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Exhibit 4-d
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
by and between
THE EMPLOYEE BENEFIT COMMITTEE
of
ROCKWELL INTERNATIONAL CORPORATION
and
FIRST INTERSTATE BANK OF CALIFORNIA
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
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THIS MASTER TRUST AGREEMENT made and entered into on
this ____________ day of ______________, 1995, effective as of
_____________________, 19 , by and between the Employee
Benefit Committee of Rockwell International Corporation
(hereinafter referred to as the "Benefit Committee"), and First
Interstate Bank of California, a California corporation having
its principal place of business at Los Angeles, California
(hereinafter referred to as the "Master Trustee"),
WITNESSETH:
WHEREAS, the Benefit Committee has the power to appoint
trustees, select Investment Managers, adopt and establish an
investment method or policy, and approve, execute, amend and
terminate trust agreements with respect to all defined
contribution plans of the Controlled Group; and
WHEREAS, the Benefit Committee desires to establish a
master trust which will serve as a funding medium for eligible
employee benefit plans of the Corporation; and
WHEREAS, the Master Trustee is willing to act as Master
Trustee of such trust upon all of the terms and conditions
hereinafter set forth; and
WHEREAS, the Benefit Committee and the Master Trustee
wish to amend those trust agreements referred to in Appendix A
hereto (the "Prior Agreements") so that this Agreement shall be
deemed to supersede all such Prior Agreements and so that all the
separate trusts established by the Prior Agreements shall be
deemed consolidated into the master trust established hereby;
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NOW, THEREFORE, the Benefit Committee and the Master
Trustee declare and agree that the Master Trustee will receive,
hold and administer all sums of money and such other property
acceptable to Master Trustee as shall from time to time be
contributed, paid or delivered to it hereunder, IN TRUST, upon
all of the following terms and conditions.
SECTION 1
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General
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1.1 DEFINITIONS. Where used in this Agreement, unless the
context otherwise requires or unless otherwise expressly
provided:
(a) "Account Party" shall mean a delegate of the Benefit
Committee designated to represent the Benefit Committee for this
purpose, the Plan Administrator and any Person to whom the Master
Trustee shall be instructed by the Benefit Committee to deliver
its annual account under Section 12.2.
(b) "Accounting Period" shall mean either the twelve
consecutive month period coincident with the calendar year or, if
different, the fiscal year of the Plans or the shorter period in
any year in which the Master Trustee accepts appointment as
Master Trustee hereunder or ceases to act as Master Trustee for
any reason.
(d) "Agreement" shall mean all of the provisions of this
instrument and of all other instruments amendatory hereof.
(e) "Asset Manager" shall mean the Master Trustee, Benefit
Committee or other Named Fiduciary or Investment Manager,
individually or collectively as the context shall require, with
respect to those assets held in an Investment Account over which
it exercises, or to the extent it is authorized to exercise,
discretionary investment authority or control.
(f) "Bank business day" shall mean a day on which the Master
Trustee is open for business.
(g) "Board of Directors" shall mean the Board of Directors of
the Corporation.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(i) "Controlled Group Member" shall mean the Corporation and
any subsidiaries or affiliates which are members of a controlled
group of corporations, a group of trades or businesses under
common control, or an affiliated service group (as defined in
Code sections 414(b), (c), and (m), respectively), or the
Corporation and any entity with which it must be aggregated
pursuant to Code section 414(o) and the regulations thereunder.
(j) "Corporation" shall mean Rockwell International
Corporation, a Delaware corporation.
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(k) "Directed Fund" shall mean any Investment Account, or part
thereof, subject to the discretionary management and control of
the Benefit Committee or any other Named Fiduciary or any
Investment Manager.
(l) "Discretionary Fund" shall mean any Investment Account, or
part thereof, subject to the discretionary management and control
of the Master Trustee.
(m) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and Regulations issued
thereunder.
(n) "Fund" shall mean all cash and property contributed, paid
or delivered to the Master Trustee hereunder, all investments
made therewith and proceeds thereof and all earnings and profits
thereon, less payments, transfers or other distributions which,
at the time of reference, shall have been made by the Master
Trustee, as authorized herein. The Fund shall include all
evidences of ownership, interest or participation in an
Investment Vehicle, but shall not, solely by reason of the Fund's
investment therein, be deemed to include any assets of such
Investment Vehicle.
(o) "Insurance Contract" shall mean any contract or policy of
any kind issued by an insurance company, whether or not providing
for the allocation of amounts received by the insurance company
thereunder solely to the general account or solely to one or more
separate accounts (including separate accounts maintained for the
collective investment of qualified retirement plans), or a
combination thereof, and whether or not any such allocation may
be made in the discretion of the insurance company or the Benefit
Committee.
(p) "Investment Account" shall mean each pool of assets in the
Master Trust in which one or more Plans has an interest during an
Accounting period.
(q) "Investment Manager" shall mean a bank, insurance company
or investment adviser satisfying the requirements of ERISA
section 3(38) which has provided the Master Trustee with written
acknowledgment of compliance with ERISA.
(r) "Investment Vehicle" shall mean any common, collective or
commingled trust, investment company, corporation functioning as
an investment intermediary, insurance contract, partnership,
joint venture or other entity or arrangement to which, or
pursuant to which, assets of the Master Trust may be transferred
or in which the Master Trust has an interest, beneficial or
otherwise (whether or not the underlying assets thereof are
deemed to constitute "plan assets" for any purpose under ERISA).
(s) "Master Trust" shall mean the trust created hereby.
(t) "Named Fiduciary" shall mean the Benefit Committee and such
other fiduciaries with respect to the Plans within the meaning of
ERISA section 402(a)(2), 402(c)(3) or 403(a)(1) who has the
authority to perform the separate functions allocated to the
"Named Fiduciary" under this Agreement.
(u) "Participating Employer" shall mean the Corporation and any
Controlled Group Member which has adopted this Master Trust with
consent of the Board of Directors.
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(v) "Plan" or "Plans" shall mean any employee benefit plan of a
Participating Employer which meets the requirements for
eligibility specified in Section 1.3 and as of the date of this
Agreement includes those plans listed in Appendix B.
(w) "Plan Administrator" shall mean the Person designated by
the Corporation in accordance with the terms of the Plans who is
responsible for benefit administration under the Plans.
(x) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock
company, unincorporated organization, association, partnership,
joint venture, employee organization, committee, board,
participant, beneficiary, Master Trustee, partner, or venturer
acting in an individual, fiduciary or representative capacity, as
the context may require.
(y) "Qualifying Employer Security" shall mean the employer
securities as defined in ERISA section 407(d).
(z) "Valuation Date" shall mean the last day of the Accounting
Period, calendar quarter or any more frequent reporting date
agreed to by the Master Trustee.
The plural of any term shall have a meaning corresponding to the
singular thereof as so defined and any neuter pronoun used herein
shall include the masculine or feminine, as the context shall
require.
1.2 COMPLIANCE WITH LAW. The Trust hereinafter established is
intended to comply with ERISA and to be tax exempt under Code
section 501(a).
1.3 ELIGIBILITY. Any employee benefit plan established or
maintained by a Participating Employer may be funded, in whole or
in part, through the Master Trust if (i) the plan is qualified
under Code section 401(a), (ii) the Master Trust is exempt from
taxation under Code section 501(a), and (iii) this Agreement has
been duly adopted by the board of directors of the Participating
Employer with the consent of the Corporation.
SECTION 2
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Establishment of Trust
----------------------
2.1 ESTABLISHMENT OF TRUST. The Benefit Committee hereby
establishes with the Master Trustee the Master Trust consisting
of such sums of money and such property acceptable to the Master
Trustee as shall from time to time be paid or delivered to the
Master Trustee.
2.2 CONTRIBUTIONS TO THE TRUST. The Master Trustee shall have
no duty to determine or collect contributions under any Plan and
shall be solely accountable for moneys or properties actually
received by it. The Benefit Committee shall have the sole duty
and responsibility for the determination of the accuracy or
sufficiency of the contributions to be made under any of the
Plans of a Participating Employer, the transmittal of the
contributions to the Master Trustee and compliance with any
statute, regulation or rule applicable to contributions.
2.3 PRIOR ADMINISTRATION. The Master Trustee shall not have
any duty to inquire into the administration of the Plans or
actions taken under any of the Plans by any prior trustee.
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2.4 FUND TO BE HELD IN TRUST. The Fund shall be held by the
Master Trustee in trust and dealt with in accordance with the
provisions of this Agreement and ERISA.
2.5 FUND TO BE HELD FOR BENEFIT OF PLAN PARTICIPANTS. Except
as may be provided by law for the purpose of returning any of a
Participating Employer's contributions or in case any Plan of
which this Master Trust forms a part provides for the return of a
Participating Employer's contributions in the event such Plan
fails to initially qualify under the applicable provisions of the
Code, at no time prior to the satisfaction of all liabilities for
benefits of any plans under the Master Trust shall any part of
the Fund be used for or diverted to purposes other than for the
exclusive benefit of participants, retired participants, or their
beneficiaries under the Plans and for, the payment of the
reasonable expenses of the Plans.
