Exhibit 4.13
XXXX FOOD COMPANY, INC.
MASTER RETIREMENT SAVINGS TRUST
(DAILY VALUATION)
THIS AGREEMENT is made effective as of the 1st day of February, 1999
between XXXX FOOD COMPANY, INC., a Hawaiian corporation of Westlake Village,
California, herein referred to as the "Company", and THE NORTHERN TRUST COMPANY
an Illinois corporation, of Chicago, Illinois, as Trustee and constitutes an
amendment and restatement of the trust agreement serving as the funding medium
for the 401(k) Plan for Salaried Employees of Xxxx Food Company, Inc. and
Participating Subsidiaries and Divisions and the 401(k) Plan for Hourly
Employees of Xxxx Food Company, Inc. and Participating Subsidiaries and
Divisions to be known as the XXXX FOOD COMPANY, INC. MASTER RETIREMENT SAVINGS
TRUST (DAILY VALUATION) and under which the Trustee is accepting appointment as
successor trustee.
With respect to each Plan for which this agreement is adopted by the
Committee as the funding medium, the Committee shall appoint the Trustee as
successor under the trust agreement which is the predecessor funding medium for
the Plan, shall direct the Trustee as successor under that trust agreement to
add the assets held thereunder to the assets of the Trust Fund and shall appoint
the Committee as the fiduciary which has the responsibility for administering
the Plan and as the fiduciary which has the responsibility for Plan investments.
The Trust Fund shall consist of all assets held by the Trustee as of the
date of this agreement or hereafter acquired by the Trustee as trustee or
successor trustee under any other trust agreement made by the Company or by a
Subsidiary in connection with a Plan for which this agreement is adopted as the
funding medium, all investments and reinvestments thereof and all additions
thereto by way of contributions, earnings and increments, and shall be held upon
the following terms:
ARTICLE ONE: DEFINITIONS
For the purposes of this agreement:
1.1 "Beneficiary" means a person designated to receive a benefit under the
Plan after the death of a Participant;
1.2 "Code" means the Internal Revenue Code of 1986, as amended;
1.3 "Committee" means the Corporate Compensation and Benefits Committee of
the Board of Directors of Xxxx Food Company, Inc. as constituted from time to
time which has the responsibility for administering the Plan and the
responsibility for allocating the assets of the Trust Fund among the Separate
Accounts and any Trustee Investment Accounts, for monitoring the diversification
of the investments of the Trust Fund, for determining the propriety of
investment of the Trust Fund in foreign securities and of maintaining the
custody
of foreign investments abroad, for assuring that the Plan does not violate any
provisions of ERISA limiting the acquisition or holding of "employer securities"
or "employer real property" and for the appointment and removal of Investment
Advisers and shall be deemed for purposes of ERISA to be named fiduciary for
Plan investments and the Plan administrator and the named fiduciary for Plan
administration;
1.4 "Company" means Xxxx Food Company, Inc. and any corporation which is
the successor thereto;
1.5 "Company Stock" means common stock of the Company;
1.6 "Company Stock Investment Fund" means any Investment Fund composed of
investments in Company Stock as provided in ARTICLE FIVE;
1.7 "Custodial Agent" means one or more persons or entities designated by
the Committee to maintain custody of assets of a Separate Investment Account
pursuant to 4.1(c);
1.8 "ERISA" means the Employee Retirement Income Security Act of 1974 as in
effect from time to time and the regulations issued thereunder;
1.9 "Investment Adviser" means an Investment Manager or an Investment
Trustee to whom the Committee has delegated investment responsibility for a
Separate Account or the Committee with respect to any assets for which the
Committee has investment responsibility;
1.10 "Investment Fund" means each of the investment funds established
pursuant to ARTICLE FIVE; any of such Investment Funds may be composed of one or
more Separate Accounts and Trustee Investment Accounts designated by the
Committee;
1.11 "Investment Manager" means an investment manager registered as an
investment advisor under the Investment Advisers Act of 1940, a bank as defined
in that Act or an insurance company qualified to manage, acquire or dispose of
any asset of the Trust Fund, which is appointed by the Committee to manage a
Separate Investment Account; but the Trustee shall have no responsibility to
determine whether a person or entity acting as an Investment Adviser meets or
continues to meet this definition;
1.12 "Investment Trustee" means the trustee appointed by the Committee to
manage a Separate Investment Trust Account;
1.13 "Participant" means a person who is an employee or former employee of
the Company or of a Subsidiary and who is or was actually participating in the
Plan;
1.14 "Plan" means the 401(k) Plan for Salaried Employees of Xxxx Food
Company, Inc. and Participating Subsidiaries and Divisions and the 401(k) Plan
for Hourly Employees of Xxxx Food Company, Inc. and Participating Subsidiaries
and Divisions and any separate savings plan for employees of the Company or of a
Subsidiary for which this agreement has been adopted as the funding medium;
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1.15 "Plan Account" means the interest of each Plan in the Trust Fund;
1.16 "Separate Account" means a Separate Investment Account, a Separate
Investment Trust Account or a Separate Insurance Contract Account;
1.17 "Separate Insurance Contract Account" means assets of the Trust Fund
allocated by the Committee to a Separate Account for investment in insurance
contracts directed by the Committee;
1.18 "Separate Investment Account" means assets of the Trust Fund allocated
by the Committee to a Separate Account to be managed by an Investment Manager or
the Committee;
1.19 "Separate Investment Trust Account" means assets of the Trust Fund
allocated by the Committee to a Separate Account to be managed by an Investment
Trustee;
1.20 "Subsidiary" means a subsidiary or affiliate of the Company;
1.21 "Subtrust" means assets of a Separate Investment Account which are
held by a Subtrustee pursuant to an agreement which the Committee has approved
and directed the Trustee to enter into;
1.22 "Subtrustee" means the trustee appointed by the Committee to act as
trustee of a Subtrust;
1.23 "Trust Fund" means all assets subject to this agreement;
1.24 "Trustee" means THE NORTHERN TRUST COMPANY and any successor to it as
trustee or trustees of the Trust Fund under this agreement; and
1.25 "Trustee Investment Account" means assets of the Trust Fund for which
investment responsibility has been allocated by the Committee to the Trustee
with the written consent of the Trustee.
