TRUST UNDER THE FOUNDATION HEALTH SYSTEMS, INC. DEFERRED
COMPENSATION PLAN
This Trust Agreement (the "Trust Agreement") is made and dated this ___
day of September, 1998 by and between Foundation Health Systems, Inc., a
Delaware corporation, (the "Employer") and Union Bank of California (the
"Trustee").
PURPOSE
(a) WHEREAS, the Employer [and its designated affiliates, each such
affiliate being included in the definition of Employer where the context
requires] has adopted the plan or plans attached as Exhibit A or which
subsequently may be designated in writing by the Employer (the "Plans")
pursuant to which the Employer expects to incur unfunded deferred
compensation liabilities with respect to certain employees of the Employer.
(b) WHEREAS, Employer wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Employer's creditors in the event of Employer's
Insolvency, as herein defined, until the amounts payable pursuant to the
Plans are paid to Plan participants in such manner and at such times as
specified in the Plan(s);
(c) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plan(s) as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of
1974;
(d) WHEREAS, it is the intention of Employer to make contributions to
the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plan(s);
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
ARTICLE I
ESTABLISHMENT OF TRUST
1.1 ESTABLISHMENT OF TRUST. The Employer hereby deposits with Trustee in
Trust, which shall become the principal of the Trust to be held,
administered and disposed of by Trustee as provided in this Trust
Agreement.
REVOCABILITY
1.2 TRUST IS IRREVOCABLE. The Trust hereby established shall be
irrevocable.
1.3 The Trust is intended to be a grantor trust, of which
Employer is the grantor, within the meaning of Subpart E, Part I,
Subchapter J, Chapter 1, Subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
1.4 All money and property of every kind held by Trustee
under this Trust Agreement (the Trust Fund ), including the
principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Employer and shall be used
exclusively for the uses and purposes of Participants and
Employer's general creditors as herein set forth. Plan
participants and beneficiaries of deceased participants
(hereinafter called "Participants") shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan(s) and this Trust
Agreement shall be mere unsecured contractual rights of
Participants against Employer. Any assets held by the Trust will be
subject to the claims of Employer's general creditors under federal
and state law in the event of Insolvency, as defined in Article XI
herein.
1.5 PAYMENTS TO EMPLOYER
Employer shall have no right or power to direct Trustee
to return to Employer or to divert to others any of the Trust
assets before all payment(s) of benefits have been made to
Participants pursuant to the terms of the Plan(s).
1.6 SIGNING AUTHORITY; ADMINISTRATOR. The Employer shall
certify in writing to the Trustee the names and specimen signatures
of all those who are authorized to act as or on behalf of the
Employer, and those names and specimen signatures shall be updated
as necessary by a duly authorized official of the Employer. The
Employer shall promptly notify the Trustee if any person so
designated is no longer authorized to act on behalf of the
Employer. Until the Trustee receives written notice that a person
is no longer authorized to act on behalf of the Employer, the
Trustee may continue to rely on the Employer's designation of such
person.
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1.7 ACCEPTANCE OF ASSETS; TRUST COMPOSITION. All contributions or
transfers shall be received by the Trustee in cash or in any other
property acceptable to the Trustee. The Trust 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 hold, manage and administer the Trust in accordance with this Trust
Agreement without distinction between principal and income.
CONTRIBUTIONS
1.8 Employer, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in
trust with Trustee to augment the principal to be held,
administered and disposed of by Trustee as provided in this Trust
Agreement. Neither Trustee nor any Participant shall have any
right to compel such additional deposits.
1.9 NO DUTY OF TRUSTEE TO ENFORCE COLLECTION. Notwithstanding anything
herein to the contrary, Trustee shall have no authority or obligation to
enforce the collection of any contribution or transfer to the Trust.
1.10 PLAN ADMINISTRATION. The Employer and not the Trustee shall
be responsible for administering the Plans (including without
limitation determining the rights of the Employer's employees to
participate in a Plan, determining any Participant's right to
benefits under such Plan), and issuing statements to Participants
of their interest in the Trust and Plan.
1.11 CHANGE IN CONTROL. For purposes of this Trust Agreement, a
"Change in Control" shall be deemed to have occurred if (i) any
person (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee
(such as Trustee) or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, becomes the beneficial owner (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the
Company representing 20% or more of the total voting power
represented by the Company's then outstanding voting securities;
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of
the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof; or (iii) the stockholders of the
Company approve a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least 80% of the total voting power
represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
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consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or series of
transactions) all or substantially all of the Company's assets.
For purposes of this subsection, voting securities means any
securities which vote generally in the election of directors.
The Trustee shall have no independent duty to determine
that a Change in Control has occurred and shall not be required to
take any action or refrain from taking any actions hereunder which
are based on a Change in Control having occurred prior to the time
it receives written notice from the Employer or a Participant that
a Change in Control has occurred or will occur and has had a
reasonable opportunity to determine whether a Change in Control, in
fact, has occurred.
At the Trustee's request, the Employer shall furnish such
evidence as may be necessary to enable the Trustee to determine
whether a Change in Control has occurred. In taking or refraining
from any action under this Trust Agreement, the Trustee may rely on
its determination, including an opinion of counsel (who may be
counsel to the Employer or the Trustee), that a Change in Control
has occurred. The Trustee's determination as to whether a Change
in Control has occurred shall be binding and conclusive on all
persons.
1.12 PARTICIPANT ACCOUNTS. The Employer shall maintain in an
equitable manner a separate account for each Participant under a
Plan ( Account ) in which it shall keep a record of the share of
such Participant under such Plan in the Trust. The Employer may
appoint a third-party administrator to maintain such Accounts. A
Participant's Account under a Plan shall represent the portion of
the Trust allocated to provide such Participant benefits under
such Plan. If the Trustee is directed by the Employer to segregate
the Trust into separate Accounts for each Participant, at the time
it makes a contribution to the Trust, the Employer shall certify to
the Trustee the amount of such contribution being made in respect
of each Participant under each Plan.
