Exhibit 4.3
DIRECTED EMPLOYEE BENEFIT TRUST AGREEMENT
This TRUST AGREEMENT (Trust Agreement or Agreement), entered into this 29/th/
day of March, 2001, by and between The United Fire Group, a Iowa corporation,
partnership or sole proprietorship (the Company), and THE XXXXXXX XXXXXX TRUST
COMPANY (the Trustee).
PURPOSE
The Company has adopted a plan called United Lafayette 401(k) P/S/Plan (the
Plan) for the exclusive purpose of providing benefits to certain of its
employees and their beneficiaries and defraying reasonable expenses of
administering the Plan. The Plan provides that, from time to time, cash and
other assets may be paid to the Trustee by the Company to be held and
administered as a trust (the Trust Fund or Trust) for the uses and purposes of
the Plan. The Company intends that the Plan shall qualify under Section 401 of
the Internal Revenue Code of 1986, as amended (the Code), and that the Trust
shall constitute a part of the Plan, as a tax exempt entity within the meaning
of Code section 501(a).
Subject to specific conditions set forth in this Agreement, the Trustee agrees
that it will hold in the Trust and invest cash and other acceptable property
received pursuant to this Agreement and received as contributions from the
Company or transfers from another plan qualified under Section 401(a) of the
Code upon the terms and conditions stated below.
ARTICLE I
TRUST FUND
1.1 The Company's President or other duly authorized official shall
certify in writing to the Trustee the names and specimen signatures of all those
persons who are authorized to act as or on behalf of the Plan's named fiduciary,
which term shall include the administrator of the Plan (the Administrator) and
these names and specimen signatures shall be updated as necessary by the
President or other duly authorized official.
1.2 All contributions or transfers shall be received by the Trustee in
cash or in any other property acceptable to the Trustee as determined by the
Trustee under its Investment Guidelines, which are incorporated herein and made
part of the Agreement as amended from time to time. The Trust Fund shall consist
of the contributions and transfers received by the Trustee, together with the
income and earnings from them and any increments to them. The Trustee shall
manage and administer the Trust Fund without distinction between principal and
income. The Trustee shall have no duty to (i) compute any amount required to be
transferred or paid to it by the Company, (ii) collect any contributions or
transfers to the Trust Fund, or (iii) determine whether any contribution or
transfer complies with the terms of the Plan.
If the Company creates or maintains one or more employee benefit plans
qualified under Code Section 401(a) in addition to the Plan, the Company may
request the Trustee to hold the assets of the additional plan or plans in the
Trust Fund. The Administrator shall keep records showing the interest of the
Plan and each additional plan in the Trust Fund unless the Trustee enters into
an agreement with the Company to keep separate accounts for each such plan. The
Company and the Administrator shall not permit or cause the assets of one plan
to be used to pay benefits or the administrative expenses of any other plan with
the assets in the Trust Fund.
1.3 The Trustee shall accept a contribution of cash or other property
otherwise acceptable to the Trustee that has been distributed to a Participant
(or an eligible employee who is about to become a Participant) from another
employee benefit plan qualified under Code Section 401(a), or from an individual
retirement account or annuity described in Code Section 408, at the direction of
the Administrator. The Administrator shall be solely responsible for determining
that such assets represent an eligible rollover contribution within the meaning
of Code Section 402(c)(4) or 408(d)(3). The Trustee shall accept a transfer of
cash or other property acceptable to the Trustee on behalf of a participant (or
an employee who is about to become a Participant) directly from the trustee of
an employee benefit plan qualified under Code Section 401(a) at the direction of
the Administrator.
ARTICLE II
INVESTMENTS AND DISTRIBUTIONS
2.1 (a) Except as provided below, the Administrator shall have all
power over and responsibility for the management, disposition, and investment of
the Trust assets, and the Trustee shall comply with proper written directions of
the Administrator concerning those assets. The Administrator shall not issue
directions in violation of the terms of the Plan and Trust or prohibited by the
fiduciary responsibility rules of the Employee Retirement Income Security Act of
1974, as amended (ERISA). Except to the extent required by ERISA or otherwise
provided in this Agreement, the Trustee shall have no duty or responsibility to
review, initiate action, or make recommendations regarding Trust assets and
shall retain assets until directed in writing by the Administrator to dispose of
them.
The Administrator may delegate to any other person or persons any of
the Administrator's rights, powers or responsibilities with respect to the
operation and administration of the Trust Fund. Any such delegation shall be
made in writing and communicated to the Trustee. The Administrator shall not be
liable for any breach of fiduciary responsibility of a delegee that is not
proximately caused by the Administrator's failure to properly select or
supervise such delegee and in which the Administrator does not participate.
