WPIC's acquisition of the beneficial ownership of
16,447,370 shares of Common Stock effective June 23, 1995.
On June 23, 1995, Westinghouse sold 9,114,540 shares of Common Stock to
the Westinghouse Deferred Compensation Trust Fund ("Deferred Trust") for
$138,541,008 pursuant to a Private Placement Agreement dated as of June 22,
1995 by and among Westinghouse, PNC Bank, National Association, Trustee for the
Deferred Trust and WPIC. On June 23, 1995, Westinghouse also sold 6,578,948
shares of Common Stock to the Westinghouse Executive Pension Trust Fund
("Executive Trust") for $100,000,010 pursuant to a Private Placement Agreement
dated as of June 22, 1995 by and among Westinghouse, Mellon Bank, N. A.,
Trustee for the Executive Trust and WPIC. In addition, on June 23, 1995,
Westinghouse contributed 753,882 shares of Common Stock to the Deferred Trust.
WPIC acquired beneficial ownership of the Common Stock sold and contributed
to the Deferred Trust pursuant to an Investment Management Agreement between
Westinghouse and WPIC dated June 22, 1995 (the "DTIM"). WPIC acquired
beneficial ownership of the Common Stock sold to the Executive Trust pursuant
to an Investment Management Agreement between Westinghouse and WPIC dated June
22, 1995 (the "ETIM").
Item 4. Purpose of Transaction
----------------------
The information contained in Item 3 of this statement is hereby incorporated
by reference in response to this Item 4.
The Common Stock acquired by the Deferred Trust and Executive Trust is being
held for investment purposes. However, WPIC may dispose of the Common Stock at
any time or from time to time in private transactions, in sales pursuant to a
registration statement or in sales otherwise in compliance with applicable
securities laws.
WPIC will act as investment manager for, and exercise discretionary
investment authority over, the Common Stock sold or
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contributed to the Deferred Trust and the Executive Trust pursuant to the DTIM
and the ETIM.
Item 5. Interest in Securities of the Issuer
------------------------------------
The information contained in Item 3 of this statement is hereby incorporated
by reference in response to this Item 5.
Effective June 23, 1995, WPIC beneficially owned an aggregate of 22,059,970
shares of Common Stock. Based on the 357,422,449 shares of Common Stock
outstanding as of March 31, 1995, as reported by Westinghouse in its Quarterly
Report on Form 10-Q for its fiscal quarter ended March 31, 1995 and the
16,447,370 shares of Common Stock beneficially acquired by WPIC as reported in
this statement, as of June 23, 1995, WPIC was the beneficial owner of
approximately 5.9% of the outstanding shares of Common Stock.
Frederic G. Reynolds beneficially owned as of June 23, 1995, 295,500
shares of Common Stock, 8,000 of which he owns directly and 287,500 of which he
has the right to acquire through stock options. Claudia E. Morf beneficially
owned as of June 23, 1995, 90,302 shares of Common Stock, 302 of which she owns
directly and 90,000 of which she has the right to acquire through stock
options. Julie Forsythe beneficially owned as of June 23, 1995, 397 shares of
Common Stock, 97 of which she owns through the Westinghouse Savings Program and
300 of which she has the right to acquire through stock options. Based on the
357,422,449 shares of Common Stock outstanding as of March 31, 1995, as
reported by Westinghouse in its Quarterly Report on Form 10-Q for its fiscal
quarter ended March 31, 1995 and the 16,447,370 shares of Common Stock
beneficially acquired by WPIC as reported on this statement, as of June 23,
1995, the persons identified in Schedule I beneficially owned an aggregate of
approximately .1% of the outstanding shares of Common Stock.
Except as described in Item 3, no transactions in shares of Common Stock have
been effected during the past sixty days by WPIC, or, to the best of WPIC's
knowledge, any person identified in Schedule I hereto.
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Pursuant to the terms of the DTIM and ETIM referenced in Item 3, WPIC has
sole power to direct the disposition of Common Stock sold or contributed to the
Deferred Trust and the Executive Trust as well as sole power to vote such Common
Stock.
WPIC also has sole power to direct the disposition of and vote 5,612,600
shares of Common Stock which were part of the shares Westinghouse contributed
to the Westinghouse Pension Plan (the "Pension Plan") on October 17, 1991.
WPIC has the right to direct the disposition of and vote these shares under an
Investment Management Agreement between Westinghouse and WPIC dated May 23,
1995.
In total, WPIC has sole power to dispose of and vote 22,059,970 shares of
Common Stock.
The persons identified in Schedule I have the sole power to direct the
disposition of and vote the shares of Common Stock beneficially owned by them
as set forth herein above.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of the Issuer
---------------------------
The information contained in Item 3 and Item 5 of this statement is hereby
incorporated by reference in response to this Item 6.
Except as disclosed in Item 3 and Item 5, neither WPIC nor, to the best of
WPIC's knowledge, any person identified in Schedule I hereto, has any
contracts, arrangements, understandings or relationships with any person with
respect to any securities of Westinghouse.
Item 7. Material to be Filed as Exhibits
--------------------------------
Exhibit 1 Investment Management Agreement for Deferred Trust dated
June 22, 1995.
Exhibit 2 Investment Management Agreement for Executive Trust dated
June 22, 1995.
Exhibit 3 Investment Management Agreement for the Pension Plan dated
May 23, 1995.
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth herein is true, complete and correct.
WESTINGHOUSE PENSION
INVESTMENTS CORPORATION
Dated: June 30, 1995 By /s/ JULIE FORSYTHE
------------------------
Name: Julie Forsythe
Title: Vice President and
Assistant Treasurer
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EXHIBIT INDEX
Exhibit No. Description Sequential Page No.
- ----------- ----------- -------------------
1 Investment Management Agreement
for Deferred Trust dated
June 22, 1995
2 Investment Management Agreement
for Executive Trust dated
June 22, 1995
3 Investment Management Agreement
for the Pension Plan dated
May 23, 1995
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Schedule I
----------
Name, business address, and present principal occupation or
employment of the directors and executive officers of
Westinghouse Pension Investments Corporation:
Directors
---------
<TABLE>
<CAPTION>
Present Principal Occupation and
Name, Business Address Address of Employment
---------------------- --------------------------------
<S> <C>
Julie Forsythe Director, Pensions
Westinghouse Electric Corporation Westinghouse Electric Corporation
Westinghouse Building Westinghouse Building
11 Stanwix Street 11 Stanwix Street
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Claudia E. Morf Vice President and Treasurer
Westinghouse Electric Corporation Westinghouse Electric Corporation
Westinghouse Building Westinghouse Building
11 Stanwix Street 11 Stanwix Street
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Fredric G. Reynolds Executive Vice President and
Westinghouse Electric Corporation Chief Financial Officer
Westinghouse Building Westinghouse Electric Corporation
11 Stanwix Street Westinghouse Building
Pittsburgh, PA 15222 11 Stanwix Street
Pittsburgh, PA 15222
</TABLE>
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Executive Officers
------------------
<TABLE>
<CAPTION>
Present Principal Occupation and
Name, Business Address Address of Employment
- ---------------------- --------------------------------
<S> <C>
Julie Forsythe Director, Pensions
Vice President and Assistant Treasurer, Westinghouse Electric Corporation
Westinghouse Pension Investments Corporation Westinghouse Building
Westinghouse Building 11 Stanwix Street
11 Stanwix Street Pittsburgh, PA 15222
Pittsburgh, PA 15222
Vice President and Treasurer
Claudia E. Morf Westinghouse Electric Corporation
President and Treasurer, Westinghouse Building
Westinghouse Pension Investments Corporation 11 Stanwix Street
Westinghouse Building Pittsburgh, PA 15222
11 Stanwix Street
Pittsburgh, PA 15222
</TABLE>
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Exhibit 1
INVESTMENT MANAGEMENT AGREEMENT
-------------------------------
THIS INVESTMENT MANAGEMENT AGREEMENT made and entered into as of the 22nd day
of June, 1995, between WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania
Corporation (hereinafter the "Company"), and WPIC Corporation, a Delaware
Corporation (hereinafter the "Investment Manager") (the "Agreement").