The Trustee may rely on information provided to the Trustee by
the Employer and the Trustee's and Employer's determination of
Account values shall be conclusive and binding on all interested
parties.
1.13 TAX REPORTING. The Employer and not the Trustee shall be
responsible for all income tax reporting and calculation and
payment of any wage withholding or other tax requirements in
connection with the Trust and any contributions thereto, and any
income earned thereby, and payments or distributions therefrom, and
Employer agrees to indemnify and defend Trustee against any
liability for any such taxes, interest or penalties resulting from
or relating to the Trust.
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ARTICLE II
INVESTMENTS
2.1 EMPLOYER IS INVESTMENT MANAGER. The Employer shall have the
power over and responsibility for the management and investment of
Trust assets. The Employer may appoint an Investment Manager to
direct the investment of Trust assets, provided the Trustee is
notified in writing prior to such appointment.
The Trustee shall have no duty to make recommendations
regarding Trust assets and shall retain assets until directed in
writing by Employer or Investment Manager to dispose of them.
2.2 FUNDING POLICY AND INVESTMENT GUIDELINES. The Employer shall
have the responsibility for establishing and carrying out a funding
policy and method, consistent with the objectives of the Plans,
taking into consideration the Plans' short-term and long-term
financial needs. The Trustee's responsibility for investment and
diversification of the assets in the portion of the Trust for which
the Trustee has investment discretion shall be subject to, and is
limited by, the investment guidelines issued to it by the Employer.
It is understood that, unless otherwise agreed in writing, the
Employer, rather than the Trustee, shall be responsible for the
overall diversification of Trust assets.
2.3 DISPOSITION OF INCOME. During the term of this Trust, all
income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
ARTICLE III
TRUSTEE'S POWERS
3.1 GENERAL TRUSTEE'S POWERS. Trustee shall have, without
exclusion, all powers conferred on Trustees by applicable law,
unless expressly provided otherwise herein, provided, however, that
if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or
to loan to any person the proceeds of any borrowing against such
policy.
(a) To invest and reinvest the Trust or any part
thereof in any one or more kind, type, class, item or parcel
of property, real, personal or mixed, tangible or intangible;
or in any one or more kind, type, class, item or issue of
investment or security; or in any one or more kind, type
class or item of obligation, secured or unsecured; or in any
combination of them;
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(b) To acquire, sell and exercise options to buy
securities ("call" options) and to acquire, sell and exercise
options to sell securities ("put" options);
(c) To buy, sell, assign, transfer, acquire, loan,
lease (for any purpose, including beyond the life of this
Trust), exchange and in any other manner to acquire, manage,
deal with and dispose of all or any part of the Trust
property, for cash or credit;
(d) To make deposits with any bank or savings and loan
institution, including any such facility of the Trustee or an
affiliate thereof, provided that the deposit bears a
reasonable rate of interest;
(e) To retain all or any portion of the Trust in cash
temporarily awaiting investment or for the purpose of making
distributions or other payments, without liability for
interest thereon, notwithstanding trustee's receipt of float;
(f) To borrow money for any purpose connected with the
protection, preservation or improvement of the Trust from any
source other than a party in interest of the Plans, with or
without giving security; to pay interest; to issue promissory
notes and to secure the repayment thereof by pledging all or
any part of the Trust assets;
(g) To take all of the following actions: to vote
proxies of any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or
without power of substitution; to exercise any conversion
privileges, subscription rights or other options, and to make
any payments incidental thereto; to consent to or otherwise
participate in corporate reorganizations or other changes
affecting corporate securities and to delegate discretionary
powers and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities or other
property held in the Trust;
(h) To make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all
other instruments that may be necessary or appropriate to
carry out the powers herein granted;
(i) To raze or move existing buildings; to make
ordinary or extraordinary repairs, alterations or additions
in and to buildings; to construct buildings and other
structures and to install fixtures and equipment therein;
(j) To pay or cause to be paid from the Trust any and
all real or personal property taxes, income taxes or other
taxes or assessments of any or all kinds levied or assessed
upon or with respect to the Trust or the Plans;
(k) Subject to the limitations of 3.1, to hold term or
ordinary life insurance contracts or to acquire annuity
contracts on the lives of Participants
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(but in the case of conflict between any such contract and a
Plan, the terms of the Plan shall prevail); to pay from the
Trust the premiums on such contracts; to distribute,
surrender or otherwise dispose of such contracts; to pay the
proceeds, if any, of such contracts to the proper persons in
the event of the death of the insured Participant; to enter
into, modify, renew and terminate annuity contracts of
deposit administration, of immediate participation or other
group or individual type with one or more insurance companies
and to pay or deposit all or any part of the Trust
thereunder; to provide in any such contract for the
investment of all or any part of funds so deposited with the
insurance company in securities under separate accounts; to
exercise and claim all rights and benefits granted to the
contract holder by any such contracts. All payments and
exercise of all powers with respect to insurance contracts
shall be solely on the direction of Employer;
(l) To exercise all the further rights, powers, options
and privileges granted, provided for, or vested in trustees
generally under applicable federal or state laws, as amended
from time to time, it being intended that, except as
otherwise provided in this Trust, the powers conferred upon
the Trustee herein shall not be construed as being in
limitation of any authority conferred by law, but shall be
construed as in addition thereto.
(m) Notwithstanding any powers granted to Trustee
pursuant to this Trust Agreement or to applicable law,
Trustee shall not have any power that could give this Trust
the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of
the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
3.2 ADDITIONAL POWERS. In addition to the other powers enumerated above, the
Trustee is authorized and empowered:
(a) To invest funds in any type of interest-bearing
account including, without limitation, time certificates of
deposit or interest-bearing accounts issued by FOUNDATION
HEALTH SYSTEMS, INC. To use other services or facilities
provided by the UnionBanCal Corporation (UNBC), its
subsidiaries or affiliates including Foundation Health
Systems, Inc. (Bank), to the extent allowed by applicable law
and regulation. Such services may include but are not
limited to (1) the placing of orders for the purchase,
exchange, investment or reinvestment of securities through
any brokerage service conducted by, and (2) the purchase of
units of any registered investment company managed or advised
by Bank, UNBC, or their subsidiaries or affiliates and/or for
which Bank, UNBC or their subsidiaries or affiliates act as
custodian or provide other services for a fee, including,
without limitation, the HighMark Group of mutual funds or the
Stepstone Funds. The parties hereby acknowledge that the
Bank may receive fees for such services in addition to the
fees payable under this Agreement. Fee schedules for
additional services shall be delivered to the appropriate
party in advance of the provision of such services.
