EXHIBIT 10.3
FMC CORPORATION SALARIED EMPLOYEES'
MASTER TRUST AGREEMENT
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FMC CORPORATION SALARIED EMPLOYEES' MASTER TRUST AGREEMENT:
CONTENTS
Section 1 - General.................................................... 1
Section 2 - Contributions to the Trust Fund............................ 2
Section 3 - Payment of Benefits........................................ 3
Section 4 - The Trust Fund............................................. 4
Section 4A - Voting of Proxies and Tender Offers on Company Stock...... 6
Section 5 - Appointment of Investment Managers......................... 8
Section 6 - Company Directed Accounts.................................. 9
Section 7 - Payment of Expenses........................................ 10
Section 8 - Accounts................................................... 10
Section 9 - Resignation, Removal and Succession of Trustee............. 11
Section 10 - Termination............................................... 12
Section 11 - Amendment................................................. 13
Section 12 - Fiduciary Responsibility and Liability.................... 13
Section 13 - Non-Alienation of Benefits................................ 14
Section 14 - Governing Laws............................................ 15
Section 15 - Counterparts.............................................. 15
Section 16 - Several Plans Maintained By One Employer.................. 15
Section 17 - Severability.............................................. 15
Section 18 - Waiver of Notice.......................................... 15
Section 19 - Gender and Number......................................... 15
Section 20 - Headings.................................................. 15
Section 21 - Trustee's Responsibility.................................. 15
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FMC CORPORATION SALARIED EMPLOYEES' MASTER TRUST AGREEMENT
THIS TRUST AGREEMENT made this 3rd day of January, 1995, by and between the
FMC CORPORATION (hereinafter referred to as the "Company"), a Delaware
corporation with its principal place of business at Chicago, Illinois, and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK (hereinafter referred to as the "Trustee"), a
banking corporation organized and existing under the laws of the State of
Illinois, of Chicago, Illinois, as Trustee.
WITNESSETH:
WHEREAS, the Company and its Subsidiaries have adopted, and may hereafter
establish, adopt or assume various employee benefit plans, including pension and
profit sharing plans, which are intended to be "qualified" for purposes of
Section 401(a) of the Internal Revenue Code, and which are funded under various
individual trust agreements; and
WHEREAS, it is deemed desirable and in the best interest of the employees of
the Company and its Subsidiaries to establish a trust to provide for the
collective investment of any portion or all of the assets of the trusts forming
a part of such plans and to provide for the orderly investment and
administration of the assets of such trusts in compliance with the fiduciary
requirements of the Employee Retirement Income Security Act of 1974 ("ERISA");
and
WHEREAS, the Company desires to establish this Master Trust as a trust fund to
be used as and form a part of the funding medium for such plans so that all or a
part of the assets held pursuant to any of such trust agreements may be invested
under this Master Trust.
NOW THEREFORE, in consideration of the mutual undertaking of the parties
hereto, it is agreed as follows:
SECTION 1. GENERAL
1.1 The Company and the Trustee hereby establish a collective investment trust
known as the FMC CORPORATION SALARIED EMPLOYEES' MASTER TRUST (the "Master
Trust").
1.2 Any trust or any fund forming part of the trust of a Subsidiary or the
Company which:
(a) forms all or a part of a plan qualified under Section 401(a) of
the Internal Revenue Code;
(b) is exempt from taxation under Section 501(a) of the Internal
Revenue Code;
(c) authorizes or permits the trustee or trustees to commingle or
collectively invest the assets of such trust with the assets of other
qualified and exempt trusts; and
(d) provides that to the extent that any assets of such trust are
invested pursuant to the provisions of this Master Trust, the terms of this
Master Trust shall be incorporated by reference in its trust agreement;
may participate in this Master Trust by obtaining the consent of the Company and
the Trustee.
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1.3 Each Subsidiary appoints the Company as its agent to exercise on its
behalf all of the powers and authority conferred upon the Company by this Master
Trust, including, without limitation, the power to amend or terminate the Master
Trust. Except as otherwise provided in this Agreement, all instructions and
directions to the Trustee shall come from the Company, each Subsidiary shall be
bound thereby, and the Trustee shall be fully protected by the Company and each
Subsidiary in following such instructions and directions. The Trustee shall not
be required to give notice to or obtain the consent of any Subsidiary as to any
action or nonaction of the Trustee, whether pursuant to such instructions and
directions or otherwise pursuant to this Agreement, and the Company shall have
the sole authority to enforce the terms of this Agreement on behalf of each and
every Subsidiary.
1.4 The plan of a participating trust of the Company or of a Subsidiary shall
be administered by the Company or its duly appointed agents as provided by the
terms of the plan of each participating trust. The Trustee shall not be
responsible for the administration of any participating trust.
1.5 A Subsidiary may terminate or withdraw its participating trust from this
Master Trust by complying with such requirements as are agreed upon by such
Subsidiary and the Company. The duties of the Company and the Trustee shall be
governed by Section 10 in the event of any such termination or withdrawal.
1.6 No part of the income or corpus of the Trust Fund representing the
equitable share of any participating trust shall be used for or diverted to any
purpose other than for the exclusive benefit of the employees or their
beneficiaries who are entitled to benefits under such participating trust, and
in no event shall the contributions or assets attributable to one participating
trust be used to pay benefits or expenses under any other participating trust.