WITNESSETH:
WHEREAS, the Company and certain of its subsidiaries have adopted various
executive deferred compensation plans (hereinafter called the "Plans") for the
benefit of certain of their employees; and
WHEREAS, the Company has designated Westinghouse Electric Corporation to
manage and control the assets of the Plans; and
WHEREAS, the Company has executed an amended and restated Trust Agreement dated
June 22, 1995 between itself and PNC Bank, National Association as trustee
(hereinafter the "Trustee"), for the Plans for the collective investment of the
assets (the "Trust"), which Trust Agreement permits the assets held thereunder
to be divided into separate investment accounts managed individually by
investment managers designated as provided in this Agreement; and
WHEREAS, the Trust Agreement provides that the Company may from time to time
specify by written notice to the Trustee the extent to which investment of the
assets held in trust shall be managed by investment managers; and
WHEREAS, the Company and the Investment Manager wish to enter into the
Agreement for the purpose of retaining the Investment Manager to manage the
assets in the account to be known as the Deferred WPIC Account (hereinafter
called the "Account"):
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Investment Manager do hereby agree, each
with the other, as follows:
SECTION 1. APPOINTMENT OF INVESTMENT MANAGER
---------------------------------
Effective June 22, 1995, the Company appoints the Investment Manager to manage,
subject to the guidelines referred to in Section 5 hereof, such of the assets
held by the Trustee under the Trust Agreement as are in the Account from time
to time.
SECTION 2. ACCEPTANCE OF APPOINTMENT AS INVESTMENT MANAGER
-----------------------------------------------
a. ACCEPTANCE OF APPOINTMENT. The Investment Manager hereby accepts the
appointment
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to manage, subject to the guidelines referred to in Section 5 hereof
and on the terms and conditions set forth in this Agreement, such of
the assets held by the Trustee under the Trust Agreement as is in
the Account from time to time. The Investment Manager acknowledges
that it is a "fiduciary" within the meaning of state trust law,
whether statutory or otherwise, with respect to each of the Plans'
assets of which are included in the Account, and the Investment
Manager represents and covenants that it will comply with its
fiduciary responsibility under the provisions of such trust law in
the exercise of its rights and the performance of its obligations
under this Agreement.
b. REPRESENTATION BY INVESTMENT MANAGER. The Investment Manager
represents and warrants that it is either:
(1) Duly registered and in good standing as an "Investment Adviser"
with the Securities and Exchange Commission under the Investment
Advisers Act of 1940; or
(2) A bank, as defined in the Investment Advisers Act of 1940; or
(3) An insurance company qualified to perform investment management
services under the laws of more than one state; or
(4) A subsidiary of the Company or authorized to perform investment
management services.
SECTION 3. POWERS AND DUTIES OF THE INVESTMENT MANAGER
-------------------------------------------
a. Subject to the provisions of Sections 2 and 5 hereof and the
requirements of the state's trust law pertaining to the
responsibilities of fiduciaries, the Investment Manager shall cause
the assets in the Account to be invested and reinvested from time to
time in such securities and other property or part interest therein as
the Investment Manager in its discretion shall deem advisable, and to
that end shall have full power and authority to:
(1) Direct the Trustee to make purchases and sales of securities or
other property for the Account;
(2) Direct the Trustee to exercise or abstain from exercising any
option, privilege or right attaching to any asset in the
Account;
(3) Issue orders for or make purchases or sales of securities or
other property for the Account directly to or with a broker,
dealer or other person on the best terms available;
(4) Vote all proxies with respect to the Account. The Investment
Manager shall be responsible for ensuring that proxies are voted
in the best interests of the Plans' participants and
beneficiaries, and the Investment Manager shall exercise its
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duties with respect to the voting of proxies in accordance with
state trust law. The Investment Manager shall maintain records
sufficient to permit the Company to monitor the Investment
Manager's compliance with the aforementioned authorities;
(5) If a bank, retain all or any part of the assets of the Account
stipulated by the Company or invest in short term securities
issued by, or deposits in, the Investment Manager;
(6) Invest and reinvest all or any portion of the assets of the
Account through the medium of any common, collective or
commingled trust fund now or hereafter maintained by the
Investment Manager and the declaration of trust of any such fund
shall constitute a part of this Agreement with respect to any
assets in the Account which are at the time invested in such
fund;
(7) Invest and reinvest all or any portion of the assets of the
Account through the medium of any separate account of an
insurance company now or hereafter maintained by the Investment
Manager; and
(8) Instruct or direct the Trustee or perform any or all of the
powers, duties and authority given to the Trustee in the Trust
Agreement which are therein subjected to direction by the
Investment Manager and to enforce performance by the Trustee of
such powers, duties and authority.
b. Instructions or directions of the Investment Manager to the Trustee
shall be made or confirmed in writing. The Investment Manager, upon
written request, shall provide the Trustee and the Company with such
documents and information pertaining to the Agreement as may
reasonably be requested, including without limitation, certificates
evidencing the Investment Manager's duly authorized representatives
and, where appropriate, registration under the Investment Advisers Act
of 1940.
c. The Investment Manager shall deliver to the Trustee and the Company,
within fifteen calendar days after the close of each calendar month,
written statements showing all investments, including units of bank
commingled funds held in the Account, and their market and carrying
values as of the close of business on the last business day of each
such calendar month, and a written statement of transactions affected
by it during such month.
d. The Investment Manager shall promptly notify the Company:
(1) If any of the representations in Section 2.b. hereof shall cease
to be true at any time during the term of this Agreement;
(2) Of any material change in the senior management or ownership of
the Investment Manager's corporation or other organization with
responsibility for decisions affecting the Account; and
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(3) Of any other material change in the nature of the Investment
Manager's principal business activities.
e. Except as otherwise provided in the state trust law regarding
liability for breaches of fiduciary duties by other fiduciaries, the
Investment Manager shall have no responsibility for the acts or
omissions of the Trustee.
f. During and for six (6) years after the term of this Agreement, the
Investment Manager shall permit the Company or its agents (including
independent public accountants selected by the Company) at all
reasonable times during business hours to inspect at the expense of
the Company the Investment Manager's records of securities
transactions, holdings and valuations of the Account, including all
listings and appraisals of securities and all communications with
brokers, the Trustee and the Company with respect to such
transactions, holdings or valuations.
g. The Investment Manager shall not commit the Company to supplement
assets of the Account either by borrowing on the Company's behalf, or
by committing to a contract the performance of which may require the
Company to supplement the assets of the Account.
