THE COMCAST CORPORATION RETIREMENT INVESTMENT PLAN
MASTER TRUST AGREEMENT
TABLE OF CONTENTS
1. ESTABLISHMENT OF PLAN.................................................1
2. CREATION OF TRUST.....................................................1
3. PURPOSES..............................................................2
4. MANAGEMENT OF TRUST...................................................2
5. INVESTMENTS...........................................................3
6. DIRECTION AND CONTROL OF INVESTMENTS BY PLAN MEMBERS..................4
7. ASSETS WHICH ARE NOT SECTION 404(C) OF ERISA ASSETS...................4
8. INVESTMENT FUNDS......................................................4
9. TRUST INVESTMENTS IN COMPANY STOCK....................................7
10. STABLE VALUE CONTRACTS...............................................11
11. POWERS OF TRUSTEE....................................................12
12. LIQUIDATION OF ASSETS................................................14
13. DIRECTION BY COMPANY OR ADMINISTRATOR................................15
14. RECORDS AND ACCOUNTING...............................................15
15. TRUSTEE'S COMPENSATION AND EXPENSES..................................16
16. LITIGATION INVOLVING TRUST ASSETS....................................16
17. RESIGNATION OR REMOVAL OF TRUSTEE....................................17
18. DUTIES OF TRUSTEE....................................................18
19. INDEMNIFICATION......................................................18
20. AMENDMENT OR TERMINATION.............................................18
21. ADDITIONAL PARTICIPATING COMPANIES...................................19
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22. SPENDTHRIFT PROVISION................................................19
23. PAYMENT OF TAXES.....................................................19
24. SUCCESSOR TO COMPANY OR TRUSTEE......................................20
25. CONSTRUCTION.........................................................20
26. IMPOSSIBILITY OF PERFORMANCE.........................................20
27. DEFINITION OF WORDS..................................................20
28. TITLES...............................................................20
29. EXECUTION OF TRUST AGREEMENT.........................................21
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THE COMCAST CORPORATION RETIREMENT-INVESTMENT PLAN
MASTER TRUST AGREEMENT
This Agreement is made as of this ___ day of ______, 1999, by and
between Comcast Corporation, a Pennsylvania corporation having its principal
office in Philadelphia, Pennsylvania (the "Company") and Xxxxxx Fiduciary Trust
Company, a Massachusetts trust company having its principal office in Boston,
Massachusetts (the "Trustee").
WITNESSETH:
1. Establishment of Plan. The Comcast Corporation Retirement-Investment Plan
(the "Plan") has been adopted by the Company and is intended to satisfy
those provisions of the Internal Revenue Code of 1986, as the same may be
amended from time to time (the "Code"), relating to qualified employer
plans, as well as the provisions of Section 404(c) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), relating to
investment control by participants, beneficiaries (when a participant has
died), and alternate payees (when required under a qualified domestic
relations order) (each being hereinafter referred to as a "Plan member")
over assets allocated to their accounts under the Plan. The Participating
Companies, as defined in Section 21, are members of a controlled group of
corporations, partnership or proprietorships, within the meaning of Section
414(b) or Section 414(c) or the Code.
2. Creation of Trust. This is an amendment and restatement of an existing
trust which shall be known as "The Comcast Corporation Retirement
-Investment Plan Master Trust" (the "Trust"). The provisions of this
Agreement shall supersede and take precedence over any provision of the
Plan and any later signed amendments thereto which deal with the Trustee's
responsibilities and/or which may conflict in any way with the Trust. All
money and such other property as shall be acceptable to the Trustee as
shall from time to time be paid or delivered to the Trustee in its capacity
as such, all investments made therewith and proceeds thereof and all
earnings and profits thereon, less the payments which at the time of
reference shall have been made by the Trustee, as authorized herein, are
referred to herein as the Trust. The Trustee hereby accepts the Trust
created hereunder and agrees to perform the provisions of this Agreement on
its part to be performed. Subject to the conditions and limitations set
forth herein, the Trustee shall be responsible for the property received by
it as Trustee, but shall not be responsible for the administration of the
Plan or for those assets of the Plan which have not been delivered to and
accepted by the Trustee. The Trustee shall not have any authority or
obligation to determine the adequacy of or to enforce the collection from
the Company of any contribution to the Trust. Certain other agreements and
obligations between the Company and the Trustee or its affiliates may be
set forth
from time to time in a service agreement between such parties (the "Service
Agreement").
The establishment of the Trust created by this Agreement shall not be
considered as giving any Plan member or any other person any legal or
equitable rights as against the Company or the Trustee or the property,
whether corpus or income, of the Trust unless such right is specifically
provided for in this Agreement, the Plan, or by law, nor shall it be
considered as giving any Plan member or other employee the right to
continue in the service of the Company.
3. Purposes. The Plan and the Trust have been established for the exclusive
benefit of the eligible employees and their beneficiaries, and for
defraying the reasonable expenses of administering the Plan and Trust. So
far as possible this Agreement shall be interpreted in a manner consistent
with the intention of the Company that the Trust satisfy those provisions
of the Code relating to qualified employees' trusts exempt from taxation
under Section 501(a) of the Code. It is specifically intended that the
Company shall have sole responsibility for maintaining the tax-qualified
status of the Plan and Trust. No property of the Trust or contributions
made by the Company pursuant to the terms of the Plan shall revert to the
Company or be used for any purpose other than providing benefits to
eligible employees or their beneficiaries and defraying the expenses of the
Plan and the Trust, except that, to the extent provided in the Plan:
(a) Upon request of the Company, contributions made to the Plan before the
issuance of a favorable determination letter by the Internal Revenue
Service with respect to the initial qualification of the Plan under
Section 401(a) of the Code may be returned to the Company, with all
attributable earnings, within one year after the Internal Revenue
Service refuses in writing to issue such a letter.
(b) Any amount contributed under the Plan by the Company by a mistake of
fact as determined by the Company may be returned to the Company, upon
its request, within one year after its payment to the Trust.
(c) Any amount contributed under the Plan by the Company on the condition
of its deductibility under Section 404 of the Code for the year for
which it was made may be returned to the Company, upon its request,
within one year after the Internal Revenue Service disallows the
deduction in writing.
(d) Earnings attributable to contributions returnable under paragraph (b)
or (c) shall not be returned to the Company, and any losses
attributable to those contributions shall reduce the amount returned.