(b) If permissible under the Plan, each Participant and/or
beneficiary may have investment power over the account maintained for him or
her, and may direct the investment and reinvestment of assets of the account
among the options authorized by the Administrator. Such direction shall be
furnished to the Trustee under procedures agreed to by the Trustee and the
Administrator. To the extent provided under ERISA Section 404(c), the Trustee
shall not be liable for any loss, or by reason of any breach, which results from
such Participant's or beneficiary's exercise of control. If a Participant who
has investment authority under the terms of the Plan fails to provide such
directions, the Administrator shall direct the investment of the Participant's
accounts. The Administrator shall maintain records showing the interest of each
Participant and/or beneficiary in the Trust Fund unless the Trustee enters into
an agreement with the Company to keep separate accounts for each such
Participant and/or beneficiary. The Trustee shall have no duty or responsibility
to review or make recommendations regarding investments made at the direction of
the Administrator or Participant and shall be required to act only upon receipt
of proper directions. A Participant or beneficiary shall not have authority to
direct the investment of assets in his or her account in a loan to any
Participant, including himself or herself, or "collectibles" within the meaning
of Code Section 408(m)(2).
(c) The Administrator may appoint an investment manager or managers
within the meaning of Section 3(38) of ERISA to direct, control or manage the
investment of all or a portion of the Trust assets, as provided in Sections
3(38) and 403(a)(2) of ERISA. The Administrator shall notify the Trustee in
writing of the appointment of each investment manager, and the assets over which
each manager shall exercise control and cause the investment manager to
acknowledge to the Trustee in writing that the investment manager is a fiduciary
with respect to the Plan. If the foregoing conditions are
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met, the investment manager shall have the power to manage, acquire, or dispose
of any Trust assets identified as under such manager's control, and the Trustee
shall not be liable for acts or omissions of the investment manager, or be under
an obligation to invest or otherwise manage any asset of the Trust that is
subject to the management of such investment manager. The Trustee shall act only
upon receipt of proper written directions from a duly appointed investment
manager, and shall have no liability to review or question any such directions.
(d) If the Plan authorizes loans to Plan Participants, the duties
of the Trustee and Administrator may be covered by a separate agreement to be
incorporated as part of this Agreement.
2.2 (a) Subject to the Investment Guidelines of the Trustee, any
general or specific investment guidelines formulated by the Company or the
Administrator and the provisions of Section 2.1 above, the person with
investment responsibility (Authorized Person) may cause the Trust Fund to be
invested and reinvested in every kind of investment including, without
limitation, publicly traded equity and debt interests of all kinds issued by
domestic or foreign governments, business organizations, limited partnerships,
investment companies and trusts or other entities, convertible securities of all
kinds, interest-bearing deposits in any depository institution (including the
Trustee or any affiliate of the Trustee), money market securities of all kinds,
collective investments as described in subsection (b) below, and insurance
contracts as described in subsection (c) on the following page. Notwithstanding
anything in the Trust Agreement to the contrary, the Trustee may hold uninvested
and without liability for interest such part of the Trust Fund as may be
reasonably necessary for the orderly administration of the Trust Fund.
(b) Subject to the following provisions, the assets of the Trust
Fund may be invested and reinvested, in whole or in part, in any common or
collective investment fund (referred to as the fund) maintained by the Trustee
or an investment manager in which the Trust Fund is eligible to participate.
Notwithstanding any other provision of this Agreement, to the extent Trust Fund
assets are invested in any such fund, the terms of the fund's governing
instrument shall govern the investment responsibilities and powers of the entity
responsible for management of the fund (referred to as fund manager), and the
terms of such governing instrument shall be incorporated into the Trust
Agreement. The value of any interest in a fund held by the Trust Fund shall be
the fair market value of the interest as determined by the fund manager in
accordance with the fund's governing instrument. For purposes of valuation of
the Trust Fund assets, the Trustee shall be entitled to rely conclusively on the
value reported by the fund manager.
The Trust Fund may be invested in a pooled investment vehicle funded by
contracts issued by an insurance company qualified to do business in a state
(within the meaning of ERISA Section 3(10)) including, without limitation, group
annuity and guaranteed investment contracts. Any such contract may provide for
the allocation of amounts received by the insurance company to its general
account, one or more of its separate accounts (including pooled separate
accounts), or both. To the extent Trust Fund assets are allocated to a separate
account of an insurance company, the Administrator shall appoint the insurance
company as an investment manager as provided above. Notwithstanding any other
provision of the Trust Agreement, the terms of the contract(s) governing the
separate account(s) in which the Trust Fund is invested shall govern the
investment responsibilities and powers of the insurance company and, to the
extent required by law, the terms of such contract(s) shall be incorporated into
the Trust Agreement.
(c) To the extent permitted by the Plan, the Authorized Person
may direct the Trustee to apply for and purchase life insurance or annuity
contracts (referred to as contracts) from an insurance company, subject to the
following provisions:
(i) The Authorized Person shall be responsible for ensuring
that the purchases conform with the requirements of the Plan and any rules and
policies established by the Administrator regarding the form, value, optional
settlement methods and other provisions of the contracts. The Trustee
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shall not be responsible for the validity or proper execution of any contract
delivered to it, or any act of any person which renders the contract void or
voidable. The Trustee shall not be responsible if the contract held in the Trust
Fund fails to meet the requirements of the Plan, and shall have no duty to
inform Participants of the terms and conditions of any such contract.