Independent fiduciary approval of compensation
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being paid to the Bank will be sought in advance to the
extent required under applicable law and regulation.
If Foundation Health Systems, Inc. does not have investment
discretion, the services referred to above, as well as any
additional services, shall be utilized only upon the
appropriate direction of an authorized party.
(b) To cause all or any part of the Trust to be held in
the name of the Trustee (which in such instance need not
disclose its fiduciary capacity) or, as permitted by law, in
the name of any nominee, including the nominee name of any
depository, and to acquire for the Trust any investment in
bearer form; but the books and records of the Trust shall at
all times show that all such investments are a part of the
Trust and the Trustee shall hold evidences of title to all
such investments as are available;
(c) To serve as custodian with respect to the Trust
assets, to hold assets or to hold eligible assets at the
Depository Trust Company or other depository;
(d) To employ such agents and counsel as may be
reasonably necessary in administration and protection of the
Trust assets and to pay them reasonable compensation; to
employ any broker-dealer covered in the self-dealing section,
and pay to such broker-dealer its standard commissions; to
settle, compromise or abandon all claims and demands in favor
of or against the Trust; and to charge any premium on bonds
purchased at par value to the principal of the Trust without
amortization from the Trust, regardless of any law relating
thereto;
(e) To abandon, compromise, contest, arbitrate or
settle claims or demands; to prosecute, compromise and defend
lawsuits, but without obligation to do so, all at the risk
and expense of the Trust;
(f) To permit such inspections of documents at the
principal office of the Trustee as are required by law,
subpoena or demand by United States or state agency during
normal business hours of the Trustee;
(g) To comply with all requirements imposed by law;
(h) To seek written instructions from the Employer on
any matter and await written instructions without incurring
any liability. If at any time the Employer should fail to
give directions to the Trustee, the Trustee may act in the
manner that in its discretion it deems advisable under the
circumstances for carrying out the purposes of this Trust.
Such actions shall be conclusive on the Employer and the
Participants on any matter if written notice of the proposed
action is given to Employer five (5) days prior to the action
being taken, and the Trustee receives no response;
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(i) To compensate such executive, consultant,
actuarial, accounting, investment, appraisal, administrative,
clerical, secretarial, custodial, depository and legal firms,
personnel and other employees or assistants as are engaged by
the Employer in connection with the administration of the
Plans and to pay from the Trust the necessary expenses of
such firms, personnel and assistants, to the extent not paid
by the Employer;
(j) To impose a reasonable charge to cover the cost of
furnishing to Participants statements or documents;
(k) To act upon proper written directions of the
Employer or any Participant including directions given by
photostatic teletransmission using facsimile signature. If
oral instructions are given, to act upon those in Trustee's
discretion prior to receipt of written instructions.
Trustee's recording or lack of recording of any such oral
instructions taken in Trustee's ordinary course of business
shall constitute conclusive proof of Trustee's receipt or
non-receipt of the oral instructions;
(l) To pay from the Trust the expenses reasonably
incurred in the administration of the Trust;
(m) To maintain insurance for such purposes, in such
amounts and with such companies as the Employer shall elect,
including insurance to cover liability or losses occurring by
reason of the acts or omissions of fiduciaries (but only if
such insurance permits recourse by the insurer against the
fiduciary in the case of a breach of a fiduciary obligation
by such fiduciary);
(n) As directed by the Employer, to cause the benefits
provided under the Plans to be paid directly to the persons
entitled thereto under the Plans, and in the amounts and at
the times and in the manner specified by the Plans, and to
charge such payments against the Trust and Accounts with
respect to which such benefits are payable;
(o) To exercise and perform any and all of the other
powers and duties specified in this Trust Agreement or the
Plans; and in addition to the powers listed herein, to do all
other acts necessary or desirable for the proper
administration of the Trust, as though the absolute owner
thereof.
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ARTICLE IV
TRUSTEE AND EMPLOYER DUTIES
4.1 LEGAL DUTIES. The Trustee and Employer shall exercise any of the foregoing
powers from time to time as required by law.
4.2 PAYMENTS TO PARTICIPANTS
(a) Employer shall deliver to Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in
respect of each Participant, that provides a formula or other
instructions acceptable to Trustee for determining the amount
so payable, the form in which such amount is to be paid (as
provided for or available under the Plan(s)), and the time of
commencement for payment of such amounts. Except as
otherwise provided herein, Trustee shall make payments to the
Participants in accordance with such Payment Schedule. As
directed by Employer, the Trustee shall make provision for
the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan(s) and
shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been
reported, withheld and paid by Employer.
(b) The entitlement of a Participant to benefits under
the Plan(s) shall be determined by Employer or such party as
it shall designate under the Plan(s), and any claim for such
benefits shall be considered and reviewed under the
procedures set out in the Plan(s).
(c) Employer may make payment of benefits directly to
Participants as they become due under the terms of the
Plan(s). Employer shall notify Trustee of its decision to
make payment of benefits directly prior to the time amounts
are payable to Participants. In addition, if the principal
of the Trust, and earnings thereon, are not sufficient to
make payments of benefits in accordance with the terms of the
Plan(s), Employer shall make the balance of each such payment
as it falls due. Trustee shall notify Employer where
principal and earnings are not sufficient. Trustee shall
have no duty or obligation to enforce or compel Employer to
make payments hereunder. Employer may direct Trustee to
reimburse Employer for payments made directly by Employer to
Participants.
