EXHIBIT 4.10.5
FOURTH AMENDMENT
TO
INVESTORS FIDUCIARY TRUST COMPANY
INVESTMENT SAVINGS PLAN
WHEREAS, effective January 1, 1996, Investors Fiduciary
Trust Company ("IFTC") as the employer established the "Investors
Fiduciary Trust Company Investment Savings Plan" ("Plan") by
executing on December 5, 1995, that certain "Standardized
Form/Customized Adoption Agreement-001" ("Adoption Agreement")
under that certain prototype plan known as the "Godwins Booke &
▇▇▇▇▇▇▇▇▇ Prototype Profit Sharing and Employee Savings Plan and
Trust" ("Prototype Plan Document");
WHEREAS, under Section 11.1.2 of the Prototype Plan
Document IFTC reserved the right to amend the Plan;
WHEREAS, IFTC also serves as trustee of the Plan;
WHEREAS, by written instrument dated February 26, 1996,
IFTC as employer adopted the First Amendment to the Plan ("First
Amendment"), which amendment was in the form of an amendment to the
Adoption Agreement; the First Amendment had the effect of
withdrawing the Plan from the aforesaid prototype plan program and
making the Plan an "individually designed plan" under Section
11.1.2 of the Prototype Plan Document;
WHEREAS, once the Plan became an "individually designed
plan," it was the intention of IFTC to maintain the Plan under the
following documents taken together: (1) Prototype Plan Document,
(2) Adoption Agreement and (3) the First Amendment and all further
amendments to any of them, which said documents taken together
shall hereinafter be referred to as the "Plan";
WHEREAS, IFTC has amended the Plan by the First
Amendment, that certain Second Amendment dated July 12, 1996, and
that certain Third Amendment dated December 20, 1996;
WHEREAS, IFTC now desires to further amend the Plan by
amending the Prototype Plan Document and the Adoption Agreement.
NOW, THEREFORE, IFTC as employer and trustee hereby
amends the Investors Fiduciary Trust Company Investment Savings
Plan effective August 29, 1997, as follows:
A. AMENDMENTS TO THE ADOPTION AGREEMENT
1. Section V.B. is hereby deleted in its entirety and
a new Section V.B. is hereby substituted in lieu
thereof to provide as follows:
B. Prior service with certain affiliated or related
employers (1.52.2):
Effective September 1, 1997, service with DST
Systems, Inc. and its affiliates shall not be
recognized as service under the Plan for employees
whose service commences on or after such date. If
IFTC is a member of a related group, the term
"Employer" includes the related group members for
purposes of crediting Hours of Service, determining
Years of Service and Breaks in Service under the
Plan, applying the limitations on allocations in
Section 23, applying the top heavy rules and the
minimum allocation requirements of Section 22, the
definitions of employee, highly compensated
employee, compensation and leased employee, and for
any other purpose required by the applicable Code
section or by a Plan provision. However, only IFTC
may contribute to the Plan and only an employee
employed by IFTC is eligible to participate in this
Plan. A related group is a controlled group of
corporations (as defined in Code 414(b)) trades or
businesses (whether or not incorporated) which are
under common control (as defined in Code 414(c))
or an affiliated service group (as defined in Code
414(m) or in Code 414(o)).
2. Section XV.A.(1) is hereby deleted in its entirety
and in lieu thereof Section XV.A.(4) is hereby
elected to provide as follows:
X (4) The Committee shall be authorized to
direct the Trustee to establish an
Employer stock fund (as described in
Section 9.1) for the purpose of allowing
participants to direct the investment or
reinvestment of all or a portion of their
accounts in Employer stock as designated
below.
If this item XV.A.(4) is selected, select one of the
following additional options:
(A) Each participant shall be permitted to
direct the investment or reinvestment of
his entire account in the Employer stock
fund.
X (B) Each participant shall be permitted to
direct the investment and reinvestment of
one or more of the following separate
accounts which are a part of his entire
account in the Employer stock fund:
____ (a) the discretionary Employer contribution
account;
____ (b) the deductible contribution account;
____ (c) the mandatory contribution account;
x (d) the elective deferral account;
x (e) the qualified non-elective
contribution account;
(f) the employee after-tax contribution
account;
x (g) the matching contribution account;
x (h) the qualified matching contribution
account;
x (i) the rollover account; and
x (j) the direct transfer account.