4. Management of Trust. It shall be the duty of the Trustee:
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(a) to hold and, subject to the provisions of this Agreement, to invest
and to reinvest the assets of the Trust, and
(b) to make payments therefrom in accordance with the written directions
of the Plan Administrator specified in the Plan or otherwise appointed
by the Board of Directors of the Company pursuant to the Plan to
administer the Plan (the "Administrator"). The Administrator shall be
the "plan administrator" of the Plan as defined in Section 3(16)(A) of
ERISA, and a "named fiduciary" within the meaning of Section 402(a) of
ERISA. The Administrator may direct payments to be made from the Trust
to any person, including any member of the Administrator, or to the
Company, or to any paying agent designated by the Administrator, and
in such amounts as the Administrator may direct. Each such direction
of the Administrator shall be in writing and shall be deemed to
include a certification that any payment directed thereby is one which
the Administrator is authorized to direct, and the Trustee may
conclusively rely on such certification without further investigation.
Payments by the Trustee may be made by its check to the order of the
payee and mailed to the payee at the address last furnished to the
Trustee by the Administrator or by the payee, or if no such address
has been furnished, to the payee in care of the Company. The Trustee
shall make disbursements in the amounts and in the manner that the
Administrator directs from time to time in writing. The Trustee shall
have no responsibility to ascertain any direction's compliance with
the terms of the Plan or of any applicable law or the direction's
effect for tax purposes or otherwise; nor shall the Trustee have any
responsibility to see to the application of any disbursement. The
Trustee shall not be required to make any disbursement in excess of
the net realizable value of the assets of the Trust at the time of the
disbursement. The Trustee shall not be required to make any
disbursement in cash, or otherwise, until the Administrator has
provided a written direction as to the assets to be converted to cash
for the purpose of making the disbursement.
5. Investments. Except as otherwise provided in Sections 6 through 10 below,
the Trustee shall invest and reinvest the assets of the Trust and keep the
same invested, without distinction between principal and income, in stocks,
bonds, stock options, option contracts of any type, contracts for the
immediate or future delivery of financial instruments and other property,
or other securities or certificates of participation or shares of any
mutual investment company, trust or fund (including mutual funds which are
sponsored, underwritten or managed by affiliates of the Trustee), or
deposits in the Trustee which bear a reasonable rate of interest, or
annuity or investment contracts issued by an insurance company, or other
property of any kind, real or personal, tangible or intangible, as may be
identified by the Administrator as eligible for investment, provided that
the Trustee may hold assets of the Trust uninvested from time to time if
and to the extent that it may deem such to be in the best interests of the
Trust.
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Notwithstanding the foregoing, unless an Investment Manager is appointed in
accordance with Section 8(b), or the Service Agreement otherwise
specifically provides, all of the assets of the Trust shall be invested in
investment products sponsored, underwritten or managed by affiliates of the
Trustee, loans to Plan members or securities issued by the Company
satisfying the conditions of Section 9.
6. Direction and Control of Investments by Plan members. Unless the
Administrator indicates otherwise, the Plan members shall exercise
direction and control over the investment of their accounts in a manner
intended to insulate plan fiduciaries from liability for investments under
Section 404(c) of ERISA. Each Plan member shall instruct the Trustee, in
such form and manner as the Administrator and the Trustee agree, as to the
investment of assets allocated to the Plan member's account under the Plan
from among the eligible investments and the Trustee shall carry out such
instructions.
The Trustee shall carry out the instructions furnished by a Plan member as
to the exercise of voting, tender, or similar rights appurtenant to the
Plan member's ownership interest in any investment alternative. Unless
otherwise agreed to by the Trustee and the Company in the Service
Agreement, the Trustee shall furnish all materials it receives relating to
the exercise of such rights to the Administrator, who shall then be
responsible for distributing the materials among Plan members. Where no
instructions are timely furnished by a Plan member with respect to such
rights, the Trustee shall not exercise any such rights on the Plan member's
behalf.
7. Assets which are not Section 404(c) of ERISA Assets. The Administrator or
the Plan member, as the case may be, shall direct the Trustee, and the
Trustee shall have no discretionary authority, as to the investment of
assets for which Section 404(c) of ERISA does not apply or the exercise of
voting, tender and similar rights appurtenant to ownership interests in
such assets.
8. Investment Funds.
(a) In General. The Administrator from time to time may direct the Trustee
to establish one or more separate investment accounts within the
Trust, each such separate account being hereinafter referred to as an
"Investment Fund". The Trustee shall transfer to each such Investment
Fund such portion of the assets of the Trust as the Administrator or
Plan members direct in accordance with the specific provisions of the
Plan and in the manner provided in the Service Agreement. The Trustee
shall invest and reinvest the assets which have been allocated to an
Investment Fund in accordance with the investment guidelines,
objectives and restrictions which have been established by the
Administrator for that Investment Fund and, in the case of an
Investment Fund for which an Investment Manager has been appointed or
an Investment Fund to be directed by the
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Administrator, the specific investment directions of such Investment
Manager or the Administrator. If, and to the extent, specifically
authorized by the Plan and provided in the Service Agreement, the
Administrator may direct the Trustee to establish an Investment Fund
all, or substantially all, of the assets of which shall be invested in
shares of stock of the Company, subject to the terms and conditions of
Section 9.
All interest, dividends and other income received with respect to, and
any proceeds received from the sale or other disposition of,
securities or other property held in an Investment Fund shall be
credited to and reinvested in such Investment Fund, and all expenses
of the Trust which are properly allocable to a particular Investment
Fund shall be so allocated and charged. The Administrator may at any
time direct the Trustee to eliminate any Investment Fund or Funds and
the Trustee shall thereupon dispose of the assets of such Investment
Fund and reinvest the proceeds thereof in accordance with the
directions of the Administrator.
Pending investment in the Investment Funds in accordance with the
directions of the Administrator or the Plan members, the Trustee shall
invest assets of the Trust as provided in the Service Agreement, or if
there is no such provision, the Trustee may invest assets of the
Trust, in whole or in part, at any time or from time to time, in
interest-bearing accounts or certificates of deposit (including
deposits in the Trustee which bear a reasonable interest rate),
Treasury Bills, commercial paper, money market funds (including any
such fund sponsored, underwritten or managed by one of its
affiliates), short-term investment funds or other short-term
obligations in its discretion, and the investment return thereon shall
be allocated among the Plan members whose assets have been so invested
and added to their respective investments in the Investment Funds.