(1) In the event payments are made by Employer
directly to Participants, Employer shall have sole
responsibility for the reporting and withholding of any
federal, state, or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to
the terms of the Plan(s) and shall pay amounts withheld to
the appropriate taxing authority.
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(2) Trustee shall have no duty or responsibility
with respect to the above stated reporting, withholding or
payment of taxes and shall have no responsibility to
determine that Employer has provided for such reporting,
withholding or payment of such taxes.
(3) Employer shall indemnify and hold Trustee harmless
from any and all losses, claims, penalties or damages which
may occur as a result of Trustee following in good faith the
written direction of the Employer to reimburse Employer for
payments made hereunder to Participants and arising from
Employer's tax reporting, withholding and payment obligations
hereunder.
(d) Upon the satisfaction of all liabilities
of the Employer under all Plans to all Participants the
Trustee shall distribute any remaining Trust Fund to the
Employer. Except as provided in (c) above, at no time prior
to the Employer's Insolvency, as defined in Article XI, or
the satisfaction of all liabilities of the Employer under the
Plans in respect of all Participants having Accounts
hereunder shall any part of the Trust revert to the Employer.
4.3 ACCOUNTS AND RECORDS. The Trustee shall keep accurate and detailed
records of all investments, receipts, disbursements and all other
transactions required to be done, including such specific records as shall
be agreed upon in writing between the Employer and the Trustee. All such
accounts, books and records shall be open to inspection and audit at all
reasonable times by the Employer and by the Participants. Within sixty
(60) days after the close of each quarter and Plan year and within sixty
(60) days after the resignation or removal of the Trustee as provided in
Article VI hereof, the Trustee shall render to the Employer a written
account showing in reasonable summary the investments, receipts,
disbursements and other transactions engaged in by the Trustee during the
preceding Plan Year or accounting period with respect to the Trust. Such
account shall set forth the assets and liabilities of the Trust. The
Employer shall have sixty (60) days after the Trustee's mailing of each
such quarterly or final account within which to file with the Trustee
written objections to such account. Upon the expiration of each such
period, the Trustee shall be forever released and discharged from all
liability and accountability to the Employer with respect to the propriety
of its acts and transactions shown in such account except with respect to
any such acts or transactions as to which the Employer files written
objections within such sixty-day period with the Trustee.
Notwithstanding anything herein to the contrary, the Trustee shall
have no duty or responsibility to obtain valuations of any assets of the
Trust Fund, the value of which is not readily determinable on an
established market. Employer shall bear sole responsibility for
determining said valuations and shall be responsible for providing said
valuations to Trustee in a timely manner. Trustee may conclusively rely
on such valuations provided by Employer and shall be indemnified and held
harmless by Employer with respect to such reliance.
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4.4 REPORTS. The Trustee shall file such descriptions and reports and
shall furnish such information and make such other publications,
disclosures, registrations and other filings as are required of the
Trustee by law. The Trustee shall have no responsibility to file reports
or descriptions, publish information or make disclosures, registrations or
other filings unless directed by the Employer.
4.5 FOLLOW EMPLOYER DIRECTION. The Trustee shall have the power and duty
to comply promptly with all proper directions of the Employer.
4.6 INFORMATION TO BE PROVIDED TO TRUSTEE. The Employer shall maintain
and furnish the Trustee with all reports, documents and information as
shall be required by the Trustee to perform its duties and discharge its
responsibilities under this Trust Agreement, including without limitation
a certified copy of each of the Plans and all amendments thereto.
The Trustee shall be entitled to rely on the most recent reports,
documents and information furnished to it by the Employer. The Employer
shall be required to notify the Trustee as to the termination of
employment of any Participant by death, retirement or otherwise.
The Employer shall arrange for each Investment Manager if appointed
pursuant to Section 2.1, and each insurance company issuing contracts
held by the Trustee pursuant to Section 3.1(k), to furnish the Trustee
with such valuations and reports as are necessary to enable the Trustee
to fulfill its obligations under this Trust Agreement, and the Trustee
shall be fully protected in relying upon such valuations and reports.
4.7
(a) PAYMENTS TO PARTICIPANTS. Following a Change in Control, the
Trustee shall not be subject to the provisions of Section 4.2(a) (regarding
payments to Participants directed by the Employer), but rather shall
commence distributions from the separate Account of a Participant upon the
receipt of written notification by the Employer or by the Participant that
such Participant has become entitled to receive benefit payments under a
Plan. Such notification shall include the amount of such payments, the
form and method of payment, the basis for the Participant's claim and the
Participant's name, address and social security number.
The Trustee may take any reasonable steps it deems necessary to
verify that the Participant is entitled to receive the benefits claimed
under the Plans. All benefits payable from the trust to a Participant
under a Plan shall be paid solely from the separate Account established
with respect to such Participant, and only to the extent the amounts
credited to the Participant's Account are sufficient therefor, and such
Participant's Account shall be charged with the amount of such payments.
The Trustee shall have no responsibility for and shall incur no liability
with respect to any payment made pursuant to a direction received in
accordance with this Section 4.7(b) or with respect to the
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Trustee's good faith determination that a Participant is or is not
entitled to the payments claimed hereunder.
(b) RECORDKEEPING AFTER CHANGE IN CONTROL. Upon Change in Control,
the Trustee shall maintain all records regarding the Trust and its
investment and such other Participant records specified in this Trust
Agreement, including the maintenance of the Separate Accounts of each
Participant as provided in Section 1.12. All such records shall be made
available promptly on the request of the Employer. The Trustee shall also
prepare and distribute annual statements to the Participants.
