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EXHIBIT 99.5
Trust Agreement
Between
Genentech, Inc.
And
Fidelity Management Trust Company
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GENENTECH, INC. TAX REDUCTION INVESTMENT PLAN
TRUST
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Dated as of July 1, 1991
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TABLE OF CONTENTS
SECTION PAGE
1 Definitions 1
2 Trust 4
3 Exclusive Benefit and Reversion of 4
Sponsor Contributions
4 Member's Accounts
(a) Contributions to Accounts 5
(b) Limitations on Trustee 5
5 Disbursements
(a) Directions from Committee 6
(b) Limitations 6
(c) Payments 6
(d) Cash in the Trust 6
6 Investment of Trust
(a) Selection of Investment Options 6
(b) Available Investment Options 7
(c) Participant Direction 7
(d) Mutual Funds 7
(e) Sponsor Stock 8
(f) Notes 13
(g) Reliance of Trustee on Directions 14
(h) Trustee Powers 14
7 Record Keeping to Be Performed
(a) General
(b) Accounts 15
(c) Inspection and Audit 16
(d) Judicial Determination 16
(e) Plan Amendment and other Information 16
(f) Returns, Reports and Information 16
8 Compensation and Expenses 17
9 Directions and Indemnification
(a) Identity of Administrator and Committee 17
(b) Directions from Administrator 17
(c) Directions from Committee 17
(d) Co-Fiduciary Liability and Investment
of Trust Assets 18
(e) Indemnification 18
(f) Survival 18
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
10 Resignation or Removal of Trustee
(a) Resignation 18
(b) Removal 18
11 Successor Trustee
(a) Appointment 18
(b) Acceptance 19
(c) Trustee Corporate Action 19
(d) Sponsor Corporate Action 19
12 Termination 19
13 Notices 19
14 Duration 20
15 Amendment or ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇
(▇) Performance by Trustee, its Agents or Affiliates 20
(b) Entire Agreement 20
(c) Waiver 20
(d) Successors and Assigns 20
(e) Partial Invalidity 20
(f) Nonalienation of Trust 20
(g) section Headings 21
(h) Massachusetts Law Controls 21
(i) Trust not a Party to the Plan 21
(j) Counterparts 21
Schedules
A. Record Keeping Services 22
B. Fee Schedule 24
C. Investment Options 26
D. Sponsor's Authorization Letter 27
E. Named Fiduciary's Authorization Letter 28
F. Telephone Procedures 29
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TRUST AGREEMENT (the "Agreement"), dated as of the first day of July,
1991, between Genentech, Inc., a Delaware corporation, having an office at ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Sponsor"), and
FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an
office at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Genentech, Inc. Tax
Reduction Investment 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 Members of the Plan and
their Beneficiaries; and
WHEREAS, the Committee is the named fiduciary of the Plan (within the
meaning of section 402(a) of ERISA); and
WHEREAS, the Trustee is willing to hold for safekeeping 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 perform certain
administrative and ministerial record keeping functions under the Plan; and
WHEREAS, the Sponsor is the administrator of the Plan (within the
meaning of section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform administrative and record
keeping services for the Plan within a framework of plan provisions, guidelines
and interpretations conveyed in writing to the Trustee by the Administrator or
the Committee.
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. Definitions.
"Administrator" shall have the definition set forth in the definition
of "Sponsor".
"Affiliate" shall mean a corporation, trade or business which is,
together with any Employer, a member of a controlled
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group of corporations or an affiliated service group or under common control
(within the meaning of section 414(b), (c), (m) or (o) of the Code), but only
for the period during which such other entity is so affiliated with any
Employer.
"Agreement" shall mean this Agreement, including the schedules
thereto, as amended from time to time in accordance therewith.
"Beneficiary" shall means any person(s) entitled to receive benefits
under the Plan.
"Board of Directors" shall mean the Board of Directors of the Sponsor,
as from time to time constituted.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Reference to a specific section of the Code shall include such section, any
valid regulation promulgated thereunder, any comparable provision of any future
legislation amending, supplementing or superseding such section.
"Committee" shall mean the administrative committee appointed by the
Board of Directors and charged with the general administration of the Plan
pursuant to the Plan. For purposes of this Agreement, the Committee is a named
fiduciary of the Plan within the meaning of section 402(a)(1) of ERISA.
"Employer" shall mean the Sponsor and each Affiliate that adopts the
Plan in accordance with the Plan.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended. Reference to a specific section of ERISA include such section,
any valid regulation promulgated thereunder, any comparable provision of any
future legislation amending, supplementing or superseding such section.
"FBSI" shall have meaning set forth in Section 6(e)(iii)(B) of the
Agreement.
"FIRSCO" shall have the meaning set forth on Schedule "F".
"Matching Contributions" shall mean as to each Member the amounts
contributed under the Plan by the Employers, excluding Salary Deferrals, in
accordance with the Plan.
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"Member" shall mean an eligible employee (as defined under the Plan)
of any Employer who becomes and has not ceased to be a member of the Plan in
accordance with the Plan.
"Member's Account" or "Account" shall mean as to any Member the
separate account maintained in order to reflect his or her interest in the Plan.
The subaccounts within each Account are defined in Section 4(a) of the
Agreement.
"Mutual Fund" shall have the meaning set forth in Section 6(b) of the
Agreement.
"NFSC" shall have the meaning set forth in Section 6(e)(iii)(B) of the
Agreement.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
Reference to a specific section of the 1934 Act shall include such section, any
valid regulation promulgated thereunder, any comparable provision of any future
legislation amending, supplementing or superseding such section.
"Pass-Through Issue" shall have the meaning set forth in Section
6(e)(v)(A)(1) of the Agreement.