2.6 COMMINGLING. The Master Trustee may commingle the assets
attributable to the Plans for which contributions are made under
this Agreement if this Agreement is applicable to more than one
Plan and may commingle the Fund with funds of other trusts of
similar nature created by the Corporation or the Benefit
Committee for the exclusive benefit of participants, retired
participants or their beneficiaries. Where commingling is
effected with other trusts maintained by the Corporation or the
Benefit Committee, the combined trust, to the extent that assets
are attributable to contributions made under this Agreement,
shall be the Fund referred to herein. The Master Trustee shall
maintain such records as are necessary in order to maintain a
separation of the Fund from the funds of the other trusts
maintained by the Corporation or the Benefit Committee and to
separate the assets attributable to each of the Plans for which
contributions are made under this Agreement. The Corporation
shall be responsible for causing sufficient records to be
maintained to insure that benefits and liabilities payable with
respect to each Plan shall be paid from the assets allocable to
each such Plan. Should separation be required, either of the
Fund from other trusts maintained by the Corporation, or the
Benefit Committee, or of any Plan for which contributions are
made under this Agreement from the Fund, the Master Trustee shall
make such separation in accordance with generally accepted
accounting principles and, where applicable, upon the
certification of an actuary.
SECTION 3
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Administration of the Plan
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3.1 PLAN ADMINISTRATOR. The Plans shall be administered by the
Plan Administrator who shall have the sole fiduciary duty as to
plan administration and the Master Trustee shall not be
responsible in any respect for such administration.
SECTION 4
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Disbursement from the Fund
--------------------------
4.1 DISBURSEMENTS BY MASTER TRUSTEE. The Master Trustee shall
make such payments out of the Fund as the Plan Administrator or
its delegate(s) may from time to time in writing direct. In the
discretion of the Plan Administrator, such payments may be made
directly to the person specified by the Plan Administrator or
deposited in a checking account maintained by the Plan
Administrator for the purpose of making payments to the person,
or persons entitled to such payments under the Plans, or to an
account maintained by some other entity which the Plan
Administrator may designate to make payments.
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4.2 DIRECTION TO THE MASTER TRUSTEE. Any direction given to
the Master Trustee in accordance with this Section need not
specify the specific application of the payment to be made, but
shall specify that the payment is for the purposes of the Plans
or the payment of Plans' expenses.
SECTION 5
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Allocation of Investment Responsibilities
-----------------------------------------
5.1 ASSET MANAGERS. (a) The Benefit Committee will from time
to time, in its sole discretion, appoint one or more Asset
Managers to manage specified portions of the Fund. Upon the
appointment of each Asset Manager, the Benefit Committee shall so
notify the Master Trustee and instruct the Master Trustee in
writing to separate into a separate account those assets as to
which each Asset Manager has discretion and control. The Asset
Manager shall designate in writing the person or persons who are
to represent any such Asset Manager in dealings with the Master
Trustee. Upon the separation of the assets in accordance with
the instructions of the Benefit Committee, the Master Trustee
shall thereupon be relieved and released of all investment
duties, responsibilities and liabilities normally and statutorily
incident to a Master Trustee as to such Directed Funds, and, as
to such Directed Funds, the Master Trustee shall act as
custodian. Except as otherwise provided by the Benefit Committee
in writing from time to time, the Master Trustee shall take no
action as to such Directed Funds with respect to the duties or
powers allocated to an Asset Manager in Section 6 or Section 7
without receipt of written directions of the Asset Manager.
Unless specifically prohibited in writing, the Master Trustee, as
custodian, may hold the assets of such Directed Funds in the name
of a nominee or nominees.
(b) Should an Asset Manager at any time elect to place security
transactions directly with a broker or dealer, the Master Trustee
shall not recognize such transaction unless and until it has
received instructions or confirmation of such fact from the Asset
Manager. Should the Asset Manager direct the Master Trustee to
utilize the services of any person with regard to the assets
under its management or control, such instructions shall be in
writing and shall specifically set forth the actions to be taken
by the Master Trustee as to such services.
(c) In the event that an Asset Manager places security
transactions directly or directs the utilization of a service,
the Asset Manager shall be solely responsible for the acts of
such persons. The sole duty of the Master Trustee as to such
transactions shall be incident to its duties as custodian.
5.2 TRANSFER OF ASSETS TO ASSET MANAGERS. (a) Upon receipt of
written directions by the Benefit Committee, the Master Trustee
shall (i) transfer and deliver such part of the assets of the
Fund as may be specified in such writing to any Asset Manager so
appointed, and (ii) accept the transfer back to it of any such
assets at any time held by an Asset Manager, provided that the
Benefit Committee may only direct such transfers as are in
conformity with the provisions of the Plans, this Agreement, and
ERISA, and Code sections 401(a) and 501(a). Any such written
direction shall constitute a certification to the Master Trustee
by the Benefit Committee that the transfer so directed is one
which the Benefit Committee is authorized to direct and is in
conformity with the aforesaid provisions.
(b) If any assets are so transferred to the custody of an Asset
Manager, such Asset Manager shall undertake and be responsible
for all the custodial duties therefor, and such assets shall
remain for all purposes a part of the Fund and the Master Trust,
and as such,
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subject to all the terms and provisions of this Agreement. Any
Asset Manager receiving such assets may invest any part or all of
such assets in units of any collective, common or pooled trust
fund operated or maintained by a bank or trust company, including
the Investment Manager or any affiliate of the Investment Manager,
exclusively for the commingling and collective investment of
moneys or other assets held under or as part of a plan which is
established in conformity with and qualifies under Code section
401(a). Notwithstanding the provisions of this Agreement which
place restrictions upon the actions of the trustee, or the Asset
Manager, to the extent moneys or other assets are utilized to acquire
units of any collective trust, the terms of the collective trust
indenture shall solely govern the investment duties, responsibilities
and powers of the Master Trustee of such collective trust, and
to the extent required by law, such terms, responsibilities and
powers shall be incorporated herein by reference and shall be part
of this Agreement. For the purposes of valuation of any interest
under the Plans of which this Master Trust forms a part, the value of
the interest maintained by the Fund in such collective trust shall
be the fair market value of the collective fund units held
determined in accordance with generally recognized valuation
procedures.
(c) The Master Trustee shall have no duty or responsibility as
to the safekeeping of such assets or as to the investment and
reinvestment of the same, except that the Master Trustee shall
require such statements and reports from such Asset Manager as
may be necessary to enable the Master Trustee and the Plan
Administrator to carry out their recordkeeping and reporting
duties under this Agreement. The Master Trustee shall enter into
and execute such agreements, receipts and releases as shall be
required to carry out the directions of the Benefit Committee
with respect to the transfer of any assets of the Fund to or from
an Asset Manager in accordance with this Section 5.2.
5.3 THE MASTER TRUSTEE. Subject to investment policies,
objectives and guidelines set forth in Section 6.1 or
communicated to the Master Trustee by the Benefit Committee as
contemplated by this Section 5, the Master Trustee shall from
time to time invest and reinvest the Discretionary Fund described
in Appendix D and keep it invested in accordance with the terms
of this Agreement and such policies, objectives and guidelines.
SECTION 6
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Investment Accounts
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6.1 ESTABLISHMENT OF INVESTMENT ACCOUNTS. The Benefit
Committee shall direct the Master Trustee to establish on its
books and records accounts sufficient to accommodate investment
options, available to the employees. The Benefit Committee shall
establish an investment purpose for each account, either by
separate written designation or through an agreement between the
Benefit Committee and the Master Trustee that shall incorporate
therein the investment purposes and, if applicable, the
investment restrictions which the Plan provides as to investment
options. The Master Trustee shall initially establish and
maintain such investment funds as described in Appendix D.
Should the Benefit Committee direct the Master Trustee to
establish additional special investment accounts or funds, the
Benefit Committee shall direct the Master Trustee as to the
nature and objectives that such account or fund is to achieve.
The Benefit Committee, in the manner provided in Section 15.1,
may delegate to a special investment committee the power to
direct the general investment philosophy as to such special
accounts or funds. In the investment of any special account or
fund, the Master Trustee may utilize all or any part of the
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collective investment fund provided in subsection 7.3(g) in the
same manner and according to the same terms as therein set forth.
6.2 QUALIFYING EMPLOYER SECURITIES. All amounts received by
the Master Trustee which are directed by the Benefit Committee to
be placed in an account which has as its investment purpose
investment in Qualifying Employer Securities or any amount
received by the Master Trustee as a result of holding such
Qualifying Employer Securities shall be invested in accordance
with the provisions of Appendix D dealing with Qualifying
Employer Securities.
6.3 ALLOCATION OF CONTRIBUTIONS. The Benefit Committee shall,
upon the making of any contribution to this Master Trust by a
Participating Employer, or, if applicable, a Participant, or
both, instruct the Master Trustee in writing of the manner that
such contribution is to be allocated between the funds or
accounts previously established. In addition, from time to time
the Benefit Committee may direct the Master Trustee to transfer
moneys from any of the funds or accounts to be credited to
another. The Master Trustee, as promptly as possible, shall
comply with the directions of the Benefit Committee. The Master
Trustee is specifically authorized to establish such additional
funds or accounts for the purpose of investment as the Benefit
Committee shall direct from time to time. The Master Trustee is
further authorized to transfer from any such fund or existing
fund or funds any and all amounts as may be directed by the
Benefit Committee from time to time.