(ii) The Administrator shall instruct the insurance company to
notify the Administrator of all premiums becoming due under the contracts. The
Administrator shall deliver all premium notices to the Trustee, together with a
direction to the Trustee to pay the premiums out of the Trust Fund. The Trustee
shall have no responsibility for paying the premium unless sufficient assets of
the Trust Fund are available for that purpose.
(iii) The Administrator shall cause the Trustee to be
designated as the sole owner of any such contract, with sole power to exercise
all rights, privileges, options and other incidents of ownership at the
Administrator's direction. The Administrator from time to time shall direct the
Trustee regarding the designation of a beneficiary of the death benefit payable
under any such contract in accordance with the applicable provisions of the
Plan.
(d) To the extent permitted by the Plan and ERISA and subject to
the applicable federal and state securities laws, the Authorized Person may
direct the Trustee to invest in qualifying employer securities within the
meaning of ERISA Section 407(d)(5) (company stock). The Administrator shall have
full responsibility for determining that any such investment, and the voting
rights attributable to such investment, complies with applicable law.
Notwithstanding any other provision of the Plan or Trust Agreement, the
Administrator shall have responsibility for voting any shares or directing that
such shares shall be sold, exchanged, or otherwise disposed of except to the
extent provided in Sections 2.3 (r) and (s) herein, or to the extent that such
duties are made the responsibility of another person or persons under the terms
of the Plan or other governing document, and such person performs according to
such terms.
2.3 In its administration of the Trust Fund, the Trustee shall have and
exercise whatever powers are necessary to discharge its obligations and exercise
its rights under the Trust Agreement. Subject to the direction of the
Administrator, Participants, or an investment manager as provided in Section
2.1, the Trustee shall have full power and authority with respect to property
held in the Trust Fund to do all such acts, take all proceedings, and exercise
all such rights and privileges, whether specifically referred to or not in this
document, as could be done, taken, or exercised by the absolute owner,
including, without limitation, the following:
(a) To collect income generated by the Trust Fund investments and
proceeds realized on the sale or disposition of assets and to hold the same
pending reinvestment or distribution in accordance with this Agreement;
(b) To register Trust Fund property in the Trustee's own name, in
the name of a nominee, or in bearer form, provided the Trustee's records and
accounts show that such property is an asset of the Trust Fund;
(c) To deposit securities in a security depository and permit the
securities so deposited to be held in the name of the depository's nominee, and
to deposit securities issued or guaranteed by the U.S. Government or any agency
or instrumentality thereof, including securities evidenced by book entry rather
than by certificate, with the U.S. Department of the Treasury, a Federal Reserve
Bank or other appropriate custodial entity, in the same account as the Trustee's
own property, provided the Trustee's records and accounts show that such
securities are assets of the Trust Fund;
(d) To retain the property in the Trust;
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(e) To sell Trust assets, at either public or private sale, at such
time or times and on such terms and conditions as it may deem appropriate;
(f) To consent to or participate in any plan for the
reorganization, consolidation, or merger of any business unit, any security of
which is held in the Trust Fund, to pay calls and assessments imposed upon the
owners of such securities as condition of their participating therein, and to
consent to any contract, lease, mortgage, purchase or sale of property, by or
between such business unit and any other party;
(g) To exercise or dispose of any right it may have as the holder
of any security, to convert the same into another security, to acquire any
additional security or securities, to make any payments, to exchange any
security, or to do any other act with reference thereto;
(h) To renew or extend the time of payment of any obligation due or
becoming due;
(i) To grant options to purchase property held in the Trust;
(j) To compromise, arbitrate, or otherwise adjust or settle claims
in favor of or against the Trust and to deliver or accept consideration in
either total or partial satisfaction of any indebtedness or other obligation,
and to continue to hold property so received for the period of time that the
Trustee deems appropriate;
(k) To exchange any property for other property upon such terms and
conditions as the Trustee may deem proper, and to give or receive money to
effect equality in price;
(l) To foreclose any obligation by judicial proceeding or
otherwise;
(m) To xxx or defend in connection with any and all securities or
property at any time received or held in the Trust Fund and to charge against
the Trust Fund all reasonable expenses and attorney's fees in connection
therewith;
(n) To manage any real property in the same manner as if the
Trustee were the absolute owner thereof, including the power to lease the same
for such term or terms, and upon such conditions including, but without
limitation, agreements for the purchase or disposal of buildings on the property
or options to the tenant to renew such lease from time to time or to purchase
such property as the Trustee deems proper; to make ordinary and extraordinary
repairs and alterations to any property that the Trustee deems proper; to make
ordinary and extraordinary repairs and alterations to any building, to raze old
buildings, to erect new buildings, to insure against loss by fire or other
casualties, and to employ agents and confer upon them authority with respect to
the management of such real property as the Trustee deems appropriate;
(o) To borrow money from any person other than a party in interest
of the Plan with or without giving security;
(p) To deposit any security with any protective or reorganization
committee, and to delegate to that committee such power and authority as the
Trustee may deem proper, and to agree to pay out of the Trust Fund that portion
of the expenses and compensation of that committee as the Trustee may deem
proper;
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(q) To deliver to the Administrator, or the person or persons
identified by the Administrator, proxies and powers of attorney and related
informational material, for any shares or other property held including Employer
Securities, in the Trust. Subject to the provisions of Section 2.3 (r), the
Administrator shall have responsibility for instructing the Trustee as to voting
such shares and the tendering of such shares, by proxy or in person, except to
the extent such responsibility is delegated to another person, under the terms
of the Plan or Trust Agreement or under an agreement between the named fiduciary
of the Plan and an investment manager, in which case such persons shall have
such responsibility. The Trustee may use agents to effect such delivery to the
Administrator or the person or persons identified by the Administrator. In the
absence of such instructions from the Administrator, the Trustee shall not be
responsible for the voting or tendering of shares of securities held in the
Trust or for ascertaining or monitoring whether, or how, proxies are voted or
whether the proper number of proxies is received.