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ARTICLE TWO: VALUATION AND ALLOCATION
The Trustee shall hold the Trust Fund as a commingled fund or commingled
funds in which each separate Plan shall be deemed to have a proportionate
undivided interest in the fund or funds in which it participates, except that
each fund or asset identified by the Committee as allocable to a particular Plan
Account, herein referred to as an "identified fund" or "identified asset", and
income, appreciation or depreciation and expenses attributable to a particular
Plan Account or to an identified asset thereof, shall be allocated or charged to
that Plan Account. Contributions shall be designated by the Committee as
allocable, and distributions shall be designated by the Committee as chargeable,
to a particular Plan Account and shall be so allocated or charged. Upon the
direction of the Committee or its designee, the Trustee shall periodically
determine the value of each Plan Account on such basis as the Trustee and the
Committee or its designee shall from time to time agree (considering the fair
market value of the assets initially received from the predecessor trustee or
the Company with respect to the Plan and subsequent contributions and
distributions, net income, net appreciation or depreciation and expenses
attributable to the Plan) and shall render a statement thereof to the Committee
within 60 days after each valuation date.
ARTICLE THREE: DISTRIBUTIONS
The Trustee shall make distributions from the Trust Fund to such persons,
in such amounts (but not exceeding the then value of the Plan Account to which
the distribution is chargeable), at such times and in such manner as the
Committee or its designee shall from time to time direct pursuant to the service
description attached as Exhibit A as may be amended by the Trustee from time to
time. The Trustee shall have no responsibility to ascertain whether any
direction received by the Trustee from the Committee or its designee in
accordance with the preceding sentence is proper and in compliance with the
terms of the Plan or to see to the application of any distribution. The Trustee
shall not be liable for any distribution made in good faith without actual
notice or knowledge of the changed condition or status of any recipient. If any
distribution made by the Trustee is returned unclaimed, the Trustee shall notify
the Committee or its designee and shall dispose of the distribution as the
Committee or its designee shall direct. The Trustee shall have no obligation to
search for or ascertain the whereabouts of any payee of benefits of the Trust
Fund.
Notwithstanding the foregoing, the Committee or its designee may make
distributions from the Trust Fund through a commercial banking account in a
federally insured banking institution (including the Trustee) established by the
Committee or its designee for such purpose after written notice to the Trustee
that the commercial banking account has been so established. Upon such written
notice, the Committee shall have the responsibility to assure that any such
commercial banking account is established and maintained in accordance with
ERISA and is properly insured. The Trustee shall make such deposits from the
Trust Fund to the commercial banking account as the Committee or its designee
may from time to time direct. The Trustee shall have no responsibility to
account for funds held in or disbursed from
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any such commercial banking account, or to prepare any information returns for
tax purposes as to distributions made therefrom.