6.4 RESPONSIBILITY OF MASTER TRUSTEE. The Master Trustee shall
not be responsible nor liable to establish or maintain a record
or account in the name of any individual Participant. The Master
Trustee shall not be required to establish the value of any
Participant's individual interest in the Fund or any account
established hereunder. Should the Master Trustee and the Benefit
Committee or the Corporation agree that the Master Trustee shall
maintain individual account records, such agreement shall be
separate and apart from the terms of this Trust. Such an
agreement shall not be construed as implying any duty upon the
Master Trustee hereunder even though the Master Trustee, in its
corporate capacity as record keeper for the accounts of
individual participants, shall have the right, power or duty to
issue instructions or directions as to the disposition or
distribution of any assets held hereunder.
6.5 ACCOUNTS AS SEPARATE TRUSTS. For the purposes of
application of this Agreement, each fund or account created
hereunder shall be considered a separate trust insofar as the
application of powers granted the Master Trustee.
Notwithstanding the provisions of this Agreement which
establishes powers and duties with regard to the Master Trust as
a whole, the Master Trustee shall exercise such of those powers
as are consistent with the investment purposes of each account.
Where applicable or required, the Master Trustee with the Benefit
Committee's consent may subdivide any account as may be required
to fulfill either its duties hereunder or the instructions of the
Benefit Committee.
SECTION 7
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Investment of the Fund
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7.1 STANDARD OF CARE. The Master Trustee, each Asset Manager,
the Benefit Committee and any other Named Fiduciary shall
discharge their respective investment duties as provided under
Sections 5 and 6 hereof with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character with like
aims and by diversifying the investments held hereunder
consistent with investment policies, objectives and
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guidelines so as to minimize the risk of large losses,
unless it would be clearly not prudent to diversify.
7.2 WAIVER OF INVESTMENT RESTRICTIONS. Such investment and
reinvestment shall not be restricted to securities or property of
the character authorized for investments by Master Trustees or
asset managers under any statute or other laws of any state,
district or territory.
7.3 GRANT OF INVESTMENT POWERS. In addition to any power
granted to trustees or asset managers under any statute or other
laws, such laws and statutes if necessary being incorporated
herein by reference, the Master Trustee's, and each Asset
Manager's investment powers may, unless restricted in writing by
the Benefit Committee, include, but shall not be limited to,
investment in the following:
(a) domestic or foreign common and preferred stocks and options
thereon, as well as warrants, rights and preferred stocks
convertible into common stock, regardless of where or how traded;
(b) corporate bonds and debentures and any such securities
which are convertible into common stock, domestic or foreign;
(c) bonds or other obligations of the United States of America
or any foreign nation, and any agencies thereof, or any bonds or
other obligations which are directly or indirectly guaranteed by
the United States or any foreign nation, or any agency thereof;
(d) notes of any nature, of foreign or domestic issuers;
(e) savings accounts, certificates of deposit and other types
of time deposits, bearing a reasonable rate of interest based
upon the duration, amount, type and geographical area, with any
financial institution or quasi-financial institution or any
department of the same, either domestic or foreign, under the
supervision of the United States or any State, including any such
financial institution owned, operated or maintained by the Master
Trustee in its corporate or association capacity (including any
department or division of the same) or a corporation or
association affiliated with the same;
(f) any collective or common trust fund or composite security
owned, operated and maintained by the Master Trustee, including,
but not limited to, demand notes, short-term notes and cash
equivalent funds;
(g) any collective, common or pooled trust fund operated or
maintained exclusively for the commingling and collective
investment of moneys or other assets of employees' pension and
profit sharing trusts exempt from tax under Code section 501(a)
by reason of qualifying under Code section 401(a) including any
such fund operated or maintained by the Master Trustee.
Notwithstanding the provisions of this Agreement which place
restrictions upon the actions of the Master Trustee or an
Investment Manager, to the extent moneys or other assets are
utilized to acquire units of any collective trust, the terms of
the collective trust indenture shall solely govern the investment
duties, responsibilities and powers of the trustee of such
collective trust and, to the extent required by law, such terms,
responsibilities and powers shall be incorporated herein by
reference and shall be part of this Agreement. For purposes of
valuation, the value of the interest maintained by the Fund in
such collective trust shall be the fair market value of the
collective fund units held, determined in accordance with
generally recognized valuation procedures;
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(h) individual or group insurance policies and contracts
including, but not limited to, life insurance, annuity (fixed or
variable) and investment policies and contracts, but only if
directed by the Benefit Committee or another Named Fiduciary, as
appropriate, to purchase or retain such policies and contracts.
7.4 MAINTENANCE OF CASH BALANCES. The Master Trustee shall
keep such portion of the Fund in cash or cash balances as may be
specified from time to time in a written request from the Plan
Administrator or as required by the Benefit Committee to meet
contemplated payments from the Fund. The Master Trustee shall
invest such cash balances and any other portions of the Fund
which may be in cash or cash balances in accordance with such
investment policies, objectives and guidelines as may be
communicated to the Master Trustee from time to time by the
Benefit Committee pursuant to Section 5. The Master Trustee
shall not be liable for interest on any reasonable cash balances
so maintained.
SECTION 8
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Powers of the Master Trustee,
Asset Managers and the Named Fiduciary
--------------------------------------
8.1 QUALIFYING EMPLOYER SECURITIES ACCOUNTS. With respect to
accounts established to invest in Qualifying Employer Securities,
the Master Trustee shall act only in accordance with the
procedures set forth in the Plans, Appendix D, and with respect
to the right to vote, the right to tender in the event of a
tender offer or the exercise of certain other rights concerning
such securities, Appendix E.
8.2 GENERAL POWERS. As to all assets other than Qualifying
Employer Securities, the Master Trustee shall have and exercise
the following powers and authority in the administration of the
Fund only on the direction of an Asset Manager and the Benefit
Committee where such powers and authority relate to a Directed
Fund and in its sole discretion where such powers and authority
relate to a Discretionary Fund:
(a) to purchase, receive or subscribe for any securities or
other property and to retain in trust such securities or other
property;
(b) to sell, exchange, convey, transfer, lend, or otherwise
dispose of any property held in the Fund and to make any sale by
private contract or public auction; and no person dealing with
the Master Trustee shall be bound to see to the application of
the purchase money or to inquire into the validity, expediency or
propriety of any such sale or other disposition;
(c) to vote in person or by proxy any stocks, bonds or other
securities held in the Fund;
(d) to exercise any rights appurtenant to any such stocks,
bonds or other securities for the conversion thereof into other
stocks, bonds or securities, or to exercise rights or options to
subscribe for or purchase additional stocks, bonds or other
securities, and to make any and all necessary payments with
respect to any such conversion or exercise, as well as to write
options with respect to such stocks and to enter into any
transactions in other forms of options with respect to any
options which the Fund has outstanding at any time;
(e) to join in, dissent from or oppose the reorganization,
recapitalization, consolidation, sale or merger of corporations
or properties of which the Fund may hold stocks, bonds or other
securities or in which it may be interested, upon such terms and
conditions as deemed wise, to
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pay any expenses, assessments or subscriptions in connection
therewith, and to accept any securities or property, whether
or not Master Trustees would be authorized to invest in such
securities or property, which may be issued upon any such
reorganization, recapitalization, consolidation, sale or merger
and thereafter to hold the same, without any duty to sell;
(f) to insure, according to customary standards, any property
held in the Fund for any amount and to pay any premiums required
for such coverage;
(g) to purchase or otherwise acquire and make payment therefor
from the Fund any bond or other form of guarantee or surety
required by any authority having jurisdiction over this Trust and
its operation, or believed by the Master Trustee or Asset Manager
to be in the best interests of the Fund, except the Master
Trustee or Asset Manager may not obtain any insurance whose
premium obligation extends to the Fund which would protect the
Master Trustee or Asset Manager against its liability for breach
of fiduciary duty;
(h) to enter into any type of contract with any insurance
company or companies, either for the purposes of investment or
otherwise; provided that no insurance company dealing with the
Master Trustee shall be considered to be a party to this
Agreement and shall only be bound by and held accountable to the
extent of its contract with the Master Trustee. Except as
otherwise provided by any contract, the insurance company need
only look to the Master Trustee with regard to any instructions
issued and shall make disbursements or payments to any person,
including the Master Trustee, as shall be directed by the Master
Trustee. Where applicable, the Master Trustee shall be the sole
owner of any and all insurance policies or contracts issued.
Such contracts or policies, unless otherwise determined, shall be
held as an asset of the Fund for safekeeping or custodian
purposes only;
(i) to lend the assets of the Fund to participants of the Plan.
The Benefit Committee shall have full and exclusive
responsibility for loans made to participants, including, without
limitation, full and exclusive responsibility for the following:
development of procedures and documentation for such loans;
acceptance of loan applications; approval of loan applications;
disclosure of interest rate information required by Regulation Z
of the Federal Reserve Board promulgated pursuant to the Truth in
Lending Act, 15 U.S.C. Section 1601 et seq., compliance with the record
retention requirements promulgated under the Equal Credit
Opportunity Act, 15 U.S.C. Section 1691 et seq. and its implementing
regulation, Regulation B, 12 C.F.R. part 202; acting as agent for
the physical custody and safekeeping of the promissory notes and
other loan documents; performing necessary and appropriate
recordkeeping and accounting functions with respect to loan
transactions; enforcement of promissory note terms, including,
but not limited to, directing the Master Trustee to take
specified actions; and maintenance of accounts and records
regarding interest and principal payments on notes. The Master
Trustee shall not in any way be responsible for holding or
reviewing such documents, records and procedures and shall be
entitled to rely upon such information as is provided by the
Benefit Committee or its own sub-agent or recordkeeper without
any requirement or responsibility to inquire as to the
completeness or accuracy thereof, but may from time to time
examine such documents, records and procedures, as it deems
appropriate.
