As filed with the Securities and
Exchange Commission on November 23, 1994
Registration No. 33-___________
_________________________________________________________________
__________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 74-1673682
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
757 N. Eldridge
Houston, Texas 77079
(Address of principal executive offices and zip code)
BFI EMPLOYEE STOCK OWNERSHIP AND SAVINGS PLAN
(Full title of the plan)
Gerald K. Burger, Vice President and Secretary
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
(Name and address of agent for service)
(713) 870-8100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered (1) Registered Per Share(2) Price (2) Fee
Common Stock, 2,000,000 (4) $26.13 $52,260,000 $18,021
$.16-2/3
par value(3)
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the BFI Employee Stock Ownership and Savings
Plan (the "Plan").
(2) Estimated, solely for the purpose of calculating the registration fee,
in accordance with Rules 457(c) and (h) under the Securities Act of 1933, on
the basis of the average of the high and low sales prices reported by
the New York Stock Exchange-Composite Tape for November 22, 1994.
(3) Includes the preferred stock purchase rights associated with the Common
Stock.
(4) Pursuant to Rule 416(a), this Registration Statement also covers such
indeterminable number of additional shares as may become issuable to prevent
dilution resulting from stock splits, stock dividends or similar transactions
pursuant to the terms of the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed with the Securities and Exchange
Commission (the "Commission") (File No. 1-6805) are incorporated herein by
reference and made a part hereof:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993.
(2) The Plan's Annual Report on Form 11-K for the fiscal year ended
December 31, 1993.
(3) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1993, March 31, 1993 and June 30, 1993.
(4) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-3, filed with the Commission on
January 12, 1994 (Registration No. 33-58790).
All reports and other documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold or that deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in any
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware empowers
the Registrant to, and the By-laws of the Registrant provide that it shall,
indemnify any person who was or is a party or is threatened to be made a party
to, or otherwise becomes involved in, any threatened, pending or completed
action, suit or proceeding other than an action, suit or proceeding by or in
the right of the Registrant, by reason of the fact that he is or was a
director, officer, employee or agent of the Registrant, or is or was serving
at the request of the Registrant as a director, officer, employee or agent of
another corporation, 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
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that, in the case
of an action or suit by or in the right of the Registrant, no indemnification
may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Registrant, unless and only to
the extent that the Delaware Court of Chancery or the court in which such
action or suit was brought shall determine that such person is fairly and
reasonably entitled to indemnity for proper expenses.
The Registrant's By-laws provide, pursuant to Section 145 of the General
Corporation Law of the State of Delaware, for indemnification of officers,
directors, employees and agents of the Registrant and persons serving at the
request of the Registrant in such capacities for other business organizations
against certain losses, costs, liabilities and expenses incurred by reason of
their positions with the Registrant or such other business organizations.
The Registrant's Restated Certificate of Incorporation contains a provision
which eliminates, to the fullest extent permitted by law, director liability
for monetary damages for breaches of fiduciary duty of care.
At the annual meeting of stockholders held on March 4, 1987, the Registrant's
stockholders adopted a resolution authorizing the Registrant to enter into an
Indemnity Agreement with each of the Registrant's directors and with certain
officers of the Registrant designated by the Board of Directors or its
Executive Committee. The Indemnity Agreement requires that the Registrant
indemnify directors and designated officers who are parties thereto in all
cases to the fullest extent permitted by applicable law.
Pursuant to a policy of directors' and officers' liability and corporation
reimbursement insurance, the Registrant's officers and directors are insured,
subject to the limits, retention, exceptions and other terms and conditions of
such policy, against liability for any actual or alleged breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted while acting in their capacities as directors or
officers of the Registrant.
Pursuant to a number of agreements by which the Registrant acquired ownership
of businesses, the former owners of those businesses individually agreed to
indemnify each officer of the Registrant, each person who may be liable as a
director of the Registrant or as a person who controls or shall have controlled
the Registrant within the meaning of the Securities Act of 1933 (the "Act")
against certain liabilities that such officers, directors or controlling
persons might incur. Generally, such former owners have agreed to indemnify
such officers, directors or controlling persons against any and all damages or
liabilities to which such officers, directors or controlling persons may
become subject under the Act, the Securities Exchange Act of 1934, state
securities laws, the common law or otherwise, including legal and other
expenses incurred in connection therewith, but only insofar as such liabilities
arise out of or are based upon any untrue statement or omission or alleged
omission based upon information furnished to the Registrant by or on behalf of
such former owner for use in certain registration statements filed by the
Company under the Act or upon failure of such former owner to provide such
information.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into this
Registration Statement:
Number Description
4.1 Registrant's Restated Certificate ofIncorporation,
dated October 7, 1991. Exhibit 3(a) of the
Registrant's Annual Report on Form 10-K for the year
ended September 30, 1993, File No. 1-6805, is hereby
incorporated by reference.
4.2 Registrant's By-laws, as amended throughMarch 3, 1993.
Exhibit 3(b) of the Registrant's Annual Report on Form
10-K for the year ended September 30, 1993, File No.
1-6805, is hereby incorporated by reference.
4.3 Rights Agreement, dated June 1, 1988, between the
Registrant and Texas Commerce Bank National
Association. Exhibit 3.3 of Registrant's Annual Report
on Form 10-K for the year ended September 30, 1988,
File No. 1-6805, is hereby incorporated by reference.
4.4 First Amendment, dated March 1, 1989, to Rights
Agreement dated June 1, 1988, between the Registrant
and Texas Commerce Bank National Association. Exhibit
10.1 to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1989, File No. 1-6805,
is hereby incorporated by reference.
4.5 Second Amendment, dated as of March 7, 1990, to Rights
Agreement, dated June 1, 1988, between the Registrant
and First Chicago Trust Company of New York as
successor Rights Agent. Exhibit 4.1 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1990, File No. 1- 6805, is
hereby incorporated by reference.