ARTICLE FOUR: SEPARATE ACCOUNTS AND INVESTMENT ADVISERS
The Trust Fund shall consist of one or more Separate Accounts and, with the
Trustee's written consent, one or more Trustee Investment Accounts. All Separate
Accounts and any Trustee Investment Accounts shall be established by the Trustee
at the direction of the Committee or its designee. The Committee or its designee
shall designate assets of the Trust Fund to be allocated to each Separate
Account and each Trustee Investment Account and shall direct the Trustee with
respect to any transfer of assets between Separate Accounts or between a
Separate Account and a Trustee Investment Account; provided that no asset shall
be allocated or transferred to a Trustee Investment Account without the
Trustee's written consent. The Committee shall have investment responsibility
for any assets of the Trust Fund not otherwise allocated to a Separate Account
or Trustee Investment Account, and such assets shall comprise a Separate
Investment Account for which the Committee serves as Investment Adviser. The
following provisions shall apply to the Separate Accounts:
4.1 With respect to each Separate Investment Account, the Committee or its
designee shall appoint an Investment Adviser, who shall acknowledge by a writing
delivered to the Committee and to the Trustee that the Investment Adviser is a
fiduciary with respect to the assets allocated thereto. The Trustee shall act
with respect to assets allocated to a Separate Investment Account only as
directed by the Investment Adviser. The Committee may direct that any or all of
the assets of a Separate Investment Account be held by a Subtrustee. The Trustee
shall have custody of and custodial responsibility for all assets of the Trust
Fund held in a Separate Investment Account except as otherwise provided in this
agreement or as follows:
(a) The Subtrustee of a Subtrust shall have custody of and custodial
responsibility for any assets of a Separate Investment Account allocated to
it by the Committee;
(b) The trustee of a collective or group trust fund (including without
limitation an Investment Manager or its bank affiliate) shall have custody
of and custodial responsibility for any assets of a Separate Investment
Account invested in such collective or group trust fund; and
(c) The Committee may direct in writing that the custody of additional
assets of a Separate Investment Account (other than those referred to in
paragraphs (a) and (b) of this Section 4.1) be maintained with a Custodial
Agent. In such event, the Committee shall approve, and direct the Trustee
to enter into, a custody agreement with the Custodial Agent (which custody
agreement may authorize the Custodial Agent to maintain custody of such
assets with one or more subagents, including a broker or dealer registered
under the Securities Exchange Act of 1934 or a nominee of such broker or
dealer). The Custodial Agent shall have custodial responsibility for any
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assets maintained with the Custodial Agent or its subagents pursuant to the
custody agreement. Notwithstanding any other provision of this agreement,
the Company (which has the authority to do so under the laws of its state
of incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY from any
liability, loss and expense, including reasonable legal fees and expenses,
which THE NORTHERN TRUST COMPANY may sustain by reason of acting in
accordance with any directions of the Committee pursuant to this paragraph
(c). This paragraph shall survive the termination of this agreement.
4.2 With respect to each Separate Investment Trust Account, the Trustee and
the Investment Trustee thereof shall upon the direction of the Committee execute
an investment trust agreement with respect thereto. The Investment Trustee shall
have custody of all of the assets of the Separate Investment Trust Account
except such assets as the Committee may from time to time determine shall be
held in the custody of the Trustee with the Trustee's written consent; the
Trustee shall act with respect to any such assets in its custody only as
directed by the Investment Trustee.
4.3 With respect to each Separate Insurance Contract Account, from assets
allocated thereto the Trustee shall purchase or continue in effect such
insurance contracts as the Committee shall direct, the issuing insurance company
may credit those assets to its general account or to one or more of its separate
accounts, and the Trustee shall act with respect to those contracts only as
directed by the Committee.
4.4 The Committee shall have investment responsibility for assets held in
any Separate Account for which an Investment Manager or Investment Trustee has
not been retained, has been removed, or is for any reason unwilling or unable to
act. With respect to assets or Separate Accounts for which the Committee has
investment responsibility, the Trustee, acting only as directed by the
Committee, shall enter into such agreements as are necessary to facilitate any
investment, including agreements entering into a limited partnership, Subtrust
or the participation in real estate funds. The Trustee shall not make any
investment review of, or consider the propriety of holding or selling, or vote
any assets for which the Committee has investment responsibility.
4.5 With respect to each Separate Account, the Investment Adviser thereof
shall have the investment powers granted to the Trustee by ARTICLE SIX, as
limited by 7.1 through 7.3 of ARTICLE SEVEN, as if all references therein to the
Trustee referred to the Investment Adviser.
4.6 The Committee may direct the Trustee to (i) enter into such agreements
as are necessary to implement investment in futures contracts and options on
futures contracts; (ii) transfer initial margin to a futures commission merchant
or third party safekeeping bank pursuant to directions from an Investment
Adviser and (iii) pay or demand variation margin in accordance with industry
practice to or from such futures commission merchant based on daily marking to
market calculations. The Trustee shall have no investment or custodial
responsibility with respect to assets transferred to a futures commission
merchant or third party safekeeping bank.
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ARTICLE FIVE: INVESTMENT FUNDS
The Trust Fund shall be composed of assets of the Company Stock Investment
Fund and any other Investment Funds designated in writing by the Committee. The
Committee is authorized to terminate the existing Investment Funds and establish
new Investment Funds by giving advance written notice to the Trustee describing
the fund to be terminated or established and the effective date thereof;
provided that in no event shall the Trustee's duties be modified without its
consent. The Committee or its representative shall direct the Trustee with
respect to the allocation of assets to Investment Funds and with respect to
transfers among such Investment Funds. The Trustee shall use its best efforts to
move funds as soon as practicable when transfers are delayed for any reason, but
shall in no event be required to advance its own funds for such purpose. Pending
directions from the Committee to allocate contributions among the Investment
Funds, the Trustee shall hold the contributions in a separate account invested
in short term investments, including common or collective short term investment
funds of the Trustee. Any cash held from time to time in any Investment Fund may
be invested in common or collective funds of the Trustee or its affiliate, or
participations in regulated investment companies (including those for which the
Trustee or its affiliate is adviser).