"Plan" shall mean the Genentech, Inc. Tax Reduction Investment Plan
(Restatement of January 1, 1991), as heretofore or hereafter amended from time
to time.
"Plan Year" shall have the meaning set forth in the Plan.
"Reporting Date" shall have the meaning set forth in Section 7(b) of
the Agreement.
"Salary Deferrals" shall mean as to each Member the amounts
contributed under the Plan by the Employers in accordance with the salary
deferral election made by such Member, all pursuant to the Plan.
"Sponsor" shall mean Genentech, Inc., a Delaware corporation,, and any
successor by merger, consolidation or otherwise that assumes the obligations of
the Sponsor under the Plan and this Agreement. For purposes of this Agreement,
the Sponsor is the administrator of the Plan within the meaning of sections 414
(g) and 3(16)(A) of the Code and ERISA, respectively (the "Administrator").
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"Sponsor Stock" shall mean 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 BRISA, including but
not limited to the redeemable common stock of the Sponsor, par value $0.02,
while such redeemable common stock is outstanding, and thereafter the common
stock of the Sponsor as from to time constituted.
"Trust" shall mean the Genentech, Inc. Tax Reduction Investment Plan
Trust established and maintained under this Agreement entered into by and
between the Trustee and any Employer, as amended from time to time.
"Trustee" shall mean Fidelity Management Trust Company, a
Massachusetts trust company, and any additional, successor or substituted
trustee(s) from time to time acting as Trustee of the Trust in accordance with
this Agreement.
"Valuation Date" shall mean any business day on which the assets of a
Member's Account and/or the Trust are to be valued, as set forth in this
Agreement.
Any other term used in this Agreement which is defined in the Plan
shall have the identical meaning when used in this Agreement unless a different
meaning is clearly required in the context.
Section 2. Trust. The Sponsor hereby establishes the Trust with the Trustee. The
Trust shall consist of an initial contribution or contributions of money or
other property acceptable to the Trustee in its sole discretion, made by the
Sponsor and/or transferred from a previous trustee under the Plan and consisting
of all the Members' Salary Deferrals, Matching Contributions and rollover
amounts (all pursuant to the Plan), such additional sums of money and/or Sponsor
Stock as shall from time to time be delivered to the Trustee, all investments
made therewith and proceeds thereof, and all earnings and profits (less any
losses) thereon, less the payments, transfers and other distributions 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 and acknowledges that it assumes the fiduciary duties
established by 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, and Trustee agrees to deal with the Trust at all times in
accordance with the provisions of this Agreement and
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the Plan. The Trust established herein is intended to comply with ERISA, to be a
"qualified trust" exempt from taxation under section 401 and 501 of the Code,
and to qualify under section 404(c) of ERISA.
Section 3. Exclusive Benefit and Reversion of Sponsor Contributions. Except as
provided under applicable law and as provided to the limited extent set forth in
the Plan, no part of the Trust may be used for, or diverted to, purposes other
than the exclusive benefit of the Members, or Beneficiaries prior to the
satisfaction of all accrued liabilities with respect to each of the foregoing.
Any obligation to contribute Salary Deferrals and/or Matching Contributions
under the Plan or this Agreement after initial qualification is hereby
conditioned upon the continued qualification of the Plan under section 401(a) of
the Code and the exempt status of the Trust under section 501(a) of the Code and
upon the deductibility of such Salary Deferrals and/or Matching Contributions
under section 404(a) of the Code. That portion of any Salary Deferral of
Matching Contribution which is contributed or made by reason of a good faith
mistake of fact, or by reason of a good faith mistake in determining the
deductibility of such portion, shall be returned to the Employers as promptly as
practicable, but not later than one (1) year after the contribution was made or
the deduction was disallowed (as the case may be). The amount returned pursuant
to the preceding sentence shall be an amount equal to the excess of the amount
actually contributed over the amount that would have been contributed if the
mistake had not been made; provided, however, that any gains attributable to the
returnable portion shall be retained in the Trust; and provided further,
however, that the returnable portion shall be reduced (i) by any losses
attributable thereto and (ii) to avoid a reduction in the balance of any
Member's Account below the balance that would have resulted if the mistake had
not been made.
Section 4. Members' Accounts.
(a) Contributions to Accounts. The Sponsor or Committee shall transmit
to the Trustee all contributions of Members as may be required or permitted
under the Plan. All such contributions shall be made in cash and shall be paid
to the Trustee for allocation, investment and reinvestment in accordance with
the terms of this Agreement and the Plan. At the direction of the Committee, the
Trustee shall establish and maintain for each individual Member an Account
consisting of up to four (4) subaccounts, as appropriate:
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(i) a "Salary Deferral Account" to which the Trustee at the
direction of the Administrator or Committee shall contribute all Salary
Deferrals elected by the Member to be paid to the Trust and invested and
reinvested by the Trustee at the direction of the Member, in accordance with the
Plan and this Agreement;
(ii) a "Matching Account" to which the Trustee at the direction of
the Administrator or Committee shall contribute all Matching Contributions to be
paid to the Trust and invested and reinvested by the Trustee at the direction of
the Member, in accordance with the Plan and this Agreement;
(iii) a "Rollover Account" to which the Trustee at the direction
of the Administrator or Committee shall contribute all transfers of assets
qualifying as a rollover under section 402 (a) (5) or 408(d)(3)(A)(ii) of the
Code to be made to the Trust and invested and reinvested by the Trustee at the
direction of the Member, in accordance with the Plan and this Agreement; and
(iv) a "Loan Account" to which the Trustee at the direction of the
Administrator or Committee shall credit (A) any amounts loaned to the Member (or
Beneficiary of a deceased Member) from the Member's Account, after liquidation
of a portion of the Member's investments and reallocation of the proceeds to the
Loan Account, and (B) any interest and principal payments on loans made to any
Member (or Beneficiary of a deceased Member) as received by the Trustee from the
Committee. (which payments, after appropriate adjustment of the Loan Account,
shall be reallocated and invested and reinvested by the Trustee at the direction
of the Member), all in accordance with the Plan and this Agreement.