4.6 BFI Employee Stock Ownership and Savings Plan, as
amended through December 1, 1986. Exhibit 10.10 of
Registrant's Annual Report on Form 10-K for the year
ended September 30, 1986, File No. 1-6805, is hereby
incorporated by reference.
4.7 Fifth Amendment dated June 8, 1988 to the BFI Employee
Stock Ownership and Savings Plan. Exhibit 10.16 of
Registrant's Annual Report on Form 10-K for the year
ended September 30, 1988, File No. 1-6805, is hereby
incorporated by reference.
4.8 Sixth Amendment dated December 23, 1988 to the BFI
Employee Stock Ownership and Savings Plan. Exhibit
10.4 of Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1988, File No. 1-6805,
is hereby incorporated by reference.
4.9 Seventh, Eighth and Ninth Amendments, dated as of May
31, 1989, June 7, 1989 and October 31, 1991,
respectively, to the BFI Employee Stock Ownership and
Savings Plan. Exhibit 10.20 of Registrant's Annual
Report on Form 10-K for the year ended September 30,
1991, File No. 1-6805, is hereby incorporated by
reference.
4.10 Tenth Amendment dated September 7, 1993, to the BFI
Employee Stock Ownership and Savings Plan, Exhibit
10.22 of Registrant's Annual Report on Form 10-K for
the year ended September 30, 1993, File No. 1-6805, is
hereby incorporated by reference.
*4.11 BFI Employee Stock Ownership and Savings Plan Trust
Agreement dated as of April 12, 1993.
*4.12 First Amendment, dated June 1, 1994, to the BFI
Employee Stock Ownership and Savings Plan Trust
Agreement.
*5.1 Opinion of as to legality of the securities being
registered.
5.2 The Registrant hereby undertakes to submit or has
submitted the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner
and has made or will make all changes required by the
IRS in order to qualify the Plan.
*23.1 Consents of Arthur Andersen LLP.
*23.2 Consent of Counsel (included in the opinion filed as
Exhibit 5.1 hereof).
*24 Powers of Attorney. (Included in signature page).
______________________
*Filed with this Registration Statement.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Houston, State of Texas, on the 23rd
day of November, 1994.
BROWNING-FERRIS INDUSTRIES, INC.
("Registrant")
By: /s/ William D. Ruckelshaus
William D. Ruckelshaus
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints WILLIAM D. RUCKELSHAUS, JEFFREY E. CURTISS, and RUFUS
WALLINGFORD, and each of them, acting without the others, true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and to make any and all state securities law
or blue sky filings, granting unto said attorney in fact and agent, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
/s/ William D. Ruckelshaus
William D. Ruckelshaus
Chairman of the Board,
Chief Executive Officer
and Director
/s/ Bruce E. Ranck
Bruce E. Ranck
President, Chief
Operating Officer
and Director
/s/ Norman A. Myers
Norman A. Myers
Vice Chairman, Chief
Marketing Officer and
Director
/s/ Jeffrey E. Curtiss
Jeffrey E. Curtiss
Senior Vice President and
Chief Financial Officer
/s/ David R. Hopkins
David R. Hopkins
Vice President, Controller
and Chief Accounting Officer
/s/ William T. Butler
William T. Butler, Director
/s/ C. Jackson Grayson, Jr.
C. Jackson Grayson, Jr., Director
/s/ Gerald Grinstein
Gerald Grinstein, Director
/s/ Ulrich Otto
Ulrich Otto, Director
/s/ Harry J. Phillips, Sr.
Harry J. Phillips, Sr., Director
/s/ Joseph L. Roberts, Jr.
Joseph L. Roberts, Jr., Director
/s/ Marc J. Shapiro
Marc J. Shapiro, Director
/s/ Robert M. Teeter
Robert M. Teeter, Director
/s/ Marina v.N. Whitman
Marina v.N. Whitman, Director
/s/ Louis A. Waters
Louis A. Waters, Director
/s/ Peter S. Willmott
Peter S. Willmott, Director
Date: November 23, 1994
The Plan.
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Plan has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on the 23rd day of November, 1994.
BFI EMPLOYEE STOCK OWNERSHIP
AND SAVINGS PLAN
(The "Plan")
/s/ Gerald K. Burger
Gerald K. Burger*
/S/ Jeffrey E. Curtiss
Jeffrey E. Crutiss*
/s/ Henry L. Hirvela
Henry L. Hirvela*
/s/ J. Gregory Muldoon
J. Gregory Muldoon*
/s/ Susan J. Piller
Susan J. Piller*
/s/ Bruce E. Ranck
Bruce E. Ranck*
*The Members of the Benefits
Administration Committee
EXHIBIT 5.1
November 23, 1994
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Gentlemen:
I have acted as counsel for Browning-Ferris Industries, Inc., a Delaware
corporation (the "Company"), in connection with its filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended, of 2,000,000 shares of the Company's common stock,
$.16 2/3 par value per share, including the preferred stock purchase rights
associated therewith (collectively, the "Shares"), which are to be offered upon
the terms and subject to the conditions set forth in the BFI Employee Stock
Ownership Savings Plan (the "Plan").
I have examined (i) the Restated Certificate of Incorporation and
By-Laws of the Company, each as amended to date, (ii) the Plan, (iii) the
Registration Statement, and (iv) such certificates, statutes and other
instruments and documents as we considered appropriate for purposes of the
opinions hereafter expressed.
In connection with this opinion, I have assumed the authenticity and
completeness of all records, certificates and other instruments submitted to me
as originals, the conformity to original documents of all records, certificates
and other instruments submitted to me as copies, the authenticity and
completeness of the originals of those records, certificates and other
instruments submitted to me as copies and the correctness of all statements of
fact contained in all records, certificates and other instruments that I have
examined.