To the extent that any Investment Fund is invested in mutual fund shares or
bank commingled funds, the Committee shall initially select funds to be invested
in and shall be responsible for retaining the availability of or terminating the
availability of such funds. To the extent the Trustee is required to enter into
a custody agreement with the sponsor of a bank commingled fund or such other
type of fund, the Committee shall direct the Trustee to enter into such
agreement.
The Company Stock Investment Fund shall be composed of investments in
Company Stock. The Committee shall notify the Trustee in writing from time to
time of the amount of the fund to be maintained in the collective short term
investment fund and the Trustee shall not be required to advance funds to make
any transfers or distributions. Any cash held by the Trustee from time to time
in the Company Stock Investment Fund may be invested in common or collective
short term investment funds of the Trustee.
The Company has determined that daily movement of Participant balances
among the Investment Funds is an important design feature and objective of the
Plan and that timely transfers and distributions from the Company Stock
Investment Fund need to be facilitated in order to achieve such objective. The
Committee may authorize and direct the Trustee in writing to seek to obtain
settlement for sales of Company Stock on an expedited basis under certain
circumstances in which case the Trustee shall carry out its responsibilities for
execution of Company Stock sale transactions in accordance with such direction
and subject to any limitations expressed therein.
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ARTICLE SIX: POWERS OF TRUSTEE
Except as otherwise provided in this agreement and subject to the
limitations on powers set forth in Article Seven and elsewhere hereof, the
Trustee shall hold, manage, care for and protect the assets of the Trust fund
and shall have until actual distribution thereof the following powers and,
except to the extent inconsistent herewith, those now or hereafter conferred by
law:
6.1 To retain any asset originally included in the Trust Fund or
subsequently added thereto;
6.2 To invest and reinvest the assets without distinction between income
and principal in bonds, stocks, mortgages, notes, options, futures contracts,
options on futures contracts, limited partnership interests, participations in
regulated investment companies (including those for which the Trustee or its
affiliate is adviser), or other property of any kind, real or personal, foreign
or domestic, and to enter into insurance contracts;
6.3 To deposit any part or all of the assets with the Trustee or its
affiliate as trustee, or another person or entity acting as trustee of any
collective or group trust fund which is now or hereafter maintained as a medium
for the collective investment of funds of pension, profit sharing or other
employee benefit plans, and which is qualified under Section 401(a) and exempt
from taxation under Section 501(a) of the Code, and to withdraw any part or all
of the assets so deposited; any assets deposited with the trustee of a
collective or group trust fund shall be held and invested by the trustee
thereunder pursuant to all the terms and conditions of the trust agreement or
declaration of trust establishing the fund, which are hereby incorporated herein
by reference and shall prevail over any contrary provision of this agreement;
6.4 To deposit cash in any depository, including the banking department of
the Trustee or its affiliate and any organization acting as a fiduciary with
respect to the Trust Fund;
6.5 To hold any part of the assets in cash without liability for interest,
pending investment thereof or the payment of expenses or making of distributions
therewith, notwithstanding the Trustee's receipt of "float" from such uninvested
cash;
6.6 To cause any asset, real or personal, to be held in a corporate
depository or federal book entry account system or registered in the Trustee's
name or in the name of a nominee or in such other form as the Trustee deems best
without disclosing the trust relationship;
6.7 To vote, either in person or by general or limited proxy, or refrain
from voting, any corporate securities for any purpose, except that any security
as to which the Trustee's possession of voting discretion would subject the
issuing company or the Trustee to any law, rule or regulation adversely
affecting either the company or the Trustee's ability to retain or vote company
securities, shall be voted as directed by the Committee; to exercise or sell any
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subscription or conversion rights; to consent to and join in or oppose any
voting trusts, reorganizations, consolidations, mergers, foreclosures and
liquidations and in connection therewith to deposit securities and accept and
hold other property received therefor;
6.8 To lease any assets for any period of time though commencing in the
future or extending beyond the term of the trust;
6.9 To borrow money from any lender, to extend or renew any existing
indebtedness and to mortgage or pledge any assets;
6.10 To sell at public or private sale, contract to sell, convey, exchange,
transfer and otherwise deal with the assets in accordance with industry
practice, and to sell put and covered call options from time to time for such
price and upon such terms as the Trustee sees fit; the Company acknowledges that
the Trustee may reverse any credits made to the Trust Fund by the Trustee prior
to receipt of payment in the event that payment is not received;
6.11 To employ agents, attorneys and proxies and to delegate to any one or
more of them any power, discretionary or otherwise, granted to the Trustee;
6.12 To compromise, contest, prosecute or abandon claims in favor of or
against the Trust Fund;
6.13 To appoint foreign custodians as agent of the Trustee to custody
foreign securities holdings of any Separate Account established by the Committee
or of any Trustee Investment Account;
6.14 To utilize any tax refund claim procedures with respect to taxes
withheld to which the Trust Fund may be entitled under applicable tax laws,
treaties and regulations; any exercise of such power by the Trustee shall be on
a best efforts basis; and
6.15 To perform other acts necessary or appropriate for the proper
administration of the Trust Fund, execute and deliver necessary instruments and
give full receipts and discharges.