1.7 The Trust Fund shall be maintained at all times as a domestic trust in the
United States.
1.8 This Master Trust is intended to constitute a "qualified" trust under
Section 401(a) and entitled to tax exemption under Section 501(a) of the
Internal Revenue Code of 1986, as amended. Until advised to the contrary, any
fiduciary with respect to a participating trust, or this Master Trust, and any
other person, may assume that this Master Trust is so "qualified".
SECTION 2. CONTRIBUTIONS TO THE TRUST FUND
2.1 The Company and each Subsidiary shall, from time to time, make
contributions to the Trustee as provided in the plans of the respective
participating trusts and shall also remit to the Trustee any contributions paid
by employees who are participants in the respective participating trusts. The
contributions received from the Company shall be allocated to the participating
trust maintained by the Company and the contributions received from a Subsidiary
shall be allocated to the participating trust maintained by the Subsidiary. If
the Company or any Subsidiary maintains more than one participating trust
hereunder, the Company or such Subsidiary, as the case may be, shall designate
in writing the participating trust to which any contribution is to be allocated.
The Trustee shall be accountable for all contributions so received, but the
Trustee shall have no duty to see that such contributions comply with the
provisions of the plan of any participating trust, nor shall the Trustee be
obliged to or have any right to enforce or collect any
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contribution from the Company, any Subsidiary, or any participating employees or
otherwise see that the funds are deposited according to the provisions of the
plan of any participating trust or regulatory authority. In addition, the
Trustee shall not be responsible for establishing a funding policy for the plan
of any participating trust.
SECTION 3. PAYMENT OF BENEFITS
3.1 Payments of benefits chargeable to a participating trust shall be made
from the Trust Fund by the Trustee to such persons or accounts, in such manner,
at such times and in such amounts as the Company may from time to time direct by
a written instruction designating the participating trust or trusts to which
such payment shall be charged. The Trustee shall be fully protected in making
payments out of the Trust Fund in accordance with such written directions.
3.2 If any payment of benefits directed to be made from the Trust Fund is not
claimed, the Trustee shall notify the Company of that fact promptly. Thereafter,
the Company shall use its best efforts to ascertain the whereabouts of the
missing payee or distributee of such unclaimed benefits. The Trustee shall have
no obligation to search for or ascertain the whereabouts of any payee or
distributee of benefits from the Trust Fund. The Trustee shall not be liable for
any payment made in good faith without actual knowledge of the changed status or
condition of any recipient thereof. The Trustee shall dispose of such benefit
payments as the Company shall direct.
3.3 The Company may assume the responsibility for making benefit payments
under a plan of a participating trust as an agent of the Trustee by written
agreement between the parties. If the Company assumes such responsibility, the
Company shall open a commercial banking account in the name of the Master Trust
in any federally insured banking institution, including one which may be the
Trustee, for the exclusive purpose of making benefit payments in accordance with
the plan or plans of a participating trust. The Company shall authorize one or
more of its officers, or their designees, to sign, manually or by facsimile
signature, all checks, drafts, and orders, including orders of direction in
informal or letter form, against any funds in such checking account. Any such
banking institution is authorized to honor any and all checks, drafts, and
orders so signed, if such document appears regular on its face and the
signature(s) thereon would appear to a person normally skilled in the banking
business to be the signature(s) of one of those persons fully authorized to sign
the checks, drafts, and orders according to the account records of such banking
institution, without further inquiry with respect to the authority of said
person(s) or the use of the checks, drafts or orders, or the proceeds thereof,
or to determine whether such checks, drafts or orders are in accordance with the
plan of the affected participating trust. The Company shall keep accurate and
detailed records covering all receipts and disbursements made from the account
and shall prepare an appropriate account and reconciliation with respect thereto
on a monthly basis. The Company shall pay, prepare, file and furnish all local,
state and federal tax deposits, returns, and reports required by any government
agency or authority with respect to distributions from qualified plans. The
Trustee shall make deposits from the Trust Fund to the checking account as
directed in writing from time to time by the Company, and the Trustee shall have
no duty to question the propriety of any such direction or account for the funds
retained in or disbursed by or on behalf of the Company, but until so disbursed
said funds shall be held in trust for such purposes.
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SECTION 4. THE TRUST FUND
4.1 Unless the context clearly implies or indicates the contrary, the term
"Trust Fund" comprises all property of any kind held by the Trustee from time to
time pursuant to this Agreement.
4.2 With respect to the Trust Fund, the Trustee shall have the following
powers and rights, in addition to those vested in it elsewhere in this Agreement
or by law:
(a) To invest the Trust Fund in such bonds, notes, debentures, mortgages,
equipment trust certificates, investment trust certificates, insurance and
annuity contracts, preferred or common stocks (including common stock of the
Company or its subsidiaries ("Company Stock")), registered investment companies,
or in such other property, real or personal, as the Trustee may deem advisable.