Based upon and subject to the foregoing, I are of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the Plan will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Allan R. Conge
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
December 7, 1993, included in Browning-Ferris Industries, Inc.'s Annual Report
on Form 10-K for the year ended September 30, 1993, and to all references to
our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
November 23, 1994
EXHIBIT 4.11
Trust Agreement
Between
Browning-Ferris Industries, Inc.
And
Fidelity Management Trust Company
_____________________________________________________
BFI EMPLOYEE STOCK OWNERSHIP AND SAVINGS PLAN TRUST
______________________________________________________
Dated as of April 12, 1993
TABLE OF CONTENTS
SECTION PAGE
Section 1 Trust 2
Section 2 Exclusive Benefit and Reversion of Sponsor Contributions 2
Section 3 Disbursements 3
(a) Directions from Administrator
(b) Limitations
Section 4 Investment of Trust 3
(a} Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Standing Direction
(e) Mutual Funds
(f) Sponsor Stock W Guaranteed Investment
Contracts
(h) Reliance of Trustee Directions
(i) Trustee Powers
Section 5 Recordkeeping and Administrative Services
to Be Performed 16
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
Section 6 Compensation and Expenses 17
Section 7 Directions and Indemnification 18
(a) Identity of Administrator and
Committee
(b) Directions from Administrator
(c) Directions from Committee
(d) Directions from Participant
(e) Co-Fiduciary Liability
(f) Indemnification
(g) Survival
Section 8 Resignation or Removal of Trustee 20
(a) Resignation
(b) Removal
Section 9 Successor Trustee 20
(a) Appointment
(b) Acceptance
(c) Corporate Action
-i-
SECTION PAGE
Section 10 Termination 21
Section 11 Resignation, Removal, and Termination
Notices 21
Section 12 Duration 22
Section 13 Amendment or Modification 22
Section 14 General 22
(a) Performance by Trustee, its Agents
or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
Section 15 Governing Law 23
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
SCHEDULES
A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Investment Options
D. Administrator's Authorization Letter
E. Committee's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Existing GICs
H. Telephone Exchange Procedures
I. Investment Guidelines for GIC Management
-ii-
TRUST AGREEMENT, dated as of the twelfth day of April, 1993, between Browning
Ferris Industries, inc., a Delaware corporation, having an office at 757 North
Eldridge, Houston, TX 77079 (the "sponsor"), and FIDELITY MANAGEMENT TRUST
COMPANY, A Massachusetts Trust Company, having an office at 82 Devonshire
Street, Boston, Massachusetts 02109 (the "Trustee")
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the BFI Employee Stock Ownership and
Savings Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish a trust to hold and invest plan assets
under the Plan for the exclusive benefit of participants in the Plan and their
beneficiaries; and
WHEREAS, the Benefits Administrative Committee (the "Committee") is a named
fiduciary of the Plan (within the meaning of section 402(a) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan assets in
trust among several investment options selected by the Committee; and
WHEREAS, the Sponsor wishes to have the Trustee, in addition to its duties as
trustee, perform certain ministerial recordkeeping and administrative functions
under the Plan; and
WHEREAS, Benefits Administrative Committee (the "Administrator") is the of the
Plan (within the meaning of Section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping and administrative
services for the Plan if the services are purely ministerial in nature and are
provided within a framework of plan provisions, guidelines and interpretations
conveyed in writing to the Trustee by the Administrator.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the Sponsor and the Trustee agree as
follows:
Section 1. Trustee. The Sponsor hereby establishes the BFI Employee Stock
Ownership and Savings Plan Trust (the "Trust"), with the Trustee. The Trust
shall consist of an initial contribution of money or other property acceptable
to the Trustee in its sole discretion, made by the Sponsor or transferred from
a previous trustee under the Plan, such additional sums of money and Sponsor
(hereinafter defined) as shall from time to time be delivered to the Trustee
under the Plan, all investments made therewith and proceeds thereof, and all
earnings and profits thereon, less the payments that are made by the Trustee as
provided herein, without distinction between principal and income. The Trustee
hereby accepts the Trust on the terms and conditions set forth in this
Agreement. In accepting this Trust, the Trustee shall be accountable for the
assets received by it, subject to the terms and conditions of this Agreement.
Section 2. Exclusive Benefit and Reversion of Sponsor Contributions. Except as
provided under applicable law, no part of the Trust may be used for, or
diverted to, purposes other than the exclusive benefit of the participants in
the Plan or their beneficiaries prior to the satisfaction of all liabilities
with respect to the participants and their beneficiaries.
Section 3. Disbursements.
(a) Directions from Administrator. The Trustee shall make disbursements in the
amounts and in the manner that the Administrator directs from time to time in
writing. The Trustee shall have no responsibility to ascertain any direction's
compliance with the terms of the Plan or of any applicable law or the
direction's effect for tax purposes or otherwise: nor shall the Trustee have
any responsibility to see to the application of any disbursement.
(b) Limitations. The Trustee shall not be required to make any disbursement in
excess of the net realizable value of the assets of the Trust at the time of
the disbursement. The Trustee shall not be required to make any disbursement
in cash unless the Administrator has provided a written direction as to the
assets to be converted to cash for the purpose of making the disbursement.
Section 4. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall have no responsibility
for the selection of investment options under the Trust and shall not render
investment advice to any person in connection with the selection of such
options.
(b) Available Investment Options. The Committee shall direct the Trustee as to
what investment options: (i) the Trust shall be invested in during the
participant recordkeeping reconciliation period, and (ii) the investment
options in which Plan participants may invest in, subject to the following
limitations.