SECTION 4. DUTIES OF THE COMPANY
---------------------
The Company shall:
a. Notify the Trustee of the Investment Manager's appointment by
delivering a copy of this Agreement to the Trustee;
b. Cause the Trustee to retain custody of the assets in the Account
except as otherwise provided in this Agreement;
c. Provide, or cause the Trustee to provide, the Investment Manager with
such information pertaining to the Account and the Plans as the
Investment Manager may reasonably request;
d. Compensate, or cause the Trustee to compensate, the Investment Manager
for its services under this Agreement as the Company and the
Investment Manager shall hereafter agree to in writing from time to
time; and
e. Provide the Investment Manager with true and correct copies of the
Trust Agreement, and any and all amendments thereto.
SECTION 5. INVESTMENT OBJECTIVES - GUIDELINES
----------------------------------
The Company shall from time to time furnish the Investment Manager with
investment guide-
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lines for management of the Account, in which event the Investment Manager
shall make its investment decisions consistent with such guidelines. Changes
in guidelines shall make due allowance for the time which the Investment
Manager shall have within which to come into compliance with such changed
guidelines.
Initial guidelines are defined in Schedule 1 to this Agreement.
SECTION 6. PERFORMANCE OF DUTIES - STANDARD OF CARE
----------------------------------------
a. The Investment Manager shall comply with all laws and regulations
issued from time to time thereunder in the discharge of its duties
under this Agreement.
b. The Investment Manager shall discharge its duties under this Agreement:
(1) Solely in the interest of the Plans participants and
beneficiaries and for the exclusive purpose of providing
benefits to Plans participants and their beneficiaries and
defraying reasonable expenses of administering the Plans;
(2) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims
and investment policies, it being understood that the investment
of the Account shall be solely in Company securities and
therefore, such investment shall not be required to be
diversified. The Investment Manager is hereby authorized to
liquidate the position without restriction as it feels is
appropriate based on its evaluation of the facts known to it,
after giving consideration to this asset as a single holding and
not as a portfolio of diversified investments.
(3) In accordance with the documents and instruments governing the
Plans insofar as such documents and instruments are consistent
with the provisions of state trust law.
SECTION 7. INDEMNIFICATION
---------------
a. Unless the Investment Manager has acted imprudently or has otherwise
violated the provisions of state or other applicable law, the
Investment Manager shall not be subject to any liability to the Plans
or to any person, firm or organization, for any act or omission of
itself or of any other person, firm or organization in the course of,
or connected with, its obligations under this Agreement.
b. The Investment Manager shall be charged with no responsibility
whatsoever respecting action or inaction by the Investment Manager
under and pursuant to this Agreement if (i) this Agreement does not
grant discretionary authority to the Investment Manager with
respect to such action or inaction and (ii) the Investment Manager
so acted or failed to so act in compliance with a written direction
to the
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Investment Manager from the Company. With respect to any liability
arising from such directions by the Company, the Company shall
indemnify the Investment Manager for and hold the Investment
Manager harmless from any liability (including reasonable attorney's
fees) arising therefrom.
SECTION 8. ACTING FOR OTHER ACCOUNTS
-------------------------
a. Provided that such action taken as an investment manager for others
does not constitute a breach of the duties assumed by the Investment
Manager under this Agreement, the Investment Manager and any of its
officers, affiliates and employees may act and continue to act as
investment managers for others, and nothing in this Agreement shall in
any way be deemed to restrict the right of the Investment Manager to
perform investment management or other services for any other person
or entity, and the performance of such services for others shall not
be deemed to violate or give rise to any duty or obligation to the
Company or the Trust.
b. Except as provided above, nothing in this Agreement shall limit or
restrict the Investment Manager or any of it officers, affiliates or
employees from buying, selling or trading in any securities for its or
their own account or accounts. The Company acknowledges that the
Investment Manager and its officers, affiliates and employees, and its
other clients may at any time have, acquire, increase, decrease or
dispose of positions in investments which are at the same time being
acquired, increased, decreased or disposed of for the Account of the
Trust. The Investment Manager shall have no obligation to acquire,
increase, decrease or dispose of a position in any investment for the
Trust which the Investment Manager, its officers, affiliates or
employees may acquire, increase, decrease or dispose of for its or
their accounts or for the account of another client, if in the sole
discretion of the Investment Manager and subject to the provisions of
Section 6 hereof, it is not feasible or desirable to acquire,
increase, decrease or dispose of a position in such investment for the
account of the Trust.
c. Nothing in this Section 8 shall be construed to relieve the Investment
Manager of any of its duties or obligations as set forth in or arising
under other provisions of this Agreement.
SECTION 9. CONFIDENTIAL INFORMATION
------------------------
Any information or recommendations supplied to the Investment Manager by the
Company or the Trustee, which is not otherwise in the public domain or
previously known to the Investment Manager, in connection with the performance
of Investment Manager obligations hereunder are to be regarded as confidential
and for use only by the Investment Manager or such persons the Investment
Manager may designate in connection with the Account.
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SECTION 10. SPECIMEN SIGNATURES
-------------------
The Investment Manager will forward from time to time to the Company and the
Trustee a list and specimen signatures of the parties who are authorized to act
on its behalf. The Company will forward to the Investment Manager a list and
specimen signatures of the parties who are authorized to act on its behalf and
shall cause the Trustee to forward a like list and specimen signatures to the
Investment Manager. Each party shall be entitled to rely upon such lists and
specimen signatures until receiving written notice of revocation or
modification.
SECTION 11. NO ASSIGNMENT OF AGREEMENT OR DUTIES
------------------------------------
Neither party may assign this Agreement, in whole or in part, nor delegate
except as contemplated herein all or part of the performance of duties
required of it by this Agreement without the prior written consent of the other
party, and any attempted assignment or delegation without such consent shall be
void.
SECTION 12. APPLICABLE LAW
--------------
This Agreement shall be administered and construed according to the laws of the
Common-wealth of Pennsylvania. If any provision of this Agreement is construed
to purport to relieve the Investment Manager from responsibility or liability
for any responsibility, obligation or duty under state trust law, such
provision shall be void without affecting the validity of the other provisions
of this Agreement.
SECTION 13. FEES
----
Fees for investment management services provided hereunder shall be as
designated in Exhibit A to this Agreement. Fees shall be paid by the Trustee
on direction of the Company, and shall not be withdrawn from the Account by the
Investment Manager. All statements shall show the calculation of fees
contained therein.
SECTION 14. TERMINATION
-----------
This Agreement shall continue in effect until terminated by either party by
giving notice to the other party at least ten (10) days prior to the date of
termination; provided that, subject to the trust document establishing the bank
commingled funds, the Company may at any time without prior notice order the
Investment Manager to cease activity, subject to its obligation to complete
execution of directions or instructions already acted upon, with respect to the
Account. Such order may be communicated orally subject to immediate written
confirmation to the Investment Manager. If this Agreement is terminated
during any period of time for which the Investment Manager has or has not been
compensated, the fee due to the Investment Manager for such period shall be
prorated to the date of termination.