(b) To deposit any part or all of the money and property of this Master Trust
in any common, group or collective investment trust which provides for the
pooling or commingling of the assets of plans described in Section 401(a) and
exempt from tax under Section 501(a) of the Code, or any comparable provisions
of any future legislation that amends, supplements or supersedes those sections,
including any such trust which is maintained by the Trustee, an Investment
Manager, or a bank as trustee, pursuant to all the terms and conditions of such
common, group or collective investment trust, the provision of which are hereby
incorporated in and made a part of this Master Trust Agreement. In addition, the
Trustee is specifically authorized to deposit any part or all of the money and
property of the Trust Fund with ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, Chicago,
Illinois, as trustee of ▇▇▇▇▇▇ TRUST AND SAVINGS BANK TRUST FOR COLLECTIVE
INVESTMENT OF EMPLOYEE BENEFIT ACCOUNTS ("▇▇▇▇▇▇ Collective Trust"), restated by
Declaration of Trust effective August 31, 1993, and as amended;
(c) To hold a reasonable portion of the Trust Fund in cash to provide for the
payment of current expenses and benefits under this Master Trust and otherwise
as permitted by law, and to deposit any cash so held in its banking department
without liability to the Trust Fund for interest thereon; and, the ▇▇▇▇▇▇ Trust
and Savings Bank, as Trustee, shall have the power and authority to invest
trust assets in deposits in itself or in its affiliates, which deposits shall
bear a reasonable rate of interest;
(d) To manage, sell, contract to sell, grant options to purchase, convey,
exchange, transfer, abandon, improve, repair, insure, lease for any term even
though commencing in the future or extending beyond the term of the Master
Trust, and otherwise deal with all property, real or personal, in such manner,
for such consideration and on such terms and conditions as the Trustee may
decide, and no person dealing with the Trustee shall be required to see to the
application of any money or property delivered to the Trustee or to inquire into
the validity or propriety of any transaction with the Trustee;
(e) To pool all or any part of the assets of the Trust Fund with assets of any
other plan and trust qualified under Sections 401(a) and exempt under 501(a) of
the Internal Revenue Code of 1986, as amended;
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(f) To borrow such sum or sums from time to time as the Trustee considers
necessary or desirable and in the best interest of the Trust Fund, and for that
purpose to mortgage or pledge any part of the Trust Fund;
(g) To compromise, contest, arbitrate or abandon claims or demands by or
against the Trust Fund;
(h) To have, with respect to the Trust Fund, all of the rights of an
individual owner, including the power to give proxies, to participate in voting
trusts, mergers, consolidations, foreclosures, reorganizations or liquidations,
and to exercise or sell stock subscription or conversion rights (except that
proxies and other matters associated with shares of Company Stock held hereunder
shall be given as provided in Section 4A below);
(i) To hold any securities or other property in the name of the Trustee or a
nominee, or in such form as it deems best, with or without disclosing the trust
relationship;
(j) To retain any funds or property subject to any dispute without liability
for payment of interest, and to withhold payment or delivery thereof until final
adjudication of the dispute by a court of competent jurisdiction;
(k) To begin, maintain or defend any litigation necessary in connection with
the administration of this Master Trust, and the Company shall indemnify the
Trustee against all expenses and liabilities sustained or anticipated by it by
reason thereof (including reasonable attorneys' fees);
(l) To pay out of any benefit distributable from the Trust Fund any estate,
inheritance income or other tax, charge or assessment attributable thereto, but
the Trustee shall give the Company notice of its intention to make such payments
as far in advance as may be practicable, and shall defer such payments if the
Company so requests and indemnifies the Trustee to its satisfaction. The Company
and the Trustee, or either, before making payment of any benefit, may require
such release or other documents from any lawful taxing authority and such
indemnity from the intended payee as they respectively consider necessary for
their protection;
(m) To buy, sell, and exercise call and put options on the following: stocks,
fixed income securities, stock and fixed income indices, market index and
interest rate futures contracts, and to buy and sell futures contracts;
(n) To engage in the lending of securities pursuant to regulations of the
Department of Labor and any other applicable regulatory authority;
(o) To deposit securities with a clearing corporation as defined in Article 8
of the Illinois Uniform Commercial Code. The certificates representing
securities, including those in bearer form, may be held in bulk form with, and
may be merged into, certificates of the same class of the same issuer which
constitute assets of other accounts or owners, without certification as to the
ownership attached. Utilization of a book-entry system may be made for the
transfer or pledge of securities held by the Trustee or by a clearing
corporation. The Trustee shall at all times, however, maintain a separate and
distinct record of the securities owned by the Trust Fund;
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(p) To participate in and use the Federal Book-Entry Account System, a
service provided by the Federal Reserve Bank for its member banks for deposit of
eligible securities;
(q) To employ and pay agents, experts and counsel (which may be counsel to
the Company) and to delegate discretionary powers to, and reasonably rely upon
information and advice furnished by such agents, experts and counsel;
(r) To invest any portion of the Trust Fund as directed by the Company or
an Investment Manager by making deposits from time to time with an insurance
company or companies under one or more insurance contracts or policies or
combination thereof and exercise any and all rights, privileges, options and
elections thereunder only to the extent directed by the Company or Investment
Manager. The Trustee shall have no duty to inquire into the terms and provisions
of any application or other documents executed by it upon direction of the
Company or Investment Manager or of any insurance policy or contract acquired by
or delivered to it, nor shall the Trustee have any duty to see that the terms
and provisions of this Agreement and the Plan in respect thereof have been
complied with;
(s) To invest any portion of the Trust Fund as directed by the Company or
an Investment Manager in "qualifying employer securities" or "qualifying
employer real property" of the Company or its subsidiaries as specified in
Section 407(d)(4) of ERISA.