ARTICLE V
RESTRICTIONS ON TRANSFER
5.1 PERSONS TO RECEIVE PAYMENT.
(a) The Trustee shall, except as otherwise provided
in section 4.2(d) and subsection (b) hereunder, pay all amounts
payable hereunder only to the person or persons designated under the
Plans or deposit such amounts to the Participant's checking or
savings account as directed by the Employer and not to any other
person or corporation, and only to the extent of assets held in the
Trust, and shall follow written instructions by the Employer. The
Employer's written instructions, to the Trustee to make
distributions or not to make distributions, and the amount thereof,
shall be conclusive on all Participants.
(b) Should any controversy arise as to the person or
persons to whom any distribution or payment is to be made by the
Trustee, or as to any other matter arising in the administration of
the Plans or Trust, the Trustee may retain the amount in controversy
pending resolution of the controversy or the Trustee may file an
action seeking declaratory relief and/or may interplead the Trust
assets in issue, and name as necessary parties the Employer, the
Participants and/or any or all persons making conflicting demands.
(c) The Trustee shall not be liable for the payment
of any interest or income, except for that earned as a Trust
investment, on any amount withheld or interpleaded under subsection
(b).
(d) The expense of the Trustee for taking any action
under subsection (b) shall be paid to the Trustee from the Trust.
5.2 ASSIGNMENT AND ALIENATION PROHIBITED. Benefits payable to
Participants under this Trust Agreement may not be anticipated,
assigned (either at law or in equity),
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alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
Notwithstanding the foregoing, the Trust shall at all times remain
subject to the claims of creditors of the Employer in the event the
Employer becomes Insolvent as provided in Article XI.
ARTICLE VI
RESIGNATION, REMOVAL AND SUCCESSION
6.1 RESIGNATION OR REMOVAL OF TRUSTEE. Trustee may resign at any time by
written notice to the Employer, which shall be effective thirty (30) days
after receipt of such notice unless Employer and Trustee agree otherwise.
Prior to a Change in Control, the Employer may remove Trustee upon thirty
(30) days' written notice to the Trustee (which notice may be waived by
the Trustee). Upon and after the occurrence of a Change in Control, the
Trustee may be removed only (i) by the Employer with the written consent
of a majority of Participants; or (ii) by the written notice of a majority
of Participants. Trustee may conclusively rely on Employer's
certification that a majority has consented to the removal of the Trustee.
6.2 DESIGNATION OF SUCCESSOR. Upon notice of the Trustee's
resignation or removal, the Employer shall promptly designate a successor
Trustee who will accept transfer of the assets of the Trust; provided
that, upon and after the occurrence of a Change in Control, such
appointment shall be effected only (i) by the Employer with the written
consent of a majority of the Participants; or (ii) by the written notice
of a majority of the Participants.
If, prior to a Change in Control, no successor Trustee is designated
within thirty (30) days of notice of Trustee's resignation or removal,
then the President and Chief Financial Officer of Employer are hereby
designated as the successor Co-Trustees.
6.3 UPON RESIGNATION or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed as soon as
administratively feasible after receipt of notice of resignation, removal
or transfer and appointment of and acceptance by successor Trustee, unless
Employer extends the time limit.
6.4 COURT APPOINTMENT OF SUCCESSOR. If Trustee resigns or is
removed, a successor shall be appointed, in accordance with Section 6.2
hereof, by the effective date of resignation or removal under paragraph
6.1 of this section. If no such appointment has been made after a Change
in Control, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee
in connection with the proceeding shall be allowed as administrative
expenses of the Trust. Until a successor Trustee is appointed, the
Trustee shall be entitled to be compensated for its services according to
its published fee schedule then in effect for acting as Trustee.
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6.5 SUCCESSOR'S POWERS. A successor Trustee shall have the same powers
and duties as those conferred upon the original Trustee hereunder. A
resigning Trustee shall transfer the Trust assets and shall deliver the
assets of the Trust to the successor Trustee as soon as practicable. The
resigning Trustee is authorized, however, to reserve such amount as may be
necessary for the payment of its fees and expenses incurred prior to its
resignation, and the Trust assets shall remain liable to reimburse the
resigning Trustee for all fees and costs, expenses or attorneys' fees or
losses incurred, whether before or after resignation, due solely to
Trustee's holding title to and administration of Trust assets.
6.6 SUCCESSOR'S DUTIES. A successor Trustee shall have no duty to audit
or otherwise inquire into the acts and transactions of its predecessor.
ARTICLE VII
AMENDMENT
7.1 POWER TO AMEND. This Trust Agreement may be amended by a written
instrument executed by Trustee and Employer. No such amendment shall
conflict with the terms of the Plan(s) nor shall it make the Trust
revocable after it has become irrevocable in accordance with Section 1.2.
7.2 LIMITATION ON AMENDMENTS FOLLOWING A CHANGE IN CONTROL. Following a
Change in Control, no amendment signed by the Employer and the Trustee
shall become effective without the written consent of a two-thirds
majority of the Participants then participating in the Plan.
Trustee may conclusively rely on Employer's certification that two-thirds
majority has voted in favor of amendment.
ARTICLE VIII
LIABILITIES
8.1 DECLARATION OF INTENT. To the full extent permitted by law, it is
the intent of this Article to relieve each fiduciary from all liability
for any acts or omissions of any other fiduciary or any other person and
to declare the absence of liabilities of all persons referred to in this
Article to the extent not imposed by law or by provisions of this Trust
Agreement. Each of the following Sections, in declaring such limitation,
is set forth without limiting the generality of this Section but in each
case shall be subject to the provisions, limitations and policies set
forth in this Section.
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8.2 LIABILITY OF THE TRUSTEE.
(a) The Trustee shall have no powers, duties or
responsibilities with regard to the administration of the Plans or
to determine the rights or benefits of any person having or claiming
an interest under the Plans or in the Trust or under this Trust
Agreement or to examine or control any disposition of the Trust or
part thereof which is directed by the Employer, as applicable.
(b) The Trustee shall have no liability for the adequacy of
contributions for the purposes of the Plans or for enforcement of
the payment thereof.
(c) The Trustee shall have no liability for the acts or
omissions of the Employer or Fiduciaries.