2. Section XV.B.(1) is hereby elected.
3. Section XV.D.(1)(b) is hereby elected.
B. AMENDMENTS TO THE PROTOTYPE PLAN DOCUMENT
1. Section 8 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 8 is
hereby substituted in lieu thereof to provide as
follows:
Section 8. Participant Directed Investments:
8.1 Participant directed investments: Notwithstanding
any other provisions of the plan, each participant having an amount
to his credit under the plan may, acting through the Committee,
direct the Trustee as to the investment or reinvestment of his
account to the extent permitted by the Employer in the Adoption
Agreement, subject to the following provisions of this Section 8
and Section 9:
8.1.1 Directed investment funds: The investment
manager appointed pursuant to Section 20.1.3 hereof shall
determine from time to time the investment options
("directed investment funds") available to participants.
In addition, the Committee may select as a directed
investment fund any mutual fund for which State Street
global Advisors serves as an investment advisor. If
elected by the Employer in the Adoption Agreement, the
directed investment funds may include an Employer stock
fund (as defined in Section 9.1). Each participant shall
be entitled to direct the investment and reinvestment of
such of his separate accounts as shall be permitted in
the Adoption Agreement ("directed separate accounts")
among the directed investment funds. Each directed
separate account of a participant shall be divided into
sub-accounts reflecting the portion of such directed
separate account invested in each directed investment
fund ("fund accounts").
8.1.2 Adjustment of fund accounts: Except as
otherwise specifically provided herein, each fund account
shall be adjusted as of each adjustment date in the
manner provided in Section 7, as if it were the entire
directed separate account of the participant to which it
is subsidiary, with respect to distributions,
withdrawals, loans, contributions and forfeitures
allocated to it and with respect to its share of the net
income or net loss of the directed investment fund of
which it is a part.
8.1.3 Direction of future contributions: In
accordance with procedures adopted by the Committee,
contributions allocated to a participant's directed
separate accounts shall be apportioned among the directed
investment funds in the manner designated by the
participant. Any such designation for future
contributions shall be made in multiples of the
percentage chosen by the Employer in the Adoption
Agreement. Any designation among directed investment
funds shall remain in effect unless and until the
participant shall file a timely application providing for
a different designation. A participant may change his
investment direction at such intervals during the plan
year as designated by the Employer in the Adoption
Agreement. If for any reason a participant shall not
have made an effective designation with respect to any
portion of a contribution allocated to a directed
separate account, such contribution for which no
designation was made shall be invested by the investment
manager.
8.1.4 Reallocations among directed investment
funds: In accordance with procedures adopted by the
Committee, a participant shall be entitled to reallocate
the amount credited to each of his directed separate
accounts among the available directed investment funds in
multiples of the percentage designated by the Employer in
the Adoption Agreement. Such reallocations may be made
at such intervals during the plan year as designated by
the Employer in the Adoption Agreement.
8.1.5 Notification of Trustee: The Committee
shall notify the Trustee of all directions made in
accordance with Section 8.1.3 and 8.1.4 as soon as
practicable following their receipt.
8.2 Rights in directed investment
funds: Notwithstanding the fact that all or a portion of a
participant's account may be invested in directed investment funds
selected by the investment manager or the Committee and may be
expressed in dollars, shares, or units in a particular directed
investment fund, such references shall mean the aggregate of the
dollar amount and the number of shares of Employer stock, if any,
which are credited to the participant's account at any point in
time. Nothing contained in this Section 8 shall be deemed to give
any participant any interest in any specific property in any
directed investment fund or any interest in the plan, other than
(i) the right to receive payments or distributions in accordance
with the plan, (ii) the right to instruct the Trustee how to vote
Employer stock as permitted under Section 9.4, (iii) the right to
instruct the Trustee how to vote the securities in the directed
investment funds as permitted under Section 8.7; (iv) the right to
instruct the Trustee with respect to the sale, exchange, or
transfer of Employer stock as permitted under Section 9.5, (v) the
right to instruct the Trustee with respect to the sale, exchange or
transfer of the securities in the directed investment funds as
permitted under Section 8.8, or (vi) to exercise any other right
specifically granted to the participant under the plan.
8.3 Effect of participant loans: In the event the
participant's separate account from which an amount is borrowed
pursuant to Section 6.6 is also a directed separate account, the
amount borrowed from such account shall be withdrawn from the fund
accounts with respect to such directed separate account on a pro
rata basis. Any repayment of principal and interest on such
borrowed amount shall be reinvested in the participant's fund
accounts in accordance with the participant's investment direction
in effect on the adjustment date as of which such repayment is
credited to the participant's directed separate account.