(b) Limitations on Trustee. The Trustee shall have no duty to determine
or inquire whether any contributions to the Trust are made in compliance with
the Plan; nor shall the Trustee have any duty or authority to compute any amount
to be paid to the Trust; nor shall the Trustee be responsible for the collection
or adequacy of any contributions to the Trust.
Section 5. Disbursements.
(a) Directions from Committee. The Trustee shall make disbursements,
payments and distributions out of the assets of the Trust in the amounts and in
the manner that the Administrator or Committee directs from time to time in
writing.
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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, payment or distribution in excess of the net realizable value of
the assets of the Trust at the time of the disbursement.
(c) Payments. Any disbursement, payment or distribution from such
portion of a Member's Account as is not invested in Sponsor Stock shall be made
in the form of a single lump sum payment of cash (or its equivalent) equal to
the balance credited to such portion of the Account as of the Valuation Date (as
defined hereinbelow for purposes of this Section). Any disbursement, payment or
distribution from such portion of a Member's Account as is invested in Sponsor
Stock shall be made in the form of a single lump sum payment in (i) whole shares
of the Sponsor Stock allocable to such portion of the Account as of the
Valuation Date, (ii) cash equal to the fair market value of such Sponsor Stock,
or (iii) a combination of both, as elected by the distributee; provided,
however, that if fewer than 100 shares of Sponsor Stock are allocable to the
Member's Account, the distribution shall be made in cash (or its equivalent) to
that extent. The Trustee shall make all disbursements, payments and
distributions in Sponsor Stock in accordance with the provisions of the Plan as
instructed by the Administrator or Committee. For purposes of this Section, the
Valuation Date shall be the date on which occur the transactions required to
effectuate the liquidation of the assets of the Account (whether later
distributed as cash or Sponsor Stock or both).
(d) Cash in the Trust. The Trustee shall keep such portion of the
assets of the Trust in cash (or cash equivalents) as the Administrator or
Committee shall specify in writing from time to time to meet contemplated
disbursements, payments and distributions from the Trust. The Trustee may invest
such cash, along with any other cash portions of the Trust assets, in accordance
with such investment policies and guidelines as may be communicated to the
Trustee from the Administrator or Committee from time to time.
Section 6. Investment of Trust.
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(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 Members 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) Sponsor Stock,
(iii) notes evidencing loans to Members (or Beneficiaries) in accordance with
the terms of the Plan, (iv) guaranteed investment contracts chosen by the
Trustee, and (v) collective investment funds maintained by the Trustee for
qualified plans; provided, however, the Trustee shall be considered a fiduciary
with investment discretion only with respect to Trust assets that are invested
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 change investment
options upon amendment of this Trust Agreement and the Schedules thereto, in
accordance with section 15 of this Agreement, to reflect such changes.
(c) Participant Direction. Each Member shall direct the Trustee in
which investment option(s) to invest the assets in the Member's Account. Such
directions may be made by Members by use of the telephone exchange system
maintained for such purposes by the Trustee or its agent, in accordance with the
written Telephone Exchange Guidelines attached hereto as Schedule "F". In the
event that the Trustee fails to receive a proper direction in accordance with
Schedule "F", the assets shall be invested in the securities of the Mutual Fund
set forth for such purpose on Schedule "C", until the Trustee receives a proper
direction. Any direction made by a Member in accordance with the Telephone
Exchange Guidelines shall be treated as a direction made in writing by the
Committee for purposes of Section 9(c).
(d) 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:
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(i) Execution of Purchases, Sales and Exchanges. Executions of
purchases and sales of Mutual Funds (not including exchanges among investments,
which are directed by Members as set forth hereinbelow) 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, together, in the case of purchases, with a wire transfer of funds
necessary to make such purchases. Exchanges of investments in Mutual Funds shall
be made at the direction of Members, in accordance with the Telephone Exchange
Guidelines attached hereto as Schedule "F".
(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 Member (or, if
deceased, his or her Beneficiary) who has shares of the Mutual Fund allocated to
the Member's Account, together with a voting instruction form for return to the
Trustee or its designee. The Member shall have the right to instruct the Trustee
as to the manner in which the Trustee is to vote the shares credited to the
Member's Account. The Trustee shall vote the shares as instructed by the Member.
The Trustee shall not vote shares for which it has received no instructions from
the Member. With respect to all rights other than the right to vote, the Trustee
shall follow the instructions of the Member and if no such instructions are
received, the instructions of the Committee. The Trustee shall have no duty to
solicit instructions from Members. The voting instructions of the Members shall
be held in strictest confidence by the Trustee And shall not be divulged or
released to any person, including the Sponsor or any Affiliate or any officer,
director or employee, thereof, or any other person except for a record keeper,
auditor or other person providing services to the Trust if the person (a) is not
the Sponsor or an Affiliate and (b) agrees not to divulge the instructions to
any other person.
(e) Sponsor Stock. Investments of Trust assets in Sponsor Stock shall
be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust may be
invested in Sponsor Stock to the extent necessary to comply with investment
directions of Members under section 6(c) of this Agreement.
(ii) Fiduciary Duty of Committee. The Committee shall continually
monitor the suitability under the fiduciary duty
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rules of section 404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA)
of acquiring and holding 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
the actions to be taken under those directions would be prohibited by the
foregoing fiduciary-duty rules or would be contrary to the terms of the Plan or
this Agreement.