(d) The Trustee shall have no liability for following proper
directions of Employer or Employer's designated Fiduciaries, or any
Participant when such directions are made in accordance with this
Trust Agreement and the Plans.
(e) During such period or periods of time, if any, as Employer
or Investment Manager (collectively, "Fiduciary") is directing the
investment and management of Trust assets, the Trustee shall have no
obligation to determine the existence of any conversion, redemption,
exchange, subscription or other right relating to any securities
purchased on the directions of such Fiduciary if notice of any such
right was given prior to the purchase of such securities. If such
notice is given after the purchase of such securities, the Trustee
shall notify such Fiduciary. The Trustee shall have no obligation
to exercise any such right unless it is instructed to exercise such
right, in writing, by the Fiduciary within a reasonable time prior
to the expiration of such right.
(f) During such period or periods of time, if any, as a
Fiduciary is directing the investment and management of Trust
assets, if such Fiduciary directs the Trustee to purchase securities
issued by any foreign government or agency thereof, or by any
corporation domiciled outside of the United States, it shall be the
responsibility of the Fiduciary to advise the Trustee in writing
with respect to any laws or regulations of any foreign countries or
any United States territories or possessions which shall apply, in
any manner whatsoever, to such securities, including, but not
limited to, receipt of dividends or interest by the Trustee for such
securities.
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8.3 INDEMNIFICATION.
(a) The Employer hereby agrees to indemnify and hold harmless
the Trustee, its officers, directors, employees or agents, from and
against any and all liabilities, claims for breach of fiduciary duty
or otherwise, demands, damages, costs and expenses, including
reasonable attorney's fees, arising from (i) any act taken or
omitted by the Trustee in good faith in accordance with or due to
the absence of directions from the Employer, its agents, or any Plan
Participant, (ii) any act taken or omitted by a Fiduciary other than
the Trustee in breach of such Fiduciary responsibilities under the
Plan or this Agreement, and (iii) any action taken by the Trustee
pursuant to a notification of an order to purchase or sell
securities issued by Employer or a Plan Participant directly to a
broker or dealer.
(b) If the Trustee is named as a defendant in any lawsuit or
other proceeding involving the Plan or the Trust for any reason
including, without limitation, an alleged breach by the Trustee of
its responsibilities under this Agreement, the Employer hereby
agrees to indemnify the Trustee against all liabilities, costs, and
expenses, including reasonable attorneys' fees, incurred by the
Trustee unless the final judgment entered in the lawsuit or
proceeding holds the Trustee guilty of gross negligence, willful
misconduct, or a breach of fiduciary responsibility. If the final
judgment holds the Trustee guilty of gross negligence, willful
misconduct or a breach of fiduciary responsibility, the Employer
hereby agrees to indemnify the Trustee only against liability in
excess of the Trustee's allocable share of such liability.
(c) The Employer shall have the right, but not the obligation,
to conduct the defense of the Trustee in any legal proceeding
covered by this section. However, any legal counsel selected to
defend the Trustee must be acceptable to the Trustee, and the
Trustee may elect to choose counsel, including in-house counsel,
other than that selected by the Employer. The Employer may satisfy
all or any part of its obligations under this section through
insurance arrangements acceptable to the Trustee.
ARTICLE IX
DURATION, TERMINATION AND REPAYMENTS TO EMPLOYER
9.1 REVOCATION AND TERMINATION. The Trust shall not terminate until the
date on which Participants are no longer entitled to benefits pursuant to
the terms of the Plan(s). Upon termination of the Trust any assets
remaining in the Trust shall be returned to Employer. In the event the
Trust is terminated following the distribution of all payments and
benefits called for herein, from the date of such termination of the Trust
and until the final distribution of the remaining Trust assets, if any,
the Trustee shall continue to have all the powers provided under this
Trust Agreement that are necessary or desirable for the orderly
liquidation and distribution of the Trust.
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9.2 DURATION. This Trust shall continue in full force and effect for the
maximum period of time permitted by law and in any event until the
expiration of twenty-one years after the death of the last surviving
person who was living at the time of execution hereof who at any time
becomes a Participant in a Plan, unless this Trust is sooner terminated in
accordance with this Trust Agreement.
9.3 PAYMENTS TO THE EMPLOYER PRIOR TO TERMINATION. No part of the Trust
shall revert to the Employer at any time prior to the earlier of the
Employer's Insolvency, as defined in Article XI, or the satisfaction of
all liabilities under the Plans, as described in Section 9.1.
9.4 REVOCATION BY ALL PARTICIPANTS. Unless the Trust is revocable, upon
written approval of all Participants entitled to payment of benefits
pursuant to the terms of the Plan(s), Employer may terminate this Trust
prior to the time all benefit payments under the Plan(s) have been made.
All assets in the Trust at termination shall be returned to Employer.
Trustee may rely conclusively on Employer's directive that all
Participants have consented to such revocation and termination.
ARTICLE X
MISCELLANEOUS
10.1 EMERGENCIES AND DELEGATION.
(a) In case of an emergency, the Trustee may act in the
absence of directions from any other person having the power and
duty to direct the Trustee with respect to the matter involved and
shall incur no liability in so acting.
(b) By written notice to the Trustee, the Employer may
authorize the Trustee to act on matters in the ordinary course of
the business of the Trust or on specific matters upon the signature
of its delegate.
10.2 EXPENSES AND TAXES.
(a) The Employer, or at its option, the Trust, shall quarterly
pay the Trustee its expenses in administering the Trust and
reasonable compensation for its services as Trustee at a rate to be
agreed upon by the parties to this Trust Agreement, based upon
Trustee's published fee schedule. However, the Trustee reserves the
right to alter this rate of compensation at any time by providing
the Employer with notice of such change at least thirty (30) days
prior to its effective date. Reasonable compensation shall include
compensation for any extraordinary services or computations
required, such as determination of valuation of assets when current
market values are not published and interest on funds to cover
overdrafts. The Trustee shall have a lien on the Trust for
compensation and for any reasonable expenses including counsel,
appraisal, or accounting
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fees, and these shall be withdrawn from the Trust and may be
reimbursed by the Employer.
