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EXHIBIT 99.11
SIXTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
GENENTECH, INC.
THIS SIXTH AMENDMENT, effective as of the first day of October, 1998,
except as otherwise noted below, by and between Fidelity Management Trust
Company (the "Trustee") and Genentech, Inc. (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated July 1, 1991, and amended May 1, 1994, December 1, 1995, May 8,
1996, April 1, 1997, November 9, 1997 (as amended, the "Trust Agreement"), with
regard to the Genentech, Inc. Tax Reduction Investment Plan (the "Plan"); and
WHEREAS, the Sponsor has notified the Trustee that the Sponsor desires
to add certain Non-Fidelity Mutual Funds (as defined below), effective starting
October 1, 1998 as new investment options to participants of the Plan; and
WHEREAS, the Sponsor has notified the Trustee that effective starting
on the close of business on December 31, 1998, the Sponsor wishes to freeze
certain investment options currently offered to participants of the Plan; and
WHEREAS, in connection with implementing modification, the Sponsor has
notified the Trustee that effective starting on the close of business on
December 31, 1998, the Trustee is to disregard any participant instructions to
direct any further contribution, exchange or other investment into (but not any
exchange out of) any of the Frozen Funds (as defined below), and in lieu thereof
shall direct such contribution, exchange or investment into one of the new
investment options, as provided in greater detail herein below; and
WHEREAS, in connection therewith, the Trustee and the Sponsor now
desire to amend said Trust Agreement as provided for in Section 15 thereof;
NOW THEREFORE, in consideration of the above premises, the Trust and
the Sponsor hereby amend the Trust Agreement, effective as of October 1, 1998
(unless otherwise noted), by:
(1) Amending Section 1 by restating the definition of "Mutual Fund" as
follows:
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"Mutual Fund" shall refer, collectively, to both Fidelity Mutual
Funds and Non-Fidelity Mutual Funds, as those terms are defined in
this Section.
(2) Amending Section 1 by inserting a new definition of "Fidelity
Mutual Fund" immediately after the definition of "FBSI" to read as
follows:
"Fidelity Mutual Fund" shall mean securities issued by the
investment companies advised by Fidelity Management & Research
Company.
(3) Amending Section 1 by inserting a new definition of "Non-Fidelity
Mutual Fund" immediately after the definition of "1934 Act" to
read as follows:
"Non-Fidelity Mutual fund" shall mean securities issued by
investment companies not advised by Fidelity Management & Research
Company.
(4) Amending Section 1 by amending the definition of "Plan" as
follows:
"Plan" shall mean the Genentech, Inc. Tax Reduction Investment
Plan (Restatement of May 8, 1996), as heretofore or hereafter
amended from time to time.
(5) Amending Section 1 by amending the definition of "Sponsor Stock"
as follows:
"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 ERISA, including, but not limited to the redeemable
common stock of the Sponsor, par value $.02 while such redeemable
stock is outstanding, and the callable putable common stock of the
Sponsor, par value $.02 while such callable putable common stock
is outstanding, and thereafter the common stock of the Sponsor as
from time to time constituted.
(6) Amending Section 6(b), Available Investment Options, by restating
item (i) as follows:
(i) Mutual Funds
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(7) Amending Section 6(d), Mutual Funds, by adding a new item (iii) as
follows:
(iii) Non-Fidelity Mutual Funds. In addition to the other
limitations set forth in this Section 6(d), which are applicable
to Trust investments in all Mutual Funds, Trust investments and
transactions involving any Non-Fidelity Mutual Fund shall be done
in accordance with the Operation Guidelines for Non-Fidelity
Mutual Funds attached hereto as Schedule "H".
(8) Amending Schedule "A" by replacing the list of "investment
options" under Administration with the following list:
* Maintenance of the following investment options under the Plan:
Sponsor Stock
Fidelity Growth & Income Portfolio
Fidelity Growth Company Fund
Fidelity Magellan Fund
Fidelity Money Market Trust: Retirement Money Market Portfolio
Spartan U.S. Equity Index Fund
INVESCO Total Return Fund
Janus Worldwide Fund
MAS High Yield Portfolio
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Genesis Trust
PIMCO Total Return Fund
Fidelity Asset Manager
Fidelity Asset Manager: Growth
Fidelity Asset Manager: Income
Fidelity Balanced Fund
Fidelity Intermediate Bond Fund
Fidelity Overseas Fund
(9) Effective starting on the close of business on December 31, 1998,
amending Schedule "A" by removing the following Fidelity funds
previously offered as investment options under the Plan
(hereinafter the "Frozen Funds") from the list of "investment
options" under Administration: Fidelity Asset Manager, Fidelity
Asset Manager: Growth, Fidelity Asset Manager: Income, Fidelity
Balanced Fund, Fidelity Intermediate Bond Fund and Fidelity
Overseas Fund.