The Committee may determine to offer as investment options only (i) securities
issued by the investment companies advised by Fidelity Management & Research
Company ("Mutual Funds"), (ii) equity securities issued by the Sponsor or an
affiliate which are publicly-traded and which are "qualifying employer
securities" within the meaning of section 407(d)(5) of ERISA ("Sponsor Stock"),
(iii) notes evidencing loans to Plan participants in accordance with the terms
of the Plan, (iv) guaranteed investment contracts shown by the Trustee, (v)
guaranteed annuity contracts heretofore entered into by the Sponsor or
predecessor trustee and specifically identified on Schedule "G" attached hereto
("Existing GICs"), and (vi) collective investment funds maintained by the
Trustee for qualified plans; provided, however, that the Trustee shall be
considered a fiduciary with investment discretion only with respect to Plan
assets that are invested in guaranteed investment contracts chosen by the
Trustee, Existing GICs or in collective investment funds maintained by the
Trustee for qualified plans. The investment options initially selected by
the Committee are identified on Schedules "A" and "C" attached hereto. The
Committee may add additional investment options or delete investment options
with the consent of the Trustee and upon mutual amendment of this Trust
Agreement and the Schedules thereto to reflect such additions or deletions.
(c) Participant Direction. Each Plan participant shall direct the Trustee in
which investment option(s) to invest the assets in the participant's
participant-directed accounts noted on Schedule "A". Such directions may be
made by Plan participants by use of the telephone exchange system maintained
for such purposes by the Trustee or its agent, in accordance with written
Telephone Exchange Guidelines attached hereto as Schedule "H". In the event
that the Trustee fails to receive a proper direction, the assets shall be
invested in the Individually Managed Guaranteed Investment Fund until the
Trustee received a proper direction; further, until it receives a proper
direction the Trustee shall hold such assets in the Fidelity Employee Benefit
U.S. Government Reserves Portfolio portion of the Individually Managed
Guaranteed Investment Fund as is practical given the investment guidelines of
the Individually Managed Guaranteed
Investment Fund.
(d) Standing Direction. Except for the accounts as to which the Participants
have the right to direct their investments as described in Section 4(c), the
Trustee shall invest all contributions of the Trust in Sponsor Stock unless
the Trustee receives contrary directions from the Committee pursuant to Section
7(c).
(e) Mutual Funds. The Sponsor hereby acknowledges that it has received from
the
Trustee a copy of the prospectus for each Mutual Fund selected by the Committee
as a Plan investment option. Trust investments in Mutual Funds shall be subject
to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of Mutual
Funds (other than for Exchanges) shall be made on the date on which the
Trustee receives from the Sponsor in good order all information and
documentation necessary to accurately effect such purchases and sales (or in
the case of a purchase, the subsequent date on which the Trustee has received
a wire transfer of funds necessary to make such purchase). Exchanges of Mutual
Funds shall be made in accordance with the Telephone Exchange Guidelines
attached hereto as Schedule "H".
(ii) Voting. At the time of mailing of notice of each annual or special
stockholders' meeting of any Mutual Fund, the Trustee shall send a copy of the
notice and all proxy solicitation materials to each Plan participant who has
shares of the Mutual Fund credited to the participant's accounts, together with
a voting direction form for return to the Trustee or its designed. The
participant shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote the shares credited to the participant's accounts
(both vested and unvested). The Trustee shall vote the shares as directed by
the participant. The Trustee shall not vote shares for which it has received no
directions from the participant. During the participant recordkeeping
reconciliation period, the Administrator shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the shares of the
Mutual Funds in the Trust. With respect to all rights appurtenant to shares of
any Mutual Fund credited to the participant's accounts other than the right to
vote, the Trustee shall follow the directions of the participant and if no such
directions are received, the directions of the Committee. The Trustee shall
have no duty to solicit directions from participants or the Sponsor.
(f) Sponsor Stock. Trust investments in Sponsor Stock shall be subject to the
following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the participant-directed
accounts noted on Schedule "A" shall be invested in Sponsor Stock to the extent
necessary to comply with investment directions under Section 4(c) of this
Agreement; provided, however, no more than twenty-five percent (25%) of any
aggregate contribution to such accounts may be invested In Sponsor Stock and no
transfer of such account balances to investment in Sponsor Stock may be made to
the extent that would cause more than twenty-five percent (25%) of the
aggregate value in such accounts to be invested in Sponsor Stock.
(ii) Fiduciary Duty of Committee. The Trustee shall not be responsible
for continually monitoring the suitability under the fiduciary duty rules of
section 404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA} of
acquiring Sponsor Stock. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the directions of the Committee with
respect to the acquisition and holding of Sponsor Stock, unless it is clear on
their face that the actions to be taken under those directions would be
inconsistent with the terms of the Plan or this Agreement or Title I of ERISA.
(iii) Execution of Purchases and Sales.
(A) Purchases and sales of Sponsor Stock (other than for
exchanges) shall be made on the open market on the date on which
the Trustee receives from the Sponsor in good order all information
and documentation necessary to accurately effect such purchases and
sales (or, in the case of purchases, the subsequent date on which
the Trustee has received a wire transfer of the funds necessary to
make such purchases). Exchanges of Sponsor Stock shall be made in
accordance with the Telephone Exchange Guidelines attached hereto
as Schedule "H". Such general rules shall not apply in the
following circumstances:
(1) If the Trustee is unable to determine the number of
shares required to be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the total
number of shares required to be purchased or sold on such day
as a result of market conditions; or
(3) If the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange, or any other
regulatory body from purchasing or selling any or all of the
shares required to be purchased or sold on such day.
In the event of the occurrence of the circumstances described
in (1), (2), or (3) above, the Trustee shall purchase or sell such shares as
soon as possible thereafter and shall determine the price of such purchases
or sales to be the average purchase or sales price of all such shares
purchased or sold, respectively. The Trustee may follow directions from the
Sponsor to deviate from the above purchase and sale procedures provided that
such direction is made in writing by the Sponsor.