(b) Appointment of Investment Managers. The Administrator from time to
time may appoint one or more Investment Managers (as that term is
defined in Section 3(38) of ERISA) to manage (including the power to
acquire and dispose of) all or any portion or portions of the Trust.
The Administrator may enter into such agreements setting forth the
terms and conditions of any such appointment as it determines to be
appropriate. The Administrator shall retain the right to remove and
discharge any Investment Manager. The compensation of such Investment
Managers shall be an expense payable in accordance with Section 15.
The Administrator shall notify the Trustee of the appointment of any
Investment Manager by delivering to the Trustee an executed copy of
the agreement under which such Investment Manager was appointed
together with a written acknowledgment by such Investment Manager that
it is
(i) a fiduciary with respect to the Plan,
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(ii) bonded as required by ERISA, and
(iii) either
A) registered as an investment advisor under the Investment
Advisers Act of 1940, or
B) a bank as defined in said Act, or
C) an insurance company qualified to perform investment
management services under the laws of more than one state of
the United States.
The Trustee shall be entitled to rely upon such notice until such time as
the Administrator shall notify and direct the Trustee in writing that
another Investment Manager has been appointed in the place and stead of the
first-named Investment Manager, or in the alternative, that the Investment
Manager has been removed. In each case where an Investment Manager is
appointed, the Administrator shall determine the assets of the Trust to be
allocated to the Investment Manager from time to time and shall issue
appropriate instructions to the Trustee with respect thereto. The Trustee
shall carry out the written instructions of any Investment Manager with
respect to the management and investment of the assets then under control
of such Investment Manager and shall not incur any liability on account of
its compliance with such instructions. Purchase and sale orders may be
placed without the intervention of the Trustee and, in such event, the
Trustee's sole obligation shall be to make payment for purchased securities
and deliver those that have been sold when advised of the transaction. The
Trustee shall not incur any liability on account of its failure to exercise
any of the powers delegated to any Investment Manager because of the
failure of such Investment Manager to give instructions for the management
of the assets under the control of such Investment Manager. The Trustee
shall be under no duty to question any Investment Manager, nor to review
any securities or other property acquired or retained at the direction of
any Investment Manager, nor to make any suggestions to any Investment
Manager in connection therewith. The Trustee shall have no obligation to
vote upon any securities over which the Investment Manager has investment
management control unless the Trustee is instructed in writing by the
Investment Manager as to the voting of such securities within a reasonable
time before the time for voting thereof expires.
Each Investment Manager shall have the authority to exercise all of the
powers of the Trustee hereunder with respect to assets under its control
but only to the extent that such powers relate to the investment of such
assets.
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Notwithstanding any provision to the contrary elsewhere herein:
(i) The Administrator may retain and exercise the powers of an Investment
Manager with respect to all or any portion or portions of the Trust.
The Administrator shall notify the Trustee in writing of any such
reservation of powers and the Trustee shall be entitled to rely upon
any such notice. In any such event, the Trustee shall carry out the
written instructions of the Administrator with respect to the
management and investment of the assets then under control of the
Administrator and shall not incur any liability on account of its
compliance with such instructions. The Trustee shall not incur any
liability on account of its failure to exercise any of the powers
retained by the Administrator because of the failure of the
Administrator to give instructions for the management of the assets
under the control of the Administrator. The Trustee shall be under no
duty to question the Administrator, nor to review any securities or
other property acquired or retained at the direction of the
Administrator, nor to make any suggestions to the Administrator in
connection therewith; and
(ii) The Company may designate an Investment Manager as a named fiduciary
with respect to the management of certain assets of the Trust, in
which event such Investment Manager shall have the authority to
appoint pursuant to this Section 8 one or more Investment Managers to
manage (including the power to acquire and dispose of) all or any
portion or portions of such assets, as if such named fiduciary were
the Administrator. In such event all of the provisions of this Section
8 shall apply with such named fiduciary substituted for the
Administrator.
9. Trust Investments in Company Stock. Trust investments pursuant to this
Section 9 shall be made only in securities constituting "qualifying
employer securities" within the meaning of Section 407(d)(5) of ERISA.
Trust investments in such securities of the Company ("Company Stock") shall
be subject to the following terms and conditions:
(a) Acquisition Limit. Pursuant to the Plan, the Trust may be invested in
Company Stock to the extent necessary to comply with investment
directions under Section 6 or 7 of this Agreement.
(b) Fiduciary Duties of Named Fiduciaries. The Administrator as named
fiduciary shall continually monitor the suitability of acquiring and
holding Company Stock under the fiduciary duty rules of Section
404(a)(1) of ERISA (as modified by Section 404(a)(2) of ERISA) and the
requirements
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of Section 404(c) of ERISA. The Trustee shall not be liable for any
loss, or by reason of any breach, which arises from a direction of the
Administrator with respect to the acquisition and holding of Company
Stock. The Company shall be responsible for determining whether, under
the circumstances prevailing at a given time, its fiduciary duty to
Plan members and beneficiaries under the Plan and ERISA requires that
the Company follow the advice of independent counsel as to the voting
and tender or retention of Company Stock.
(c) Execution of Purchases and Sales. To implement transactions regarding
investments in Company Stock, including purchases, redemptions and
exchanges, the Trustee shall purchase or sell Company Stock on the
open market, as the case may be, as soon as practicable on or
following the date on which the Trustee receives from the Company in
good order all information and documentation necessary to effect such
purchase or sale. However, the Trustee may accumulate all like
purchases into a single batch and may accumulate all like sales as a
result of receiving instructions for redemptions and exchanges out of
Company Stock into a single batch, but shall not be required to do so.
The Trustee may purchase or sell Company Stock from or to the Company
if the purchase or sale is for no more than adequate consideration
(within the meaning of Section 3(18) of ERISA) and no commission is
charged. To the extent that Company contributions under the Plan are
to be invested in Company Stock, the Company may transfer Company
Stock to the Trust in lieu of cash. The number of shares so
transferred shall be determined by dividing the amount of the
contribution by the closing price of Company Stock on any national
securities exchange on the trading day immediately preceding the date
as of which the contribution is made.
The Trustee and the Company may, in an appendix to this Section 9,
agree upon such prescribed dates for purchases and sales of Company
Stock and such rules and conventions in connection with such purchases
and sales as they may find mutually acceptable.