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(10) Effective starting on the close of business on December 31, 1998,
amending Schedule "A" by adding the following under
Administration:
* Maintenance of frozen accounts for Plan participants who elect
to maintain any balance in any of the following Frozen Funds:
Fidelity Asset Manager
Fidelity Asset Manager: Growth
Fidelity Asset Manager: Income
Fidelity Balanced Fund
Fidelity Intermediate Bond Fund
Fidelity Overseas Fund
(11) Amending Schedule "A" by adding the following under
Administration:
* Effective starting on the close of business on December 31,
1998, no contribution, exchange or other investment into a
Frozen Fund shall be permitted. Exchanges out of a Frozen Fund
shall be permitted, subject to the same procedures as exchanges
into all other Mutual Funds as provided in the Agreement.
(12) Deleting the prior Schedule "C" to the Trust Agreement in its
entirety and replacing it with a new Schedule "C", Investment
Options, which is attached hereto and incorporated into the Trust
Agreement by this reference.
(13) Amending Schedule "B" by adding the following item after
"Withdrawals by Phone":
Non-Fidelity Mutual Funds: .35% annual administration fee on
assets invested in the following
Non-Fidelity Mutual Funds: INVESCO
Total Return Fund and ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ Genesis Trust; .25% trust
administration fee on all other
Non-Fidelity Mutual Fund
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assets. All fees in this paragraph
are to be paid by the Non-Fidelity
Mutual Fund vendor, and not by the
Sponsor.
(14) Amending Schedule "F", Telephone Exchange Procedures, by adding
the following after the first paragraph of the Mutual Funds
portion:
II. FROZEN FUNDS
Notwithstanding anything in these procedures to the contrary,
effective starting on the close of business on December 31,
1998, no exchanges shall be permitted into any Mutual Fund
designated as a Frozen Fund on Schedules "A" and "C".
(15) Adding a new Schedule "H", Operational Guidelines for Non-Fidelity
Mutual Funds, which is attached hereto and incorporated into the
Trust Agreement by this reference.
(16) Amending Section 9 of the Trust Agreement as follows:
(A) Amending the first sentence of Section 9(b) to read as
follows:
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 an 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 that (i) the Trustee reasonably believes the
signature of the individual to be genuine and (ii) the Trustee
acts reasonably and prudently in carrying out such direction.
(B) Amending Section 9(c) to read as follows:
Except as otherwise provided for herein, whenever the
Committee provides a direction to the
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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 Committee in the
form attached hereto as Schedule "E", provided that (i) the
Trustee reasonably believes the signature of the individual to
be genuine and (ii) the Trustee acts reasonably and prudently
in carrying out such direction, unless in any case 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.
(C) Amending Section 9(d) by adding a new second sentence thereto
as follows:
The Trustee shall indemnify and hold harmless the Sponsor, the
Administrator, the Committee and any and all individual Plan
participant accounts from and against any and all loss
(including lost investment gain), resulting directly from the
Trustee's untimely receipt of Mutual Fund pricing information
for any Non-Fidelity Mutual Fund, or from the Trustee's
untimely implementation of any investment direction contrary
to the terms of the Plan or Agreement.
(D) Amending Section 9(e) to read as follows:
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
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breach of fiduciary duty under this Agreement or under Part 4
of Title I of ERISA.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Sixth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
GENENTECH, INC. FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 9/29/98 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 10/16/98
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Date 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, effective starting October 1, 1998, Members' Accounts
may be invested in the following investment options:
- Sponsor Stock
- Fidelity Growth & Income Portfolio
- Fidelity Growth Company Fund
- Fidelity Magellan Fund
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Spartan U.S. Equity Index Fund
- INVESCO Total Return Fund
- Janus Worldwide Fund
- MAS High Yield Portfolio
- ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Genesis Trust
- PIMCO Total Return Fund
- Fidelity Asset Manager
- Fidelity Asset Manager: Growth
- Fidelity Asset Manager: Income
- Fidelity Balanced Fund
- Fidelity Intermediate Bond Fund
- Fidelity Overseas Fund
Effective on the close of business on December 31, 1998, the following
funds shall become Frozen Funds (as defined in Schedule "A"):
- Fidelity Asset Manager
- Fidelity Asset Manager: Growth
- Fidelity Asset Manager: Income
- Fidelity Balanced Fund
- Fidelity Intermediate Bond Fund
- Fidelity Overseas Fund
Effective starting on the close of business on December 31, 1998, the
Committee hereby directs the Trustee that the Trustee is to disregard any
participant's instructions to direct any further contribution, exchange or other
investment into (but not
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any exchange out of) any of the Frozen Funds, and in lieu thereof shall direct
such contribution, exchange or investment as follows, unless and until alternate
instruction is received from the participant in accordance with the Agreement:
- Fidelity Asset Manager - invest instead in the INVESCO Total Return
Fund
- Fidelity Asset Manager: Growth - invest instead in the Fidelity
Growth Company Fund
- Fidelity Asset Manager: Income - invest instead in the INVESCO Total
Return Fund
- Fidelity Balanced Fund - invest instead in the INVESCO Total Return
Fund
- Fidelity Intermediate Bond Fund - invest instead in the PIMCO Total
Return Fund
- Fidelity Overseas Fund - invest instead in the Janus Worldwide Fund
The investment option referred to in Section 6(c) of the Agreement
shall be Fidelity Money Market Trust: Retirement Money Market Portfolio.