8.3 SPECIFIC POWERS OF THE MASTER TRUSTEE. The Master Trustee
shall have the following powers and authority, to be exercised in
its sole discretion with respect to the Fund:
(a) to appoint agents, custodians, depositories or counsel,
domestic or foreign, as to part or all of the Fund and functions
incident thereto where, in the sole discretion of the Master
Trustee, such delegation is necessary in order to facilitate the
operations of the Fund and such
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delegation is not inconsistent with the purposes of the Fund
or in contravention of any applicable law. To the extent that
the appointment of any such person or entity may be deemed to
be the appointment of a fiduciary, the Master Trustee may
exercise the powers granted hereby to appoint as such a
fiduciary any person or entity, including, but not limited to,
the Benefit Committee or the Corporation, notwithstanding the
fact that such person or entity is then considered a fiduciary,
a party in interest or a disqualified person within the meaning
of the applicable provisions of ERISA. Upon such delegation,
the Master Trustee may require such reports, bonds or written
agreements as it deems necessary to properly monitor the actions
of its delegate;
(b) to cause any investment, either in whole or in part, in the
Fund to be registered in, or transferred into, the Master
Trustee's name or the names of a nominee or nominees, including
but not limited to that of the Master Trustee, a clearing
company, or a depository, or in book entry form, or to retain any
such investment unregistered or in a form permitting transfer by
delivery, provided that the books and records of the Master
Trustee shall at all times show that such investments are a part
of the Fund; and to cause any such investment, or the evidence
thereof, to be held by the Master Trustee, in a depository, in a
clearing company, in book entry form, or by any other entity or
in any other manner permitted by law;
(c) to make, execute and deliver, as Master Trustee, any and
all deeds, leases, mortgages, conveyances, waivers, releases or
other instruments in writing necessary or desirable for the
accomplishment of any of the foregoing powers;
(d) to defend against or participate in any legal actions
involving the Fund or the Master Trustee in its capacity stated
herein, in the manner and to the extent it deems advisable, the
costs of any such defense or participation to be borne by the
Fund, unless paid by the Corporation in accordance with Section
11; provided however, the Master Trustee shall notify the Benefit
Committee of all such actions and the Benefit Committee may, in
its sole discretion, determine against the incurrence of any such
legal fees and expenses which may be incurred beyond those
necessary to protect the Fund against default or immediate loss
and may participate in the selection of and instructions to legal
counsel;
(e) to form corporations and to create trusts, to hold title to
any security or other property, to enter into agreements creating
partnerships or joint ventures for any purpose or purposes
determined by the Master Trustee to be in the best interests of
the Fund;
(f) to establish and maintain such separate accounts in
accordance with the instructions of the Plan Administrator for
the proper administration of the Plans, or as determined to be
necessary by the Master Trustee. Such accounts shall be subject
to the general terms of this Agreement, unless the Master Trustee
is notified of a contrary intent by the Plan Administrator or the
Benefit Committee in writing; and
(g) to generally take all action, whether or not expressly
authorized, which the Master Trustee may deem necessary or
desirable for the protection of the Fund.
8.4 MAINTENANCE OF INDICIA OF OWNERSHIP. The Master Trustee
shall not maintain indicia of ownership of any asset of the Fund
held by it outside the jurisdiction of the District Courts of the
United States unless such holding is approved through ruling or
regulations promulgated under ERISA by the Secretary of Labor.
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8.5 THIRD PARTY TRANSACTIONS. In addition, and not by way of
limitation, the Master Trustee shall have any and all powers and
duties concerning the investment, retention or sale of property
held in trust as if it were absolute owner of the property, and
no restrictions with regard to the property so held shall be
implied, warranted or sustained by reason of this Agreement;
provided, however, at no time shall the exercise of such powers
and duties establish any evidence which would permit a third
party to assert a right, title or interest superior to that of
the Plans in the property held in the Fund.
SECTION 9
---------
Discretionary Powers
--------------------
9.1 MASTER TRUSTEE GRANTED DISCRETION. The Master Trustee is
hereby granted any and all discretionary powers not explicitly or
implicitly conferred by this Agreement which it may deem
necessary or proper for the protection of the property held
hereunder.
SECTION 10
----------
Prohibited Transactions
-----------------------
10.1 TRANSACTIONS WHICH ARE PROHIBITED. Notwithstanding any
provision of this Agreement, either appearing before or after
this Section, the Master Trustee shall not engage in or cause the
Trust to engage in any transaction if it knows or should know,
that such transaction constitutes a direct or indirect prohibited
transaction, as defined in ERISA section 406 or Code section 4975
except to the extent there exists a statutory or administrative
prohibited transaction exemption.
10.2 PROVISION OF ANCILLARY SERVICES BY MASTER TRUSTEE.
Notwithstanding the foregoing, the Master Trustee may, in
addition to the services rendered in conjunction with its duties
and responsibilities as Master Trustee under the terms of this
Agreement, provide such ancillary services as meet the following
standards:
(a) there have been adopted by the Master Trustee internal
safeguards which assure that such ancillary services are
consistent with sound banking and financial practices as
determined by the appropriate banking authority;
(b) the ancillary services are provided in accordance with
guidelines which are intended to meet the standards established
by the appropriate banking authority; and
(c) the compensation received by the Master Trustee for such
services is reasonable and established in an arm's-length manner.
SECTION 11
----------
Expenses, Compensation and Taxes
--------------------------------
11.1 COMPENSATION AND EXPENSES OF THE MASTER TRUSTEE. The
Master Trustee shall be entitled to such reasonable compensation
for services rendered by it in accordance with the schedule of
compensation as agreed upon by the Benefit Committee and the
Master Trustee from time to time together with all reasonable
expenses incurred by the Master Trustee as a result of the
execution of its duties hereunder, including, but not limited to,
legal and accounting
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expenses, expenses incurred as a result of disbursements and
payments made by the Master Trustee, and reasonable compensation
for agents, counsel or other services rendered to the Master
Trustee by third parties and expenses incident thereto.
11.2 PAYMENT FROM THE FUND.
(a) EXCEPT AS PROVIDED IN PARAGRAPH (b) BELOW, PROPERLY
APPROVED REASONABLE FEES AND EXPENSES OF ANY OF THE FOLLOWING
SHALL BE PAID FROM THE FUND AND SHALL CONSTITUTE A CHARGE ON THE
FUND UNTIL SO PAID: THE MASTER TRUSTEE, ANY OTHER MASTER TRUSTEE,
ANY INVESTMENT MANAGER, ANY FEES FROM THE PLAN'S AUDITORS, ANY
FEES FROM THE PLAN'S RECORDKEEPER, LEGAL FEES, ANY INVESTMENT
ADVISOR AND ANY OTHER COSTS AND FEES RELATED TO THE FUND;
PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE FUND PAY ANY SUCH
FEES OR EXPENSES INCURRED:
(1) FOR PREPARATION OR PROSECUTION OF ANY ACTION AGAINST
THE CORPORATION, THE PLANS, THE PLAN ADMINISTRATOR OR
ANY MEMBER OF THE BENEFIT COMMITTEE, OR
(2) FOR THE DEFENSE OR SETTLEMENT OF, OR THE SATISFACTION
OF A JUDGMENT RELATED TO, ANY PROCEEDING ARISING EITHER
OUT OF ANY ALLEGED MISFEASANCE OR NONFEASANCE IN ANY
PERSON'S PERFORMANCE OF DUTIES WITH RESPECT TO THE
PLANS OR OUT OF ANY ALLEGED WRONGFUL ACT AGAINST THE
PLANS.
NEITHER THE PLAN ADMINISTRATOR NOR ANY MEMBER OF THE
BENEFIT COMMITTEE SHALL BE COMPENSATED FROM THE PLANS BUT MAY BE
COMPENSATED BY THE CORPORATION FOR SERVICES RENDERED ON BEHALF OF
THE PLANS.
THE CORPORATION MAY, IF IT DEEMS NECESSARY, PAY THESE FEES
AND EXPENSES DIRECTLY AND MAY OR MAY NOT SEEK REIMBURSEMENT FROM
THE FUND.
(b) BROKERAGE FEES, COMMISSIONS, STOCK TRANSFER TAXES AND OTHER
CHARGES AND EXPENSES INCURRED IN CONNECTION WITH TRANSACTIONS
RELATED TO THE ACQUISITION OR DISPOSITION OF PROPERTY FOR OR OF
THE MASTER TRUST, INCLUDING ANY PART SEGREGATED IN AN INVESTMENT
MANAGER ACCOUNT, OR DISTRIBUTIONS THEREFROM SHALL BE PAID FROM
THE FUND, INCLUDING ANY PART SEGREGATED IN AN INVESTMENT MANAGER
ACCOUNT. TAXES, IF ANY, PAYABLE BY THE MASTER TRUSTEE ON THE
ASSETS AT ANY TIME HELD IN THE FUND OR ON THE INCOME THEREOF
SHALL BE PAID FROM THE FUND.