(t) To establish a participant loan program and implement such program as
directed by the Company;
(u) To perform any and all other acts that in its judgment are necessary
or appropriate for the proper and advantageous management, investment and
distribution of the Trust Fund.
SECTION 4A. VOTING OF PROXIES AND TENDER OFFERS ON COMPANY STOCK
Each participant under a plan of a participating trust ("participant") is,
for purposes of this section, hereby designated a "named fiduciary" within the
meaning of ERISA Section 403(a)(1), with respect to shares of Company Stock held
in his account and with respect to his "proportionate share" (as determined in
subparagraphs (a) and (b) below) of unallocated shares of Company Stock and, for
purposes of voting rights, shares of Company Stock held in the accounts of
participants for which the trustee has not received voting instructions
("non-voted Company Stock"). For purposes of this section, the term
"participant" shall include the beneficiary of a deceased participant who is
entitled to receive amounts held in such participant's accounts under the terms
of the plan of a participating trust.
(a) Voting Shares of Company Stock. Each participant shall have the right
to instruct the trustee in writing as to the manner in which to cast the
votes attributable to all shares of Company Stock allocated to his account.
The trustee shall vote, in person or by proxy, shares of stock held by the
trustee which are allocated to a participant's account in accordance with
instructions received from such participant. Each participant shall also be
deemed to have instructed the trustee to vote, in accordance with his vote
on shares of Company Stock allocated to his account, his "proportionate
share" (as determined in the last sentence of this subparagraph) of the
votes attributable to all shares of non-voted
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Company Stock and all unallocated shares of Company Stock. The Committee
shall use its best efforts to timely distribute or cause to be distributed
to each participant the information distributed to stockholders of the
Company in connection with any stockholders' meeting, together with a form
requesting confidential instructions to the trustee on how such votes
attributable to shares of Company Stock shall be cast on each such matter.
Upon timely receipt of such instructions, the trustee shall, on each such
matter, cast as directed the appropriate number of votes attributable to
shares (including fractional shares) of Company Stock. The instructions
received by the trustee from individual participants shall be held by the
trustee in strict confidence and shall not be divulged or released to any
person, including employees, officers and directors of the Company;
provided, however, that, to the extent necessary for the operation of the
Plan, such instructions may be released by the trustee to a recordkeeper,
auditor or other person providing services to the Plan. The "proportionate
share" of any participant of the votes attributable to all shares of
non-voted Company Stock and all unallocated shares of Company Stock shall
be a fraction, the numerator of which shall be the number of votes
attributable to shares of the Company Stock which are held in such
participant's account as of the record date for such vote for which he
provides instructions to the trustee and the denominator of which shall be
the number of votes attributable to all shares of Company Stock held in the
Trust (other than unallocated shares) on such date for which instructions
are received by the trustee.
(b) Tender Offers Related To Shares of Company Stock. Each participant
shall have the right to instruct the trustee in writing as to the manner in
which to respond to a tender or exchange offer (including, but not limited
to, a tender offer or exchange offer within the meaning of the Securities
Act of 1934, as amended) with respect to all shares of Company Stock
allocated to his account. The trustee shall respond to such tender or
exchange offer in respect of shares of Company Stock allocated to a
participant's account in accordance with instructions received from such
participant. Each participant shall also be deemed to have instructed the
trustee to the manner in which to respond to a tender or exchange offer,
in accordance with his instructions given or deemed to have been given with
respect to shares of Company Stock allocated to his accounts, with respect
to his "proportionate share" of all unallocated shares of Company Stock.
The Committee shall use its best efforts to timely distribute or cause to
be distributed to each participant the information distributed to
stockholders of the Company in connection with any tender or exchange
offer together with a form requesting confidential instructions to the
trustee on how to respond to such tender or exchange offer on behalf of the
participant. Upon timely receipt of such instructions, the trustee shall
respond to such tender or exchange offer as instructed by the participant.
If, and to the extent that, the trustee shall not receive timely
instructions from a participant given a right to instruct the trustee to
tender or exchange with respect to the shares described in the first
sentence of this subparagraph, such participant shall be deemed to have
timely instructed the trustee not to tender or exchange such shares of
Common Stock. The instructions received by the trustee from participants
shall be held by the trustee in strict confidence and shall not be
divulged or released to any person; including employees, officers and
directors of the Company; provided, however, that, to the extent
necessary for the operation of the Plan, such instructions may be released
by the trustee to a recordkeeper, auditor or other person providing
services to the Plan. The "proportionate share" of any participant of all
the unallocated shares of Company Stock shall be a fraction, the numerator
of which shall be the number of votes
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attributable to shares of Company Stock which are held in such
participant's account as of the date of the announcement of the tender or
exchange offer and the denominator of which shall be the number of votes
attributable to all shares of Company Stock held in the Trust (other than
unallocated shares) on such date.