(b) Reasonable counsel fees, reasonable costs, expenses and
charges of the Trustee incurred or made in the performance of its
duties, expenses relating to investment of the Trust such as
broker's commissions, stamp taxes, and similar items and all taxes
of any and all kinds that may be levied or assessed under existing
or future laws upon or in respect to the Trust or the income
thereof, and the Trustee's charges for issuing distribution checks
to Participants or their representatives shall be paid from, and
shall constitute a charge upon the Trust.
(c) The Employer shall pay any federal, state or local taxes
on the Trust, or any part thereof, and/or the income therefrom. In
the event any Participant is determined to be subject to federal
income tax on any amount under this Trust Agreement prior to the
time of payment hereunder, the entire amount determined to be so
taxable shall, at the Employer's direction, be distributed by the
Trustee to such Participant from the Trust. For the above purposes,
a Participant shall be determined to be subject to federal income
tax with respect to the Trust upon the earlier of: (a) a final
determination by the United States Internal Revenue Service ("IRS")
addressed to the Participant which is not appealed to the courts;
(b) an opinion of legal counsel designated in writing by the
Employer, addressed to the Employer and the Trustee, that, by reason
of Treasury Regulations, amendments to the Code, published IRS
rulings, court decisions or other substantial precedent, amounts
hereunder subject the Participant to federal income tax prior to
payment. The Employer shall undertake at its discretion and at its
sole expense to defend any tax claims described herein which are
asserted by the IRS against any Participant, including attorney fees
and costs of appeal, and shall have the sole authority to determine
whether or not to appeal any determination made by the IRS or by a
lower court. The Employer also agrees to reimburse any Participant
under this Section for any interest or penalties in respect of tax
claims hereunder upon receipt of documentation thereof.
10.3 THIRD PARTIES.
(a) No person dealing with the Trustee shall be required to
follow the application of purchase money paid or money loaned to the
Trustee nor inquire as to whether the Trustee has complied with the
requirements hereof.
(b) In any judicial or administrative proceedings, only the
Employer and the Trustee shall be necessary parties and no
Participant or other person having or claiming any interest in the
Trust shall be entitled to any notice or service of process (except
as required by law). Any judgment, decision or award entered in any
such proceeding or action shall be conclusive upon all interested
persons.
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10.4 ADOPTION BY AFFILIATED EMPLOYER. Any affiliate of the Employer (an
"Affiliated Employer") may adopt one or more of the Employer's Plans with
the approval of the Employer, and the Affiliated Employer shall
concurrently become a party to this Trust Agreement by giving written
notice of its adoption of the Plans and this Trust Agreement to the
Trustee. Upon such written notice, the Affiliated Employer shall become a
signatory to this Trust Agreement.
10.5 BINDING EFFECT; SUCCESSOR EMPLOYER. This Trust Agreement shall be
binding upon and inure to the benefit of any successor to the Employer or
its business as the result of merger, consolidation, reorganization,
transfer of assets or otherwise and any subsequent successor thereto. In
the event of any such merger, consolidation, reorganization, transfer of
assets or other similar transaction, the successor to the Employer or its
business or any subsequent successor thereto shall promptly notify the
Trustee in writing of its successorship and shall promptly supply
information required by the Trustee.
10.6 RELATION TO PLANS. All words and phrases used herein shall have the
same meaning as in the Plans, and this Trust Agreement and the Plans shall
be read and construed together. Whenever in the Plans it is provided that
the Trustee shall act as therein prescribed, the Trustee shall be and is
hereby authorized and empowered to do so for all purposes as fully as
though specifically so provided herein or so directed by the Employer.
10.7 MEDIATION AND ARBITRATION OF DISPUTES. If a dispute arises under
this Trust Agreement between or among the Employer and Trustee or any
Participant, except as provided in Sections 5.1(b) and 6.4, the parties
agree first to try in good faith to settle the dispute by mediation under
the Commercial Mediation Rules of the American Arbitration Association.
Thereafter, any remaining unresolved controversy or claim arising out of
or relating to this Agreement, or the performance or breach thereof, shall
be decided by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and Title 9 of
California Code of Civil Procedure Sections 1280 et seq. The sole
arbitrator shall be a retired or former Judge associated with the American
Arbitration Association. Judgement upon any award rendered by the
arbitrator shall be final and may be entered in any court having
jurisdiction. Each party shall bear its own costs, attorney's fees and its
share of arbitration fees. The Alternate Dispute Resolution Agreement in
this Agreement does not constitute a waiver of the parties' rights to a
judicial forum in instances where arbitration would be void under
applicable law, and does not preclude Bank from exercising it's rights to
interplead the funds of the Account at the cost of the Account.
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10.8 PARTIAL INVALIDITY. Any provision of this Trust Agreement
prohibited by law shall be ineffective to the extent of any such
prohibition, without invalidating the remaining provisions hereof. In the
event of any such holding, the Employer and Trustee and, if applicable,
Participants, will immediately amend this Trust Agreement as necessary to
remedy any such defect.
10.9 CONSTRUCTION. This Trust Agreement shall be governed by and
construed in accordance with the laws of California.
10.10 NOTICES. Any notice, report, demand or waiver required or permitted
hereunder shall be in writing, shall be deemed received upon the date of
delivery if given personally or, if given by mail, upon the receipt
thereof, and shall be given personally or by prepaid registered or
certified mail, return receipt requested, addressed to Employer and
Trustee as listed below in Article XII; if to a Participant, to the last
mailing address provided to the Trustee with respect to such individual,
provided, however, that if any party or his or its successor shall have
designated a different address by written notice to the other parties,
then to the last address so designated.