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SECTION 15. NOTICES
-------
Any written notice or other communication required to be given under this
Agreement may be validly given by delivery telex or facsimile (upon written and
executed acknowledgement of receipt of such facsimile) to the individuals at
the following addresses:
For the Investment Manager: WPIC Corporation
11 Stanwix Street
Westinghouse Building
Pittsburgh, PA 15222-1384
Attention: Claudia E. Morf
President and Treasurer
Telephone: (412) 642-3272
Facsimile: (412) 642-4797
For the Company: Westinghouse Electric Corporation
11 Stanwix Street
Westinghouse Building
Pittsburgh, PA 15222-1384
Attention: Vice President and Treasurer
Telephone: (412) 642-3272
Facsimile: (412) 642-4797
SECTION 16. PARTIAL INTEGRATION
-------------------
This Agreement contains the entire understanding of the parties with respect to
assets managed hereunder and there are no warranties or representations,
expressed or implied, with respect to such management. All amendments to this
Agreement shall be in writing
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<PAGE> 19
and signed either by or on behalf of the Company
and the Investment Manager.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written by their duly authorized officers or
representatives.
WESTINGHOUSE ELECTRIC CORPORATION
By: __________________________________________
Executive Vice President and
Chief Financial Officer
WPIC CORPORATION
By: _____________________________________
President and Treasurer
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EXHIBIT A
---------
FEES
There will be no fees charged for investment management services provided
by the Investment Manager under this Agreement. However, the Investment
Manager will be reimbursed for any brokerage fees or other expenses
incurred with respect to managing the investments in the Account.
<PAGE> 21
SCHEDULE 1
----------
INVESTMENT GUIDELINES
All investments will be made in Westinghouse common stock (the "Common
Stock"), subject to the following criteria:
CASH
- ----
Cash dividends received on the Common Stock and any proceeds from the sale of
the Common Stock will be removed from the Account and invested in a separate
cash management account by the Trustee.
REGISTRATION OF SECURITIES
- --------------------------
Pursuant to Paragraph 7 of the Private Placement Agreement dated June 22,
1995 among Westinghouse, the Trustee and WPIC, the Trustee has the right to
demand that the Company register the shares of Common Stock contributed or
sold to the Trust.
FAVORABLE EXECUTION
- -------------------
The Investment Manager shall execute trades and transactions on the best
terms available at the time of the trade or transaction.
<PAGE> 22
Exhibit 2
INVESTMENT MANAGEMENT AGREEMENT
-------------------------------
THIS INVESTMENT MANAGEMENT AGREEMENT made and entered into as of the 22nd day
of June, 1995, between WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania
Corporation (hereinafter the "Company"), and WPIC Corporation, a Delaware
Corporation (hereinafter the "Investment Manager") (the "Agreement").
WITNESSETH:
WHEREAS, the Company and certain of its subsidiaries have adopted the
Westinghouse Executive Pension Plan (hereinafter called the "Plan") for the
benefit of certain of their employees; and
WHEREAS, the Company has designated Westinghouse Electric Corporation to
manage and control the assets of the Plan; and
WHEREAS, the Company has executed a Trust Agreement dated March, 1992 between
itself and Mellon Bank, N.A. as trustee (Hereinafter, the "Trustee") for the
Plan for the collective investment of the assets (the "Trust"), which Trust
Agreement permit the assets held thereunder to be divided into separate
investment accounts managed individually by investment managers designated as
provided in this Agreement; and
WHEREAS, the Trust Agreement provides that the Company may from time to time
specify by written notice to the Trustee the extent to which investment of the
assets held in trust shall be managed by investment managers; and
WHEREAS, the Company and the Investment Manager wish to enter into the
Agreement for the purpose of retaining the Investment Manager to manage the
assets in the account to be known as the WPIC - Westinghouse Common Stock
Account (hereinafter called the "Account"):
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Investment Manager do hereby agree, each
with the other, as follows:
SECTION 1. APPOINTMENT OF INVESTMENT MANAGER
---------------------------------
Effective June 22, 1995, the Company appoints the Investment Manager to manage,
subject to the guidelines referred to in Section 5 hereof, such of the assets
held by the Trustee under the Trust Agreement as are in the Account from time
to time.
SECTION 2. ACCEPTANCE OF APPOINTMENT AS INVESTMENT MANAGER
-----------------------------------------------
a. ACCEPTANCE OF APPOINTMENT. The Investment Manager hereby accepts the
appointment
<PAGE> 23
to manage, subject to the guidelines referred to in Section 5 hereof
and on the terms and conditions set forth in this Agreement, such of
the assets held by the Trustee under the Trust Agreement as is in
the Account from time to time. The Investment Manager acknowledges
that it is a "fiduciary" within the meaning of state trust law,
whether statutory or otherwise, with respect to the Plan assets of
which are included in the Account, and the Investment Manager
represents and covenants that it will comply with its fiduciary
responsibility under the provisions of such trust law in the
exercise of its rights and the performance of its obligations under
this Agreement.
b. REPRESENTATION BY INVESTMENT MANAGER. The Investment Manager
represents and warrants that it is either:
(1) Duly registered and in good standing as an "Investment Adviser"
with the Securities and Exchange Commission under the Investment
Advisers Act of 1940; or
(2) A bank, as defined in the Investment Advisers Act of 1940; or
(3) An insurance company qualified to perform investment management
services under the laws of more than one state; or
(4) A subsidiary of the Company or authorized to perform investment
management services.
SECTION 3. POWERS AND DUTIES OF THE INVESTMENT MANAGER
-------------------------------------------
a. Subject to the provisions of Sections 2 and 5 hereof and the
requirements of the state's trust law pertaining to the
responsibilities of fiduciaries, the Investment Manager shall cause
the assets in the Account to be invested and reinvested from time to
time in such securities and other property or part interest therein as
the Investment Manager in its discretion shall deem advisable, and to
that end shall have full power and authority to:
(1) Direct the Trustee to make purchases and sales of securities or
other property for the Account;
(2) Direct the Trustee to exercise or abstain from exercising any
option, privilege or right attaching to any asset in the
Account;
(3) Issue orders for or make purchases or sales of securities or
other property for the Account directly to or with a broker,
dealer or other person on the best terms available;
(4) Vote all proxies with respect to the Account. The Investment
Manager shall be responsible for ensuring that proxies are voted
in the best interests of the Plan's participants and
beneficiaries, and the Investment Manager shall exercise its
duties with respect to the voting of proxies in accordance with
the state trust law. The
-2-
<PAGE> 24
Investment Manager shall maintain records sufficient to permit
the Company to monitor the Investment Manager's compliance
with the aforementioned authorities;
(5) If a bank, retain all or any part of the assets of the Account
stipulated by the Company or invest in short term securities
issued by, or deposits in, the Investment Manager;
(6) Invest and reinvest all or any portion of the assets of the
Account through the medium of any common, collective or
commingled trust fund now or hereafter maintained by the
Investment Manager and the declaration of trust of any such fund
shall constitute a part of this Agreement with respect to any
assets in the Account which are at the time invested in such
fund;
(7) Invest and reinvest all or any portion of the assets of the
Account through the medium of any separate account of an
insurance company now or hereafter maintained by the Investment
Manager; and
(8) Instruct or direct the Trustee or to perform any or all of the
powers, duties and authority given to the Trustee in the Trust
Agreement which are therein subjected to direction by the
Investment Manager and to enforce performance by the Trustee of
such powers, duties and authority.