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ARTICLE SEVEN: LIMITATIONS ON POWERS
For purposes of this agreement, the powers and responsibilities allocated
to the Trustee shall be limited as follows:
7.1 The powers of the Trustee shall be exercisable for the exclusive
purpose of providing benefits to the Participants and Beneficiaries under the
Plans and in accordance 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 and consistent with the standards of a prudent man
under ERISA;
7.2 Subject to 7.1 and 7.3, the Trustee shall diversify the investments of
that portion of the Trust Fund for which it has investment responsibility so as
to minimize the risk of large losses;
7.3 Subject to 7.1, the Trustee shall, with respect to that portion of the
Trust Fund for which it has investment responsibility, follow the investment
guidelines established by the Committee given in exercise of that Committee's
responsibility;
7.4 The Trustee shall not make any investment review of, consider the
propriety of holding or selling, or vote other than as directed by the
Investment Adviser, any assets of the Trust Fund allocated to a Separate Account
in accordance with ARTICLE FOUR, except that if the Trustee shall not have
received contrary instructions from the Investment Adviser thereof, the Trustee
shall invest for short term purposes any cash consisting of U.S. dollars of a
Separate Account in its custody in bonds, notes and other evidences of
indebtedness having a maturity date not beyond five years from the date of
purchase, United States Treasury bills, commercial paper, bankers' acceptances
and certificates of deposit, and undivided interests or participations therein
and (if subject to withdrawal on a daily or weekly basis) participations in
common or collective funds composed thereof. For currencies other than U.S.
dollars, the Trustee shall invest cash of a Separate Account as directed by the
Investment Adviser with respect to that Separate Account and such investments
may include an interest bearing account of a foreign custodian; and
7.5 The Trustee shall vote shares of Company Stock held in the Company
Stock Investment Fund and respond to a tender or exchange offer in accordance
with (a) of the following provisions:
(a) The Trustee, or the Company upon written notice to the Trustee,
shall furnish to each Participant who has Company Stock credited to his or
her individual account under the Company Stock Investment Fund the date and
purpose of each meeting of the stockholders of the Company at which Company
Stock is entitled to be voted. The Trustee, or the Company if it has
furnished the above information, shall request from each Participant
instructions to be furnished to the Trustee (or to a tabulating agent
appointed by the Trustee) as to the voting at that meeting of Company Stock
credited to the Participant's account. If the Participant furnishes such
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instructions to the Trustee or its agent within the time specified in the
notification, the Trustee shall vote such Company Stock in accordance with
the Participant's instructions. All Company Stock credited to Participant
accounts as to which the Trustee or its agent do not receive instructions
as specified above, and all unallocated Company Stock held in the Company
Stock Investment Fund shall be voted by the Trustee proportionately in the
same manner as it votes Company Stock as to which the Trustee or its agent
have received voting instructions as specified above. Similarly, the
Trustee, or the Company upon written notice to the Trustee, shall furnish
to each Participant who has Company Stock credited to his or her individual
account under the Company Stock Investment Fund notice of any tender offer
for, or a request or invitation for tenders of, Company Stock received by
the Trustee. The Trustee, or the Company if it has furnished such notice,
shall request from each such Participant instructions to be furnished to
the Trustee (or to a tabulating agent appointed by the Trustee) as to the
tendering of Company Stock credited to the Participant's account and for
this purpose the Trustee or the Company, as the case may be, shall provide
Participants with a reasonable period of time in which they may consider
any such tender offer for, or request or invitation for tender of, Company
Stock of which the Trustee has been advised by the Committee. The Trustee
shall tender such Company Stock as to which the Trustee or its agent have
received instructions to tender from Participants within the time specified
by the Trustee or the Company, as the case may be. Company Stock credited
to Participant accounts as to which the Trustee or its agent have not
received instructions from Participants shall not be tendered. As to all
unallocated Company Stock held by the Trustee, the Trustee shall tender the
shares pursuant to the Direction of the Committee. The Committee shall
provide the Trustee with timely information regarding proxy voting and
tender offers and in carrying out its responsibilities under this provision
the Trustee may conclusively rely on information furnished to it by the
Committee, including the names and current addresses of Participants, the
number of shares of Company Stock credited to Participant accounts under
the Company Stock Investment Fund, and the number of shares of Company
Stock held by the Trustee in the Company Stock Investment Fund that have
not yet been allocated.