8.4 Distributions from directed separate accounts: In
the event the participant's separate accounts from which an amount
is to be distributed or withdrawn are also directed separate
accounts, the amount distributed from such accounts shall be
withdrawn from the fund accounts with respect to each such directed
separate account on a pro rata basis.
8.5 Accounts not subject to participant direction: In
the event a participant is not permitted to direct the investment
and reinvestment of one or more of his separate accounts, such
separate accounts shall remain subject to the investment discretion
of the investment manager.
8.6 Authority of Trustee and Committee: The Trustee
shall have and may exercise all powers necessary or advisable in
order to implement the provisions of this Section 8. The Committee
may promulgate rules or by-laws supplementing and implementing the
provisions of this Section 8, including such rules or by-laws as
may be necessary from time to time in order to provide a
participant or beneficiary, within the meaning of Section 404(c) of
ERISA and the regulations thereunder, an opportunity (i) to
exercise control over assets in his account, and (ii) to choose,
from a broad range of investment alternatives, the manner in which
some or all of the assets in his account are invested. If it is
not practicable for the Trustee to effect the transfer of funds on
any date provided in this Section 8, the Trustee shall effect such
transfer on the first practicable date thereafter.
8.7 Voting of stock held in directed investment
funds: The Employer elects to pass-through voting of stock
allocated to a participant's separate accounts to such participants
or their beneficiaries under the plan, and the following provisions
shall apply:
8.7.1 Participant voting of stock: Each
participant or beneficiary shall be entitled to direct
the Trustee as to the manner in which shares of stock
allocated to the participant's separate accounts shall be
voted with respect to any corporate matter that involves
voting the stock allocated to the participant's separate
accounts as of any record date.
8.7.2 Trustee's responsibilities: The Trustee
shall vote the stock held by the trust on the record date
only as directed by the participants or investment
manager.
8.7.3 Voting instructions from
participants: The Trustee shall vote such stock in
accordance with the timely instructions of the respective
participants and beneficiaries. The Trustee shall be
responsible for soliciting and tabulating such votes.
Prior to the voting of stock, the Committee shall
distribute to each participant and beneficiary the same
information concerning the vote as is furnished by the
issuer to its shareholders. If the issuer does not
furnish any such information within the appropriate time
period under applicable state corporate law prior to the
shareholders' meeting, the Committee shall, as soon as
practicable, provide each participant and beneficiary
with an explanation of those matters that to the best
knowledge of the Committee are to be presented at such
meeting for action by shareholders and are subject to
direction by the participant or beneficiary and an
appropriate form on which the participant or beneficiary
may direct voting on such matters. If the Trustee does
not receive participant or beneficiary instructions with
respect to any stock or such instructions are not timely
received, such stock shall be voted by the Trustee only
as directed by the investment manager.
8.8 Tendering: The following provisions shall apply in
the event a tender offer or exchange offer, including but not
limited to a tender offer or exchange offer within the meaning of
the Securities Exchange Act of 1934, as amended, for any stock held
by the trust in a directed investment fund (a "tender offer") is
commenced.
8.8.1 Independent recordkeeper; Trustee's
responsibilities: In the event a tender offer for the
stock held by the trust is commenced, the functions under
the plan applicable to participation of such stock in the
tender offer shall be undertaken by the independent
recordkeeper appointed by the Committee at the time the
tender offer is commenced, and the Committee shall not
undertake any recordkeeping function under the plan that
would serve to violate the confidentiality of any
directions given by the participants or beneficiaries in
connection with the tender offer. The independent
recordkeeper shall use its best efforts to timely
distribute or cause to be distributed to each participant
and beneficiary such information as is being distributed
to other shareholders in connection with the tender
offer. The Trustee shall have no discretion or authority
to sell, exchange or transfer any of the stock held in
the participant's separate accounts pursuant to such
tender offer except to the extent, and only to the
extent, that the Trustee is timely directed to do so in
writing as follows:
(i) Each participant and beneficiary shall be entitled
to direct the independent recordkeeper with respect
to the sale, exchange, or transfer of the stock
allocated to the participant's separate accounts.
The independent recordkeeper shall then instruct
the Trustee as to the number of shares to be
tendered, in accordance with the above directions.
The Committee shall instruct the Trustee to follow
the directions of the independent recordkeeper
pursuant to the terms of the tender offer.
Instructions received from participants and
beneficiaries by the independent recordkeeper shall
be held in the strictest confidence and shall not
be divulged or released to any person including the
Committee, or the officers, directors, or employees
of the Employer.
(ii) The independent recordkeeper shall instruct the
Committee and the Trustee as to the number of
shares for which it did not receive any
instructions or instructions were not timely
received. The Trustee shall tender or not tender
such shares of stock only as directed by the
investment manager.