(iii) Execution of Purchases and Exchanges.
(A) Executions of purchases and sales of Sponsor Stock (not
including exchanges among investments, which are directed by Members as set
forth hereinbelow) 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, together, in the case of purchases,
with a wire transfer of funds necessary to make such purchases. All purchases
and sales of Sponsor Stock shall be made on the open market. Exchanges of
investments in Sponsor Stock by Members shall be made in accordance with the
Telephone Exchange Guidelines attached hereto as Schedule "F". 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 Committee to
deviate from the above purchase and exchange procedures provided that such
direction is made in writing by the Committee.
(B) Use of an Affiliated Broker. The Sponsor hereby authorizes the
Trustee to use Fidelity Brokerage Services, Inc.
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("FBSI") to provide brokerage services in connection with any exchange of
Sponsor Stock in accordance with directions from Members. 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:
(1) 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.
(2) 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 in accordance with subsection (iv) below. The Trustee annually will
provide the Sponsor with this termination form and an annual report which
summarizes all securities transaction-related charges incurred by the Plan and
the Plan's annualized turnover rate.
(3) 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.
(4) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary as provided for herein.
The Sponsor reserves the right in its sole discretion to terminate this
authorization upon sixty (60) days prior written notice to FBSI (or its
successor) and to the Trustee, in accordance with Section 13 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
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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 such report. The Trustee promptly shall provide
to the Committee such accurate and complete information on the Trust's ownership
of Sponsor Stock as the Committee may reasonably request in order to file such
reports and otherwise 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 Sponsor, after consultation with the Trustee,
shall provide and pay for all printing, mailing, tabulation and other costs
associated with the voting and tendering or exchanging of Sponsor Stock.
(A) Voting.
(1) With respect to Pass-Through Issues (as hereinafter
defined), all Sponsor Stock in the Trust shall be voted, tendered or exchanged
in accordance with the following provisions. For purposes of this Agreement, a
"Pass-Through Issue" with respect to Sponsor Stock is an issue that concerns:
(I) the voting of shares of Sponsor Stock with
respect to the approval or disapproval of any corporate merger or consolidation,
recapitalization, reclassification, liquidation, dissolution, sale of
substantially all assets of a trade or business or any transaction which the
Committee determines, in its discretion, to be similar to the foregoing;
(II) any tender or exchange offer for Sponsor Stock;
(III) any proposal by a shareholder pursuant to Rule
14a-8 under the 1934 Act;
(IV) any election contest governed by Rule 14a11
under the 1934 Act;
(V) any proposal with respect to which there is any
"solicitation in opposition" (within the meaning of Rule 14a-6 under the 1934
Act); or
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(VI) any such other event that the Committee
designates a Pass-Through Issue.
(2) For purposes of this Agreement, each Member (or if
deceased, his or her Beneficiary) shall be a named fiduciary (within the meaning
of, but not limited to, sections 402(a) and 403(a)(1) of ERISA) with respect to
Pass-Through Issues for all shares of Sponsor Stock as to which the Member has
the right of direction with respect to voting, tender, and any other rights
appurtenant to such Sponsor Stock. That named fiduciary status shall apply with
respect to Pass-Through Issues for all shares of Sponsor Stock allocable to the
Member's Account.
(3) In implementing the provisions of this Agreement
relating to voting of Sponsor Stock, each appropriate fiduciary shall take all
steps necessary or appropriate to ensure that each Member's (or, if deceased,
his or her Beneficiary's) instructions shall be kept in strictest confidence and
shall not be divulged or released to any person, except as provided in the next
sentence, including any officers, directors or employees of the Sponsor or any
Affiliate. To the extent necessary for the operation of these provisions,
however, the instructions may be provided to a record keeper, auditor or other
person providing services to the Trust if the person (a) is not the Sponsor or
an Affiliate and (b) agrees not to divulge the instructions to any other person.
(4) Notwithstanding any contrary provision of this
Agreement, whenever any proxies or consents are solicited from the holders of
Sponsor Stock with respect to Pass-Through Issues, the Trustee shall exercise
voting or other rights solely as directed in written instructions timely
received from Members (or, if deceased, their Beneficiaries) and in accordance
with this provision. Each Member (or, if deceased, his or her Beneficiary) shall
have the right, with respect to Pass-Through Issues, to instruct the Trustee in
writing as to the manner in which to vote those shares at any stockholders,
meeting of the issuer of Sponsor Stock, or the manner in which the Trustee shall
give or withhold consent with respect to the shares. The following procedures
shall apply:
(I) The Sponsor shall use its best efforts to timely
distribute or cause to be distributed to each Member (or, if deceased, his or
her Beneficiary) such information concerning Pass Through Issues as will be
distributed to stockholders of the issuer of Sponsor Stock in
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connection with any stockholders' meeting or any solicitation of voting or
consents, together with a request for confidential instructions to the Trustee
or its designee on how shares of Sponsor Stock shall be voted on each such
matter or how consents shall be given or withheld.
(II) The Trustee shall pool the results of
instructions received from all Members to whose Accounts fractional shares of
Sponsor Stock are allocable and shall vote or otherwise act accordingly with
respect to those shares on Pass-Through Issues.
(III) In the case of a deceased Member who has more
than one Beneficiary, the Trustee shall vote or otherwise act on Pass-Through
Issues in accordance with the instructions of the Member's Beneficiaries in
respect of the shares allocable to the deceased Member's Account in proportion
to the Beneficiaries' respective interests in the Member's Account in accordance
with rules established by the Committee.
(IV) If no instructions are received with respect to
shares of Sponsor Stock allocable to a Member's Account, those shares shall not
be voted nor shall any other actions be taken under this provision with respect
to the shares on Pass-Through Issues.