(d) Securities Law Reports. The Administrator shall be responsible for
filing all reports required under federal or state securities laws
with respect to the Trust's ownership of Company Stock, including,
without limitation, any reports required under Section 13 or 16 of the
Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Company Stock pending the filing of any report. The Trustee shall
provide to the Administrator such information on the Trust's ownership
of Company Stock as the Administrator may reasonably request in order
to comply with federal or state securities laws.
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(e) Voting. Notwithstanding any other provision of this Agreement, the
provisions of this Section 9(e) shall govern the voting of Company
Stock. When the issuer of Company Stock files preliminary proxy
solicitation materials with the Securities and Exchange Commission,
the Company shall cause a copy of all the materials to be
simultaneously sent to the Trustee, and the Trustee shall prepare a
voting instruction form based upon these materials. At the time of
mailing of notice of each annual or special stockholders' meeting of
the issuer of Company Stock, the Company shall cause a copy of the
notice and all proxy solicitation materials to be sent to each Plan
member, together with the foregoing voting instruction form to be
returned to the Trustee or its designee. The form shall show the
number of full and fractional shares of Company Stock credited to the
Plan member's accounts, whether or not vested. For purposes of this
Section 9(e), the number of shares of Company Stock deemed credited to
a Plan member's accounts shall be determined as of the date of record
determined by the Company for which an allocation has been completed
and Company Stock has actually been credited to Plan members'
accounts. The Company shall provide the Trustee with a copy of any
materials provided to Plan members and shall certify to the Trustee
that the materials have been mailed or otherwise sent to Plan members.
Each Plan member shall have the right to direct the Trustee as to the
manner in which to vote that number of shares of Company Stock
credited to his accounts. Such directions shall be communicated in
writing or by facsimile or similar means and shall be held in
confidence by the Trustee and not divulged to the Company, or any
officer or employee thereof, or any other person. Upon its receipt of
directions, the Trustee shall vote the shares of Company Stock
credited to the Plan member's account as directed by the Plan member.
The Trustee shall vote those shares of Company Stock not credited to
Plan members' accounts in accordance with the instructions of the
Administrator, and shall not vote those shares of Company Stock
credited to the accounts of Plan members for which no voting
directions are received.
(f) Tender Offers. Upon commencement of a tender offer for any Company
Stock, the Company shall notify each Plan member, and use its best
efforts to distribute timely or cause to be distributed to Plan
members the same information that is distributed to shareholders of
the issuer of Company Stock in connection with the tender offer, and
after consulting with the Trustee shall provide at the Company's
expense a means by which Plan members may direct the Trustee whether
or not to tender the Company Stock credited to their accounts (whether
or not vested). The Company
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shall provide to the Trustee a copy of any material provided to Plan
members and shall certify to the Trustee that the materials have been
mailed or otherwise sent to Plan members.
Each Plan member shall have the right to direct the Trustee to tender
or not to tender some or all of the shares of Company Stock credited
to his accounts. Directions from a Plan member to the Trustee
concerning the tender of Company Stock shall be communicated in
writing or by facsimile or such similar means as is agreed upon by the
Trustee and the Company. The Trustee shall tender or not tender shares
of Company Stock as directed by the Plan member. A Plan member who has
directed the Trustee to tender some or all of the shares of Company
stock credited to his accounts may, at any time before the tender
offer withdrawal date, direct the Trustee to withdraw some or all of
the tendered shares, and the Trustee shall withdraw the directed
number of shares from the tender offer before the tender offer
withdrawal deadline. A Plan member shall not be limited as to the
number of directions to tender or withdraw that he may give to the
Trustee. The Trustee shall not tender shares of Company Stock credited
to a Plan member's accounts for which it has received no directions
from the Plan members. The Trustee shall tender that number of shares
of Company Stock not credited to Plan members' accounts determined by
multiplying the total number of such shares by a fraction, the
numerator of which is the number of shares of Company Stock credited
to Plan members' accounts for which the Trustee has received
directions from Plan members to tender (which directions have not been
withdrawn as of the date of this determination), and the denominator
of which is the total number of shares of Company Stock credited to
Plan members' accounts.
A direction by a Plan member to the Trustee to tender shares of
Company Stock credited to his accounts shall not be considered a
written election under the Plan by the Plan member to withdraw or to
have distributed to him any or all of such shares. The Trustee shall
credit to each account of the Plan member from which the tendered
shares were taken the proceeds received by the Trustee in exchange for
the shares of Company Stock tendered from that account. Pending
receipt of directions through the Administrator from the Plan member
as to the investment of the proceeds of the tendered shares, the
Trustee shall invest the proceeds as the Administrator shall direct.
(g) General. With respect to all rights other than the right to vote, the
right to tender, and the right to withdraw shares previously tendered,
the Trustee shall follow the directions of the Plan member as to
Company Stock credited to his accounts, and if no such directions are
received, the directions of the Administrator. The Trustee shall have
no duty to solicit
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directions from Plan members. With respect to all rights other than
the right to vote and the right to tender, in the case of Company
Stock not credited to Plan members' accounts, the Trustee shall follow
the directions of the Administrator. All provisions of this Section 9
shall apply to any securities received as a result of a conversion of
Company Stock.
10. Stable Value Contracts. If provided in the Service Agreement, the
Administrator or, in the case of an Investment Fund for which an Investment
Manager has been appointed under an investment management agreement and
pursuant to Section 8, the Investment Manager may direct the Trustee to
receive and hold or apply assets of the Trust to the purchase of (i)
insurance, annuity or other financial contracts issued by insurance
companies, banks or other financial institutions ("GICs") or (ii)
securities wrapped by benefit responsive wrap contracts issued by insurance
companies, banks or other financial institutions ("synthetic GICs"). Any
such contracts shall be in the form determined and approved by the
Administrator or Investment Manager, as the case may be, and the Trustee
shall have no responsibility for the selection of the issuer of any such
contract, for negotiating the terms of any such contract, for the
administration, monitoring or disposition of any such contract or for any
other decision relating to any such contract. In the case of a synthetic
GIC, the Trustee shall have no responsibility for selecting or managing the
assets which are to be wrapped, for selecting the Investment Manager, if
any, with respect to the such assets, for establishing any investment
guidelines applicable to such assets or for monitoring or reviewing in any
manner such assets, Investment Manager or investment guidelines.