SECTION 5. APPOINTMENT OF INVESTMENT MANAGERS
5.1 Notwithstanding anything in this Agreement to the contrary, the Company
shall have the right from time to time to appoint and remove an investment
manager and to direct the segregation of any part or all of the Trust Fund into
one or more accounts, to be known as "investment manager accounts" and if it
does so, it shall appoint in individual, partnership or corporation as
investment manager to manage the portion or portions of the Trust Fund so
segregated. An "investment manager" is a fiduciary other than an ERISA "named
fiduciary" or the Trustee under this instrument who: (i) has the power to
manage, acquire, or dispose of any portion of the Trust Fund; (ii) is registered
as an investment adviser under the Investment Advisers Act of 1940, is a bank as
defined in that Act, or is an insurance company qualified to perform the service
described herein; and (iii) has acknowledged in writing that it is a fiduciary
with respect to the plan. Written notice of any such appointment or removal
shall be given to the Trustee and the investment manager so appointed. As long
as the investment manager is acting, such investment manager shall direct the
Trustee to invest and the Trustee shall invest the assets of the investment
manager account in such bonds, notes, debentures, mortgages, equipment trust
certificates, preferred or common stocks (including Company Stock), registered
investment companies, insurance and annuity contracts, or in such other
property, real or personal, as the investment manager deems advisable. The
investment manager shall have full authority and the responsibility to direct
the Trust with respect to the acquisition, retention, management, and
disposition of all of the assets from time to time comprising the investment
manager account being managed by such investment manager and the voting of
proxies thereon, and the Trustee shall have no duty or obligation to review the
assets from time to time comprising such investment manager account, to make
recommendations with respect to the investment, reinvestment, or retention
thereof, nor with respect to the voting of proxies thereon, nor to determine
whether any direction from such investment manager is proper or within the terms
of this Agreement.
5.2 Notwithstanding the foregoing provisions, the Trustee, without further
prior approval of the Company or direction from the investment manager, shall
have the power, right and authority to invest cash balances held by it from time
to time as part of an investment manager account and, further, the Trustee is
hereby directed by the Company to exercise this power, right and authority by
investing such cash balances in short-term cash equivalents having ready
marketability, including, specifically, the ▇▇▇▇▇▇ Collective Trust, in addition
to, savings accounts, certificates of deposit (including savings accounts and
certificates of deposit with the Trustee in its banking capacity, so long as
such accounts bear a reasonable rate of interest), United States treasury bills,
commercial paper, and similar types of securities, and the Trustee without prior
approval or direction shall have the power, right and authority to sell such
short-term investments as may be necessary to carry out the instructions of the
investment manager with respect to investing the investment manager account. In
addition, pending receipt of directions from the investment manager, reasonable
amounts of cash received by the Trustee from time to time for any investment
manager account may be retained by the Trustee, in its discretion, in cash,
without any liability for interest.
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5.3 The Trustee shall have the right to request that some part or all of
the directions made by an investment manager pursuant to the terms of this
Agreement be in writing and shall assume no liability hereunder for failure to
act pursuant to directions which fail to conform to such request.
5.4 It is understood and agreed by the parties that while the Trustee will
perform certain ministerial and custodial duties with respect to the assets held
in an investment manager account, such duties will be performed in the normal
course by officers and other employees of the Trustee who may be unfamiliar with
investment management, and that such duties will not include the exercise of any
discretionary authority or other authority to manage and control assets
comprising the investment manager account. The Trustee shall have no liability
or responsibility to the Company or any beneficiary of any participating trust
or the Master Trust for acting without question on the direction of, or for
failure to act in the absence of directions from the investment manager for any
investment manager account previously established, and the appointment of any
investment manager for that account shall continue in force until receipt of
written notice to the contrary from the Company. In addition, the Trustee shall
have no responsibility to invest or manage any asset held in an investment
manager account until the Trustee is (1) notified by the Company in writing of
the termination of the investment manager's authority over the assets of such
account and (2) directed in writing to terminate the investment manager account
and to transfer the assets of such account to the Trust Fund.
5.5 If the Company appoints an investment manager (including a bank or
trust company) which directs the investment of a portion of the Trust Fund in a
collective or group investment fund it advises or maintains, then, upon
direction of the Company, the Trustee shall enter into those agreements
necessary for the purpose of investing in such collective or group investment
fund.
SECTION 6. COMPANY DIRECTED ACCOUNTS
6.1 Notwithstanding anything in this agreement to the contrary, the
Company shall have the right from time to time to direct the Trustee with
respect to the acquisition, retention, management and disposition of the assets
from time to time comprising the Trust Fund. If the Company exercises this
right, it shall also direct the Trustee to segregate that portion of the Trust
Fund to be managed by the Company into one or more accounts, to be known as
"company directed accounts". The Trustee shall follow all directions of the
Company with respect to the assets of a company directed account and shall have
no duty or obligation to review the assets from time to time so acquired, nor to
make any recommendations with respect to the investment, reinvestment or
retention thereof. The Trustee shall vote the proxies associated with the assets
held in a company directed account as directed by the Company. The Trustee shall
have no liability to the Company or any beneficiary of the Trust for acting
without question on the direction of, or for failure to act in the absence of
directions from the Company. The Trustee shall be indemnified and held harmless
by the Company from and against any and all loss, liability or expense to which
the Trustee shall be subjected by reason of carrying out any directions of the
Company made pursuant to this paragraph, including all expenses reasonably
incurred in its defense if the Company fails to provide such defense as well as
all costs, fees and expenses, including reasonable attorneys' fees the Trustee
may incur in enforcing its rights to indemnification. Notwithstanding the
foregoing provisions, the Trustee, without further prior approval from the
Company shall have the power, right and authority to invest cash balances held
by it from time to time as part of a company directed account and, further, the
Trustee is hereby
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directed by the Company to exercise this power, right and authority by investing
such cash balances in short-term cash equivalents having ready marketability,
including, but not limited to, savings accounts, certificates of deposit
(including savings accounts and certificates of deposit with the Trustee in its
banking capacity, so long as such accounts bear a reasonable rate of interest),
the ▇▇▇▇▇▇ Collective Trust, United States treasury bills, commercial paper, and
similar types of securities, and the Trustee without prior approval or direction
shall have the power, right and authority to sell such short-term investments as
may be necessary to carry out the instructions of the Company with respect to
investing the funds managed by the Company. In addition, pending receipt of
directions from the Company, reasonable amounts of cash received by the Trustee
may be retained by the Trustee, in its discretion, in cash, without any
liability for interest for any funds managed by the Company.