b. Instructions or directions of the Investment Manager to the Trustee
shall be made or confirmed in writing. The Investment Manager, upon
written request, shall provide the Trustee and the Company with such
documents and information pertaining to the Agreement as may
reasonably be requested, including without limitation, certificates
evidencing the Investment Manager's duly authorized representatives
and, where appropriate, registration under the Investment Advisers Act
of 1940. The Trustee must receive copies of all dealer and/or broker
confirmations promptly after execution.
c. The Investment Manager shall deliver to the Trustee and the Company,
within fifteen calendar days after the close of each calendar month,
written statements showing all investments, including units of bank
commingled funds held in the Account, and their market and carrying
values as of the close of business on the last business day of each
such calendar month, and a written statement of transactions affected
by it during such month.
d. The Investment Manager shall promptly notify the Company:
(1) If any of the representations in Section 2.b. hereof shall cease
to be true at any time during the term of this Agreement;
(2) Of any material change in the senior management or ownership of
the Investment Manager's corporation or other organization with
responsibility for decisions affecting the Account; and
(3) Of any other material change in the nature of the Investment
Manager's principal
-3-
<PAGE> 25
business activities.
e. Except as otherwise provided in the state trust law regarding
liability for breaches of fiduciary duties by other fiduciaries, the
Investment Manager shall have no responsibility for the acts or
omissions of the Trustee.
f. During and for six (6) years after the term of this Agreement, the
Investment Manager shall permit the Company or its agents (including
independent public accountants selected by the Company) at all
reasonable times during business hours to inspect at the expense of
the Company the Investment Manager's records of securities
transactions, holdings and valuations of the Account, including all
listings and appraisals of securities and all communications with
brokers, the Trustee and the Company with respect to such
transactions, holdings or valuations.
g. The Investment Manager shall not commit the Company to supplement
assets of the Account either by borrowing on the Company's behalf, or
by committing to a contract the performance of which may require the
Company to supplement the assets of the Account.
SECTION 4. DUTIES OF THE COMPANY
---------------------
The Company shall:
a. Notify the Trustee of the Investment Manager's appointment by
delivering a copy of this Agreement to the Trustee;
b. Cause the Trustee to retain custody of the assets in the Account
except as otherwise provided in this Agreement;
c. Provide, or cause the Trustee to provide, the Investment Manager with
such information pertaining to the Account and the Plan as the
Investment Manager may reasonably request;
d. Compensate, or cause the Trustee to compensate, the Investment Manager
for its services under this Agreement as the Company and the
Investment Manager shall hereafter agree to in writing from time to
time; and
e. Provide the Investment Manager with true and correct copies of the
Trust Agreement, and any and all amendments thereto.
SECTION 5. INVESTMENT OBJECTIVES - GUIDELINES
----------------------------------
The Company shall from time to time furnish the Investment Manager with
investment guidelines for management of the Account, in which event the
Investment Manager shall make its investment decisions consistent with such
guidelines. Changes in guidelines shall make due
-4-
<PAGE> 26
allowance for the time which the Investment Manager shall have within which
to come into compliance with such changed guidelines.
Initial guidelines are defined in Schedule 1 to this Agreement.
SECTION 6. PERFORMANCE OF DUTIES - STANDARD OF CARE
----------------------------------------
a. The Investment Manager shall comply with all laws and regulations
issued from time to time thereunder in the discharge of its duties
under this Agreement.
b. The Investment Manager shall discharge its duties under this Agreement:
(1) Solely in the interest of the Plan participants and
beneficiaries and for the exclusive purpose of providing
benefits to Plan participants and their beneficiaries and
defraying reasonable expenses of administering the Plan;
(2) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a
like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims
and investment policies, it being understood that the investment
of the Account shall be solely in Company securities and
therefore, such investment shall not be required to be
diversified. The Investment Manager is hereby authorized to
liquidate the position without restriction as it feels is
appropriate based on its evaluation of the facts know to it,
after giving consideration to this asset as a single holding and
not as a portfolio of diversified investments.
(3) In accordance with the documents and instruments governing the
Plan insofar as such documents and instruments are consistent
with the provisions of state trust law.
SECTION 7. INDEMNIFICATION
---------------
a. Unless the Investment Manager has acted imprudently or has otherwise
violated the provisions of state or other applicable law, the
Investment Manager shall not be subject to any liability to the Plans
or to any person, firm or organization, for any act or omission of
itself or of any other person, firm or organization in the course of,
or connected with, its obligations under this Agreement.
b. The Investment Manager shall be charged with no responsibility
whatsoever respecting action or inaction by the Investment Manager
under and pursuant to this Agreement if (i) this Agreement does not
grant discretionary authority to the Investment Manager with respect
to such action or inaction and (ii) the Investment Manager so acted
or failed to so act in compliance with a written direction to the
Investment Manager from the Company. With respect to any liability
arising from such directions by the Company, the Company shall
indemnify the Investment Manager for and hold the
-5-
<PAGE> 27
Investment Manager harmless from any liability (including
reasonable attorney's fees) arising therefrom.
SECTION 8. ACTING FOR OTHER ACCOUNTS
-------------------------
a. Provided that such action taken as an investment manager for others
does not constitute a breach of the duties assumed by the Investment
Manager under this Agreement, the Investment Manager and any of its
officers, affiliates and employees may act and continue to act as
investment managers for others, and nothing in this Agreement shall in
any way be deemed to restrict the right of the Investment Manager to
perform investment management or other services for any other person
or entity, and the performance of such services for others shall not
be deemed to violate or give rise to any duty or obligation to the
Company or the Trust.
b. Except as provided above, nothing in this Agreement shall limit or
restrict the Investment Manager or any of it officers, affiliates or
employees from buying, selling or trading in any securities for its or
their own account or accounts. The Company acknowledges that the
Investment Manager and its officers, affiliates and employees, and its
other clients may at any time have, acquire, increase, decrease or
dispose of positions in investments which are at the same time being
acquired, increased, decreased or disposed of for the Account of the
Trust. The Investment Manager shall have no obligation to acquire,
increase, decrease or dispose of a position in any investment for the
Trust which the Investment Manager, its officers, affiliates or
employees may acquire, increase, decrease or dispose of for its or
their accounts or for the account of another client, if in the sole
discretion of the Investment Manager and subject to the provisions of
Section 6 hereof, it is not feasible or desirable to acquire,
increase, decrease or dispose of a position in such investment for the
Account of the Trust.
c. Nothing in this Section 8 shall be construed to relieve the Investment
Manager of any of its duties or obligations as set forth in or arising
under other provisions of this Agreement.
SECTION 9. CONFIDENTIAL INFORMATION
------------------------
Any information or recommendations supplied to the Investment Manager by the
Company or the Trustee, which is not otherwise in the public domain or
previously known to the Investment Manager, in connection with the performance
of Investment Manager obligations hereunder are to be regarded as confidential
and for use only by the Investment Manager or such persons the Investment
Manager may designate in connection with the Account.