If such investments are to be made, the Administrator or Investment Manager
shall direct the Trustee to execute and deliver such applications and other
documents as are necessary to establish record ownership, to value such
investments under the method of valuation selected by the Administrator or
Investment Manager, and to record or report such values to the
Administrator or Investment Manager, in the form and manner agreed to by
the Administrator.
The Administrator or Investment Manager may direct the Trustee to exercise
or may exercise directly the powers of contract holder under any GIC or
synthetic GIC, and the Trustee shall exercise such powers only upon
direction of the Administrator or Investment Manager. The Trustee shall
have no authority to act in its own discretion, with respect to the terms,
acquisition, valuation, continued holding and/or disposition of any such
GIC or synthetic GIC or any asset held thereunder. The Trustee shall be
under no duty to question any direction of the Administrator or Investment
Manager or to review the form of any such GIC or synthetic GIC or the
selection of the issuer thereof, or to make recommendations to the
Administrator or Investment Manager or to any issuer with respect to the
form of any such GIC or synthetic GIC.
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The Trustee shall be fully protected in acting in accordance with written
directions of the Administrator or Investment Manager, and shall be under
no liability for any loss of any kind which may result by reason of any
action taken or omitted by it in accordance with any direction of the
Administrator or Investment Manager, or by reason of inaction in the
absence of written directions from the Administrator or Investment Manager.
In the event that the Administrator or Investment Manager directs that any
monies or property be paid or delivered to the contract holder other than
for the benefit of specific individual beneficiaries, the Trustee agrees to
accept such monies or property as assets of the Trust subject to all the
terms hereof.
For purposes of this Section 10, traditional forms of individual or group
insurance or annuity contracts issued by insurance companies shall be
deemed to be GICs.
11. Powers of Trustee. Subject to the foregoing provisions and limitations, the
Trustee is authorized and empowered:
(a) to sell at public auction or by private contract, redeem, convey,
transfer, exchange, pledge, or otherwise realize upon, any securities,
investments or other property forming a part of the Trust, and for
such purposes may execute such instruments and writings and do such
things as it shall deem proper;
(b) to keep any or all securities or other property in the name of some
other person, nominee, firm or corporation or in its own name without
disclosing its fiduciary capacity, but the books and records of the
Trustee shall at all times show that all such securities and other
property are part of the Trust;
(c) except as otherwise provided in Sections 6 through 10, to the extent
that the Trustee receives direction from the Administrator or the Plan
members, as the case may be, to vote upon any stocks, bonds or other
securities of any corporation, association or trust at any time
comprising the Trust, or otherwise consent to or request any action on
the part of such corporation, association or trust, and to give
general or special proxies or powers of attorney, with or without
power of substitution, and to exercise any conversion privileges,
subscription rights or other options, to participate in
reorganizations, recapitalizations, consolidations, mergers and
similar transactions with respect to such securities; to deposit such
stocks or other securities in any voting trust, or with any protective
or like committee, or with a trustee, or with depositories designated
thereby; and generally to exercise any of the powers of an owner with
respect to stocks or other securities or property comprising the Trust
which the Trustee deems to be for the best interests of the Trust;
provided, however, the Trustee will not vote such stocks or other
securities as to which it receives no written directions;
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(d) when instructed or directed by the Administrator, to borrow money for
the purposes of this Trust in such amounts and upon such terms and
conditions as the Administrator, in its discretion, may approve, and
for any amount so borrowed to issue the promissory note of the Trustee
and to secure the repayment thereof by pledge, mortgage, or
hypothecation of all or any part of the property of the Trust, and no
person loaning money to the Trustee shall be bound to see to the
application of the money loaned or to inquire into the validity of any
such borrowing;
(e) to make, execute, acknowledge and deliver any and all instruments that
it shall deem necessary or appropriate to carry out the powers herein
granted;
(f) to manage, administer, operate, lease for any number of years,
develop, improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real property or
interest therein at any time held by it, and to cause to be formed a
corporation or trust to hold title to any such real property with the
aforesaid powers, all upon such terms and conditions as may be deemed
advisable;
(g) to renew or extend or participate in the renewal or extension of any
mortgage, upon such terms as may be deemed advisable, and to agree to
a reduction in the rate of interest on any mortgage or to any other
modification or change in the terms of any mortgage or of any
guarantee pertaining thereto, in any manner and to any extent that may
be deemed advisable for the protection of the Trust or the
preservation of the value of the investment, to waive any default
whether in the performance of any covenant or condition of any
mortgage or in the performance of any guarantee, or to enforce any
such default in such manner and to such extent as may be deemed
advisable, to exercise and enforce any and all rights of foreclosure
to bid in property on foreclosure, to take a deed in lieu of
foreclosure with or without paying a consideration therefor and in
connection therewith to release the obligation on the bond secured by
such mortgage; and to exercise and enforce in any action, suit or
proceedings at law or in equity any rights or remedies in respect to
any such mortgage or guarantee;
(h) upon express direction by the Administrator or the Investment Manager,
as the case may be, to transfer all or part of the assets of the Trust
in accordance with such investment instructions, without restriction,
to investments authorized for fiduciaries, including without
limitation any common, collective or commingled trust fund maintained
by the Trustee (or any other such fund acceptable to the Trustee) that
qualifies for exemption from federal income tax pursuant to Revenue
Ruling 81-100. Any investment in, and any terms and conditions of, any
such common, collective or
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commingled trust fund available only to employee trusts which meet the
requirements of the Code, or corresponding provisions of subsequent
income tax laws of the United States, shall constitute an integral
part of this Agreement;
(i) when instructed or directed by the Administrator, to settle,
compromise or submit to arbitration any claims, debts, or damages, due
or owing to or from the Trust, to commence or defend suits or legal
proceedings and to represent the Trust in all suits or legal
proceedings in any court of law or before any other body or tribunal;
provided, however, that the Trustee shall have no obligation to take
any legal action for the benefit of the Trust unless it shall have
first been indemnified by the Company for all expenses in connection
therewith, including counsel fees;
(j) if applicable, to lend to Plan members such amount or amounts, and
upon such terms and conditions, as the Administrator may direct in
accordance with the provisions of the Plan;
(k) to employ such agents, consultants, custodians, depositories,
advisors, and legal counsel as may be reasonably necessary or
desirable in the Trustee's judgment in managing and protecting the
Trust and, subject to the provisions of Section 15, to pay them
reasonable compensation out of the Trust;
(l) to cause any securities or other property which may at any time form a
part of the Trust to be issued, held or registered in the individual
name of the Trustee, or in the name of its nominee (including any
custodian employed by the Trustee, any nominee of such a custodian,
and any depository, clearing corporation or other similar system), or
in such form that title will pass by delivery;
(m) to transfer any assets of the Trust to a custodian or sub-custodian
employed by the Trustee; and
(n) to do all other acts in its judgment necessary or desirable for the
proper administration of the Trust, in accordance with the provisions
of the Plan and this Agreement, although the power to do such acts is
not specifically set forth herein.