SECTION 7. PAYMENT OF EXPENSES
7.1 All reasonable costs, charges and expense incurred by the Trustee in
connection with its administration of the Master Trust, including such
reasonable compensation of the Trustee as may be agreed upon from time to time
between the Company and the Trustee, shall be paid from the Trust Fund unless
paid or advanced by the Company. When directed in writing by the Company, the
Trustee also shall pay from the Trust Fund such expenses in connection with the
administration of any plan of a participating trust to the extent the Company
does not itself pay such expenses, and the Trustee shall be fully protected in
making such payments in accordance with the written directions of the Company.
Any payment made pursuant to this Section shall be charged against the Trust
Fund generally, unless such payment is not properly chargeable proportionately
among all of the participating trusts hereunder, in which case the Company
shall designate in writing the participating trust or group of participating
trusts to which such payment shall be charged, and if a group of participating
trusts is to be charged, the proportionate share of such payment to be charged
to each participating trust in the group.
SECTION 8. ACCOUNTS
8.1 The Trustee shall maintain accurate and detailed records and accounts
of all investments, receipts, disbursements and other transactions hereunder;
and all accounts, books and records relating thereto shall be open at all
reasonable times to inspection and audit by such person or persons as the
Company may designate. The Trustee shall submit to the auditors for the Company
or to anyone the Company designates, such valuations, reports or other
information as they may reasonably require.
8.2 All monies and other property and the income therefrom shall be held
and invested as a single fund, except as provided in Section 5 and Paragraph 8.3
of this Agreement. The Trustee shall establish and maintain for operational and
accounting purposes such other accounts or records as the Company and the
Trustee may from time to time consider necessary. In no event shall the
maintenance of any account or record by the Trustee mean that any person shall
have an interest in any specific asset of the Trust Fund.
8.3 The Trustee shall also establish and maintain a separate account by
which the proportionate share of each participating trust in the Trust Fund
shall be determined at such annual and more frequent intervals as are agreed
upon by the Company and the Trustee. The Company shall not direct the Trustee
to make any payment from the Trust Fund pursuant to
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Section 3 or Section 7 or any distribution from the Trust Fund pursuant to
Section 10 which exceeds in value the value of the proportionate share in
the Trust Fund of the participating trust or trusts to which such payment or
distribution would be chargeable. The Company may direct that specified
assets received by the Trustee on behalf of a participating trust be
identified as being the assets of that particular trust, in which case the
assets so identified shall not be treated as general assets of the Trust Fund.
The value of the assets so identified, along with the earnings, gains, losses
and expenses attributable thereto, shall be allocated to the participating
trust on whose behalf the assets are identified, and shall be excluded in
computing the proportionate share of any participating trust in the Trust Fund.
8.4 Within ninety days (90) following the close of each calendar year (or
following the close of such other annual period as may be agreed upon by the
Trustee and the Company) and as often as may reasonably be requested by the
Company, the Trustee shall file with the Company a written account setting forth
a description of all securities and other property purchased and sold, and all
receipts, disbursements and other transactions effected by it upon its own
authority or pursuant to the directions of the Company or any Investment Manager
during such annual or shorter period, and showing the securities and other
properties held at the end of such period, and their fair market value.
8.5 The Company may approve such accounting by written notice of approval
delivered to the Trustee or by failure to express objection to such accounting
in writing delivered to the Trustee within six (6) months from the date upon
which the accounting was delivered to the Company. Upon the receipt of a written
approval of the accounting, or upon the passage of the period of time within
which objection may be filed without written objections having been delivered to
the Trustee, such accounting shall be deemed to be approved, and the Trustee
shall be released and discharged as to all items, matters and things set forth
in such account, as fully as if such accounting had been settled and allowed by
decree of a court of competent jurisdiction in an action or proceeding in which
the Trustee, the Company, each Subsidiary and all persons having or claiming to
have any interest in the Trust Fund or under a plan of a participating trust
were parties. If the Trustee and the Company cannot agree with respect to any
act or transaction reported in any statement, the Trustee shall have the right
to have its accounts settled by judicial proceedings, in which event only the
Trustee and the Company shall be necessary parties.
SECTION 9. RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
9.1 The Trustee may resign at any time by giving thirty (30) days' prior
written notice to the Company.
9.2 The Company may remove the Trustee at any time by giving thirty (30)
days' prior written notice to the Trustee being removed. The Company may appoint
a successor Trustee by delivery to the removed or resigning Trustee of (i) an
instrument in writing executed by the Company appointing such successor Trustee,
and (ii) an acceptance in writing executed by the successor Trustee so
appointed.