(c) THE FREQUENCY OF THE BILLING OF A PARTICULAR EXPENSE, THE
PARTICULAR INVESTMENT ACCOUNT TO BE CHARGED AND THE BASIS OF THE
EXPENSE ALLOCATION SHALL BE GOVERNED BY THE PROVISIONS OF
APPENDIX C; WHICH APPENDIX MAY BE AMENDED, FROM TIME TO TIME, BY
THE BENEFIT COMMITTEE; PROVIDED, HOWEVER, THAT NO SUCH AMENDMENT
SHALL AFFECT EXPENSES CHARGED AGAINST AN INVESTMENT VEHICLE PRIOR
THE MASTER TRUSTEE'S RECEIPT OF NOTICE OF THE AMENDMENT.
11.3 PAYMENT OF TAXES. The Master Trustee shall notify the
Benefit Committee upon receipt of notice with regard to any
proposed tax deficiencies or any tax assessments which it
receives on any income or property in the Fund and, unless
notified to the contrary by the Benefit Committee within thirty
(30) days, shall pay any such assessments. If the Benefit
Committee notifies the Master Trustee within said period that, in
its opinion or the opinion of counsel, such assessments are
invalid or that they should be contested, then the Master
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Trustee shall take whatever action is indicated in the notice
received from the Benefit Committee or counsel, including
contesting the assessment or litigating any claims.
SECTION 12
----------
Accounts, Books and Records of the Fund
---------------------------------------
12.1 RECORDKEEPING DUTY OF MASTER TRUSTEE. The Master Trustee
shall keep accurate and detailed accounts of all investments,
receipts and 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 any person
designated by the Benefit Committee.
12.2 PERIODIC REPORTS. In addition, within sixty (60) days
following the close of each fiscal year of the Fund, or following
the close of such other period as may be agreed upon between the
Master Trustee and the Benefit Committee, and within one hundred
twenty (120) days, or such other agreed upon period, unless such
period be waived, after the removal or resignation of the Master
Trustee as provided for in this Agreement, the Master Trustee
shall file with the Plan Administrator and the Benefit Committee,
a certified written report setting forth all investments,
receipts and disbursements, and other transactions effected
during the fiscal year or other annual period or during the
period from the close of the preceding fiscal year or other
preceding period to the date of such removal or resignation,
including a description of all securities and investment
purchases and sales with the cost or net proceeds of such
purchases or sales and showing all cash, securities and other
property held at the close of such fiscal year or other period,
valued currently, and such other information as may be required
of the Master Trustee under any applicable law.
12.3 ADDITIONAL ACCOUNTING. Except as provided below, neither
the Plan Administrator, Benefit Committee, the Corporation, nor
any Participating Employer shall have the right to demand or be
entitled to any further accounting different from the normal
accounting rendered by the Master Trustee. Further, no
participant, beneficiary or any other person shall have the right
to demand or be entitled to any accounting by the Master Trustee,
other than those to which they may be entitled under the law.
The Plan Administrator, Benefit Committee, or the Corporation
shall have the right to inspect the Master Trustee's books and
records relating to the Fund during normal business hours or to
designate an accountant to make such inspection, study, and/or
audit with all expenses related thereto to be paid by the
Corporation.
12.4 JUDICIAL DETERMINATION OF ACCOUNTS. Nothing contained
herein will be construed or interpreted to deny the Master
Trustee or the Benefit Committee the right to have the Master
Trustee's account judicially determined.
12.5 LIMITATION OF ACTIONS. Notwithstanding any other provision
of the Plans or this Agreement, the Master Trustee shall not be
subject to any liability for any act or omission, regardless of
its nature, after the expiration of six (6) years commencing with
the day next following the date that any report is filed with the
Secretary of Labor which discloses such error or omission, or, if
earlier, six (6) years after the date a party plaintiff did or
should have had knowledge of such act or omission.
12.6 FILINGS BY THE PLAN ADMINISTRATOR. For the purposes of
this Section, the Master Trustee shall conclusively presume that
the Plan Administrator has made or caused to be made, or will
make or cause to be made, all Federal filings as of the date
required.
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12.7 DETERMINATION OF FAIR MARKET VALUE. The Master Trustee
shall determine the fair market value of the Fund monthly and
annually based upon generally accepted accounting principles
applicable to trusts of a same or similar nature to the one
created herein.
12.8 RETENTION OF RECORDS. All records and accounts maintained
by the Master Trustee with respect to the Fund shall be preserved
for such period as may be required under any applicable law.
Upon the expiration of any such required retention period, the
Master Trustee shall have the right to destroy such records and
accounts after first notifying the Benefit Committee in writing
of its intention and transferring to the Benefit Committee any
records and accounts requested. The Master Trustee shall have
the right to preserve all records and accounts in original form,
or on microfilm, magnetic tape, or any other similar process.
SECTION 13
----------
Fiduciary Duties of Master Trustee
----------------------------------
13.1 ACKNOWLEDGMENT OF FIDUCIARY DUTY. The Master Trustee
acknowledges that it assumes the fiduciary duties established by
this Agreement.
13.2 JUDICIAL DETERMINATION. The Master Trustee shall not,
however, be liable for any loss to or diminution of the Fund
except to the extent that any such loss or diminution results
from act or inaction on the part of the Master Trustee which is
judicially determined to be due to its negligence or a breach of
its fiduciary duties.
SECTION 14
----------
Resignation and Removal
-----------------------
14.1 POWER TO RESIGN OR REMOVE. The Master Trustee may be
removed with respect to all, or a part of, the Fund by the
Benefit Committee, upon written notice to the Master Trustee to
that effect. The Master Trustee may resign as Master Trustee
hereunder, upon written notice to that effect delivered to the
Benefit Committee.
14.2 NOTICE. Such removal or resignation shall become effective
as of the last day of the month which coincides with or next
follows the expiration of ninety (90) days from the date of the
delivery of such written notice, unless an earlier or later date
is agreed upon in writing by the Benefit Committee and the Master
Trustee.
14.3 SUCCESSOR APPOINTMENT. In the event of such removal or
resignation, a successor master trustee, or a separate trustee or
trustees, shall be appointed by the Benefit Committee to become
master trustee, or a separate trustee or trustees, as of the time
such removal or resignation becomes effective. Such successor
master trustee, or separate trustee or trustees, shall accept
such appointment by an instrument in writing delivered to the
Benefit Committee and the Master Trustee and upon becoming
successor master trustee, or separate trustee or trustees, shall
be vested with all the rights, powers, duties, privileges and
immunities as successor master trustee, or separate trustee or
trustees, hereunder as if originally designated as Master
Trustee, or separate trustee or trustees, in this Agreement.
14.4 TRANSFER OF FUND TO SUCCESSOR. Upon such appointment and
acceptance, the retiring Master Trustee shall endorse, transfer,
assign, convey and deliver to the successor master trustee, or
separate trustee or trustees, all of the funds, securities and
other property then held
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by it in the Fund, except such amount as may be reasonable and
necessary to cover its compensation and expenses as may be
agreed to by the Benefit Committee in connection with the
settlement of its accounts and the delivery of the Fund
to the successor master trustee, or separate trustee or
trustees, and the balance remaining of any amount so reserved
shall be transferred and paid over to the successor master
trustee, or separate trustee or trustees, promptly upon
settlement of its accounts, subject to the right of the retiring
Master Trustee to retain any property deemed unsuitable by it for
transfer until such time as transfer can be made.
14.5 RETENTION OF NONTRANSFERABLE ASSETS. If the retiring
Master Trustee holds any property unsuitable for transfer, it
shall retain such property, and as to such property alone it
shall be a trustee with the successor master trustee, or separate
trustee or trustees, its duties and obligations being solely
limited to any such property, and it shall not have fiduciary
duties of any nature as to assets transferred. Should the
successor master trustee, or separate trustee or trustees, accept
fiduciary responsibility as to such property, the Master Trustee
shall retain only custodian duties as to such property.
14.6 ACCOUNTING. In the event of the removal or resignation of
the Master Trustee hereunder, the Master Trustee shall file with
the Benefit Committee a statement and report of its accounts and
proceedings covering the period from its last annual statement
and report, and its liability and accountability to anyone with
respect to the propriety of its acts and transactions shown in
such written statement and report shall be governed by the terms
of this Agreement.
SECTION 15
----------
Actions by the Corporation,
the Plan Administrator or Benefit Committee
-------------------------------------------
15.1 ACTION BY CORPORATION. Any action by the Corporation
pursuant to this Agreement shall, in accordance with
Section 23.1, be evidenced or empowered in writing to the Master
Trustee, and the Master Trustee shall be entitled to rely on such
writing.
15.2 ACTION BY THE PLAN ADMINISTRATOR OR BENEFIT COMMITTEE. Any
action by any person or entity duly empowered to act on behalf of
the Plan Administrator or Benefit Committee with respect to any
rights, powers or duties specified in this Agreement shall be in
writing, signed by such person or by the person designated by the
Plan Administrator or Benefit Committee or any other Named
Fiduciary, and the Master Trustee shall act and shall be fully
protected in acting in accordance with such writing.