No person dealing with the Trustee shall be required to take any notice of
this Agreement, but all persons so dealing shall be protected in treating
the Trustee as the absolute owner with full power of disposition of all the
monies, securities and other property of the Trust, and all persons dealing
with the Trustee are released from inquiry into the decision or authority
of the Trustee and from seeing to the application of monies, securities or
other property paid or delivered to the Trustee.
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12. Liquidation of Assets. Upon termination of the Trust as provided herein,
the Trustee shall not be required to make any payments hereunder until it
has received such documentation as it shall consider necessary to establish
that the termination complies with applicable law, or to make any payments
in excess of the net realizable value of the assets of the Trust at the
time of such payment. The Trustee shall not be required to make any
payments in cash unless there shall be in the Trust at the time an amount
of cash sufficient for the purpose. In case of a deficiency in cash, the
Trustee shall take such action as to the disposition of securities or other
property forming a part of the Trust as will provide the amount of cash for
such payments. The Trustee shall not be required to make any payment in
cash until the Administrator has provided direction as to the assets to be
converted to cash for the purpose of making such payment.
13. Direction by Company or Administrator. The Company shall certify to the
Trustee the names and specimen signatures of the Administrator. The Company
shall give prompt notice to the Trustee of changes in the Administrator,
and until such notice is received by the Trustee, the Trustee shall be
fully protected in assuming that the Administrator is unchanged and is
acting accordingly. The Administrator may certify to the Trustee the names
of persons authorized to act for it in relation to the Trustee and may
designate a person, corporation or other entity, whether or not affiliated
with the Company, to so act. Whenever the Trustee is required or authorized
to take any action hereunder pursuant to any written direction or
determination of the Company or the Administrator, such direction or
determination shall be sufficient protection to the Trustee if contained in
a writing signed by any one or more of the persons authorized to execute
documents on behalf of the Company or the Administrator, as the case may
be, pursuant to the Plan. The Trustee shall act, and shall be fully
protected in acting, in accordance with such orders, requests and
instructions of the Company or the Administrator. By such a writing the
Company or the Administrator, as the case may be, may ratify, approve or
confirm any action taken by the Trustee, and upon such ratification,
approval or confirmation the Trustee shall be protected as though
authorization or determination by the Company or the Administrator had
preceded such action. In the absence of direction by the Company or the
Administrator as to any matter provided in this Agreement or the Plan, the
Trustee may in its discretion take such action as it deems fit and proper
with respect thereto after reasonable attempts to secure Company or
Administrator direction; provided, however, that the Trustee shall not be
obligated to take any such action. The Trustee may deliver documents to the
Company or the Administrator by delivering the same, or by mailing the
same, postage prepaid, addressed to the Company or the Administrator, as
the case may be, at its principal place of business.
14. Records and Accounting. The Trustee shall keep adequate and accurate
accounts of investments, receipts, disbursements and other transactions
hereunder, and all
15
accounts, books and records relating thereto shall be open at all
reasonable times to inspection and audit by the Administrator and its
authorized representatives. The Trustee shall render to the Company and the
Administrator in writing, at least once each twelve (12) months and at such
times as required by the Plan and, in any event, within ninety (90) days
after its removal or resignation as provided in Section 17 hereof, accounts
of its transactions under this Agreement, and the Administrator may approve
such accounts of the Trustee by an instrument in writing delivered to the
Trustee. In the absence of the filing in writing with the Trustee by the
Administrator of exceptions or objections to any such account within one
year after the receipt thereof, the Administrator shall be deemed to have
approved such account; and in such case, or upon the written approval of
the Administrator of any such account, the Trustee, to the extent permitted
by applicable law, shall be released, relieved and discharged with respect
to all matters and things set forth in such account. The Trustee shall from
time to time make such other reports and furnish such other information
concerning the Trust (including valuations of each Investment Fund
established pursuant to Section 8) to the Administrator as the
Administrator may reasonably request or as may be required by the Plan. The
Administrator shall arrange for each Investment Manager appointed pursuant
to Section 8(b), and each insurance company, bank, or other financial
institution issuing contracts held by the Trustee pursuant to Section 10 to
furnish the Trustee with such valuations and reports as are necessary to
enable the Trustee to fulfill its obligations under this Section 14, and
the Trustee shall be fully protected in relying upon such valuations and
reports. In any proceeding instituted by the Trustee, the Company or the
Administrator or all of them with respect to any account of the Trustee,
only the Company, the Administrator and the Trustee shall be necessary
parties.
15. Trustee's Compensation and Expenses. The Trustee shall be paid such
reasonable compensation as provided in the Fee Schedule attached to this
Agreement. The compensation of the Trustee and any reasonable expenses,
including reasonable attorneys' fees and the cost of any bond, surety or
other security which may be required of the Trustee by ERISA, incurred by
the Trustee in the performance of its duties, and all other proper charges
and disbursements of the Trustee may be paid by the Company within thirty
(30) days after so billed, and will automatically be deducted from the
Trust if, upon the expiration of thirty (30) days, such fees are not
separately paid by the Company. All expenses (including taxes pursuant to
Section 23) of the Trust, other than those expenses which are paid by the
Company, which are allocable to an Investment Fund established pursuant to
Section 8 shall be charged to such Investment Fund. All such expenses which
are not so allocable shall be charged against each of the Investment Funds
in the same proportion as the value of the assets held in such Investment
Fund bears to the value of the total assets held in all of the Investment
Funds. Any account maintenance or administration fees applicable to any
Plan member's account which are not paid hereunder by the Company shall be
charged against the interest of the Plan member and, in the case of a loan
of a Plan member, if applicable, all
16
expenses (including taxes pursuant to Section 23) of the Trust, other than
those expenses which are paid by the Company, which are allocable to such
loan, shall be charged against the interest of such Plan member under the
Plan.