(r) If Company Stock is a permissible investment option under the
Plan, all voting rights with respect to shares of Company Stock held in the
Trust Fund and allocated to Participants' Accounts shall be exercised by the
Trustee in such manner as may be directed by the respective Participant (which
term, for purposes of this subsection (r), shall include the beneficiary of a
deceased Participant and any alternate payee for whom an account has been
established with an interest in Company Stock). Any shares of Company Stock in
the Trust Fund that are allocated to Participants who fail to give directions to
the Trustee shall be voted by the Trustee in the same proportion as the Shares
for which voting instructions have been received, subject to the power of the
Administrator to direct the Trustee to vote such shares in a different manner,
if the Administrator determines that such action is consistent with its
fiduciary obligations under ERISA. The Administrator may establish such rules
and guidelines as it deems necessary to properly effect the provision of this
section;
(s) To appoint agents as necessary or desirable, including legal
counsel who may be counsel for the Company;
(t) To hold that portion of the Trust Fund as the Trustee may deem
necessary for ordinary administration and for the disbursement of funds in cash,
without liability for interest, by depositing the same in any bank (including
deposits which bear a reasonable rate of interest in a bank or similar financial
institution supervised by the United States or a State, even where a bank or
financial institution is the Trustee, or otherwise is a fiduciary of the Plan,
including The Xxxxxxx Xxxxxx Trust Company), subject to the rules and
regulations governing such deposits, and without regard to the amount of any
such deposit;
(u) To retain group or individual insurance contracts of all kinds
authorized under the Plan;
(v) If directed by the Administrator, Participant or investment
manager, to acquire, hold, and administer limited partnership interests, or
interests in other specialized investment vehicles, provided that such
Authorized Person signs any agreement or other necessary documents requested by
the Trustee prior to entering into the transaction;
(w) To write covered call options on securities where appropriate
for the Trust; provided that any such transaction is in conformity with the Plan
and all applicable rules, regulations and laws governing the Trustee, the Plan,
and this Trust;
(x) To the extent permitted under applicable laws, to invest
in deposits, long-and short-term debt instruments, stocks, and other securities,
including those of the Trustee, The Xxxxxxx Xxxxxx
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Corporation (the Public Company), Xxxxxxx Xxxxxx & Co., Inc. (the
Broker/Dealer), their affiliates and subsidiaries.
(y) To lend securities from the Trust on a secured basis in
accordance with a separate written agreement between the Administrator and the
Trustee
2.4 The Trustee is authorized to contract or make other arrangements
with The Public Company, the Broker/Dealer, their affiliates and subsidiaries,
successors and assigns and any other organizations affiliated with or
subsidiaries of the Trustee or related entities, for the provision of services
to the Trust or Plan, except where such arrangements are prohibited by law or
regulation.
2.5 The Trustee is authorized to place securities orders, settle
securities trades, hold securities in custody, and other related activities on
behalf of the Trust through or by the Broker/Dealer whenever possible, unless
the Authorized Person specifically instructs the use of another broker/dealer.
Trades (and related activities) conducted through the Broker/Dealer shall be
subject to fees and commissions established by the Broker/Dealer, which may be
paid from the Trust or netted from the proceeds of trades.
Trades shall not be executed through the Broker/Dealer unless the
Administrator and the Authorized Person have received disclosure concerning the
relationship of the Broker/Dealer to the Trustee, and fees and commissions which
may be paid to the Public Company, Broker/Dealer, the Trustee and/or their
affiliates or subsidiaries as a result of using the Broker/Dealer's execution or
other services.