8.8.2 Records: Following any tender offer that has
resulted in the sale or exchange of any shares of stock held
by the trust, the independent recordkeeper to which
responsibility has been transferred shall continue to maintain
on a confidential basis a record of the separate account of
each participant or beneficiary to which shares of stock were
allocated at any time during such officer, until complete
distribution of such stock. The recordkeeper shall keep
confidential any instructions that it may receive from
participants or beneficiaries relating to the tender offer.
2. Section 12 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 12 is hereby
substitute in lieu thereof to provide as follows:
Section 12. Allocation of Responsibilities Among
Named Fiduciaries:
12.1 Duties of named fiduciaries: The named fiduciaries
with respect to the plan and the fiduciary duties and other
responsibilities allocated to each, which shall be carried out in
accordance with the other applicable terms and provisions of the
plan, are as follows:
12.1.1 Board:
(i) To amend the plan:
(ii) To appoint and remove members of the
Committee, including the plan administrator;
(iii) To appoint and remove any investment
managers;
(iv) To appoint and remove the Trustee under
the plan:
(v) To determine the amount to be contributed
to the plan each year by the Employer;
(vi) To authorize the Committee to invest
assets of the trust in Employer stock or to
establish an Employer stock fund as described in
Section 9.1; and
(viii) To terminate the plan.
12.1.2 Committee:
(i) To interpret the provisions of the plan
and to determine the rights of participants under
the plan, except to the extent otherwise provided
in Section 16 relating to claims procedure;
(ii) To administer the plan in accordance with
its terms, except to the extent powers to
administer the plan are specifically delegated to
another named fiduciary or other person or persons
as provided in the plan;
(iii) To designate and approve any
investment funds for participant directed
investments to the extent permitted under Section
8.1.1;
(iv) To account for the accrued benefits of
participants;
(v) To direct the Trustee in the distribution
of trust assets;
(vi) To direct the Trustee in the purchase and
sale of Employer stock for the trust, subject to
the provisions of Section 8 and Section 9; and
(vii) To establish such procedures as it
may be advisable for the proper administration of
the plan, including, but not limited to, procedures
for changes in investment directions, transfers of
assets between fund accounts, and applications for
elective deferrals, employee after-tax
contributions, participant loans, withdrawals,
distributions, direct transfers, and rollover
contributions.
12.1.3 Plan Administrator:
(i) To file such reports as may be required
with the United States Department of Labor, the
Internal Revenue Service, and any other government
agencies to which reports may be required to be
submitted from time to time;
(ii) To comply with requirements of law for
disclosure of plan provisions and other information
relating to the plan to participants and other
interested parties; and
(iii) To administer the claims procedure
to the extent provided in Section 16.
12.1.4 Trustee:
(i) To invest and reinvest trust assets
pursuant to direction of the participants or any
investment manager(s) appointed by the Board;
(ii) To invest and reinvest trust assets in
Employer stock, if authorized by the Board and
directed by the Committee;
(iii) To make distributions to plan
participants as directed by the Committee;
(iv) To render annual accountings to the
Employer as provided in the plan; and
(iv) Otherwise to hold, administer and control
the assets of the trust as provided in Section 20
of the plan.
12.1.5 Investment Manager: The duties of the
investment manager shall be to manage, acquire and
dispose of assets of the trust, or to direct the Trustee
in the management, acquisition, and disposition of assets
of the trust.
12.1.6 Custodian: If the Trustee appoints a
custodian to hold and manage the assets of the trust
under the plan, then notwithstanding the foregoing
provisions of this Section 12.1 or any other provisions
of the plan, the duties of the custodian shall be to
receive, hold, sell, exchange, and otherwise deal with
the assets of the trust as instructed by the Trustee (or
by the investment manager, if any, to the extent of the
authority of the investment manger), to make
distributions to participants as directed by the
Committee, and to render accounts to the Trustee as
provided in Section 20.2.
12.2 Co-fiduciary liability: Except as otherwise
provided in ERISA, a named fiduciary shall not be responsible or
liable for any act or omission of another named fiduciary with
respect to fiduciary responsibilities allocated to such other named
fiduciaries, and a named fiduciary of the plan shall be responsible
and liable only for its own acts or omissions with respect to
fiduciary duties specifically allocated to it and designated as its
responsibility.
IN WITNESS WHEREOF, IFTC has caused this Fourth Amendment
to be executed this 29th day of August, 1997.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
EMPLOYER AND TRUSTEE