9.3 The Company's obligation to indemnify the Trustee under this Agreement
shall survive the termination of the Trustee with respect to any act or omission
by the Trustee arising under or in connection with this Master Trust Agreement.
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9.4 Upon the appointment of a successor Trustee, the removed or resigning
Trustee shall transfer and deliver the assets of the Trust Fund to such
successor after reserving such reasonable amounts as it shall deem necessary to
provide for any expenses, fees, or taxes then or thereafter chargeable against
the Trust Fund. Each successor Trustee shall succeed to the title to the Trust
Fund vested in its predecessor, without the signing or filing of any further
instrument, but any resigning or removed Trustee shall execute all documents
and do all acts necessary to vest such title of record in any successor Trustee.
Each successor Trustee shall have and enjoy all powers, both discretionary and
ministerial, of its predecessor. No successor Trustee shall be personally liable
for any act or failure to act of any predecessor Trustee; and, with the approval
of the Company, a successor Trustee may accept the account rendered and the
property delivered to it by its predecessor Trustee as a full and complete
discharge to the predecessor Trustee without incurring any liability or
responsibility for so doing.
SECTION 10. TERMINATION
10.1 The entire Master Trust shall terminate upon the first to occur of
the following:
(a) Thirty (30) days after the receipt by the Trustee of written notice of
such termination from the Company;
(b) The dissolution, consolidation or reorganization of the Company, or
the sale by the Company of all or substantially all of its assets without
provision for continuing this Trust, except that in any such event provision may
be made for the continuance of this Master Trust by any successor to the Company
or any purchaser of all or substantially all of its assets, and in that event
such successor or purchaser shall be substituted for the Company hereunder.
10.2 Any participating trust may be withdrawn from the Master Trust upon
the thirtieth (30th) day after receipt by the Trustee of written notice from the
Company of such withdrawal.
10.3 Upon termination of the entire Trust, or upon the thirtieth (30th)
day after receipt of written notice of withdrawal of any participating trust or
fund pursuant to Paragraph 10.2, the Trustee, after reserving such amounts as it
may deem necessary to provide for the payment of any expenses or fees then or
thereafter chargeable to the Trust Fund, shall dispose of that portion of the
assets of the Master Trust which are allocable to the participating trust or
fund to be withdrawn from the Master Trust, or in the case of termination of the
entire Master Trust, all of the Master Trust assets, in accordance with the
written directions of the Company. The Company shall have full responsibility to
see that any disposition or distribution of Master Trust property pursuant to
its written direction is proper, within the terms of the plan of a participating
trust and this Master Trust, and in the case of a defined benefit plan, that
such disposition or distribution complies with the requirements of Section 4044,
Title IV, of ERISA, and all other applicable provisions of that Act or other
federal law. The Company shall secure any necessary governmental approval for
any such termination, and shall send a copy of such approval to the Trustee
before any disbursements are made. Such disbursements may be effected by payment
in cash, the maintenance of another or substituted trust fund, by the purchase
of annuities or otherwise. The Company and any Subsidiary shall have no
beneficial interest in the Trust Fund either during its continuance or upon
termination of this Master Trust except as permitted by applicable law.
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10.4 Upon termination of this Trust, the Trustee shall continue to have
such of the powers provided in this Agreement as are necessary or desirable for
the orderly liquidation and distribution of the Trust Fund.
SECTION 11. AMENDMENT
11.1 Provided that no amendment shall cause any part of the Trust Fund to
be used for or diverted to or for the benefit of anyone other than the employees
or retired employees of the Company and any Subsidiary, or their beneficiaries,
this Agreement may be amended by the Company at any time and from time to time
in whole or in part by an instrument in writing executed by the Company and
delivered to the Trustee. Upon delivery to the Trustee such amendment shall be
binding, provided that the rights, duties or responsibilities of the Trustee
shall not be substantially changed without its written consent.
SECTION 12. FIDUCIARY RESPONSIBILITY AND LIABILITY
12.1 The Company has allocated fiduciary responsibility to various
fiduciaries according to the terms of the plans of the participating trusts and
this Master Trust. In carrying out its responsibilities under the Trust, the
Trustee, any Investment Manager, and any other fiduciary hereunder shall act
solely in the interest of the participants and beneficiaries and 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.
12.2 In determining whether the requirements of prudence and
diversification stated in Sections 404(a)(1)(B) and (C), respectively, of ERISA
have been met, all the investments of the Trust Fund shall be considered in
their entirety, and the portion managed by the Trustee hereunder shall be only
one consideration in making such a determination. If one or more Investment
Managers, in addition to the Trustee, are appointed, the Company so acting or
appointing shall be responsible for seeing that the requirement of proper
diversification of all the assets of the Trust Fund have been met, and neither
the Trustee nor any Investment Manager shall have any such responsibility
therefor.
12.3 The Trustee shall be indemnified and saved harmless by the Company,
from and against any and all liability, including all expenses reasonably
incurred in its defense, to which the Trustee shall be subjected by reason of
1) any action taken upon the direction of the Company, an Investment Manager,
or any other authorized person; 2) any action taken or omitted or any investment
or disbursement of any part of the Trust Fund made by the Trustee at the
direction of an Investment Manager or any inaction with respect to the Trust
Fund in the absence of directions from an Investment Manager; and 3) any action
taken by the Trustee pursuant to a notification of an order to purchase or sell
securities issued by an Investment Manager directly to a broker or dealer under
a power of attorney. The Company's obligation to indemnify the Trustee under
this Agreement shall survive the termination of the Master Trust with respect to
any act or omission by the Trustee occurring prior to such termination. The
costs and expenses of enforcing this right of indemnification shall be paid by
the Company.