(B) Purchases and Sales from or to Sponsor. If directed by the
Sponsor prior to 4:00 p.m. on the trading date, the Trustee may purchase or
sell Sponsor Stock from or to the Sponsor if the purchase or sale is for
adequate consideration (within the meaning of Section 3(18) of ERISA) and no
commission is charged. If Sponsor contributions or contributions made by the
Sponsor on behalf of the participants under the Plan are to be invested in
Sponsor Stock, then the Sponsor may transfer Sponsor Stock in lieu of cash to
the Trust. In such case, the number of shares to be transferred will be
determined by dividing the total amount of the contribution by the average
of the high and low sales price of the Sponsor Stock on any national securities
exchange on the day such contributions are allocated.
(C) Use of an Affiliated Broker. The Sponsor hereby authorizes the
Trustee to use Fidelity Brokerage Services, Inc. ("FBSI") to provide brokerage
services in connection with any purchase or sale of Sponsor Stock in accordance
with directions from Plan participants. FBSI shall execute such directions
directly or through its affiliate, National Financial Services Company
("NFSC").
The provision of brokerage services shall be subject to the following:
(i) As consideration for such brokerage services, the
Sponsor agrees that FBSI shall be entitled to remuneration
under this authorization provision in the amount of five cents
($.05) commission on each share of Sponsor Stock up to 10,000
shares in a singular transaction, four cents ($.04) commission
on each share of Sponsor Stock from 10,001 to 20,000 shares
in a singular transaction, and three and one-half cents
($.035) commission on each share of Sponsor Stock in excess of
20,000 shares in a singular transaction. Any change in such
remuneration may be made only by a signed agreement between
Sponsor and Trustee.
(ii) Following the procedures set forth in Department of
Labor Prohibited Transaction Class Exemption 86- 128, the
Trustee will provide the Sponsor with the following documents:
(1) a description of FBSI's brokerage placement practices; (2)
a copy of PTCE 86-128; and (3) a form by which the Sponsor may
terminate this authorization to use a broker affiliated with
the Trustee. The Trustee will provide the Sponsor with this
termination form annually, as well as an annual report which
summarizes all securities transaction related charges incurred
by the Plan, and the Plan's annualized turnover rate and will
satisfy all other requirements as a condition to the exemption
provided in PTCE 86-128 or any successor thereto.
(iii) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions,
shall, upon consummation of such transaction, become the
successor broker in accordance with the terms of this
authorization provision.
(iv) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary. The
Sponsor reserves the right to terminate this authorization
upon written notice to FBSI (or its successor) and the
Trustee, in accordance with Section 11 of this Agreement.
(iv) Securities Law Reports. The Committee shall be responsible for
filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Sponsor Stock, including, without
limitation, any reports required under section 13 or 16 of the Securities
Exchange Act of 1934, and shall immediately notify the Trustee in writing
of any requirement to stop purchases or sales of Sponsor Stock pending
the filing of any report. The Trustee shall provide to the Committee
such information on the Trust's ownership of Sponsor Stock as the
Committee may reasonably request in order to comply with Federal or state
securities laws.
(v) Voting and Tender Offers. Notwithstanding any other provision of
this Agreement the provisions of this Section shall govern the voting and
tendering of Sponsor Stock. The costs of printing, mailing, tabulation and
other costs associated with the voting and tendering of Sponsor Stock
shall be paid pursuant to Section 6.
(A) Voting.
(1) When the issuer of the sponsor Stock files preliminary
proxy solicitation materials with the Securities and Exchange
Commission, the Sponsor shall cause a copy of all materials to
be simultaneously sent to the Trustee. The preparation of
voting instruction forms and the method of delivery of notice
of stockholders' meetings, proxy solicitation materials, and
voting instruction forms will be coordinated among the
Sponsor, the Trustee and the Sponsor's transfer agent for
Sponsor Stock. The Sponsor shall provide the Trustee with a
copy of any materials provided to the participants and shall
certify to the Trustee that the materials have been mailed or
otherwise sent to participants.
(2) Each participant shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote that
number of shares of Sponsor Stock credited to the
participant's accounts (both vested and unvested).
Directions from a participant to the Trustee concerning the
voting of Sponsor Stock shall be communicated in writing, or
by mailgram or similar means. These directions shall be held
in confidence by the Trustee and shall ot be divulged to the
Sponsor, or any officer or employee thereof, or any other
person. Upon its receipt of the directions, the Trustee shall
vote the shares of Sponsor Stock as directed by the
participant. The Trustee shall vote shares of Sponsor Stock
credited to a participant's accounts for which it has received
no directions from the participant in the same proportion as
those shares for which it has received directions from
participants.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any securities
held in the Trust that are sponsor Stock, the Sponsor shall
notify each Plan participant of the tender offer and utilize
its best efforts to timely distribute or cause to be
distributed to the participant the same information that is
distributed to shareholders of the issuer of Sponsor Stock in
connection with the tender offer, and, after consulting with
the Trustee, shall provide and pay for a means by which the
participant may direct the Trustee whether or not to tender
the Sponsor Stock credited to the participant's accounts (both
vested and unvested). The Sponsor shall provide the Trustee
with a copy of any material provided to the participants and
shall certify to the Trustee that the materials have been
mailed or otherwise sent to participants.
(2) Each participant shall have the right to direct the
Trustee to tender or not to tender some or all of the shares
of Sponsor Stock credited to the participant's accounts (both
vested and unvested). Directions from a participant to the
Trustee concerning the tender of Sponsor Stock shall be
communicated in writing, or by mailgram or such similar means
as is agreed upon by the Trustee and the Sponsor under the
preceding paragraph. These directions shall be held in
confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other
person except to the extent that the consequences of such
directions are reflected in reports regularly communicated to
any such persons in the ordinary course of the performance of
the Trustee's services hereunder. The Trustee shall tender or
not tender shares of Sponsor Stock as directed by the
participant. The Trustee shall not tender shares of Sponsor
Stock credited to a participant's accounts for which it has
received no directions from the participant.