SECTION 16
----------
Amendment or Termination
------------------------
16.1 AMENDMENT OR TERMINATION. The Benefit Committee shall have
the right at any time and from time to time by appropriate
action:
(a) to modify or amend in whole or in part any or all of the
provisions of this Agreement upon sixty (60) days' prior notice
in writing to the Master Trustee, unless the Master Trustee
agrees to waive such notice; provided, however, that no
modification or amendment which affects the rights, duties or
responsibilities of the Master Trustee may be made without the
Master Trustee's consent, or
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(b) to terminate this Agreement upon sixty (60) days' prior
notice in writing delivered to the Master Trustee;
provided, further, that no termination, modification or amendment
shall permit any part of the corpus or income of the Fund to be
used for or diverted to purposes other than for the exclusive
benefit of such participants, retired participants and their
beneficiaries, except for the return of Participating Employer
contributions which are allowed by law.
16.2 TERMINATION OF A PLAN. Should the Corporation notify the
Master Trustee of the termination of a Plan by a Participating
Employer, the Master Trustee shall distribute all cash,
securities and other property then held in the Fund with respect
to such Plan, less any amounts constituting charges and expenses
payable from the Fund, on the date or dates specified by the Plan
Administrator to such persons and in such manner as the Plan
Administrator shall direct. In making such distributions, the
Master Trustee shall be entitled to assume that such
distributions are in full compliance with and are not in
violation of any applicable law regulating the termination of any
kind whatsoever arising from any distribution made by the Master
Trustee at the direction of the Plan Administrator as a result of
the termination of this Agreement.
16.3 RETENTION OF NONTRANSFERABLE PROPERTY. The Master Trustee
reserves the right to retain such property as is not, in the sole
discretion of the Master Trustee, suitable for distribution at
the time of termination of this Agreement and shall hold such
property as custodian for those persons or other entities
entitled to such property until such time as the Master Trustee
is able to make distribution. The Master Trustee's duties and
obligations with respect to any property held in accordance with
the above shall be purely custodial in nature and the Master
Trustee shall only be obligated to see to the safekeeping of such
property and make a reasonable effort to prevent deterioration or
waste of such property prior to its distribution. Upon complete
distribution of all property constituting the Fund, this
Agreement shall be deemed terminated.
16.4 TERMINATION IN THE ABSENCE OF DIRECTIONS FROM THE PLAN
ADMINISTRATOR. In the event no direction is provided by the Plan
Administrator with respect to the distribution of a Plan's
portion of the Fund upon termination of this Agreement, the
Master Trustee shall make such distributions as are specified by
the Plan after notice to the Benefit Committee. In the event the
Plan is silent as to the distributions to be made upon
termination of the Plan or the terms of the Plan are inconsistent
with the then applicable law or the Master Trustee cannot obtain
a copy of the most recent Plan, the Master Trustee shall
distribute the Fund to participants and their beneficiaries under
the Plan in an equitable manner that will not adversely affect
the qualified status of the Plan under Code section 401(a) or any
other statute of similar import and that will comply with any
applicable provisions of ERISA regulating the allocation of
assets upon termination of plans such as the Plan. The Master
Trustee, in such case, reserves the right to seek a judicial and
administrative determination as to the proper method of
distribution of the Fund upon termination of this Agreement.
16.5 TERMINATION ON CORPORATE DISSOLUTION. If any Participating
Employer ceases to exist as a result of liquidation, dissolution
or acquisition in some manner, that portion of the Fund
attributable to the Plans of the affected Participating Employer
shall be distributed as provided above upon termination of a Plan
unless a successor to the affected Participating Employer elects
to continue the Plan and this Agreement as provided in this
Agreement.
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SECTION 17
----------
Merger or Consolidation
-----------------------
17.1 MERGER OR CONSOLIDATION OF MASTER TRUSTEE. Any
corporation, or national association, into which the Master
Trustee may be merged or with which it may be consolidated, or
any corporation, or national association, resulting from any
merger or consolidation to which the Master Trustee is a party,
or any corporation, or national association, succeeding to the
trust business of the Master Trustee, shall become the successor
of the Master Trustee hereunder, without the execution or filing
of any instrument or the performance of any further act on the
part of the parties hereto.
17.2 MERGER OR CONSOLIDATION OF CORPORATION OR ANY PARTICIPATING
EMPLOYER. Any partnership or corporation into which the
Corporation or any Participating Employer may be merged or with
which it may be consolidated, or any partnership or corporation
succeeding to all or a substantial part of the business interests
of the Corporation or any Participating Employer may become the
Corporation or any Participating Employer hereunder by expressly
adopting and agreeing to be bound by the terms and conditions of
the Plan and this Agreement and so notifying the Master Trustee
to such effect by submission to the Master Trustee of an
appropriate written document.
17.3 MERGER OR CONSOLIDATION OF PLAN. In the event that the
Benefit Committee authorizes and directs that the assets of
another plan be merged or consolidated with or transferred to a
Plan participating in this Master Trust, the Master Trustee shall
take no action with regard to such merger, consolidation or
transfer until it has been notified in writing that each
participant covered under the plan the assets of which are to be
merged consolidated or transferred will immediately after such
merger, consolidation or transfer be entitled to a benefit either
equal to or then greater than the benefit he would have been
entitled to had the Plan been terminated.
SECTION 18
----------
Acceptance of Master Trust
--------------------------
18.1 ACCEPTANCE BY MASTER TRUSTEE. Master Trustee accepts the
Master Trust created hereunder and agrees to be bound by all the
terms of this Agreement.
SECTION 19
----------
Nonalienation of Master Trust
-----------------------------
19.1 MASTER TRUST NOT SUBJECT TO ASSIGNMENT OR ALIENATION.
Except as heretofore provided, no Participating Employer,
participant or beneficiary of the Plans to which the Master Trust
applies shall have any interest in or right to the assets of this
Master Trust, and to the full extent of all applicable laws, the
assets of this Master Trust shall not be subject to any form of
attachment, garnishment, sequestration or other actions of
collection afforded creditors of a Participating Employer,
participants or beneficiaries. The Master Trustee shall not
recognize any assignment or alienation of benefits unless, and
then only to the extent, written notices are received from the
Plan Administrator.
19.2 PLANS' INTEREST IN MASTER TRUST NOT ASSIGNABLE. The equity
or interest of any participating Plan in the Fund shall not be
assignable.
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SECTION 20
----------
Governing Law
-------------
20.1 GOVERNING LAW. This Agreement shall be construed and
enforced, to the extent possible, according to the laws of the
State of California, and all provisions hereof shall be
administered according to the laws of said State and any federal
laws, regulations or rules which may from time to time be
applicable.
SECTION 21
----------
Parties to Court Proceedings
----------------------------
21.1 ONLY BENEFIT COMMITTEE AND MASTER TRUSTEE NECESSARY. To
the extent permitted by law, only the Master Trustee and the
Benefit Committee shall be necessary parties in any application
to the courts for an interpretation of this Agreement or for an
accounting by the Master Trustee, and no participant under any
Plan of any Participating Employer or other person having an
interest in the Fund shall be entitled to any notice or service
of process. Any final judgment entered in such an action or
proceeding shall, to the extent permitted by law, be conclusive
upon all persons claiming under this Agreement or any Plan.
SECTION 22
----------
Subsidiaries and Affiliates
---------------------------
22.1 ADOPTION OF MASTER TRUST BY SUBSIDIARIES AND AFFILIATES.
Any Controlled Group Member which is now or may hereafter be
organized under the laws of the United States of America, or of
any State or Territory thereof, with the approval of the
Corporation, by resolution of its own board of directors, may
adopt this Agreement, if such subsidiary or affiliate shall have
adopted one or more Plans qualified under Code section 401(a).
If any such Controlled Group Member so adopts this Agreement,
such Controlled Group Member shall be deemed a Participating
Employer hereunder and this Agreement shall establish the trust
for such Plans as are specified by such Participating Employer
and shall constitute a continuation, amendment and restatement of
any prior trust for any such Plans. Furthermore, the assets of
any such Plans may be commingled with the assets of other Plans
held in the Fund pursuant to Section 2.6 hereof. However, the
assets of any Plan so held in the Fund shall not be subject to
any claim arising under any other Plan, the assets of which are
commingled therewith by the Master Trustee for investment
purposes, and under no circumstances shall any of the assets of
one Plan be available to provide the benefits under another Plan.
A separate trust shall be deemed to have been created with
respect to each Plan of such Participating Employer.
22.2 SEGREGATION FROM FURTHER PARTICIPATION. Any Participating
Employer may, at any time, with the consent of the Corporation,
segregate a Plan's trust from further participation in this
Agreement. In such event, such Participating Employer shall file
with the Master Trustee a document evidencing the segregation of
the Plan from the Fund and its continuance of a separate trust in
accordance with the provisions of this Agreement as though such
Participating Employer were the sole creator thereof. In such
event, the Master Trustee shall deliver to itself as Master
Trustee of such separate trust such share of the Fund as may be
determined by the Master Trustee to constitute the appropriate
share of the Fund, as confirmed by the Benefit Committee, then
held in respect of the participating employees of such former
Participating Employer. Such former Participating Employer may
thereafter exercise, in respect of such
-20-
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separate trust, all of the rights and powers reserved to the
Benefit Committee under the provisions of this Agreement.