(B) Tender Offers.
(1) Notwithstanding any contrary provision of this
Agreement, whenever any tender or exchange offer is made for shares of Sponsor
Stock, the Trustee shall tender or exchange shares of Sponsor Stock (or refrain
from tendering or exchanging Sponsor Stock) solely as directed in written
instructions timely received from Members (or, if deceased, their Beneficiaries)
and in accordance with this provision.
(2) Each Member (or, if deceased, his or her
Beneficiary) shall have the right, with respect to shares of Sponsor Stock
allocable to his or her Account, to instruct the Trustee in writing as to the
manner in which to respond to a tender or exchange offer with respect to those
shares. The following procedures shall apply:
(I) The Sponsor shall use its best efforts to
timely distribute or cause to be distributed to each Member (or, if deceased,
his or her Beneficiary) such information as will be distributed to stockholders
of the issuer
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of Sponsor Stock in connection with any tender or exchange offer, together with
a request for confidential instructions to the Trustee or its designee to
respond to the tender or exchange offer.
(II) If, and to the extent that the Trustee shall
not have timely received instructions from any Member (or, if deceased, his or
her Beneficiary) with a right to instruct under the Plan, such person shall be
deemed to have timely instructed the Trustee not to tender or exchange the
relevant shares of Sponsor Stock.
(III) The Trustee shall pool the results of
instructions received from all Members to whose Accounts fractional shares of
Sponsor Stock are allocable and shall respond to the tender or exchange offer
accordingly with respect to those shares.
(IV) In the case of a deceased Member who has more
than one Beneficiary, the Trustee shall respond to the tender or exchange offer
in accordance with the instructions of the Member's Beneficiaries in respect of
the shares allocable to the deceased Member's Account in proportion to the
Beneficiaries' respective interests in the Member's Account in accordance with
rules established by the Committee.
(V) Shares of Sponsor Stock allocated to a
Member's Account with respect to which no timely instructions are furnished
shall be treated as shares with respect to which instructions not to tender or
exchange have been timely furnished.
(VI) An instruction by a Member to the Trustee to
tender shares of Sponsor Stock credited to the Member's Account shall not be
considered a written election under the Plan by the Member to withdraw, or have
distributed, any or all of his or her withdrawable shares. The Trustee shall
credit to each Member's Account 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 from the Member, in
accordance with Schedule "F", as to which of the remaining investment options
the proceeds should be invested in, the Trustee shall invest the proceeds in the
Mutual Fund described in Schedule "C".
(VI) Shares Credited. For all purposes under this
Section (including, without limitation, investment and
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reinvestment of assets in Members' Accounts and voting, tendering or exchanging
of Sponsor Stock). The number of Shares deemed allocated to a Member's Account
shall be determined as of the relevant Valuation Date (as defined hereinbelow
for purposes of this Section). Such Valuation Date shall be the date on which
occur the transactions effectuating such investment or reinvestment, or, in the
case of voting, tendering or exchanging, the date on which falls the record date
fixed for purposes of such voting, tendering or exchanging.
(vii) General. Except with respect to the right to vote with
respect to Pass-Through Issues and the right to tender or exchange, all rights
and powers appurtenant to all Sponsor Stock held in the Trust shall be exercised
only in accordance with written instructions of the Committee. However, if the
Committee shall fail to give, or shall notify the Trustee in writing of its
decision not to give, timely instructions to the Trustee, the Trustee shall
exercise such rights and powers in its sole discretion.
(f) Notes. The Committee shall act as the Trustee's agent for the
purpose of holding all Trust assets in Members' Loan Accounts, and as such shall
(i) hold physical custody of and keep safe the promissory notes and other loan
documents, (ii) collect and remit all principal and interest payments to the
Trustee, (iii) direct the Trustee as to the amount in any Member's Account that
must be reallocated to such Member's Loan Account in accordance with the Plan
and this Agreement, (iv) advise the Trustee of the Member's Account, amount and
distributee of the cash (or its equivalent) to be paid representing loans, and
(v) cancel and surrender the promissory notes and other loan documentation in
accordance with the Plan.
(g) 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 Member's exercise or nonexercise of rights
under this Section 6 over the assets in the Member's Account.
(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 6, unless the actions to be taken under the Committee's
directions were prohibited by the fiduciary duty rules of section 404(a) of
ERISA or were contrary to the terms of the Plan or this Agreement.
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(h) Trustee Powers. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of this Section 6,
to control, manage, invest and reinvest the assets of the Trust in accordance
with the terms of the Plan and this Agreement.
(ii) subject to paragraphs (b), (c), (d) and (e) of this Section 6,
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.
(iii) 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 qualified and exempt from taxation under Sections 401(a) and
501(a) of the Code.
(iv) To cause any securities or other property held as part of the
Trust to be registered in whole or in part 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,
provided that the books and records of the Trustee shall at all times show that
all such investments are part of the Trust.
(v) To keep that portion of the Trust in cash or cash balances or
cash equivalents as the Committee may, from time to time, designate in writing
to meet contemplated payments from the Trust.
(vi) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance with respect to assets of the Trust and to
carry out the powers herein granted.
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(vii) To commence, participate in or defend suits or legal or
administrative proceedings involving the Trustee in its capacity hereunder; 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.
(viii) To appoint agents and 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.
(ix) 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 7. Record Keeping to Be Performed.
(a) General. The Trustee at all times and on a timely basis shall
perform those record keeping functions described in Schedule "A" attached
hereto. These record keeping functions shall be performed within the framework
of the Committee's written directions regarding the Plan's provisions,
guidelines and interpretations. The Trustee shall preserve all records and
accounted established and maintained by the Trustee with respect to the Trust
for any time period required under any applicable law. Upon expiration of such
time period, the Trustee shall have the right to destroy all such records and
accounts, provided that the Trustee previously notifies the Administrator in
writing of its intention to destroy such records and accounts and promptly
transfers to the Administrator any and all such records and accounts requested
by the Administrator.