The Trustee is authorized to disclose such information as is necessary
to the operation and administration of the Trust to the Public Company or any of
its affiliates, and to such other persons or organizations that the Trustee
determines have a legitimate business purpose for obtaining such information.
2.6 At the direction of the Authorized Person, the Trustee may purchase
shares of regulated investment companies (or other investment vehicles) advised
by the Public Company, Broker/Dealer or the Trustee or any affiliate of them
(SchwabFunds(R)) except to the extent prohibited by law or regulation.
(a) Uninvested cash of the Trust will be invested in Schwab Funds
designated by the Authorized Person for that purpose, unless the Authorized
Person specifically instructs the use of another fund or account, except to the
extent prohibited by law or regulation.
Schwab Fund shares may not be purchased or held by the Trust unless the
Authorized Person has received disclosure concerning the Public Company's,
Broker/Dealer's, the Trustee's and/or their affiliate's or subsidiary's
relationship to the Funds, and any fees which may be paid to the Public Company,
Broker/Dealer, Trustee and/or their affiliates or subsidiaries.
2.7 The Administrator shall have responsibility for establishing and
carrying out a funding policy and method, as specified in section 402(b)(1) of
ERISA, consistent with the objectives of the Plan and the requirements of ERISA,
taking into consideration the Plan's short-term and long-term financial needs.
The Trustee shall not be responsible for proper diversification of the
assets of the Trust Fund. The Administrator or the person to whom such
responsibility has been properly delegated under the requirements of ERISA shall
be responsible for the funding policy, for diversification of assets held in
trust for the Plan, and for compliance of the Trust Fund with statutory
limitations on the amount of investment in securities or other property of the
Company or its affiliated companies.
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2.8 No assets of the Trust Fund shall be invested in the securities of
the Company or its affiliates unless the Administrator determines that the
securities are exempt from registration under the federal Securities Act of
1933, as amended, and are exempt from registration or qualification under the
applicable state law, and of any other applicable blue sky law, or in the
alternative, that the securities have been so registered and/or qualified. The
Administrator shall also specify what restrictive legend on transfer, if any, is
required to be set forth on the certificates for the securities and the
procedure to be followed by the Trustee to effectuate a resale of such
securities. The Administrator shall not direct the investment in "employer
securities" or "employer real property", within the meaning of Section 407 of
ERISA, if such investment would be prohibited by ERISA. The Administrator shall
only direct the investment of Trust funds into securities of the Company or an
affiliate (i) if those securities are traded on an exchange permitting a readily
ascertainable fair market value, or (ii) if the Administrator shall have
obtained a current valuation by a qualified independent appraiser.
2.9 The Company represents and warrants that it will take all
responsibility (and hereby assumes all liability for the failure) to notify
Participants of any limitations on investment directions necessary or
appropriate to comply with federal securities laws (including the Exchange Act
and the 1933 Act), including but not limited to the frequency of investment
changes by certain officers and shareholder-employees pursuant to Section 16(a)
and, the volume of trading in Company Stock pursuant to Rule 10b-6. Consequently
the Trustee shall have no liability to a Participant, and beneficiary, or the
Company for carrying out instructions relating to the acquisition or disposition
of Company Stock regardless of whether those instructions subject such person or
the Company to any liability.
The Company represents and warrants that either the percentage of the
issued and outstanding class of equity security registered under section 12 of
the Exchange Act which is Company Stock owned by the Plan (the "Plan
Percentage") is less than 4.5% or that the Plan and its prior trust have
complied with all notice and filing requirements imposed by federal securities
laws with regard to Company Stock. The Company covenants that it will (a) notify
the Trustee in writing within 5 business days following any date as of which the
Plan Percentage equals or exceeds 4.5%, (b) monitor the Plan Percentage on a
daily basis so long as the Plan Percentage is at least 4.5%, (c) notify the
Trustee in writing within 5 business days following any date as of which the
Plan Percentage equals or exceeds 5% and, if applicable, 10%, and (d) provide
monthly written reports to the Trustee disclosing the Plan Percentage. The
foregoing monitoring and notification requirements shall cease during any month
when the Plan Percentage is below 4.5% for each day of the month. The provisions
of this Section 2.9 shall survive the termination of this Trust Agreement.
2.10 The Trustee shall make distributions or transfers from the Trust
as specified in proper written directions from the Administrator. The Trustee is
authorized, to the extent required under applicable law, to withhold from
distributions to any payee an amount that the Trustee determines is necessary to
cover federal and state taxes, and the Trustee is required to withhold such
amounts if so directed by the Administrator. The Trustee shall have no liability
for making any distribution or transfer pursuant to the direction of the
Administrator (including amounts withheld pursuant to the previous sentence) and
shall be under no duty to make inquiry whether any distribution or transfer
directed by the Administrator is made pursuant to the provisions of the Plan.