A Participant shall be a "named fiduciary" under ERISA to the extent
of the Participant's authority to direct the investment in, voting, tender,
exchange or sale of Company Stock allocated to the Participant's account
and their proportionate share of unallocated Company Stock held by the
Trustee.
(b) No provision of this Section 7.5 shall prevent the Trustee from
taking any action relating to its duties under this Section 7.5 if the
Trustee determines in its sole discretion that such action is necessary in
order for the Trustee to fulfill its fiduciary responsibilities under
ERISA.
(c) Purchases and sales of Company Stock may be made to, from or
through any source, provided that such purchases from or sales to a party
in interest (as defined in Section 3(14) of ERISA) shall comply with the
requirements of Section 408(e) of ERISA. Rights, options or warrants
offered to purchase Company Stock
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shall be exercised by the Trustee to the extent that there is cash
available for the investment; to the extent cash is not available, the same
shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has
limited the investment power of the Trustee in the Company Stock Investment
Fund to the purchase of Company Stock. The Trustee shall not be liable for
the purchase, retention, voting, tender, exchange or sale of Company Stock
and the Company (which has the authority to do so under the laws of the
state of its incorporation) agrees to indemnify THE NORTHERN TRUST COMPANY
from any liability, loss and expense, including reasonable legal fees and
expenses which THE NORTHERN TRUST COMPANY may sustain by reason of
purchase, retention, voting, tender, exchange or sale of Company Stock.
This paragraph shall survive the termination of this agreement.
7.6 The Committee shall have sole responsibility for the decision to
maintain the custody of foreign investments abroad. Except as otherwise directed
by the Committee, custody of foreign investments shall be maintained with
foreign custodians selected by the Trustee. The Trustee shall have no
responsibility for losses to the Trust Fund resulting from the acts or omissions
of any foreign custodian appointed by the Trustee unless due to the foreign
custodian's fraud, negligence or willful misconduct. The Trustee shall maintain
custody of foreign investments in any jurisdiction where the Trustee has not
selected a custodian solely as directed by the Committee. The Trustee shall have
no responsibility for the financial condition, acts or omissions of any foreign
custodian holding assets of the Trust fund at the direction of the Committee.
ARTICLE EIGHT: ACCOUNTS
The 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
Company or entitled thereto, under ERISA. Such accounts of all receipts and
disbursements shall include accounts of all contributions, distributions,
purchases, sales and other transactions of the Trust Fund. Within 60 days
after the close of each fiscal year of the Trust Fund and of any other period
agreed upon by the Trustee and the Committee the Trustee shall render to the
Committee a statement of account for the Trust Fund for the period commencing
with the close of the last preceding period and a list showing each asset
thereof as of the close of the current period and its cost and fair market
value. The Trustee shall rely conclusively upon the determination of the
issuing insurance company with respect to the fair market value of each
insurance contract and upon the determination of the Investment Adviser of
each Separate Account with respect to the fair market value of those assets
allocated thereto for which the Trustee deems not to have a readily
ascertainable value, and the Trustee shall have no responsibility with
respect thereto.
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An account of the Trustee may be approved by the Committee by written
notice delivered to the Trustee or by failure to object to the account by
written notice delivered to the Trustee within eighteen (18) months of the date
upon which the account was delivered to the Committee. The approval of an
account shall constitute a full and complete discharge to the Trustee as to all
matters set forth in that account as if the account had been settled by a court
of competent jurisdiction in an action or proceeding to which the Trustee, the
Company and the Committee were parties. In no event shall the Trustee be
precluded from having its accounts settled by a judicial proceeding. Nothing in
this article shall relieve the Trustee of any responsibility, or liability for
any responsibility, under ERISA.
ARTICLE NINE: TRUSTEE SUCCESSION
The Trustee may resign at any time by written notice to the Committee, or
the Committee may remove the Trustee by written notice to the Trustee. The
resignation or removal shall be effective 60 days after the date of the
Trustee's resignation or receipt of the notice of removal or at such earlier
date as the Trustee and the Committee may agree.
In case of the resignation or removal of the Trustee, the Committee shall
appoint a successor trustee by delivery to the Trustee of a written instrument
executed by the Committee appointing the successor trustee and a written
instrument executed by the successor trustee accepting the appointment,
whereupon the Trustee shall deliver the assets of the Trust Fund to the
successor trustee but may reserve such reasonable amount as the Trustee may deem
necessary for outstanding and accrued charges against the Trust Fund.
The successor trustee, and any successor to the trust business of the
Trustee by merger, consolidation or otherwise, shall have all the powers given
the originally named Trustee. No successor trustee shall be personally liable
for any act or omission of any predecessor. Except as otherwise provided in
ERISA, the receipt of the successor trustee and the approval of the Trustee's
final account by the Committee in the manner provided in ARTICLE EIGHT shall
constitute a full and complete discharge to the Trustee.