16. Litigation Involving Trust Assets. If any asset of the Trust is, or while
this Agreement is in effect becomes, subject to any claims or litigation
(other than a routine claim for benefits brought by a Participant or
Beneficiary against the Trust generally), the Administrator shall direct
the Trustee to execute and deliver on behalf of the Trust such forms,
pleadings, agreements or other documents necessary to the prosecution or
defense of such claims or litigation. The Trustee shall have no authority
to act on its own discretion with respect to such claim or litigation and
shall have no duty to question any direction of the Administrator relating
thereto. Except as may otherwise be provided under ERISA, the Trustee shall
be fully protected in acting in accordance with written directions of the
Administrator, and shall be under no liability for any loss of any kind
which may result by reason of any action taken or omitted by it in
accordance with any direction of the Administrator, or by reason of
inaction in the absence of written directions from the Administrator. The
Trustee's retention of counsel in order to monitor the progress of such
claim or litigation (including, but not limited to, review of all pertinent
documents), shall be separate from the counsel representing the Company or
any other party in respect of such claim or litigation. The cost of such
counsel shall be an expense of the Trust and shall be charged to the Trust
as provided in Section 15 unless paid by the Company.
17. Resignation or Removal of Trustee. The Trustee may resign at any time upon
sixty (60) days' written notice to the Company, and the Company may remove
the Trustee at any time upon sixty (60) days' written notice to the
Trustee; provided, however, that the parties may by written instrument
waive such notice. The Trustee reserves the right at any time to resign
immediately if the Company transfers the Plan's administration to a
recordkeeper other than the recordkeeper designated in the Service
Agreement, a copy of which is attached hereto, without the Trustee's prior
written consent, by delivering to the Company a notice of resignation
certified by the Trustee. The Trustee further reserves the right at any
time to resign immediately by delivering to the Company a notice of
resignation certified by the Trustee if the assets of the Trust are not
invested in investment products which are sponsored, underwritten or
managed by affiliates of the Trustee, unless the Service Agreement
otherwise specifically provides. If the Trustee shall resign, be removed or
for any other reason cease to be Trustee, the Company shall appoint a
successor Trustee or Trustees to whom the Trustee, upon receipt of
acceptance by such successor, shall promptly deliver all of the assets of
the Trust less any unpaid fees or expenses. Subject to the foregoing
provisions, any resignation or removal of the Trustee or appointment of a
new Trustee shall be by instrument in writing and shall become effective on
the date therein specified. Any successor Trustee shall have the same
powers and duties as the succeeded Trustee, subject to such changes as the
Company may then determine.
17
Upon request of such successor Trustee or Trustees, the Company and the
Trustee ceasing to act shall execute and deliver such instruments of
conveyance and further assurance and do such things as may reasonably be
required for more fully and certainly vesting and confirming in such
successor Trustee or Trustees all the right, title and interest of the
retiring Trustee in and to the assets of the Trust. The Trustee is
authorized, however, to reserve such sums of money as may be reasonable for
payment of its compensation and expenses (including legal fees) in
connection with the settlement of its account or otherwise, and any balance
of such reserve remaining after payment of such compensation and expenses
shall be promptly paid over to the successor Trustee or Trustees.
18. Duties of Trustee. The duties of the Trustee shall be only those
specifically undertaken by the Trustee pursuant to this Trust Agreement.
The Trustee shall have no responsibility for the administration of the Plan
(including, but not limited to, the determination of Plan participation
rights of employees of the Company, the determination of benefits of
members of the Plan and the maintenance of individual accounts of members
of the Plan). Except as otherwise provided by ERISA, in no event shall the
Trustee be responsible for any act or omission of any fiduciary of the
Plan. The Trustee shall have no liability for the acts or omissions of any
predecessors and successors in office. The Trustee shall be under no duty
to question or review the eligible investments for Plan members, the
investment guidelines, objectives and restrictions established by the
Administrator, or the specific investment directions given by the
Administrator or the Plan members for any investment, and shall further
have no duty to make suggestions in connection therewith. The Trustee shall
not be liable for any loss, or by reason of any breach, which arises from
the Administrator's or Plan members' exercise or non-exercise of rights
under this Trust Agreement, or from any direction of the Administrator or
Plan members. The Trustee shall incur no liability on account of investing
the assets of the Trust in accordance with investment elections of the
Administrator or Plan members duly delivered to the Trustee. The Trustee
shall be a Plan fiduciary obligated to comply with the instructions of Plan
members within the meaning of Section 2550.404(c)-1(b)(2)(i)(A) of the
Department of Labor regulations, but shall have no other duties except as
specifically set forth in this Trust Agreement or the Service Agreement.
Without limiting the foregoing, it is specifically agreed that the Trustee
shall not be a plan fiduciary identified to be responsible for providing
information described in Section (b)(2)(i)(B) of such regulations, or a
fiduciary responsible for selecting a broad range of investment
alternatives within the meaning of such regulations.
19. Indemnification. The Company hereby agrees to indemnify and hold harmless
the Trustee from and against any losses, damages, liabilities, claims,
costs or expenses (including attorneys' fees) which the Trustee may incur
by reason of this Trust Agreement, (including, without limitation, by
reason of the Trustee's making benefit payments pursuant to fraudulent or
unauthorized instructions) excepting
18
only losses, damages, liabilities, claims, costs or expenses arising from
the Trustee's negligence or willful misconduct. A waiver by the Trustee of
any signature guarantee requirement relating to the investments held
hereunder, or the provision of services through the Internet or other
electronic means, shall not be construed as negligence or willful
misconduct on the part of the Trustee. The provisions of this Section 19
shall survive the termination of this Agreement.