(b) Accounts. The Trustee at all times shall keep true and accurate
accounts of all investments, reinvestment, receipts, proceeds, disbursements,
payments and other transactions hereunder, and shall report the fair market
value of the assets held in the Trust as of each Valuation Date and, if
applicable, the date on which the Trustee resigns or is removed as provided in
section 10 or is terminated as provided in Section 12 (in either case, the
"Reporting Date"), in any case with such fair market value to be determined in
accordance with the Plan and with generally acceptable accounting principles.
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,
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the Trustee shall file with the Administrator a certified written report setting
forth (a) all investments, reinvestment, receipts, proceeds, disbursements,
payments and other transactions effected by the Trustee between the Reporting
Date and the prior Reporting Date, (b) value of the Trust as of the Reporting
Date, and (c) all other information as may be required under applicable law.
Except as otherwise required under ERISA, upon the expiration of six (6) months
from the date of filing such report with the Administrator, the Trustee shall
have no liability or further accountability to anyone with respect to the
propriety of its acts or transactions shown in such report, except with respect
to such acts or transactions as to which the Administrator shall within such six
(6) month period file with the Trustee written objections thereto.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit by
the Administrator or any person or entity designated by the Administrator,
during the Trustee's regular business hours at any time during the time period
during which the Trustee is required to preserve such records under Section
7(a). 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 Member's Account as of the resignation, removal, or termination of the
Trustee hereunder, and the Trustee shall provide to the Administrator (or the
Plan's new record keeper if directed to by the Administrator) such further
records as are available, at the Sponsor's expense.
(d) Judicial Determination. Nothing contained herein shall be construed
or interpreted as denying the Trustee or the Sponsor the right to have the
Trustee's accounts judicially determined.
(e) Plan Amendment and Other Information. The Trustee's provision of
the record keeping services set forth in this Section 7 shall be conditioned on
the Sponsor providing the Trustee on a timely basis with a copy of any amendment
to the Plan following such amendment's adoption in accordance with the Plan, all
information the Administrator deems necessary for the Trustee to perform the
record keeping services, and such other information as the Trustee may
reasonably request in writing. The Sponsor intends to submit the Plan, as
amended, to the Internal Revenue Service and to request from it a favorable
determination letter as to the Plan's qualified status under
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section 401(a) of the Code. Upon receipt, the Administrator will provide the
Trustee promptly with a copy of such favorable determination letter as well as
any subsequent favorable determination letters received by the Sponsor.
(f) Returns, Reports and Information. The Committee shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. In addition to the items set
forth on Schedule "A". The Trustee shall provide the Committee with such
information as the Committee may reasonably request to make these filings. The
Committee shall also be responsible for making any disclosures to Members
required by law including, without limitation, such disclosures as may be
required under federal or state truth-in-lending laws with regard to Member (or
Beneficiary) loans.
Section 8. Compensation and Expenses. Within thirty (30) days of receipt of the
Trustee's ▇▇▇▇, which shall be computed and billed in accordance with Schedule
"B", the Sponsor shall send to the Trustee a payment in such amount. All taxes
and assessments 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 assets of the Trust in accordance
with the following procedure. With respect to taxes and assessments upon or in
respect to the Trust or the income thereof, the Trustee shall notify the
Administrator in writing of such taxes and assessments. Unless the Administrator
notifies the Trustee to the contrary within thirty (30) days of receipt of the
Trustee's notice hereunder, the Trustee shall pay such taxes and assessments
from the assets of the Trust. If the Administrator notifies the Trustee that, in
the opinion of the Administrator, such taxes and assessments are invalid or
should be contested, the Trustee shall take whatever action is specified in the
Administrator's notice regarding such taxes and assessments, including
contesting such taxes and assessments.
Section 9. 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, persons or entities named as such above or such
other individuals, persons or entities as the Sponsor may notify the Trustee of
in writing.
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(b) Directions from Administrator. Except as otherwise provided for
herein, 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. 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. Except as otherwise provided herein,
whenever the Committee 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 the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of section 404(a) of ERISA or would be contrary to the
terms of the Plan or this Agreement.
(d) Co-Fiduciary Liability and Investment of Trust Assets. 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. The Trustee shall be considered a fiduciary with
investment discretion with respect to Trust assets that are invested in
collective investment funds maintained by the Trustee, and as such shall
discharge its investment duties hereunder 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 by diversifying the
investments held hereunder consistent with investment policies, objectives and
guidelines so as to minimize the risk of large losses, unless under the Plan or
the circumstances it would be clearly not prudent to diversify.
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(e) 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 breach of fiduciary duties
hereunder.
(f) Survival. The provisions of this Section 9 shall survive the
termination of this Agreement.
Section 10. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon sixty (60)
days' prior 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' prior notice in writing to the Trustee, unless a shorter period of
notice is agreed upon by the Trustee.
Section 11. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, the Sponsor may in writing appoint a successor trustee or trustees under
this Agreement as of the time of such vacancy. Any such successor trustee shall
accept such appointment by a written instrument delivered to the Trustee and the
Sponsor, and upon becoming such a 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 any such 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
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trustee to vest title to all Trust assets in the successor trustee or to
deliver, assign, convey and transfer all assets then constituting the Trust to
the successor trustee.
(c) Trustee Corporate Action. Any successor of the Trustee or of a
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 and assumption of the obligations of Trustee under the Trust and the
Plan, become the successor trustee under this Agreement.