The Administrator shall furnish to the Trustee all information necessary to
carry out such withholding, or, if such information is not provided to the
Trustee, the Administrator and the Company shall hold the Trustee harmless from
and indemnify it for any liability and related expenses that arise in connection
with improper withholding.
The Trustee shall not be liable for the proper application of any part
of the Plan or Trust if distributions or transfers are made in accordance with
the written directions of the Administrator including any distribution made
pursuant to a domestic relations order which the Administrator has determined to
be qualified within the meaning of Section 414(p) of the Code, nor shall the
Trustee be
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responsible for the adequacy of the Trust Fund to discharge any and all payments
and liabilities under the Plan.
2.11 The Trustee may make any payment required of it under this
Agreement by mailing its check for the amount specified to the recipient at such
address last furnished to the Trustee by the Administrator, or if the Trustee
has never received an address, to the recipient in care of the Administrator.
2.12 All persons dealing with the Trustee are released from inquiring
into the decision or authority of the Trustee and from seeing to the proper
application of any monies paid or securities or other property delivered to the
Trustee.
2.13 The Trustee shall bear no liability for acting upon any
instruction or document believed by it to be genuine and to be presented or
signed by a party duly authorized to do so, and the Trustee shall be under no
duty to make any investigation or inquiry about the correctness of such
instruction or document.
2.14 The Trustee may consult with legal counsel of its choice,
including counsel for the Company, upon any question or matter arising hereunder
and the opinion of such counsel, when relied upon by the Trustee shall be
evidence the Trustee was acting in good faith.
2.15 If as provided in the Plan, other trustees of separate trusts
under the Plan may be appointed, the Trustee under this Agreement shall have no
duties or responsibilities for Plan assets not held in the Trust by the Trustee,
except as required by applicable law.
ARTICLE III
SETTLEMENT OF ACCOUNTS
3.1 (a) The Trustee shall maintain accurate records and detailed
accounts of all investments, receipts, disbursements, and other transactions
related to the Trust, and those records shall be available at all reasonable
times to the Administrator, the Company, or their authorized representatives.
(b) The Trustee, at the direction of the Administrator, shall
submit to the Administrator and any other person that the Administrator
designates those valuations, reports, or other information as the Administrator
may reasonably require. In any case, the Trust Fund shall be valued by the
Trustee at the frequency agreed to by the Trustee and the Company, but in any
event not less than annually at the fair market value as of the close of
business at the end of the last business day of the fiscal year of the Plan.
Except as specified below, in the absence of fraud or bad faith, the Trustee's
valuation of the Trust Fund shall be conclusive.
3.2 (a) Within sixty days following the close of each fiscal year of
the Plan or the close of any other period as may be agreed upon by the Trustee
and the Administrator, the Trustee shall file with the Administrator a written
account setting forth a description of all securities and other property
purchased and sold, all receipts, disbursements, and other transactions effected
by it during that fiscal year or other designated period, and listing the
securities and other property held by the Trustee at the end of such fiscal year
or other designated period, together with their then fair market values.
(b) The Administrator may approve an account by written notice of
approval delivered to the Trustee or by failure to deliver to the Trustee
express objections to the account in writing within sixty days from the date
upon which the account was mailed or otherwise delivered to the Administrator.
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(c) The account shall be deemed approved upon receipt by the
Trustee of the Administrator's written approval of the account or upon the
passage of the sixty day period of time, except for any matters covered by
written objections that have been delivered to the Trustee by the Administrator
and for which the Trustee has not given an explanation or made an adjustment
satisfactory to the Administrator.
(d) If the account is not settled as provided above, the Trustee,
the Company or the Administrator shall have the right to apply to a court of
competent jurisdiction at the expense of the Trust Fund for a judicial
settlement of the accounting. Any judgment or decree entered in such proceedings
shall be conclusive on all persons interested in the Trust Fund.
3.3 Notwithstanding any other provision of this Article III, if the
Trustee shall determine that the Trust Fund consists in whole or in part of
property not traded freely on a recognized market, or that information necessary
to ascertain the fair market value is not readily available, the Trustee may
request instructions from the Administrator concerning the value of such
property for all purposes under the Plan and this Trust Agreement, and the
Administrator shall comply with that request. The Trustee shall be entitled to
rely upon the value placed upon such property by the Administrator. At the
Trustee's option, it may request that the Administrator hire an independent
appraiser that meets the requirements of Code Section 401(a)(28)(C) to value the
property. Alternatively, if the Trustee chooses, or if the Administrator shall
fail or refuse to instruct the Trustee concerning the value of such property
within a reasonable time after receipt of the Trustee's request, the Trustee at
its sole discretion may engage an independent appraiser to determine the fair
market value of such property. Any expenses with respect to such appraisal shall
be paid by the Trustee out of the Trust Fund or, at the option of the Company,
by the Company.