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12.4 The Trustee shall not be obligated to inquire whether any payee of
funds or any distributee of benefits by the Company is entitled thereto or
whether any payment, allocation or distribution directed or authorized by the
Company is proper, or within the terms of this Agreement or the plan of any
participating trust, and shall not be accountable for any payment, allocation or
distribution made by the Trustee in good faith on the order or direction of the
Company.
12.5 Evidence required of anyone under the plan of a participating trust
or this Agreement may be by certificate, affidavit, document or other
information which the person acting in reliance thereon may consider pertinent,
reliable and genuine, and to have been signed, made or presented by the proper
party or parties, except that any action required to be taken by the Company
shall be by resolution of its Board of Directors or by a person authorized by
resolution of its Board of Directors to act on behalf of the Company. The
Trustee shall not recognize or take notice of an appointment of any
representative of the Company unless and until the Company shall have notified
the Trustee in writing of such appointment and the extent of such
representative's authority. The Trustee may assume that such appointment and
authority continue in effect until it receives written notice to the contrary
from the Company. Any action taken or omitted to be taken by the Trustee by
authority of any representative of the Company within the scope of his authority
shall be as effective for all purposes hereof as if such action or nonaction had
been authorized by the Company. The Trustee, the Company, and any representative
of the Company shall each be fully protected in acting and relying upon any
evidence described in this section.
12.6 The Trustee shall have no power, authority or duty with respect to
the determination of the rights or interests of any persons in and to the Trust
Fund or under any plan of any participating trust nor to examine into the
determination of any right or interest. The Trustee shall have no duties or
responsibilities with respect to the determination, computation, payment, or
application of any benefit of any insurance contract which it is directed to
purchase with assets from the Trust Fund.
SECTION 13. NON-ALIENATION OF BENEFITS
13.1 Except as provided by law or by court order, in no event shall the
Trustee pay over or transfer any part of an employee's or his beneficiary's
interest in the Master Trust which is payable, distributable, or credited to his
account, to any assignee or creditor of such employee. Prior to the time of
distribution specified herein, neither an employee nor his legal representative
shall have any right, by way of anticipation or otherwise, to assign or in any
manner dispose of any interest in the Master Trust; and every attempted
assignment or other disposition of such interest in the Master Trust shall not
be merely voidable but absolutely void. Notwithstanding the preceding provisions
of this Section, any portion of a participating employee's interest in the Trust
Fund may be distributed pursuant to a qualified domestic relations order (as
defined in Section 414(p) of the Internal Revenue Code of 1986).
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SECTION 14. GOVERNING LAWS
14.1 To the extent that ERISA does not do so, the laws of the State of
Illinois (other than its laws regarding the conflict of laws) shall govern,
control and determine all questions arising with respect to this Agreement and
the validity, interpretation and performance of its provisions.
SECTION 15. COUNTERPARTS
15.1 This Agreement may be executed in any number of counterparts, each of
which shall be considered as an original, and no other counterparts need be
produced.
SECTION 16. SEVERAL PLANS MAINTAINED BY ONE EMPLOYER
16.1 If the Company or any Subsidiary maintains more than one
participating trust hereunder, the participating trust of the Company or the
participating trust of such Subsidiary, as the case may be shall, whenever the
word appears in this instrument, be read in the singular or in the plural, as
the context requires.
SECTION 17. SEVERABILITY
17.1 In the event any provision of this Agreement shall be held illegal
or invalid for any reason, such illegality or invalidity shall not be affect
the remaining provisions of this Agreement, and this Agreement shall be
construed and enforced as if such illegal or invalid provision had never been
contained therein.
SECTION 18. WAIVER OF NOTICE
18.1 Any notice required under this Agreement may be waived by the person
entitled to such notice.
SECTION 19. GENDER AND NUMBER
19.1 When the context admits, words in the masculine gender shall include
the feminine and neuter genders; the singular shall include the plural, and the
plural shall include the singular.
SECTION 20. HEADINGS
20.1 The headings of Sections of this Agreement are for convenience of
reference only and shall have no substantive effect on the provisions of this
Agreement.
SECTION 21. TRUSTEE'S RESPONSIBILITY
21.1 The Company shall deliver to the Trustee an executed or certified
copy of any participating trust and plan documents, and of any amendments
thereto, for convenience of reference, and the rights, powers and duties of
the Trustee shall be governed only by the terms of this Master Trust Agreement,
without reference to the provisions of any participating trust or plan document.
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IN WITNESS WHEREOF, the Company and the Trustee have caused these presents to be
signed by their respective officers thereunto duly authorized and have caused
their respective corporate seals to be hereto affixed the day and year first
above written.
ATTEST FMC CORPORATION
/s/ A. R. Kidston By /s/ ▇. ▇. Head
---------------------------- ---------------------------------
Assistant Secretary Vice President
ATTEST ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ---------------------------------
Assistant Secretary its Vice President
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