20. Amendment or Termination. The Company reserves the right at any time and
from time to time to amend, in whole or in part, any or all of the
provisions of, or to terminate, this Agreement by delivering to the Trustee
a copy of an amendment or a notice of termination certified by an officer
of the Company; provided, however, that no such amendment which affects the
rights, duties or responsibilities of the Trustee may be made without its
consent, and provided further that no such amendment shall authorize or
permit any part of the corpus or income of the Trust to be used for or
diverted to purposes other than those set forth in Section 3. Any such
amendment shall be effective upon delivery to the Trustee unless a
different effective date is specifically stated and any such amendment may
be made retroactively as shall be permitted under applicable law. Upon
termination of this Agreement, the Trustee, upon direction of the
Administrator shall liquidate the Trust to the extent required for
distribution and, after the final account of the Trustee has been approved
and settled, shall distribute the balance of the Trust remaining in its
hands as directed by the Administrator or in the absence of such direction,
as may be directed by a judgment or decree of a court of competent
jurisdiction. Following any such termination the powers of the Trustee
hereunder shall continue as long as any of the assets of the Trust remain
in its hands, but only as to those assets which during such time remain in
the Trust.
21. Additional Participating Companies. Any Participating Company as defined in
the Plan, may become a participating employer in the Trust in the manner as
set forth in the Plan. Each such additional participating employer hereby
delegates all such rights, powers, and duties, with respect to the Trust as
applied to it including amendment or termination of the Trust, to Comcast
Corporation acting alone.
22. Spendthrift Provision. Except as otherwise provided in the Plan, to the
maximum extent permitted by law, beneficial interests in the Trust of Plan
members under the Plan shall not be assignable nor subject to alienation,
sale, transfer, pledge, encumbrance, mortgage, attachment, execution, levy
or receivership, nor shall they pass to any trustee in bankruptcy or be
reached or applied by any legal process for the payment of any obligations
of any such person; provided, however, that nothing herein shall prevent a
Plan member from assigning his interest in the Trust as security for the
repayment of any loan made to him from the Trust pursuant to the Plan, and
further provided that nothing herein shall prevent the Trustee from making
payments in accordance with a Qualified Domestic Relations Order, as that
term is defined in Code Section 414(p). Any attempt at
19
any other assignment, alienation, sale, transfer, pledge, encumbrance,
mortgage, attachment, execution or levy shall be void and unenforceable.
23. Payment of Taxes. The Trustee may pay out of the Trust (or the appropriate
Investment Fund or Funds) any and all taxes of any and all kinds, including
without limitation property taxes and income taxes levied or assessed under
existing or future laws upon or in respect of the Trust or any monies,
securities or other property forming a part thereof or the income therefrom
subject to the terms of any agreements or contracts made with respect to
trust investments which make other provision for such tax payments. The
Trustee may assume that any taxes assessed on or in respect of the Trust or
its income are lawfully assessed unless the Administrator shall in writing
advise the Trustee that in the opinion of counsel for the Company such
taxes are or may be unlawfully assessed. In the event that the
Administrator shall so advise the Trustee, the Trustee will, if so
requested in writing by the Administrator contest the validity of such
taxes in any manner deemed appropriate by the Company or its counsel but at
the expense of the Trust; or the Company may contest the validity of any
such taxes at the expense of the Trust and in the name of the Trustee; and
the Trustee agrees to execute all documents, instruments, claims, and
petitions necessary or advisable in the opinion of the Company or its
counsel for the refund, abatement, reduction or elimination of any such
taxes. At the direction of the Administrator the Trustee shall collect all
income tax to be withheld from any benefit payments from the Trust and
shall report and pay over such taxes to the Internal Revenue Service,
except for payments made directly by an insurer to a Plan member or
beneficiary under an annuity or insurance contract, if applicable.
24. Successor to Company or Trustee. Any successor to all or a major part of
the business of the Trustee, by whatever form or manner resulting, shall
ipso facto succeed to all the rights, powers and duties hereunder of the
Trustee. Any successor to all or a major part of the business of the
Company, by whatever form or manner resulting, may continue the Plan and
Trust by executing appropriate amendments thereto, and thereupon such
successor shall ipso facto succeed to all the rights, powers and duties
hereunder of the Company.
25. Construction. In any question of interpretation or other matter of doubt,
the Trustee, the Administrator and the Company may rely upon the opinion of
counsel for the Company or any other attorney at law designated by the
Company with the approval of the Trustee. The provisions of this Agreement
shall be construed, administered and enforced according to the laws of the
United States and, to the extent permitted by such laws, by the laws of the
Commonwealth of Massachusetts. All contributions to the Trust shall be
deemed to be made in the Commonwealth of Massachusetts.
26. Impossibility of Performance. In case it becomes impossible for the
Company, the Administrator or the Trustee to perform any act under this
Agreement, that act
20
shall be performed which in the judgment of the Administrator will most
nearly carry out the intent and purpose of the Plan and Trust. All parties
to this Agreement or any way interested in the Trust shall be bound by any
acts performed under such condition.
27. Definition of Words. Feminine or neuter pronouns shall be substituted for
those of the masculine form, and the plural shall be substituted for the
singular, in any place or places herein where the context may require such
substitution or substitutions.
28. Titles. The titles of sections are included only for convenience and shall
not be construed as part of this Agreement or in any respect affecting or
modifying its provisions.
29. Execution of Trust Agreement. This Agreement may be executed in any number
of counterparts and each fully executed counterpart shall be deemed an
original.
IN WITNESS WHEREOF these presents have been signed and sealed for and on
behalf of the Company and the Trustee effective as of the above date by their
duly authorized officers as of this ___ day of _________, 19__.
COMCAST CORPORATION
By:
--------------------------- ---------------------------
Witness
Title:
---------------------------
XXXXXX FIDUCIARY TRUST COMPANY
By:
--------------------------- ---------------------------
Witness
Title:
---------------------------
1/28/99
21
THE COMCAST CORPORATION RETIREMENT-INVESTMENT PLAN
TRUST AGREEMENT FEE SCHEDULE
The following services associated with the Trust Agreement are subject to the
fees specified below. The Company agrees to pay the Trustee fees and expenses as
follows:
1. Trust Distributions:
$10.00 per Trust distribution, which includes preparation and mailing
of IRS Form 1099-R. Distributions include all payments to Participants
and Beneficiaries, and payments to the Administrator or the
Administrator's designee. Unless otherwise paid by the Company, Trust
distribution fees will be deducted from the Trust distribution
proceeds. This fee is waived if the Participant elects a direct
rollover of 100% of his/her vested account balance into an XXX invested
solely in the Xxxxxx mutual funds.
2. Company Stock:
$18.00 per stock certificate issued. This fee includes the preparation
and mailing of IRS Form 1099-R.
$.50 per Participant for proxy solicitation cost plus out of pocket and
postage expenses.
22