SECTION 10. SPECIMEN SIGNATURES
-------------------
The Investment Manager will forward from time to time to the Company and the
Trustee a
-6-
<PAGE> 28
list and specimen signatures of the parties who are authorized to act
on its behalf. The Company will forward to the Investment Manager a list and
specimen signatures of the parties who are authorized to act on its behalf and
shall cause the Trustee to forward a like list and specimen signatures to the
Investment Manager. Each party shall be entitled to rely upon such lists and
specimen signatures until receiving written notice of revocation or
modification.
SECTION 11. NO ASSIGNMENT OF AGREEMENT OR DUTIES
------------------------------------
Neither party may assign this Agreement, in whole or in part, nor delegate
except as contemplated herein all or part of the performance of duties
required of it by this Agreement without the prior written consent of the other
party, and any attempted assignment or delegation without such consent shall be
void.
SECTION 12. APPLICABLE LAW
--------------
This Agreement shall be administered and construed according to the laws of the
Commonwealth of Pennsylvania. If any provision of this Agreement is construed
to purport to relieve the Investment Manager from responsibility or liability
for any responsibility, obligation or duty under state trust law, such
provision shall be void without affecting the validity of the other provisions
of this Agreement.
SECTION 13. FEES
----
Fees for investment management services provided hereunder shall be as
designated in Exhibit A to this Agreement. Fees shall be paid by the Trustee
on direction of the Company, and shall not be withdrawn from the Account by the
Investment Manager. All statements shall show the calculation of fees
contained therein.
SECTION 14. TERMINATION
-----------
This Agreement shall continue in effect until terminated by either party by
giving notice to the other party at least ten (10) days prior to the date of
termination; provided that, subject to the trust document establishing the bank
commingled funds, the Company may at any time without prior notice order the
Investment Manager to cease activity, subject to its obligation to complete
execution of directions or instructions already acted upon, with respect to the
Account. Such order may be communicated orally subject to immediate written
confirmation to the Investment Manager. If this Agreement is terminated
during any period of time for which the Investment Manager has or has not
been compensated, the fee due to the Investment Manager for such period shall
be prorated to the date of termination.
-7-
<PAGE> 29
SECTION 15. NOTICES
-------
Any written notice or other communication required to be given under this
Agreement may be validly given by delivery telex or facsimile (upon a written
and executed acknowledgement of receipt of such facsimile) to the individuals
at the following addresses:
For the Investment Manager: WPIC Corporation
11 Stanwix Street
Westinghouse Building
Pittsburgh, PA 15222-1384
Attention: Claudia E. Morf
President and Treasurer
Telephone: (412) 642-3272
Facsimile: (412) 642-4797
For the Company: Westinghouse Electric Corporation
11 Stanwix Street
Westinghouse Building
Pittsburgh, PA 15222-1384
Attention: Vice President and Treasurer
Telephone: (412) 642-3272
Facsimile: (412) 642-4797
SECTION 17. PARTIAL INTEGRATION
-------------------
This Agreement contains the entire understanding of the parties with respect to
assets managed hereunder and there are no warranties or representations,
expressed or implied, with respect to such management. All amendments to this
Agreement shall be in writing and signed either by or on behalf of the Company
and the Investment Manager.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
-8-
<PAGE> 30
and year first above written by their duly authorized officers or
representatives.
WESTINGHOUSE ELECTRIC CORPORATION
By: ____________________________________________________
Executive Vice President and Chief Financial Officer
WPIC CORPORATION
By: __________________________________________________
President and Treasurer
-9-
<PAGE> 31
EXHIBIT A
---------
FEES
There will be no fees charged for investment management services provided
by the Investment Manager under this Agreement. However, the Investment
Manager will be reimbursed for any brokerage fees or other expenses incurred
with respect to managing the investments in the Account.
<PAGE> 32
SCHEDULE 1
----------
INVESTMENT GUIDELINES
All investments will be made in Westinghouse common stock (the "Common
Stock"), subject to the following criteria:
CASH
- ----
Cash dividends received on the Common Stock and any proceeds from the sale of
the Common Stock will be removed from the Account and invested in a separate
cash management account by the Trustee.
REGISTRATION OF SECURITIES
- --------------------------
Pursuant to Paragraph 7 of the Private Placement Agreement dated June 22,
1995 among Westinghouse, the Trustee and WPIC, the Trustee has the right to
demand that the Company register the shares of Common Stock contributed or
sold to the Trust.
FAVORABLE EXECUTION
- -------------------
The Investment Manager shall execute trades and transactions on the best
terms available at the time of the trade or transaction.
<PAGE> 33
Exhibit 3
INVESTMENT MANAGEMENT AGREEMENT
-------------------------------
THIS INVESTMENT MANAGEMENT AGREEMENT made and entered into as of the 23rd day
of May, 1995 between WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania
Corporation (hereinafter the "Company"), as named fiduciary for its employee
benefit plans, and WPIC Corporation, a Delaware Corporation (hereinafter the
"Investment Manager") ("the Agreement").
WITNESSETH:
WHEREAS, the Company and certain of its subsidiaries have adopted and may
hereafter adopt qualified employee pension and other retirement benefits plans
(hereinafter called collectively the "Plans" or individually the "Plan") for
the benefit of certain of their salaried and hourly employees; and
WHEREAS, the Company has designated Westinghouse Electric Corporation as named
fiduciary ("Named Fiduciary") to manage and control the assets of the Plans;
and
WHEREAS, the Company has executed a Master Trust Agreement dated January 2,
1976, as amended, between itself and Mellon Bank, N.A., as trustee (hereinafter
the "Trustee"), for the Plans as permitted under the Employee Retirement Income
Security Act of 1974 ("ERISA"), for the collective investment of the assets of
certain specified Plans (the "Trust"), which Trust Agreement permits the assets
held thereunder to be divided into separate investment accounts managed
individually by investment managers designated as provided in this Agreement;
and
WHEREAS, the Trust Agreement provides that the Company may from time to time
specify by written notice to the Trustee the extent to which investment of the
assets held in trust shall be managed by investment managers; and
WHEREAS, the Company has contributed Qualifying Employer Securities (as defined
in Section 407 of ERISA) to the Trust; and
WHEREAS, the Company and the Investment Manager wish to enter into the
Agreement for the purpose of retaining the Investment Manager to manage the
assets in the account to be known as the WPIC - Westinghouse Common Stock
Account (hereinafter called the "Account"):
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Investment Manager do hereby agree, each
with the other, as follows:
SECTION 1. APPOINTMENT OF INVESTMENT MANAGER
---------------------------------
Effective May 23, 1995, the Company appoints the Investment Manager to manage,
subject
<PAGE> 34
to the guidelines referred to in Section 5 thereof, such of the assets
held by the Trustee under the Trust Agreement as is in the Account from time to
time. Upon execution of this Agreement, the Account shall consist of the
assets listed in Exhibit A.