The equitable share of any Plan participating in the Fund
shall be immediately segregated and withdrawn from the Fund
if the Plan ceases to be qualified under Code section 401(a)
and the Corporation shall promptly notify the Master Trustee
of any determination by the Internal Revenue Service that any
such Plan has ceased to be so qualified.
22.3 SEGREGATION OF ASSETS ALLOCABLE TO SPECIFIC EMPLOYEES. The
Plan Administrator may at any time direct the Master Trustee to
segregate and withdraw the equitable share of any such Plan, or
that portion of such equitable share as may be certified to the
Master Trustee by the Plan Administrator as allocable to any
specified group or groups of employees or beneficiaries.
Whenever segregation is required, the Master Trustee shall
withdraw from the Fund such assets as it shall in its absolute
discretion deem to be equal in value to the equitable share to be
segregated. Such withdrawal from the Fund shall be in cash or in
any property held in such Fund, or in a combination of both, in
the absolute discretion of the Master Trustee. The Master
Trustee shall thereafter hold the assets so withdrawn as a
separate trust fund in accordance with the provisions of this
Agreement, which shall be construed in respect of such assets as
if the Participating Employer maintaining such Plan (determined
without regard to whether any subsidiaries or affiliates of such
Participating Employer have joined in such Plan) has been named
as the Benefit Committee hereunder. Such segregation shall not
preclude later readmission to the Fund.
SECTION 23
----------
Authorities
-----------
23.1 CORPORATION. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by "the
Corporation", such action must be authorized by the Board of
Directors. Any resolution adopted by the Board of Directors or
other evidence of such authorization shall be certified to the
Master Trustee by the Secretary or Assistant Secretary of the
Corporation, and the Master Trustee may rely upon any
authorization so certified until revoked or modified by a further
action of the Board of Directors similarly certified to the
Master Trustee.
23.2 PARTICIPATING EMPLOYER. Any action required or permitted
to be taken under this Agreement by a Participating Employer
shall be given by the board of directors thereof in the manner
described in Section 23.1.
23.3 BENEFIT COMMITTEE AND PLAN ADMINISTRATOR. The Benefit
Committee shall furnish the Master Trustee from time to time with
a list of the names and signatures of all Persons (other than the
Benefit Committee): authorized to act as the designee of the
Benefit Committee under Section 1.1, serving as members of the
Benefit Committee; serving as the Plan Administrator; or in any
other manner authorized to issue orders, notices, requests,
instructions and objections to the Master Trustee pursuant to the
provisions of this Agreement. Any such list shall be certified
by the Secretary of the Benefit Committee, and may be relied upon
for accuracy and completeness by the Master Trustee. Each such
Person shall thereupon furnish the Master Trustee with a list of
the names and signatures of those individuals who are authorized,
jointly or severally, to act for such Person hereunder, and the
Master Trustee shall be fully protected in acting upon any
notices or directions received from any of them.
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23
23.4 INVESTMENT MANAGER. The Benefit Committee shall cause each
Investment Manager to furnish the Master Trustee from time to
time with the names and signatures of those persons authorized to
direct the Master Trustee on its behalf hereunder.
23.5 FORM OF COMMUNICATIONS. Any agreement between the Benefit
Committee and any Person (including an Investment Manager) or any
other provision of this Agreement to the contrary
notwithstanding, all notices, directions and other communications
to the Master Trustee shall be in writing or in such other form,
including transmission by electronic means through the facilities
of third parties or otherwise, specifically agreed to in writing
by the Master Trustee, and the Master Trustee shall be fully
protected in acting in accordance therewith.
23.6 CONTINUATION OF AUTHORITY. The Master Trustee shall have
the right to assume, in the absence of written notice to the
contrary, that no event constituting a change in the Plan
Administrator, or membership of the Benefit Committee or
terminating the authority of any Person, including any Investment
Manager, has occurred.
23.7 NO OBLIGATION TO ACT ON UNSATISFACTORY NOTICE. The Master
Trustee shall incur no liability under this Agreement for any
failure to act pursuant to any notice, direction or any other
communication from any Asset Manager, the Corporation, the Plan
Administrator, the Benefit Committee, or any other Person or the
designee of any of them unless and until it shall have received
instructions in form satisfactory to it.
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24
SECTION 24
----------
Counterparts
------------
24.1 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the
same instrument and may be sufficiently evidenced by any one
counterpart.
IN WITNESS WHEREOF, the parties hereto, each intending to
be legally bound hereby, have hereunto set their hands and seals
as of the day and year first above written.
THE EMPLOYEE BENEFIT COMMITTEE OF ROCKWELL
INTERNATIONAL CORPORATION - Named Fiduciary
By _________________________________________________
Name:
Title:
ROCKWELL INTERNATIONAL CORPORATION - Plan Sponsor
By _________________________________________________
Name:
Title:
FIRST INTERSTATE BANK OF CALIFORNIA - Master Trustee
By _________________________________________________
Name:
Title:
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25
Appendix A
Prior Agreements
----------------
Amendatory Trust Agreement effective June 1, 1979 between
Rockwell International Corporation and National Bank of Detroit.
Amendatory Trust Agreement Number Three effective November 9,
1983 between Rockwell International Corporation and First
Interstate Bank of California.
▇▇▇▇▇-▇▇▇▇▇▇▇ Savings Plan Trust Agreement effective December 1,
1992 between ▇▇▇▇▇-▇▇▇▇▇▇▇ Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
▇▇
▇▇▇▇▇▇▇▇ ▇
Participating Plans
-------------------
Rockwell International Corporation Savings Plan
Rockwell Retirement Savings Plan for Certain Employees
▇▇▇▇▇-▇▇▇▇▇▇▇ Company Savings Plan for Salaried Employees
▇▇▇▇▇-▇▇▇▇▇▇▇ Company Savings Plan for Hourly Employees
▇▇▇▇▇-▇▇▇▇▇▇▇ Company Savings Plan for IAM Union Employees
27
Appendix D
Investment Funds
----------------
D.1 To the extent directed by the Benefit Committee, the Master
Trustee shall establish:
(i) A Diversified Fund consisting of all contributions
made by Participants under the Plan prior to March 1,
1971, and all subsequent contributions made by
Participants under the plan and designated pursuant to
provisions of the Plan as applicable from time to time
(including provisions, if any, regarding transfers of sums
between funds), as contributions to the Diversified Fund
and all contributions made by a Participating Employer to
match contributions deducted from the Participant's
compensation prior to March 1, 1969; all property
purchased therewith and the proceeds and income of such
contributions and property; and
(ii) A Fixed Income Fund consisting of all
contributions made by Participants under the Plan
subsequent to March 1, 1971, and designated pursuant to
provisions of the Plan as applicable from time to time
(including provisions, if any, regarding transfers of sums
between funds), as contributions to the Fixed Income Fund,
all property purchased therewith and proceeds and income
of such contributions and property; and
(iii) A Stock Fund A consisting of all cash and
Qualifying Employer Securities of the Corporation or a
Controlled Group Member contributed by the Corporation or
a Participating Employer to match contributions deducted
from the Participant's compensation on or after March 1,
1969, and the proceeds and income therefrom; and
(iv) A Stock Fund B consisting of all contributions
made by Participants under the Plan and designated
pursuant to provisions of the Plan as applicable from time
to time (including provisions, if any, regarding transfers
of sums between funds), as contributions to the Stock Fund
B, all Qualifying Employer Securities purchased therewith
and proceeds and income therefrom; and
(v) A Guaranteed Return Fund consisting of all
contributions made by Participants under the Plan and
designated pursuant to provisions of the Plan as
applicable from time to time as contributions to the
Guaranteed Return Fund (including provisions, if any,
regarding transfers of sums between funds), any interest
in a guaranteed return contract or contracts with an
insurance company or companies acquired therewith and any
other proceeds therefrom.