(3) A participant who has directed the Trustee to tender
some or all of the shares of Sponsor Stock credited to the
participant's accounts may, at any time prior to the tender
offer withdrawal date, direct the Trustee to withdraw some or
all of the tendered shares, and the Trustee shall withdraw the
directed number of shares from the tender offer prior to the
tender offer withdrawal deadline. A participant shall not be
limited as to the number of directions to tender or withdraw
that the participant may give to the Trustee.
(4) A direction by a participant to the Trustee to tender
shares of Sponsor Stock credited to the participant's accounts
shall not be considered a written election under the Plan by
the participant to withdraw, or have distributed, any or all
of his withdrawable shares. The Trustee shall credit to each
account of the participant from which the tendered shares were
taken the proceeds received by the Trustee in exchange for the
shares of Sponsor Stock tendered from that account. Pending
receipt of directions (through the Committee) from the
participant or the Committee, as provided in the Plan, as to
which of the remaining investment options the proceeds should
be invested in, the Trustee shall invest the proceeds in the
investment option described in Schedule "C".
(vi) Shares Credited. For all purposes of this Section, the number of
shares of Sponsor Stock deemed "Credited" to a participant's accounts
shall be determined as of the last preceding valuation date. The trade
date is that date the transaction is valued, provided, however, that in
the case of a reallocation from mutual funds to Sponsor Stock, the date
on which the Sponsor Stock is traded is the valuation date immediately
following the date the mutual funds being reallocated are valued.
(vii) General. With respect to all rights other than the right to vote,
the right to tender, and the right to withdraw shares previously tendered,
in the case of Sponsor Stock credited to a participant's participant
directed accounts as noted on Schedule "A", the Trustee shall follow the
directions of the participant and if no such directions are received, the
directions of the Committee, and in the case of all other accounts, the
Trustee shall follow the instructions of the Committee. The Trustee shall
have no duty to solicit directions from participants.
(viii) Conversion. All provisions in this Section 4(e) shall also apply to
any securities received as a result of a conversion of Sponsor Stock.
(g) Guaranteed Investment Contracts. Trust investments in guaranteed
investment
contracts ("GICs") shall be subject to the following limitations:
(i) Individually-Managed Investments. To the extent that the Committee
selects GIC's chosen by the Trustee as an investment option, the Sponsor
hereby directs the Trustee to choose such GIC's in accordance with the
Investment Guidelines for GIC Management attached hereto as Schedule "I".
This Agreement supersedes the Investment Management Agreement dated May 2,
1991 between Fidelity Management Trust Company and the Sponsor. No fee
will be incurred under that agreement after the date of this Agreement and
the $25,000 annual minimum charge thereunder shall not apply for the
current contract year thereunder.
(ii) In order to provide the necessary monies for exchanges or
redemptions from the GIC investment option, if any, under the Plan, the
Sponsor agrees that the Plan shall maintain a liquidity reserve allocated
to the Plan GIC investment option in a commingled money market fund
("Fidelity Employee Benefit U.S. Government Reserves Portfolio")
maintained by the Trustee. The Sponsor hereby (i) agrees to the Plan's
participation in the Fidelity Group Trust for Employee Benefit Plans (the
"Group Trust"), a group trust maintained by the Trustee for qualified
plans, for purposes of liquidity under the Plan's GIC investment option
and (ii) acknowledges that it has received from the Trustee a copy of the
terms of the group Trust and the terms of the Declaration of Separate Fund
for the Fidelity Employee Benefit U.S. Government Reserves Portfolio of
the GrouP Trust.
(h) Reliance of Trustee on Directions.
(i) The Trustee shall not be liable for any loss, or by reason of any
breach, which arises from any participant's exercise or non-exercise of rights
under this Section 4 over the assets in the participant's accounts.
(ii) The Trustee shall not be liable for any loss, or by reason of any
breach, which arises from the Committee's exercise or non-exercise of rights
under this Section 4, unless it was clear on their face that the actions to be
taken under the Committee's directions were inconsistent with the terms of the
Plan or this Agreement or Title I or ERISA.
(i) Trustee Powers. The Trustee shall have the following powers and authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of this Section 4, to
sell, exchange, convey, transfer, or otherwise dispose of any property held in
the Trust, by private contract or at public auction. No person dealing with the
Trustee shall be bound to see to the application of the purchase money or other
property delivered to the Trustee or to inquire into the validity, expediency,
or propriety of any such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4, to invest in
guaranteed investment contracts and short term investments (including interest
bearing accounts with the Trustee or money market mutual funds advised by
affiliates of the Trustee) and in collective investment funds maintained by the
Trustee for qualified plans, in which case the provisions of each collective
investment fund in which the Trust is invested shall be deemed adopted by the
Sponsor and the provisions thereof incorporated as a part of this Trust as long
as the fund remains exempt from taxation under Sections 401(a) and 501(a) of
the Internal Revenue Code of 1986. as amended.
(iii) To cause any securities or other property held as part of the Trust
to be registered in the Trustee's own name, in the name of one or more of Its
nominees, or in the Trustee's account with the Depository Trust Company of New
York and to hold any investments in bearer form, but the books and records of
the Trustee shall at all times show that all such investments are part of the
Trust.
(iv) To keep that portion of the Trust in cash or cash balances as the
Committee or Administrator may, from time to time, deem to be In the best
interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all documents of
transfer or conveyance and to carry out the powers herein granted.
(vi) To settle, compromise, or submit to arbitration any claims, debts,
or damages due to or arising from the Trust; to commence or defend suits or
legal or administrative proceedings; to represent the Trust In all suits
and legal and administrative hearings; and to pay all reasonable expenses
arising from any such action, from the Trust if not paid by the Sponsor.
(vii) To employ legal, accounting, clerical, and other assistance as
may be required in carrying out the provisions of this Agreement and to
pay their reasonable expenses and compensation from the Trust if not paid by
the Sponsor.
(viii) To do all other acts although not specifically mentioned herein, as
the Trustee may deem necessary to carry out any of the foregoing powers and the
purposes of the Trust.