ARTICLE IV
INDEMNIFICATION
4.1 To the extent permitted under ERISA, the Company shall indemnify
and hold harmless the Trustee, its officers, employees, affiliates, and agents
from and against all liabilities, losses, expenses, and claims (including
reasonable attorney's fees and costs of defense) arising out of (1) the acts or
omissions to act with respect to the Plan or Trust by persons unrelated to the
Trustee (unrelated persons), (2) the Trustee's action or inaction with respect
to the Plan or Trust resulting from reliance on the action or inaction of
unrelated persons, including directions to invest or otherwise deal with Plan
assets, or (3) any violation by any unrelated person of the provisions of ERISA
or the regulations thereunder, unless the Trustee commits a breach of its duties
by reason of its negligence or willful misconduct. Expenses incurred by the
Trustee which it believes to be subject to indemnification under this Agreement
shall be paid by the Company upon the Trustee's request, provided that the
Company may delay payment of any amount in dispute until such dispute is
resolved according to the provisions of Section 8.5 of the Agreement. Such
resolution may include the award of interest on unpaid amounts determined to be
payable to the Trustee under this Section.
ARTICLE V
TAXES, EXPENSES AND COMPENSATION OF TRUSTEE
5.1 The Trustee shall notify the Administrator of any tax levied upon
or assessed against the Trust Fund of which the Trustee has knowledge. If the
Trustee receives no instructions from the Administrator, the Trustee may pay the
tax from the Trust Fund. If the Plan Administrator wishes to contest the tax
assessment, it shall give appropriate written instructions to the Trustee. The
Trustee shall not be required to bring any legal actions or proceedings to
contest the validity of any tax assessments
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unless the Trustee has been indemnified to its satisfaction against loss or
expense related to such actions or proceedings, including reasonable attorney's
fees.
5.2 The Company shall quarterly pay the Trustee its expenses in
administering the Trust Fund and reasonable compensation for its services as
Trustee at a rate set forth in the Fee Schedule, which may be amended from time
to time. Trustee reserves the right to alter this rate of compensation at any
time by providing the Company with notice of such change at least sixty days
prior to its effective date. Reasonable compensation shall include compensation
for any extraordinary services or computations required, such as determination
of the value of assets when current market values are not published, and the
covering of overdrafts. The Trustee shall have a lien on the Trust Fund for
compensation and for any reasonable expenses including counsel, appraisal, or
accounting fees, and such amounts may be withdrawn from the Trust Fund unless
paid by the Company within thirty days after mailing of the written billing by
the Trustee.
ARTICLE VI
RESIGNATION OR REMOVAL OF TRUSTEE
6.1 The Trustee may resign as Trustee hereunder or may be removed by
the Company. This resignation or removal may be accomplished at any time upon
the giving of sixty days' written notice to the Trustee or Company, as
applicable (or less if the other party agrees to waive notice). Upon resignation
or removal, the Company shall appoint a successor trustee who shall then succeed
to all the powers and duties given to the Trustee by this Agreement. The
terminating Trustee shall transfer all property of the Trust Fund then held by
it to such successor Trustee. The terminating Trustee may require as a condition
of making such transfer that the successor Trustee present evidence that any
bonding requirement under ERISA Section 412 has been met and/or may require that
the Company provide a writing indemnifying the Trustee against any losses
arising from the replacement of the Trustee. If either party has given notice of
termination as provided under this Agreement, and upon the expiration of the
advance notice period no other successor Trustee has been appointed and has
accepted such appointment, this provision shall serve as (i) notice of
appointment of the chief executive officer of the Company as Trustee and (ii) as
acceptance by that person of that appointment. The Trustee is authorized to
reserve such sum of money as it may deem advisable for payment of its fees and
expenses in connection with the settlement of its accounts or other proper Trust
expenses, and any balance of such reserve remaining after the payment of such
fees and expenses shall be paid to the successor Trustee.
6.2 Within sixty days of the transfer to the successor Trustee, the
terminating Trustee shall provide the Company with an account in the form and
manner prescribed for the annual account by Article III. Unless the Company
files with the Trustee written objections within sixty days after such account
has been mailed or otherwise delivered, the account shall be deemed to have been
approved by the Company.
ARTICLE VII
AMENDMENT AND TERMINATION OF TRUST
7.1 It is the intention of the Company that this Trust and the Plan of
which it is a part shall be permanently administered for the benefit of the
Plan's participants and their beneficiaries, and defraying reasonable expenses
of administering the Plan. This Trust is, accordingly, irrevocable except with
respect to Section 8.4; however, this Trust may be terminated at any time by the
Company, and upon such termination, the Trust Fund shall be distributed by the
Trustee as and when directed by the Administrator in accordance with the
provisions of Section 2.10 and the Plan document. From the date of termination
of the Plan and until the final distribution of the Trust assets, the Trustee
shall continue to have all the powers provided under this Agreement that are
necessary or desirable for the orderly liquidation and
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distribution of the Trust Fund. In no instance upon any termination, or
discontinuance, and subsequent distribution shall the Trust Fund or any part of
it be used for, or diverted to, purposes other than providing benefits to
participating employees and their beneficiaries, and defraying the
administrative expenses of the Plan until all Plan liabilities have been
satisfied, except in the instance of the failure of the Trust initially to
qualify for tax-exempt status as set forth in Section 8.4.
