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10(j) Trust Agreement dated February 24, 1992 between the Company and State
Street Bank and Trust Company relating to 401(k) Plan.
AUTOMATIC DATA PROCESSING
PROTOTYPE 401(k) PLAN
TRUST AGREEMENT
AGREEMENT dated February 24, 1992 between Skylands Community Bank
With offices at 00-00 Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
00000 (the "Company") And STATE STREET BANK AND TRUST COMPANY, as trustee (the
"Trustee"), with offices located at 000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000.
This Agreement establishes a trust fund (the "Trust") forming part of the
plan established by the Company using the Automatic Data Processing Prototype
401(k) Plan ( the "Plan") and a related adoption agreement. Unless the context
clearly indicates otherwise, any terms defined in the Plan docurnent shall have
the same meaning when used in this Agreement,
The Company and the Trustee agree as follows:
1.1 ESTABLISHMENT OF TRUST.
ARTICLE I - ESTABLISHMENT
The Company establishes the Trust, which will consist of amounts contributed or
transferred to the Plan in accordance with its terms, investments and proceeds
thereof and earnings thereon, reduced by all payments from the Trust. All assets
from time to time held under the Plan will be held in the Trust and will be
subject to this Agreement. The Trustee accepts the Trust and agrees to
administer the Trust as provided in this Agreement. However, the Trustee will
have no liability or responsibility for the validity, tax qualification or legal
effect of the Company's Plan.
2.1 ACCEPTANCE OF CONTRIBUTIONS TO TRUST.
ARTICLE 2 - DUTIES OF TRUSTEE
The Trustee shall have the sole responsibility for selection of the
Investment Funds to be made available to the Company under the Plan
(from amongst which the Administrative Committee shall make its
selection pursuant to Section 4.11(a) hereof), provided, however,
that the Company, by establishing and maintaining the Trust, is the
responsible fiduciary with respect to the selection of such
Investment Funds as the available Investment Funds under the Plan,
and the Administrative Committee is the fiduciary responsible for
the selection of specific Investment Funds from those available, all
as provided in Section 4.1. Each Investment Fund shall be managed by
the Trustee, and there shall be no investment managers (as defined
by ERISA Section 3(38)) under the Trust. The Company and the Trustee
hereby acknowledge that, in addition to the limitations contained in
Section 10.6 hereof, neither the Sponsor nor ADP (nor any affiliate
of ADP) has any authority to select such Investment Funds.
(b) The Trustee will accept such contributions made on behalf of
Participants under the Plan as it receives from time to time from
the Company or a Participating Affiliate. The Trustee will also
accept Rollover Contributions to the Trust made by Participants in
accordance with the Plan. At the direction of the Administrative
Committee, the Trustee will also accept Transfer Contributions to
the Trust from another qualified plan or qualified annuity plan
covering Participants. All such contributions will be in cash only.
(c) The Trustee will have no responsibility for determining the proper
time or amount of any contribution to the Trust, for enforcing the
collection of any contribution to the Trust, or for determining that
contributions satisfy any applicable requirement of the Plan or law
including, without limitation, the minimum contributions
requirements of Code Section 416, Also, the Trustee will have no
responsibility for determining whether the amount of any
contribution (or the portion of such contribution allocated to the
Account(s) of a Participant) meets any applicable legal requirements
or is within any applicable limit including, without limitation, the
limits imposed by Code Sections 401(k) and (m), 402(g), 404 and 415.
The contribution or transfer of any amount to the Trustee hereunder
constitutes a certification by the Company and the Administrative
Committee that such contribution or transfer is in accordance with
the Plan.
2.2 MAINTAIN ACCOUNTS.
The Trustee will maintain accounts or other trust accounting records, and
will make credits to or charges against such accounts, as necessary for
the Trustee to carry out its responsibilities under this Agreement.
2.3 INVESTMENTS.
The Trustee will invest the assets of the Company's Plan as directed in
accordance with the relevant provisions of the Plan document and related
adoption agreement, this Agreement (including particularly Sections 4.1
and 4.2 hereof), and any other applicable agreement between the Company
and the Trustee. In investing the assets of a Participant's Account(s),
the Trustee will follow the investment directions of t)e Participant; the
intention ofthe parties being that the Plan and this Agreement comply with
ERISA Section 404(c).