GENENTECH, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 9/29/98
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Date
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SCHEDULE "H"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
PRICING
By 7:00 p.m. Eastern Time ("ET") each Business Day, the Non-Fidelity Mutual Fund
Vendor (Fund Vendor) will input the following information ("Price Information")
into the Fidelity Participant Recordkeeping System ("FPRS") via the remote
access price screen that Fidelity Investments Institutional Operations Company,
Inc. ("FIIOC"), an affiliate of the Trustee, has provided to the Fund Vendor:
(1) the net asset value for each Fund at the Close of Trading, (2) the change in
each Fund's net asset value from the Close of Trading on the prior Business Day,
and (3) in the case of an income fund or funds, the daily accrual for interest
rate factor ("mil rate"). FIIOC must receive Price Information each Business Day
(a "Business Day" is any day the New York Stock Exchange is open). If on any
Business Day the Fund Vendor does not provide such Price Information to FIIOC,
FIIOC shall pend all associated transaction activity in the Fidelity Participant
Recordkeeping System ("FPRS") until the relevant Price Information is made
available by Fund Vendor.
TRADE ACTIVITY AND WIRE TRANSFERS
By 7:00 a.m. ET each Business Day following Trade Date ("Trade Date plus One"),
FIIOC will provide, via facsimile, to the Fund Vendor a consolidated report of
net purchase or net redemption activity that occurred in each of the Funds up to
4:00 p.m. ET on the prior Business Day. The report will reflect the dollar
amount of assets and shares to be invested or withdrawn for each Fund. FIIOC
will transmit this report to the Fund Vendor each Business Day, regardless of
processing activity. In the event that data contained in the 7:00 a.m. ET
facsimile transmission represents estimated trade activity, FIIOC shall provide
a final facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any
resulting adjustments shall be processed by the Fund Vendor at the net asset
value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC transaction confirms for
all daily activity in each of the Funds. The Fund Vendor shall also send via
regular mail to FIIOC, by no later than the fifth Business Day following
calendar month close, a monthly statement for each Fund. FIIOC agrees to notify
the
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Fund Vendor of any balance discrepancies within twenty (20) Business Days of
receipt of the monthly statement.
For purposes of wire transfers, FIIOC shall transmit a daily wire for aggregate
purchase activity and the Fund Vendor shall transmit a daily wire for aggregate
redemption activity, in each case including all activity across all Funds
occurring on the same day.
PROSPECTUS DELIVERY
FIIOC shall be responsible for the timely delivery of Fund prospectuses and
periodic Fund reports ("Required Materials") to Plan participants, and shall
retain the services of a third-party vendor to handle such mailings. The Fund
Vendor shall be responsible for all materials and production costs, and hereby
agrees to provide the Required Materials to the third-party vendor selected by
FIIOC. The Fund Vendor shall bear the costs of mailing annual Fund reports to
Plan participants. FIIOC shall bear the costs of mailing prospectuses to Plan
participants.
PROXIES
The Fund Vendor shall be responsible for all costs associated with the
production of proxy materials. FIIOC shall retain the services of a third-party
vendor to handle proxy solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly to the Fund Vendor by the
third-party vendor.
PARTICIPANT COMMUNICATIONS
The Fund Vendor shall provide internally-prepared fund descriptive information
approved by the Funds' legal counsel for use by FIIOC in its written participant
communication materials. FIIOC shall utilize historical performance data
obtained from third-party vendors (currently Morningstar, Inc., FACTSET Research
Systems and Lipper Analytical Services) in telephone conversations with plan
participants and in quarterly participant statements. The Sponsor hereby
consents to FIIOC's use of such materials and acknowledges that FIIOC is not
responsible for the accuracy of such third-party information. FIIOC shall seek
the approval of the Fund Vendor prior to
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retaining any other third-party vendor to render such data or materials under
this Agreement.
COMPENSATION
FIIOC shall be entitled to fees as set forth in a separate agreement with the
Fund Vendor.
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