Section 5. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping and administrative
functions described in Schedule "A" attached hereto. These recordkeeping and
administrative functions shall be performed within the framework of the
Administrator's written directions regarding the Plan's provisions, guidelines
and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all investments,
receipts, disbursements, and other transactions hereunder, and shall report the
value of the assets held in the Trust as of the last day of each fiscal quarter
of the Plan and, if not on the last day of a fiscal quarter, the date on which
the Trustee resigns or is removed as provided in Section 8 of this Agreement or
is terminated as provided in Section 10 (the "Reporting Date"). Within thirty
(30) days following each Reporting Date or within sixty (60) days in the case
of a Reporting Date caused by the resignation or removal of the Trustee, or the
termination of this Agreement, the Trustee shall file with the Administrator a
written account setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date.
(c) Inspection and Audit. All records generated by the Trustee in accordance
with paragraphs (a) and (b) shall be open to inspection and audit, during the
Trustee's regular business hours prior to the termination of this Agreement,
by the Administrator or any person designated by the Administrator. Upon the
resignation or removal of the Trustee or the termination of this Agreement,
the Trustee shall provide to the Administrator, at no expense to the Sponsor,
in the format regularly provided to the Administrator, a statement of each
participant's accounts as of the resignation, removal, or termination, and the
Trustee shall provide to the Administrator or the Plan's new recordkeeper such
further records as are reasonably requested by the Administrator at the expense
of the Sponsor or the Plan pursuant to Section 6.
(d) Effect of Plan Amendment. A confirmation of the current qualified status
of the Plan is attached hereto as Schedule "F". The Trustee's provision of
the
recordkeeping and administrative services set forth in this Section 5 shall be
conditioned on the Sponsor delivering to the Trustee a copy of any amendment to
the Plan as soon as administratively feasible following the amendment's
adoption
(which amendment together with an application for determination will be timely
filed with the Internal Revenue Service, if determined by the Sponsor to be
necessary or appropriate, in which event a copy of the determination letter
will
be provided to the Trustee) and on the Administrator providing the Trustee on a
timely basis with all the information the Administrator deems necessary for the
Trustee to perform the recordkeeping and administrative services and such other
information as the Trustee may reasonably request.
(e) Returns, Reports and Information. Except for IRS Forms 1099-R, the
Administrator shall responsible for the preparation and filing of all returns,
reports, and information required of the Trust or Plan by law. The Trustee
shall provide the Administrator with such information as the Administrator may
reasonably request to make these filings. The Administrator shall also be
responsible for making any disclosures to participants required by law
including, without limitation, such disclosures as may be required under
federal or state truth-in-lending laws with regard to participant loans.
Section 6. Compensation and Expenses. Within thirty (30) days of receipt of
the
Trustee's bill, which shall be computed and billed in accordance with Schedule
"B" attached hereto and made a part hereof, as amended from time to time, the
Sponsor shall send to the Trustee a payment in such amount or notify the
Trustee
that such amount shall be paid from the Trust. All expenses of the Trustee
relating directly to the acquisition and disposition of investments
constituting part of the Trust, and all taxes of any kind whatsoever that may
be levied or assessed under existing or future laws upon or in respect of the
Trust or the income thereof. shall be a charge against and paid from the
appropriate Plan participants' accounts.
Section 7. Directions and Indemnification.
(a) Identity of Administrator and Committee. The Trustee shall be fully
protected in relying on the fact that the Committee and the Administrator under
the Plan are the individuals or persons named as such above or such other
individuals or persons as the Sponsor may notify the Trustee in writing.
(b) Directions from Administrator. Whenever the Administrator provides a
direction to the Trustee. the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction if the direction is contained
in a writing (or is oral and immediately confirmed in a writing) signed by any
individual whose name and signature have been submitted (and not withdrawn) in
writing to the Trustee by the Administrator in the form attached hereto as
Schedule "D", provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may also be made via EDT in accordance
with procedures agreed to by the Administrator and the Trustee; provided,
however, that the Trustee shall be fully protected in relying on such direction
as if it were a direction made in writing by the Administrator. The Trustee
shall have no responsibility to ascertain any direction's (i) accuracy,
(ii) compliance with the terms of the Plan or any applicable law, or (iii)
effect for tax purposes or otherwise.
(c) Directions from Committee. Whenever the Committee or Sponsor provides a
direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction (i) if the direction is
contained in a writing (or is oral and immediately confirmed in a writing)
signed by any individual whose name and signature have been submitted (and not
withdrawn) in writing to the Trustee by the Committee in the form attached
hereto as Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear on the
direction's face that the actions to be taken under the direction would be
inconsistent with the terms of the Plan or this Agreement or Title I of ERISA.
(d) Directions from Participant. Whenever the participant provides a direction
to the Trustee via the Telephone Exchange System, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from the direction.
unless it is clear on the direction's face that the actions to be taken under
the direction would be inconsistent with the terms of the Plan or this
Agreement or Title I of ERISA.
(e) Co-Fiduciary Liability. In any other case, the Trustee shall not be liable
for any loss, or by reason of any breach, arising from any act or omission of
another fiduciary under the Plan except as provided in section 405(a) of ERISA.
(f) Indemnification. The Sponsor shall indemnify the Trustee against, and hold
the Trustee harmless from, any and all loss, damage, penalty, liability, cost.
and expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted against the
Trustee by reason of any claim, regulatory proceeding, or litigation arising
from any act done or omitted to be done by any individual or person with
respect to the Plan or Trust, excepting only any and all loss, etc., arising
from the Trustee's negligence or bad faith or failure to perform any of its
duties hereunder, or violations by the Trustee of ERISA or other applicable
law. The Trustee shall indemnify the Sponsor, the Committee, and the Plan and
Trust against and hold those parties harmless from, any and all loss, damages,
penalty, lability, cost and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against the Sponsor, the Committee, the Plan or Trust, by reason of
any claim, regulatory proceeding, or litigation arising out of the Trustee's
negligence or bad faith or failure to perform any of its duties hereunder, or
violations by the Trustee of ERISA or other applicable law. The provision of
this Section shall survive the termination of this Agreement.