ARTICLE TEN: MISCELLANEOUS
10.1 Any action required to be taken by the Company or by a Subsidiary
shall be by resolution of its board of directors or by written direction of one
or more of its president, any vice president or treasurer. The Trustee may rely
upon a resolution or direction filed with the Trustee and shall have no
responsibility for any action taken by the Trustee in accordance with any such
resolution or direction.
10.2 The Company shall certify to the Trustee the names of the members of
the Committee acting from time to time, and the Trustee shall not be charged
with knowledge of a change in the membership of the Committee until so notified
by the Company. Any action required to be taken by the Committee shall be by
direction of such person or persons as shall be designated by the Committee to
act for the Committee. The Trustee may rely upon an
13
instrument of designation signed by the secretary or chairman of the Committee
and filed with the Trustee and shall have no responsibility for any action taken
by the Trustee in accordance with any such direction. Notwithstanding anything
herein to the contrary, the Committee may delegate any of its responsibilities
hereunder to a representative by giving to the Trustee in writing a letter which
identifies the representative and sets forth the list of its responsibilities
under this agreement that it has authorized the representative to carry out.
10.3 The Trustee may consult with legal counsel, who may also be counsel
for the Company, with respect to its responsibilities under this Agreement and
shall be fully protected in acting or refraining from acting in reliance upon
the written advice of legal counsel for the Company. The Company shall have no
obligation to cause its legal counsel to provide any advice to the Trustee.
10.4 In no event shall the terms of any Plan, either expressly or by
implication, be deemed to impose upon the Trustee any power or responsibility
other than those set forth in this agreement. The Trustee may assume until
advised to the contrary that each Plan and the Trust Fund is qualified under
Section 401(a) and exempt from taxation under Section 501(a) of the Code, or
under corresponding provisions of subsequent federal tax laws. The Trustee shall
be accountable for contributions made to a Plan and included among the assets of
the Trust Fund but shall have no responsibility to determine whether the
contributions comply with the provisions of the Plan or of ERISA.
10.5 In any judicial proceeding to settle the accounts of the Trustee, the
Trustee, the Company and the Committee shall be the only necessary parties; in
any other judicial proceeding with respect to the Trustee or the Trust Fund, the
Trustee, the Company and each affected Subsidiary shall be the only necessary
parties; and no Participant or Beneficiary shall be entitled to any notice of
process. A final judgment in any such proceeding shall be binding upon the
parties to the proceeding and all Participants and Beneficiaries.
10.6 The Trustee shall be reimbursed for all reasonable expenses incurred
in the management and protection of the Trust Fund, including reasonable
accounting and legal fees, and shall receive such reasonable compensation for
its services and as the Trustee and the Company shall from time to time agree.
The initial fees of the Trustee for its services hereunder are set forth on
Exhibit B attached hereto and incorporated herein by this reference.
10.7 Without limiting the rights of the Trustee as otherwise provided in
this agreement, pursuant to direction by the Committee, the Trustee shall pay
from the Trust Fund expenses of a Plan or compensation to parties providing
services to a Plan including but not by way of limitation, expenses or
compensation related to actuarial, legal, accounting, office space, printing,
computer, record-keeping, investment, performance evaluation or any other
material or service provided to a Plan.
10.8 In the event that THE NORTHERN TRUST COMPANY incurs any liability,
loss, claim, suit or expense (including reasonable attorneys fees) in connection
with or arising out of its provision of services under this agreement, or its
status as Trustee hereunder, under circumstances where THE NORTHERN TRUST
COMPANY cannot obtain or would be
14
precluded by law from obtaining payment or reimbursement of such liability,
loss, claim, suit or expense (including reasonable attorneys fees) from the
Trust Fund, then the Company (which has the authority to do so under the laws of
the state of its incorporation) shall indemnify and hold THE NORTHERN TRUST
COMPANY harmless from and against such liability, loss, claim, suit or expense,
except to the extent such liability, loss, claim, suit or expense arises
directly from a breach by the Trustee of responsibilities specifically allocated
to it by the terms of this agreement. Notwithstanding the foregoing, THE
NORTHERN TRUST COMPANY shall not be indemnified for any loss, liability, claim,
suit or expense to the extent the Trustee participated knowingly in, or
knowingly undertook to conceal, an act or omission of any other person or entity
constituting a breach of such person or entity's fiduciary responsibility
hereunder, knowing such act or omission was a breach; provided however, that the
Trustee shall not be deemed to have "participated" in a breach for purposes of
this undertaking solely as a result of the performance by the Trustee or its
officers, employees, or agents of any custodial, reporting, recording and
bookkeeping functions with respect to any assets of the Trust Fund managed by an
Investment Manager or the Committee or solely as a result of settling purchase
and sale transactions entered into or directed by an Investment Manager or the
Committee or to have "knowledge" of any breach solely as a result of the normal
information received by the Trustee or its officers, employees, or agents in the
normal course of performing such functions or settling such transactions. This
paragraph shall survive the termination of this agreement.