ARTICLE XI
DISTRIBUTIONS IN THE EVENT OF INSOLVENCY OF EMPLOYER
11.1 TRUSTEE AND EMPLOYER RESPONSIBILITY UPON NOTICE OF EMPLOYER'S INSOLVENCY:
(a) Insolvency. Trustee shall cease payment of benefits to
Participants if the Employer is Insolvent. Employer shall be
considered "Insolvent" for purposes of this Trust Agreement if (i)
Employer is unable to pay its debts as they become due, or (ii)
Employer is subject to a pending proceeding as a debtor under the
United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as
provided in Section 1.4 hereof, the principal and income of the
Trust shall be subject to claims of general creditors of Employer
under federal and state law as set forth below.
(1) The Board of Directors and Chief Operating Officer of
Employer shall have the duty to inform Trustee in writing of
Employer's Insolvency. If a person claiming to be a creditor of
Employer alleges in writing to Trustee that Employer has become
Insolvent, Trustee shall determine whether Employer is Insolvent
and, pending such determination, Trustee shall discontinue
payment of benefits to Participants. If Trustee is unable to
obtain information sufficient to ascertain Insolvency, Trustee
may seek instructions of a court of law or submit the matter for
arbitration before the American Arbitration Association or
interplead the Trust Assets at the expense of the Trust.
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(2) Unless Trustee has actual knowledge of Employer's
Insolvency, or has received written notice from Employer or a
person claiming to be a creditor alleging that Employer is
Insolvent, Trustee shall have no duty to inquire whether Employer
is Insolvent. Trustee may in all events rely on such evidence
concerning Employer's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a
determination concerning Employer's solvency.
(3) If at any time Trustee has determined that Employer is Insolvent,
Trustee shall discontinue payments to Participants and shall
hold the assets of the Trust for the benefit of Employer's
general creditors. Nothing in this Trust Agreement shall in
any way diminish any rights of Participants to pursue their
rights as general creditors of Employer with respect to
benefits due under the Plan(s) or otherwise.
(4) Trustee shall resume the payment of benefits to Participants
in accordance with Section 4.2 of this Trust Agreement only
after Trustee has determined that Employer is not Insolvent
(or is no longer Insolvent).
(c) Determination of Insolvency. Upon receipt of the
aforesaid written notice of the Employer's Insolvency from a person
claiming to be a creditor of the Employer, the Trustee shall notify
the Employer, and the Employer, within thirty (30) days of receipt
of such notice, shall engage an arbitrator (the "Arbitrator")
acceptable to Trustee, from the American Arbitration Association to
determine the Employer's solvency or Insolvency. The Employer shall
cooperate fully and assist the Arbitrator, as may be requested by
the Arbitrator, in such determination and Employer or Trust shall
pay all costs relating to such determination. The Arbitrator shall
notify the Employer and Trustee separately by registered mail of its
findings. If the Arbitrator determines that the Employer is solvent
or if once found Insolvent the Employer is no longer Insolvent, the
Trustee shall resume holding the Trust assets for the benefit of the
Participants and may make any distributions called for under this
Trust Agreement, including any amounts which should have been
distributed during the period when the Trustee suspended
distributions in response to a notice of the Employer's Insolvency,
including earnings (or losses) on such suspended distributions. If
the Arbitrator determines that the Employer is Insolvent or is
unable to make a conclusive determination of the Employer's
Insolvency, the Trustee shall continue to retain the assets of the
Trust until the Employer's status of solvency or Insolvency is
decided by a court of competent jurisdiction or it distributes all
or a portion of the Trust assets to any duly appointed receiver,
trustee in bankruptcy, custodian or to the Employer's general
creditors, but only as such distribution is ordered by a court of
competent jurisdiction.
The Trustee shall have no liability for relying upon the
determination of the Arbitrator as to the Employer's solvency or
Insolvency.
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(d) If a court of competent jurisdiction orders distribution of only
part of the Trust assets and does not specify the manner in which Trust
assets are to be liquidated, the Trustee shall liquidate Trust assets as
follows:
(i) If such liquidation is ordered prior to a Change in Control,
as directed by the Employer; or
(ii) If such liquidation is ordered after a Change in Control or
upon Insolvency of Employer, as determined by the Trustee in its sole and
absolute discretion.
If the Employer fails to provide instructions under subparagraph (i)
above, as to the manner of liquidation within five (5) business days
prior to the date the Trustee is required to comply with the court's
order, the Trustee shall liquidate and shall have the authority to order
any Investment Manager to liquidate the Trust assets in such manner as
the Trustee shall determine in its sole and absolute discretion. The
Trustee shall not be liable for any damages resulting from the Trustee's
exercise in good faith of its power to liquidate assets as provided in
this paragraph.
(e) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to subsection
(b)(3) hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of all
payments due to Participants under the terms of the Plan(s) for the period
of such discontinuance, less the aggregate amount of any payments made to
Participants by Employer in lieu of the payments provided for hereunder
during any such period of discontinuance of which Trustee has actual
knowledge.
23
Nothing in this Trust Agreement shall in any manner diminish any right of a
Participant to pursue his or her rights as a general creditor of the Employer
with regard to payments under the Trust or otherwise.
ARTICLE XII
EFFECTIVE DATE
The effective date of this Trust Agreement shall be September 1, 1998.
Executed at Rancho Cordova, CA.
Foundation Health Systems, Inc.
UNION BANK OF CALIFORNIA, N.A. "Employer", Sponsor of the
Trustee
000 Xxxxxxx Xx., 00xx Xxxxx Foundation Health Systems, Inc.
-------------------------------- Deferred Compensation Plan
(Address) ---------------------------------
(PLAN)
Xxx Xxxxxxxxx, XX 00000
--------------------------------
00000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xx 00000
--------------------------------
(Address)
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------- ------------------------
Xxx Xxxxxx Xxxxx X. Xxxxxxxx
-------------------------- ------------------------
(typed or printed name) (typed or printed name)
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxx Xxxxxxx
-------------------------- ------------------------
Xxxxxx X. Xxxxxxxx Xxx Xxxxxxx
-------------------------- ------------------------
(typed or printed name) (typed or printed name)
Approved by Counsel to Employer:
-------------------------------
Counsel
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