SECTION 2. ACCEPTANCE OF APPOINTMENT AS INVESTMENT MANAGER
-----------------------------------------------
a. ACCEPTANCE OF APPOINTMENT. The Investment Manager hereby accepts the
appointment to manage, subject to the guidelines referred to in
Section 5 hereof and on the terms and conditions set forth in this
Agreement, such of the assets held by the Trustee under the Trust
Agreement as is in the Account from time to time. The Investment
Manager acknowledges that it is a "fiduciary" within the meaning of
ERISA, with respect to each of the Plans, assets of which are included
in the Account, and the Investment Manager represents and covenants
that it will comply with its fiduciary responsibility under the
provisions of ERISA in the exercise of its rights and the performance
of its obligations under this Agreement.
b. REPRESENTATION BY INVESTMENT MANAGER. The Investment Manager
represents and warrants that it is either:
(1) Duly registered and in good standing as an "Investment Adviser"
with the Securities and Exchange Commission under the Investment
Advisers Act of 1940; or
(2) A bank, as defined in the Investment Advisers Act of 1940; or
(3) An insurance company qualified to perform investment management
services under the laws of more than one state; or
(4) A subsidiary of the Company authorized to perform investment
management services; and
(5) It has completed, obtained and performed all other
registrations, filings, approvals, authorizations, consents or
examinations required by any government or governmental
authority for acts contemplated by this Agreement.
SECTION 3. POWERS AND DUTIES OF THE INVESTMENT MANAGER
-------------------------------------------
a. Subject to the provisions of Sections 2 and 5 hereof and the
requirements of Part 4, Title I of ERISA pertaining to the
responsibilities of fiduciaries, the Investment Manager shall cause
the assets in the Account to be invested and reinvested from time to
time in such securities and other property or part interest therein as
the Investment Manager in its discretion shall deem advisable, and to
that end shall have full power and authority to:
(1) Direct the Trustee to make purchases and sales of securities or
other property
-2-
<PAGE> 35
for the Account;
(2) Direct the Trustee to exercise or abstain from exercising any
option, privilege or right attaching to any asset in the
Account;
(3) Issue orders for or make purchases or sales of securities or
other property for the Account directly to or with a broker,
dealer or other person on the best terms available;
(4) Vote all proxies with respect to the Account. The Investment
Manager shall be responsible for ensuring that proxies are voted
in the best interests of the Plans' participants and
beneficiaries, and shall exercise its duties with respect to the
voting of proxies in accordance with the requirements of ERISA,
and Interpretive Bulletin 94-2, 29 C.F.R. Section 2509.94-2
(regarding the duties of plan fiduciaries with respect to the
voting of proxies appurtenant to shares of stock held by plans).
The Investment Manager shall maintain records sufficient to
permit the Named Fiduciary to monitor the Investment Manager's
compliance with the aforementioned authorities;
(5) If a bank, retain all or any part of the assets of the Account
stipulated by the Company or invest in short term securities
issued by, or deposits in, the Investment Manager;
(6) To invest and reinvest all or any portion of the assets of the
Account through the medium of any common, collective or
commingled trust fund now or hereafter maintained by the
Investment Manager which consists solely of assets of plans
qualified under Section 401(a) of the Internal Revenue Code (the
"Code") and which is exempt from tax under Section 501(a) of the
Code, and the declaration of trust of any such fund shall
constitute a part of this Agreement with respect to any assets
in the Account which are at the time invested in such fund;
(7) To invest and reinvest all or any portion of the assets of the
Account through the medium of any separate account of an
insurance company now or hereafter maintained by the Investment
Manager which consists solely of assets of plans qualified under
Section 401(a) of the Code; and
(8) To instruct or direct the Trustee or to perform any or all of the
powers, duties and authority given to the Trustee in the Trust
Agreement which are therein subjected to direction by the
Investment Manager and to enforce performance by the Trustee of
such powers, duties and authority.
b. Instructions or directions of the Investment Manager to the Trustee
shall be made or confirmed in writing. The Investment Manager shall
instruct all brokers, dealers or other persons executing orders on
behalf of the Account to forward to the Trustee copies of all
brokerage or dealer confirmations promptly after execution of
any transactions. The Investment Manager, upon written request of the
Trustee, shall also provide the Trustee and the Named Fiduciary with
such other documents
-3-
<PAGE> 36
and information pertaining to the Agreement as may reasonably be
requested, including without limitation, certificates evidencing the
Investment Manager's duly authorized representatives and, where
appropriate, registration under the Investment Advisers Act of 1940.
c. The Investment Manager shall deliver to the Trustee and the Named
Fiduciary, within fifteen calendar days after the close of each
calendar month, written statements showing all investments, including
units of bank commingled funds held in the Account, and their market
and carrying values as of the close of business on the last business
day of each such calendar month, and a written statement of
transactions affected by it during such month.
d. The Investment Manager shall promptly notify the Company:
(1) If any of the representations in Section 2.b. hereof shall cease
to be true at any time during the term of this Agreement;
(2) Of any material change in the senior management or ownership of
the Investment Manager's corporation or other organization with
responsibility for decisions affecting the Account; and
(3) Of any other material change in the nature of the Investment
Manager's principal business activities.
e. Except as otherwise provided in ERISA regarding liability for breaches
of fiduciary duties by other fiduciaries, the Investment Manager shall
have no responsibility for the acts or omissions of the Trustee.
f. During and for six (6) years after the term of this Agreement, the
Investment Manager shall permit the Company or its agents (including
independent public accountants selected by the Company) at all
reasonable times during business hours to inspect at the expense of
the Company the Investment Manager's records of securities
transactions, holdings and valuations of the Account, including all
listings and appraisals of securities and all communications with
brokers, the Trustee and the Company with respect to such
transactions, holdings or valuations.
g. The Investment Manager shall not commit the Company to supplement
assets of the Account either by borrowing on the Company's behalf, or
by committing to a contract the performance of which may require the
Company to supplement the assets of the Account.
SECTION 4. DUTIES OF THE COMPANY
---------------------
The Company shall:
a. Notify the Trustee of the Investment Manager's appointment by
delivering a copy of
-4-
<PAGE> 37
this Agreement to the Trustee;
b. Cause the Trustee to retain custody of the assets in the Account
except as otherwise provided in this Agreement;
c. Provide, or cause the Trustee to provide, the Investment Manager with
such information pertaining to the Account and the Plans as the
Investment Manager may reasonably request;
d. Compensate, or cause the Trustee to compensate, the Investment Manager
for its services under this Agreement or as the Company and the
Investment Manager shall hereafter agree to in writing from time to
time; and
e. Provide the Investment Manager with true and correct copies of the
Trust Agreement, and any and all amendments thereto.
SECTION 5. INVESTMENT OBJECTIVES - GUIDELINES
----------------------------------
The Company shall from time to time furnish the Investment Manager with
investment guidelines for management of the Account, in which event the
Investment Manager shall make its investment decisions consistent with such
guidelines. Changes in guidelines shall make due allowance for the time which
the Investment Manager shall have within which to come into compliance with
such changed guidelines.
Initial guidelines are defined in Schedule 1 to this Agreement.
SECTION 6. PERFORMANCE OF DUTIES - STANDARD OF CARE
----------------------------------------
a. The Investment Manager shall comply with all laws and regulations
issued from time to time thereunder in the discharge of its duties
under this Agreement.
b. The Investment Manager shall discharge its duties under this
Agreement:
(1) Solely in the interest of the Plan participants and
beneficiaries and for the exclusive purpose of providing
benefits to Plan participants and their beneficiaries and
defraying reasonable expenses of administering the Plan;
(2) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a
like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims
and policies, it being understood that the investment of the
Account shall be solely in Qualifying Employer Securities (as
defined in Section 407 of ERISA) and, therefore, such investment
shall not be required to be diversified. The Investment Manager
is hereby authorized to liquidate the position without
restriction as it feels is appropriate based on its
-5-
<PAGE> 38
evaluation of the facts known to it, after giving consideration
to this asset as a single holding and not as a portfolio of
diversified investments.