(d) Sponsor Corporate Action. Any successor to the Sponsor, through
sale or transfer of the business or assets of the Sponsor, or through
reorganization, consolidation, or merger, or any similar transaction, shall,
upon consummation of the transaction and assumption of the obligations of the
Sponsor under the Trust and the Plan, become the successor Sponsor under this
Agreement.
Section 12. Termination. This Agreement may be terminated at any time by the
Sponsor upon sixty (60) days' prior 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 shall make such distributions
as are specified in the Plan after written notice to the Sponsor. If the Plan is
silent or inconsistent with applicable law, the Trustee reserves the right to
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 13. Notices. All notices under this Agreement, except as otherwise
provided herein, 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 Senior Corporate Counsel, Genentech, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and to the Trustee c/o ▇▇▇▇ ▇. Ximpel,
Fidelity Investments, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other addresses as the parties have
notified each other of in the foregoing manner.
Section 14. 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 15. Amendment or Modification. The Sponsor shall have the right from
time to time and at any time by appropriate action to modify or amend the
Agreement in whole or in part upon seventy five (75) days, prior written notice
to the Trustee, provided that no modification or amendment that affects the
rights, duties or obligations of the Trustee may be made without the Trustee's
written consent thereto. To reflect increased operating costs the Trustee may
once each calendar year amend Schedule "B" with the Sponsor's prior written
consent upon seventy-five (75) days written notice to the Sponsor.
Section 16. General.
(a) Performance by Trustee, its Agent 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
employ Fidelity Investments Institutional Operations company or its successor.
(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
held invalid or unenforceable by a court of competent jurisdiction, 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
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thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) Nonalienation of Trust. Except as heretofore provided in this
Agreement or in the Plan, neither the Sponsor nor any Employer, Member, former
Member or his or her spouse, Beneficiary or estate to which the Trust applies
shall have any interest in or right to the assets of this Trust, and to the full
extent of all applicable law, the assets of this Trust shall not be subject to
any form of attachment, garnishment, sequestration or other actions of
collection afforded creditors of such Sponsor, Employers, Members, former
Members or their spouses, Beneficiaries or estates. The Trustee shall not
recognize any assignment or alienation of Benefits unless, and then only to the
extent that, written notices are received from the Administrator or the
Committee with respect thereto.
(g) 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.
(h) 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 and all applicable federal laws and
regulations from time to time applicable thereof.
(i) Trustee Not a Party to the Plan. The Trustee is not a party to the
Plan. In the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of the Plan shall control, except
that the provisions of the Plan shall not alter, amend or expand the rights,
duties or obligations of the Trustee without the Trustee's written consent
thereto.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which shall
constitute one and the same instrument.
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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.
GENENTECH, INC.
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------- ----------------------
Secretary Vice President
FIDELITY MANAGEMENT TRUST COMPANY
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ AUTHORIZED SIGNATORY
------------------- ------------------------
Assistant Clerk Senior Vice President
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SCHEDULE "A"
ADMINISTRATIVE SERVICES
Administration
* Establishment and maintenance of Members' Accounts and election
percentages.
* Maintenance of nine plan investment options:
- Sponsor Stock
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Fidelity Magellan fund
- Fidelity Intermediate Bond Fund
- Fidelity Balanced Fund
- Fidelity U.S. Equity Index Portfolio
- Fidelity Overseas Fund
- Fidelity Growth company Fund
- Fidelity Growth & Income Portfolio
* Maintenance of up to four subaccounts for each Member:
- Salary Deferral Account
- Matching Account
- Rollover Account
- Loan Account
* Processing of mutual fund trades.
The trader will provide only those record keeping services set forth on
this Schedule "A" and no others.
Processing
* Semi-monthly processing of contribution data from Sponsor.
* Daily processing of Members' exchanges and changes of future
allocations.
* Semi-monthly reconciliation and processing of withdrawals.
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Other
* Monthly trial balances and performance data within 30 days following
end of each month.
* Quarterly administrative reports and investment reviews within 30 days
following end of each Plan quarter.
* Quarterly Members' statements on performance and investment options
within 30 days following end of each Plan quarter.
* Written confirmation of telephonic exchanges and allocation changes
within 5 business days of request date.
* Year-end reporting to Sponsor.
* Annual plan financial summary to Sponsor.
* Market and fund updates.
* Financial reporting package to assist Sponsor in filing with IRS of the
Plan's Form 550
* Forwarding and filing with IRS of Form 1099-Rs for annual Member tax
reporting.
* Member (and Beneficiary) loan report.
* Toll-free 24-hour Member number for fund information.
* Performance of section 401(k) limitation testing upon request. In order
to obtain this service, Sponsor shall be required to provide the
information identified in the Fidelity Discrimination Testing Package
Guidelines.
* Employee communications describing available investment options and
educational pieces on investing, including multimedia informational
materials and group presentations.
GENENTECH, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 6/26/91 By: /s/ AUTHORIZED SIGNATORY 6/26/91
--------------------------- ---------------------------------
(Name) Date Senior Vice President Date
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SCHEDULE "B"
FEE SCHEDULE
Annual Member Fee $15.00 per Member,* subject to a $15,000 per year minimum,
billed and payable quarterly.
Member Loan Fees Establishment fee of $10.00 per loan account;
additional annual fee of $15.00 per Loan Account.
Other Fees: separate charges (a) for optional ADP testing, (b) of $2,500
installation fee for remote access plus $1,000 annual maintenance fee plus
TYMNET hourly usage fee, and (c) for extraordinary expenses resulting from large
numbers of simultaneous manual transactions or from errors not caused by
Trustee. (There will be no additional fees or charges for reasonable levels of
materials and support personnel.)