(g) Survival. The provisions of this Section 7 shall survive the termination
of
this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon sixty (60) days'
notice in writing to the Sponsor, unless a shorter period of notice is agreed
upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time upon sixty (60)
days' notice in writing to the Trustee, unless a shorter period of notice is
agreed upon by the Trustee.
Section 9. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for any reason, the
Sponsor may in writing appoint a successor trustee under this Agreement. The
successor trustee shall have all of the rights, powers, privileges,
obligations,
duties, liabilities, and immunities granted to the Trustee under this
Agreement.
The successor trustee and predecessor trustee shall not be liable for the acts
or omissions of the other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its appointment under this
Agreement, title to and possession of the Trust assets shall immediately vest
in the successor trustee without any further action on the part of the
predecessor trustee. The predecessor trustee shall execute all instruments and
do all acts that reasonably may be necessary or reasonably may be requested in
writing by the Sponsor or the successor trustee to vest title to all Trust
assets in the successor trustee or to deliver all Trust assets to the successor
trustee.
(c) Corporate Action. Any successor of the Trustee or successor trustee,
through sale or transfer of the business or trust department of the Trustee or
successor trustee, or through reorganization, consolidation, or merger, or any
similar transaction, shall. upon consummation of the transaction, become the
successor trustee under this Agreement.
Section 10. Termination. This Agreement may be terminated at any time by the
Sponsor upon sixty (60) days' notice in writing to the Trustee. On the date of
the termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate, all cash
and assets then constituting the Trust. If, by the termination date, the
Sponsor has not notified the Trustee in writing as to whom the assets and cash
are to be transferred and delivered, the Trustee may bring an appropriate
action or proceeding for leave to deposit the assets and cash in a court of
competent jurisdiction. The Trustee shall be reimbursed by the Sponsor for all
costs and expenses of the action or proceeding including, without limitation,
reasonable attorneys' fees and disbursements.
Section 11. Resignation, Removal, and Termination Notices. All notices of
resignation, removal, or termination under this Agreement must be in writing
and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Human Resources,
Browning-Ferris Industries, Inc., 757 North Eldridge, Houston, TX 77079, and to
the Trustee c/o John M. Kimpel, Fidelity Investments, 82 Devonshire Street,
Boston, Massachusetts 02109, or to such other addresses as the parties have
notified each other of in the foregoing manner.
Section 12. Duration. This Trust shall continue in effect without limit as to
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
Section 13. Amendment or Modification. This Agreement may be amended or
modified
at any time and from time to time only by an instrument executed by both the
Sponsor and the Trustee. Notwithstanding the foregoing, to reflect increased
operating costs the Trustee may once each calendar year amend Schedule "B"
without the Sponsor's consent upon seventy-five (75) days written notice to
the Sponsor.
Section 14. General.
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor acknowledges
and authorizes that the services to be provided under this Agreement shall be
provided by the Trustee, its agents or affiliates, including Fidelity
Investments Institutional Operations Company or its successor, and that certain
of such services may be provided pursuant to one or more other contractual
agreements or relationships.
(b) Entire Agreement. This Agreement contains all of the terms agreed upon
between the parties with respect to the subject matter hereof.
(c) Waiver. No waiver by either party of any failure or refusal to comply with
an obligation hereunder shall be deemed a waiver of any other or subsequent
failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement shall inure to
the benefit of, and shall bind, the successors and assigns of the respective
parties.
(e) Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application
of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(f) Section Headings. The headings of the various sections and subsections of
this Agreement have been inserted only for the purposes of convenience and are
not part of this Agreement and shall not be deemed in any manner to modify,
explain, expand or restrict any of the provisions of this Agreement.
Section 15. Governing Law.
(a) Massachusetts Law Controls. This Agreement is being made in the
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration
of this Agreement shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan, and in
the event of any conflict between the provisions of the Plan and the provisions
of this Agreement, the provisions of this Agreement shall control to the extent
the conflicting provisions apply to the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed
by their duly authorized officers as of the day and year first above written.
BROWNING-FERRIS INDUSTRIES, INC
Attest:_________________________ _______________________________
Secretary Vice President
FIDELITY MANAGEMENT TRUST
COMPANY
Attest:_________________________ _______________________________
Assistant Clerk Senior Vice President
EXHIBIT 4.12
FIRST AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
BROWNING-FERRIS INDUSTRIES, INC.
THIS FIRST AMENDMENT, dated as of the first day of June, 1994, by and between
Fidelity Management Trust Company (the "Trustee") and Browning-Ferris
Industries, Inc. (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust agreement
dated April 12, 1993 with regard to the BFI Employee Stock Ownership and
Savings Plan (the "Plan"); and
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the trust agreement as provided for in Section 13 thereof
by:
- Replacing all references to Fidelity Employee Benefit U.S.
Government Reserves Portfolio with the following:
In order to provide the necessary monies for exchanges or redemption
from the GIC or Sponsor Stock Fund investment options, if any, under
the Plan, the Sponsor agrees that the Plan shall maintain a liquidity
reserve allocated to such investment option in Fidelity Institutional
Cash Portfolios: Money Market Portfolio: class A or such other
Mutual Fund or commingled money market pool as agreed to by the
Sponsor and Trustee. The Sponsor shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the Mutual
Fund shares held in any short-term investment fund or liquidity
reserve.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this First
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
BROWNING-FERRIS INDUSTRIES, INC. FIDELITY MANAGEMENT
TRUST COMPANY
By ______________________________ By _______________________________
Senior Vice President
Date ____________________________ Date ____________________________