D.2 To the extent directed by the Benefit Committee, the
Master Trustee shall from time to time:
(i) Subject to the terms of the Agreement, invest
and reinvest the principal and income of the Diversified
Fund, without direction and without distinction between
principal and income of said Diversified Fund, which has
not been segregated in an Investment Manager Account or
accounts, in every kind of property (real, personal or
mixed, and every kind of investment, specifically
including, but not by way of limitation, corporate
obligations of every kind and stocks preferred or common)
which men of prudence, 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, as the
Master Trustee
28
shall in its discretion determine, provided
that the Master Trustee shall not invest such principal
and income in any security issued by the Corporation or a
Controlled Group Member. Notwithstanding any other
provision of this Appendix D, up to 10% of the
contributions made after March 1, 1969, to the Diversified
Fund may, to the extent directed by the Benefit Committee,
be invested by the Master Trustee in any special
investment fund maintained by the Master Trustee designed
to offer unusual possibilities for growth and capital
investment, and specifically within the contemplation
hereof, and notwithstanding any other provision of this
instrument, the persons, natural or legal, who control the
investments of this Trust, may cause any part or all of
the assets of this Trust to be invested collectively with
the money and other assets of trust created by others by
causing such money and other assets to be invested as part
of any common, collective or commingled trust fund, as the
same may have heretofore been or may hereafter be
established by the Master Trustee, which is qualified
under the provisions of Code section 401(a) and exempt
under the provisions of Code section 501(a), as the same
may be amended. The money and other assets of this Trust
so added to any such common, collective or commingled
trust fund maintained by the Master Trustee shall be
subject to all of the provisions of the Agreement, as the
same may be amended, under which any such common,
collective or commingled trust fund shall be maintained,
and for the period of any such collective investment of
assets of this Trust such Agreement, as the same may be
amended, shall constitute a part of this instrument. The
Master Trustee shall have the sole responsibility with
respect to selecting, making and retaining investments;
and
(ii) Invest and reinvest the principal and income of
the Fixed Income Fund without direction and without
distinction between principal and income of said Fixed
Income Fund, in the following kinds of instruments of debt
with maturity of not more than three years: treasury bills,
treasury notes, treasury bonds, federal agency obligations,
other instruments of federal, state and local government
debt, bankers acceptances and bank certificates of deposit,
and cash equivalents including short-term fixed income
commingled and collective investment funds of banks, but the
Master Trustee shall not invest such principal and income in
any instrument of debt issued by the Corporation or a
Controlled Group Member. The Master Trustee shall have the
sole responsibility with respect to selecting, making and
retaining investments, and
(iii) Use all cash in the Stock Fund A only to
purchase Qualifying Employer Securities. Purchases may be
made from or through any source (other than the Corporation
or a Controlled Group Member) including a Participant.
Rights, options or warrants offered to purchase Qualifying
Employer Securities shall be exercised by the Master Trustee
in his discretion but only to the extent that there is cash
available in the Stock Fund A for investment. To the extent
they are not exercised, the same shall be sold on the open
market. Rights, options or warrants to purchase securities
of the Corporation or a Controlled Group Member other than
Qualifying Employer Securities shall be sold by the Master
Trustee on the open market; and
(iv) Use all cash in the Stock Fund B only to purchase
Qualifying Employer Securities. Purchases may be made from
or through any source (other than the Corporation) including
a Participant. Rights, options or warrants offered to
purchase Qualifying Employer Securities shall be exercised
by the Master Trustee in his discretion but only to the
extent that there is cash available in the Stock Fund B for
investment. To the extent they are not exercised, the same
shall be sold on the open market. Rights, options, or
warrants to purchase securities of the Corporation or a
Controlled Group
29
Member other than Qualifying Employer Securities shall be sold
by the Master Trustee on the open market; and
(v) Invest and reinvest the principal and income of
the Guaranteed Return Fund only in one or more contracts
executed by, assumed by, or transferred to the Master
Trustee and one or more insurance companies whereby such
companies agree to guarantee a defined rate or rates of
earnings or interest on amounts so invested. Such contract
or contracts shall contain such terms, and shall be with
such insurance company or companies, as the Benefit
Committee may direct; and
(vi) In making all investments pursuant to subsections
(i), (ii), (iii), (iv) and (v) above, the Master Trustee (A)
shall not, except as provided in Part 4 of Title I of ERISA,
be bound by any law or court doctrine of any state or
jurisdiction limiting trust investments, (B) makes no
warranty or representation with respect to the continuing
value of participating units, and (C) shall give
consideration to the cash requirements of the Plan.
D.3 While the provisions of Article XVII of the Rockwell
International Corporation Savings Plan are in effect, the
Master Trustee shall establish:
(i) A Sub Fund A consisting of any cash, securities or
other consideration received by the Master Trustee as
payment for shares of Qualifying Employer Securities
previously held in the Stock Fund A which were tendered or
deposited in accordance with Appendix E, all property
purchased therewith and the proceeds and income therefrom;
and
(ii) A Sub Fund B consisting of any cash, securities or
other consideration received by the Master Trustee as
payment for shares of Qualifying Employer Securities
previously held in the Stock Fund B which were tendered or
deposited in accordance with Appendix E, all property
purchased therewith and the proceeds and income therefrom.
The Master Trustee shall use all cash in the Sub Fund A and
the Sub Fund B only to purchase the kinds of instruments of
debt with maturity of not more than three years in which the
Master Trustee and any Investment Manager may invest and
reinvest the principal and income of the Fixed Income Fund
pursuant to Paragraph D.1 and shall so invest and reinvest
the principal thereof and income thereon. Dividends, income
and other distributions received on, and proceeds from the
sale or other disposition of, any securities or other
consideration held by the Master Trustee for Participants in
the Sub Fund A or the Sub Fund B pursuant to a tender or
deposit of shares of Qualifying Employer Securities in
accordance with Appendix E shall be similarly invested and
reinvested.
▇▇
▇▇▇▇▇▇▇▇ ▇
Voting of Qualifying Employer Securities
----------------------------------------
(a) Except as otherwise provided in this Appendix E, the duty
with respect to the voting, retention, and tendering of
Qualifying Employer Securities held in the Stock Fund A or the
Stock Fund B shall be solely that of the Master Trustee, to be
exercised solely in the Master Trustee's discretion.
(b) With respect to any matter as to which a vote of the
outstanding shares of Qualifying Employer Securities is solicited
by proxies, consents or authorizations:
(i) Each Participant shall be entitled to direct the
Master Trustee, and the Master Trustee shall solicit the
direction in writing of each Participant, as to the manner
in which voting rights of shares of Qualifying Employer
Securities held in the Stock Fund A or the Stock Fund B
which either represent the vested or non-vested interest of
such Participant in the Stock Fund A as of the record date
fixed for determining the holders of Qualifying Employer
Securities entitled to vote on such matter or have been
credited as of such record date to the Stock Fund B account
of such Participant are to be exercised with respect to such
matter, and the Master Trustee shall exercise the voting
rights of such shares with respect to such matter in
accordance with the last-dated timely written direction, if
any, of such Participant. In connection with the
solicitation of written directions from Participants, the
Corporation will cause to be furnished to each Participant
and the Master Trustee notice of each occasion for the
exercise of such voting rights, an appropriate form on which
such written direction may be given, and a statement
containing the information that the Corporation distributes
to stockholders generally regarding the exercise of such
voting rights; and
(ii) The duty with respect to the exercise of voting
rights on shares of Qualifying Employer Securities held in
the Stock Fund A or the Stock Fund B as to which no timely
direction in writing has been received pursuant to paragraph
(i) of this subsection (b) shall be solely that of the
Master Trustee, to be exercised solely in the Master
Trustee's discretion.
(c) In the event of any Tender Offer (as defined in Section
17.1 of the Rockwell International Corporation Savings Plan):
(i) Each Participant shall be entitled to direct the
Master Trustee, and the Master Trustee shall solicit the
direction in writing of each Participant, as to the
tendering or disposition of any shares of Qualifying
Employer Securities held in the Stock Fund A or the Stock
Fund B which either represent the vested or non-vested
interest of such Participant in the Stock Fund A as of the
Tender Date (as defined herein) with respect to such
Participant or have been credited as of such Tender Date to
the Stock Fund B account of such Participant, and, except as
limited by paragraph (iii) hereof, the Master Trustee shall
tender or deposit into a sub-fund established pursuant to
Appendix D such shares pursuant to any such Tender Offer in
accordance with the last dated timely written direction, if
any, of such Participant;
(ii) Except as limited by Paragraph (iii) hereof, the
duty with respect to the retention, tendering or depositing
of shares of Qualifying Employer Securities held in the
Stock Fund A or the Stock Fund B as to which no timely
direction in writing has been
31
received pursuant to paragraph (i) hereof shall be solely
that of the Master Trustee to be exercised solely in the
Master Trustee's discretion; and
(iii) Shares of Qualifying Employer Securities held
in the Stock Fund A or the Stock Fund B shall not be
tendered or deposited into a sub-fund established pursuant
to Appendix D by the Master Trustee pursuant to any such
Tender Offer until the earliest of (A) immediately preceding
the scheduled expiration of the Tender Offer pursuant to
which such shares are to be tendered or deposited or (B)
immediately preceding the expiration of the period during
which such shares of Qualifying Employer Securities will be
taken up and paid for on a pro rata basis pursuant to such
Tender Offer or (C) the expiration of 30 days from the date
of the Master Trustee's solicitation of Participants'
written direction pursuant to paragraph (i) hereof; and
(iv) The duty with respect to the withdrawing of, or
other exercise of any right to withdraw, shares of
Qualifying Employer Securities held in the Stock Fund A or
the Stock Fund B which have been tendered or deposited into
a sub-fund established pursuant to Appendix D pursuant to
any such Tender Offer shall be solely that of the Master
Trustee, provided that the Master Trustee may solicit the
direction in writing of each Participant with respect to
whom any such shares of Qualifying Employer Securities have
been tendered or deposited pursuant to any such Tender
Officer as to the withdrawing of, or other exercise of any
right to withdraw, such shares of Qualifying Employer
Securities, and if such solicitation is made, the Master
Trustee shall act in accordance with the last dated timely
written direction, if any, of each such Participant.
As used in this subparagraph (c) with respect to a
Participant, the term "Tender Date" means the date on which the
Master Trustee tenders or deposits into a sub-fund established
pursuant to Appendix D any shares of the Qualifying Employer
Securities either representing the vested or non-vested interest
of such Participant in the Stock Fund A or credited to the Stock
Fund B account of such Participant in accordance with this
subparagraph (c).