(3) In accordance with the documents and instruments governing each
Plan insofar as such documents and instruments are consistent
with the provisions of ERISA.
SECTION 7. LIABILITY OF INVESTMENT MANAGER
-------------------------------
a. Unless the Investment Manager has acted imprudently or has otherwise
violated the provisions of ERISA or other applicable law, the
Investment Manager shall not be subject to any liability to the Plans,
the Named Fiduciary, or to any other person, firm or organization, for
any act or omission of itself or of any other person, firm or
organization in the course of, or connected with, its obligations
under this Agreement.
b. The Investment Manager shall be charged with no responsibility
whatsoever respecting action or inaction by the Investment Manager
under and pursuant to this Agreement if (i) this Agreement does not
grant discretionary authority to the Investment Manager with respect
to such action or inaction and (ii) the Investment Manager so acted or
failed to so act in compliance with a written direction to the
Investment Manager from the Company. With respect to any liability
arising from such directions by the Company, the Company shall
indemnify the Investment Manager for and hold the Investment Manager
harmless from any liability (including reasonable attorney's fees)
arising therefrom.
SECTION 8. ACTING FOR OTHER ACCOUNTS
-------------------------
a. Provided that such action taken as an investment manager for others
does not constitute a breach of the duties assumed by the Investment
Manager under this Agreement, the Investment Manager and any of its
officers, affiliates and employees may act and continue to act as
investment managers for others, and nothing in this Agreement shall in
any way be deemed to restrict the right of the Investment Manager to
perform investment management or other services for any other person
or entity, and the performance of such services for others shall not
be deemed to violate or give rise to any duty or obligation to the
Company or the Trust.
b. Except as provided above, nothing in this Agreement shall limit or
restrict the Investment Manager or any of it officers, affiliates or
employees from buying, selling or trading in any securities for its or
their own account or accounts. The Company acknowledges that the
Investment Manager and its officers, affiliates and employees, and its
other clients may at any time have, acquire, increase, decrease or
dispose of positions in investments which are at the same time being
acquired, increased, decreased or disposed of for the account of the
Trust. The Investment Manager shall have no obligation to acquire,
increase, decrease or dispose of a position in any investment for the
Trust which the Investment Manager, its officers, affiliates or
employees may acquire, increase, decrease or dispose of for
its or their accounts or for
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<PAGE> 39
the account of another client, if in the sole discretion of the
Investment Manager and subject to the provisions of Section 5
hereof, it is not feasible or desirable to acquire a position in
such investment for the accounts of the Trust.
c. Nothing in this Section 8 shall be construed to relieve the Investment
Manager of any of its duties or obligations as set forth in or
arising under other provisions of this Agreement.
SECTION 9. CONFIDENTIAL INFORMATION
------------------------
Any information or recommendations supplied to the Investment Manager by the
Named Fiduciary or the Trustee, which is not otherwise in the public domain or
previously known to the Investment Manager, in connection with the performance
of Investment Manager obligations hereunder are to be regarded as confidential
and for use only by the Investment Manager or such persons the Investment
Manager may designate in connection with the Account.
SECTION 10. COMPANY BENEFIT PLANS
---------------------
Any employee benefit plan sponsored by the Company or any of its subsidiaries
or affiliates, any part of the assets of which enter into the Account in
accordance with the provisions of the Trust Agreement, shall be a Plan for the
purposes of this Agreement, and the Investment Manager's appointment and
acceptance of appointment as Investment Manager for such Plan shall be
effective as of the date any assets of such Plan become a part of the Account.
SECTION 11. SPECIMEN SIGNATURES
-------------------
The Investment Manager will forward from time to time to the Company and the
Trustee a list and specimen signatures of the parties who are authorized to act
on its behalf. The Company will forward to the Investment Manager a list and
specimen signatures of the parties who are authorized to act on its behalf and
shall cause the Trustee to forward a like list and specimen signatures to the
Investment Manager. Each party shall be entitled to rely upon such lists and
specimen signatures until receiving written notice of revocation or
modification.
SECTION 12. NO ASSIGNMENT OF AGREEMENT OR DUTIES
------------------------------------
Neither party may assign this Agreement, in whole or in part, nor delegate
except as contemplated herein all or part of the performance of duties
required of it by this Agreement without the prior written consent of the other
party, and any attempted assignment or delegation without such consent shall be
void.
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<PAGE> 40
SECTION 13. APPLICABLE LAW
--------------
This Agreement shall be administered and construed according to the laws of the
Commonwealth of Pennsylvania, except as superseded and preempted by ERISA or
other laws of the United States. If any provision of this Agreement is
construed to purport to relieve the Investment Manager from responsibility or
liability for any responsibility, obligation or duty under Title 1, Part 4 of
ERISA, except as provided in Sections 405(b)(1) and 405(d) of ERISA, such
provision shall be void without affecting the validity of the other provisions
of this Agreement.
SECTION 14. FEES
----
Fees for investment management services provided hereunder shall be as
designated in Exhibit B to this Agreement. Fees shall be paid by the Trustee
on direction of the Company, and shall not be withdrawn from the Account by the
Investment Manager. All statements shall show the calculation of fees
contained therein.
SECTION 15. TERMINATION
-----------
This Agreement shall continue in effect until terminated by either party by
giving notice to the other party at least ten (10) days prior to the date of
termination; provided that, subject to the trust document establishing the bank
commingled funds, the Company may at any time without prior notice order the
Investment Manager to cease activity, subject to its obligation to complete
execution of directions or instructions already acted upon, with respect to the
Account. Such order may be communicated orally subject to immediate written
confirmation to the Investment Manager. If this Agreement is terminated
during any period of time for which the Investment Manager has or has not been
compensated, the fee due to the Investment Manager for such period shall be
prorated to the date of termination.
SECTION 16. NOTICES
-------
Any written notice or other communication required to be given under this
Agreement may be validly given by delivery telex or facsimile (upon written and
executed
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<PAGE> 41
acknowledgement of receipt of such facsimile) to the individuals
at the following addresses:
For the Investment Manager: WPIC Corporation
11 Stanwix Street
Westinghouse Building
Pittsburgh, PA 15222-1384
Attention: Claudia E. Morf
President and Treasurer
Telephone: (412) 642-3272
Facsimile: (412) 642-4797
For the Company: Westinghouse Electric Corporation
11 Stanwix Street
Westinghouse Building
Pittsburgh, PA 15222-1384
Attention: Vice President and Treasurer
Telephone: (412) 642-3272
Facsimile: (412) 642-4797
SECTION 17. PARTIAL INTEGRATION
-------------------
This Agreement contains the entire understanding of the parties with respect to
assets managed hereunder and there are no warranties or representations,
expressed or implied, with respect to such management. All amendments to this
Agreement shall be in writing and signed either by or on behalf of the Company
and the Investment Manager.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written by their duly authorized officers or
representatives.
WESTINGHOUSE ELECTRIC CORPORATION
By: _________________________________
Executive Vice President
and Chief Financial Officer
WPIC CORPORATION
By: _________________________________
President and Treasurer
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