10.9 Neither the Company nor the Committee shall direct the Trustee to
cause any part of the Trust Fund to be diverted to any purpose other than the
exclusive benefit of the Participants and Beneficiaries or, except as otherwise
permitted under the relevant Plan and under ERISA, to be remitted to the Company
or a Subsidiary.
10.10 Any person dealing with the Trustee shall not be required to see to
the application of any money paid or property delivered to the Trustee or
inquire into the provisions of this agreement or of a Plan or the Trustee's
authority thereunder or compliance therewith, and may rely upon the statement of
the Trustee that the Trustee is acting in accordance with this agreement.
10.11 Except as otherwise directed by the Committee, which direction shall
be in compliance with all applicable provisions of the 1984 Retirement Equity
Act, the relevant Plan and Section 401(a)(13) of the Code, any interest of a
Participant or Beneficiary in the Trust Fund or a Plan or in any distribution
therefrom shall not be subject to the claim of any creditor, any spouse for
alimony or support, or others, or to legal process, and may not be voluntarily
or involuntarily alienated or encumbered.
10.12 If for any reason the Trustee is unwilling or unable to act as to any
property, such person or qualified corporation as the Trustee shall from time to
time designate in writing, with the consent of the Committee provided such
consent shall not be unreasonably withheld, shall act as special trustee as to
that property. Any person or corporation acting as special trustee may resign at
any time by written notice to the Trustee provided that such trust agreement
appointing such special trustee shall require the special trustee to hold all
assets transferred to such special trustee to be held in trust until a successor
trustee shall be
15
appointed. Each special trustee shall have the powers granted to the Trustee by
this agreement, to be exercised only with the approval of the Trustee, to which
the net income and the proceeds from sale of any part or all of the property
shall be remitted to be administered under this agreement.
10.13 Loans to Participants as provided for in a Plan shall be granted and
administered by the Committee. The Trustee shall distribute cash to such
Participants who are granted loans in such amount and at such times as the
Committee shall from time to time direct in writing. Loan payments collected by
the Committee shall be forwarded to the Trustee. The amount of such loans shall
be carried by the Trustee as an asset of the trust equal to the combined unpaid
principal balance of all Participants. The Trustee shall rely conclusively upon
the determination of the Committee with respect to the amount of the combined
unpaid principal balance of all Participants. The Trustee shall have no
responsibility to ascertain whether a loan complies with the provisions of a
Plan, for the decision to grant a loan or for the collection and repayment of a
loan.
ARTICLE ELEVEN: GOVERNING LAW
The provisions of ERISA and the internal laws of Illinois shall govern the
validity, interpretation and enforcement of this agreement, and in case of
conflict, the provisions of ERISA shall prevail. The invalidity of any part of
this agreement shall not affect the remaining parts thereof.
ARTICLE TWELVE: AMENDMENT AND TERMINATION
The Company may at any time or times with the consent of the Trustee amend
this agreement in whole or in part by instrument in writing delivered to the
Trustee and effective upon the date therein provided.
This agreement shall terminate with respect to a Plan by action of the
Company or Subsidiary responsible for making contributions to the Plan Account.
Upon termination with respect to a Plan, the Trustee shall distribute the Plan
Account in the manner directed by the Committee, in cash or in kind or partly in
each as the Trustee and the Committee shall agree, except that the Trustee shall
be entitled to prior receipt of such rulings and determinations from such
administrative agencies as it may deem necessary or advisable to assure itself
that the distribution directed is in accordance with law and will not subject
the Trust Fund or the Trustee to liability, and except, further, that the
Trustee may reserve such reasonable amount as the Trustee may deem necessary for
outstanding and accrued charges against the Plan Account. This agreement shall
terminate in its entirety when there is no asset included in the Trust Fund.
16
IN WITNESS WHEREOF, the Company and the Trustee have executed this
agreement by their respective duly authorized officers and have caused their
respective corporate seals to be affixed hereto the day and year first above
written.
XXXX FOOD COMPANY, INC.
By:
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Its:
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ATTEST:
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(CORPORATE SEAL)
The undersigned, _____________________, does hereby certify that he/she is
the duly elected, qualified and acting Secretary of XXXX FOOD COMPANY, INC. (the
"Company") and further certifies that the person whose signature appears above
is a duly elected, qualified and acting officer of the Company with full power
and authority to execute this Trust Agreement on behalf of the Company and to
take such other actions and execute such other documents as may be necessary to
effectuate this Agreement.
---------------------------
Secretary
XXXX FOOD COMPANY, INC.
THE NORTHERN TRUST COMPANY
By:
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Its:
------------------------------------
ATTEST:
------------------------
(CORPORATE SEAL)