7.2 This Trust Agreement, other than Section 7.1, may be amended at
any time by written agreement of the Company and the Trustee, provided that such
amendment shall not operate:
(i) to cause any part of the Trust Fund to revert to or be
recoverable by the Company or to be used for or diverted to purposes other than
the exclusive benefit of participants and their beneficiaries, except to the
extent permitted by law and the Plan; or
(ii) to reduce the then accrued benefits or the amounts then held
for the benefit of any participant or beneficiary of the Plan.
7.3 The Trustee may condition the transfer or distribution of any
assets of the Trust Fund upon termination of the Trust on receipt of a favorable
determination letter from the Internal Revenue Service confirming that the
termination of the Plan does not adversely affect the tax-exempt status of the
Trust Fund. Alternatively, the Trustee, in its sole discretion, may accept the
indemnification of the Trustee against any liability arising from such transfer
or distribution that is provided by the Company or may require the Company to
post a bond sufficient to protect the Trustee against such liability until such
time as a favorable determination letter is received.
ARTICLE VIII
MISCELLANEOUS
8.1 The Trust will be administered in the State of California, and its
validity, construction, and all rights hereunder shall be governed by ERISA and,
to the extent not preempted, by the laws of California. If any provisions of
this Agreement shall be invalid or unenforceable, the remaining provisions shall
continue to be fully effective.
8.2 The headings in this instrument have been inserted for convenience
of reference only, and are to be ignored in any construction of the provisions
of this Agreement.
8.3 No person entitled to any benefit under this Trust and the Plan
shall have any right to assign, alienate, hypothecate, or encumber his interest
in any benefits under this Agreement (except as to any loans under the Plan) and
those benefits shall not in any way be subject to claim of his creditors or
liable to attachment, execution, or other process of law, except to the extent
required under a qualified domestic relations order within the meaning of
Section 414(p) of the Code.
8.4 It is intended that this Trust shall be tax exempt under Section
501 of the Code and that the Plan referred to herein shall qualify under Section
401(a) of the Code. However, notwithstanding any other provisions of the Trust,
if the Internal Revenue Service is requested to issue to the Company a favorable
written determination or ruling with respect to the initial qualification of the
Plan and exemption of the Trust from tax and such request is denied, the Trustee
shall, after receiving a written direction from the Administrator, pay to each
Participant that portion of the Trust Fund applicable to said Participant's
voluntary contributions, if any, and provided the Plan so states, pay to the
Company any part of the Trust Fund attributable to Company contributions then
remaining in the Trustee's possession. As a condition to such repayment, the
Company must execute, acknowledge, and deliver to the Trustee its written
undertaking, in form satisfactory to the Trustee, to indemnify, defend, and hold
the Trustee
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harmless from all claims, actions, demands, or liabilities arising in connection
with such repayment, and provided further that such repayment will occur within
one year after the date the request for qualification is denied.
8.5 Any dispute under this Agreement shall be resolved by submission
of the issue to a member of the American Arbitration Association who is chosen
by the Company and the Trustee. If the Company and the Trustee cannot agree on
such a choice, each shall nominate a member of the American Arbitration
Association, and the two nominees will then select an arbitrator. Expenses of
the arbitration shall be paid as decided by the arbitrator.
8.6 This Trust Agreement is incorporated into and is a part of the
Plan. Anything in any other part of the Plan that is inconsistent with this
Trust Agreement is overridden, and in the case of such conflict, the terms of
this Trust Agreement shall govern.
8.7 The duties and responsibilities of the Trustee shall be solely
those set forth in this document. The Trustee shall not be a named fiduciary
under the Plan and shall not have the authority to interpret or construe the
Plan.
8.8 To the extent permitted by statutory or administrative exemption,
the Trustee may engage in actions that otherwise would violate Section 406 of
ERISA.
8.9 Each fiduciary shall be solely responsible for the fiduciary's own
acts or omissions under the Plan or the Trust. Except to the extent otherwise
provided by ERISA, the parties specifically intend that no fiduciary shall be
liable for any breach of fiduciary responsibility of another fiduciary.
8.10 The Trustee is authorized to tape-record conversations between the
Trustee and persons acting on behalf of the Plan or a participant in the Plan to
verify data on transactions.
IN WITNESS WHEREOF, The United Fire Group and THE XXXXXXX XXXXXX TRUST
COMPANY, have caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the day and year first above written.
Company NAME The United Fire Group
By: /s/
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Printed Name: Xxxxxxx Xxxxxx
------------------------------------
Title: Vice President Human Relations
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THE XXXXXXX XXXXXX TRUST COMPANY,
Trustee
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By: /s/ Xxxxx X. Xxxxxx
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Printed Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Officer
-------------------------------------------
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