* This fee will be imposed pro rata for each calendar quarter, or any
part thereof, that it remains necessary to keep a Member's Account as
part of the Plan's records, e.g., vested, deferred, forfeiture,
top-heavy and terminated participants who must remain on file through
calendar year-end for 1099-R reporting purposes.
Trustee Fees**
To the extent that Trust assets are invested in Mutual Funds, 0.02% per year
payable pro rata quarterly on the basis of such assets in the Trust as of the
Valuation Date (as defined in the Plan).
To the extent that Trust assets are invested in Sponsor Stock, 0.25% of such
assets in the Trust payable pro rata quarterly on the basis of such assets as of
the Valuation Date (as defined in the plan), up to a limit of $25 million in
assets invested in Sponsor Stock.
** Trustee fees for Mutual Funds and Sponsor Stock (in the aggregate) are
subject to a $10,000 per year minimum.
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The Trustee will charge only those fees set forth on this Schedule "B" and no
others.
GENENTECH, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 6/26/91 By: /s/ AUTHORIZED SIGNATORY 6/26/91
--------------------------- ---------------------------------
(Name) Date Senior Vice President Date
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SCHEDULE "C"
INVESTMENT OPTIONS
In accordance with Section 6(b) of the Agreement, the Committee hereby
directs the Trustee that Members' Accounts may be invested in the following
investment options:
- Sponsor Stock
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Fidelity Magellan Fund
- Fidelity Intermediate Bond Fund
- Fidelity Balanced Fund
- Fidelity U.S. Equity Index Portfolio
- Fidelity Overseas Fund
- Fidelity Growth Company Fund
- Fidelity Growth & Income Portfolio
The mutual fund advised by Fidelity Management & Research Company referred to in
Section 6(c) of the Agreement shall be Fidelity Money Market Trust: Retirement
Money Market Portfolio.
GENENTECH, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 6/26/91
---------------------------
(Name) Date
35
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Fidelity Investments Institutional
Operations Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GENENTECH, INC. TAX REDUCTION INVESTMENT PLAN
Dear ▇▇. ▇▇▇▇▇:
This letter is sent to you in accordance with Section 9(b) of the Trust
Agreement, dated as of July 1, 1991, between Genentech, Inc. and Fidelity
Management Trust Company. We hereby designate ▇▇▇▇▇ ▇▇▇▇▇ as the individual who
may provide directions upon which Fidelity Management Trust Company shall be
fully protected in relying. The signature of the designated individual is set
forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until we deliver to you written notice of the termination of authority of
a designated individual.
Very truly yours,
GENENTECH, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, Treasurer
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Fidelity Investments Institutional
Operations Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GENENTECH, INC. TAX REDUCTION INVESTMENT PLAN
Dear ▇▇. ▇▇▇▇▇:
This letter is sent to you in accordance with Section 9(b) of the Trust
Agreement, dated as of July 1, 1991, between Genentech, Inc. and Fidelity
Management Trust Company. We hereby designate ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
and ▇▇▇▇▇ ▇▇▇▇▇▇ as the individuals who may provide directions upon which
Fidelity Management Trust Company shall be fully protected in relying. Only one
such individual need provide any direction. The signature of each designated
individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until we deliver to you written notice of the termination of authority of
a designated individual.
Very truly yours,
ADMINISTRATIVE COMMITTEE
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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SCHEDULE "F"
TELEPHONE EXCHANGE PROCEDURES AND SERVICES
A. Exchanges:
The following toll-free telephone exchange procedures are currently employed by
Fidelity Investments Retirement Services Company ("FIRSCO").
Telephone exchange hours are 8:30 a.m. (EST) to 8:00 p.m. (EST) on each business
day. A "business day" is any day on which the New York Stock Exchange is open.
Mutual Funds
Exchanges Between Mutual Funds
Members may call on any business day to exchange between the mutual
funds. If the request is received before 4:00 p.m. (EST), it will
receive that day's trade date. Calls received after 4:00 p.m. (EST)
will be processed on a next day basis.
Sponsor Stock
I. Exchanges from Mutual Funds to Sponsor Stock
Sponsor Stock exchanges are processed on a monthly cycle. Members who
wish to exchange out of a mutual fund into Sponsor Stock may call
between the 1st and the 15th of the month. No calls will be accepted
after 4:00 p.m. (ET) on the 15th (or previous business day if the 15th
is not a business day).
Mutual fund shares are sold on the 16th of the month (or the previous
business day if the 16th is not a business day) and the Sponsor Stock
is purchased within two (2) business days after the date on which the
mutual fund shares are sold.
II. Exchanges from Sponsor Stock to Mutual Funds
Members who wish to exchange out of Sponsor Stock into mutual funds may
call between the 1st and the 15th of the month. No calls will be
accepted after 4:00 p.m. (ET) on the 15th (or previous business day if
the 15th is not a business day).
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The Sponsor Stock is sold on the 16th (or the previous business day if
the 16th is not a business day) and the subsequent purchase into mutual
funds will take place five (5) business days later. This allows for
settlement of the stock trade at the custodian and the corresponding
transfer to Fidelity. Orders for sales of Sponsor Stock must be share
specific.
B. Other Services:
The following other telephonic services are currently employed by FIRSCO from
8:30 a.m. (EST) to 8:00 p.m. (EST) on each business day:
Account Balance Information and Investment Data
Members may call on any business day to receive account balance
information and NAV data.
Changes in Future Contribution Allocations
Members may call on any business day to change the allocation of future
contributions, effective the next business day.
FIRSCO reserves the right to change these telephone exchange procedures and
services at its discretion (provided that FIRSCO will not eliminate such
procedures and/or services without the consent of Sponsor).
GENENTECH, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 6/26/91
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Date