2.4 MAKE PAYMENTS.
Upon receipt of written directions from the Administrative Committee
certifying that an amount is payable to or for the benefit of a
Participant or other person under the Plan, whether as a distribution,
transfer, withdrawal or the disbursement of a loan, the Trustee will pay
such amount (or begin installment payments) in accordance with such
directions, and the Trustee will be fully protected in, and will not incur
any liability for, so doing. The Administrative Committee's directions
will include all information necessary to enable the Trustee to make such
payment and the Administrative Committee's giving of such directions
constitutes a certification from the Administrative Committee to the
Trustee that such payment is in accordance with the Plan. The Trustee will
have no responsibility for any delay in making payment pending receipt
from the Administrative Committee of all information needed to make the
payment (including proper income tax withholding instructions signed by
the recipient), for the application of any payment by the recipient, for
determining the rights or benefits of any person in the Trust or under the
Plan, for calculating or determining any amount to be distributed to a
Participant or Beneficiary (including, without limitation, any alternate
payee as defined in Code Section 414(p)(8)) for compliance with any
applicable requirements for minimum distributions, for the administration
of the Plan, or for the adequacy of the Trust to meet all liabilities
arising under the Plan.
ARTICLE 3 - POWERS OF TRUSTEE
3.1 ADDITIONAL POWERS OF TRUSTEE.
In addition to and not in limitation of such powers as the Trustee has by
law or under any other provisions of the Plan and this Agreement, but
subject to the provisions of this Agreement and the requirements of
applicable law, the Trustee will have the powers specified in this Section
3.1. As provided herein, the Trustee will exercise such powers concerning
investments or other discretionary actions only as a directed Trustee, and
will not be liable or
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responsible for the consequences of its exercising any such power as
directed:
(a) to deal with all or any part of the Trust assets including the power
to acquire and dispose of assets;
(b) to hold any part of the Trust assets in cash pending the investment
or distribution thereof, without liability for interest,
(c) to enforce by suit or otherwise or to waive its rights on behalf of
the Trust, and to defend claims asserted against it or the Trust;
provided that the Trustee will not be required to institute or
defend any court or administrative proceeding unless it has first
been indemnified to its satisfaction for the costs and expenses of
such proceeding;
(d) to compromise, adjust and settle any and all claims against or in
favor of it or the Trust;
(e) to vote, or give proxies to vote, any stock or other security held
in the Trust, and to waive notice of meetings;
(f) to oppose, or consent to and participate in, the reorganization,
merger, consolidation or readjustment of the finances or
capitalization of any enterprise, to pay assessments and expenses in
connection therewith, and to deposit securities under deposit
agreements, to exercise or sell any conversion privileges or
subscription rights, and to make payments incidental thereto;
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(g) to hold securities unregistered, or to register them in its own name
(with or without indication of its fiduciary capacity hereunder) or
in the names of nominees, provided that the Trustee's records will
at all times show that such property is owned by the Trust,
(h) to make, execute, acknowledge and deliver any and all documents that
it deems necessary or appropriate to carry out its power and duties
hereunde r ' and
(1) to do all acts and things, not specified herein, which it deems
advisable to carry out the Trust, and generally to exercise any of
the powers of an owner with respect to ail or any part of the Trust.
3.2 USE OF AGENTS.
The Trustee may retain an agent or service provider (which may be the
Sponsor, Automatic Data Processing, Inc. ("ADP"), or an affiliate of ADP
or the Trustee) to perform any of its recorckeeping, custodial or other
duties hereunder.
ARTICLE 4 - INVESTMENT FUNDS
4.1 ADMINISTRATIVE COMMITTEE'S DESIGNATION.
(a) By establishing and maintaining this Trust, the Company has selected
the Investment Funds which have been made available by the Trustee
as the investment vehicles to be available to Participants under the
Company's Plan, subject, however, to the Administrative Committee's
right to designate Investment Funds pursuant to this Section 4.1
(a). If the Trustee makes more than three Investment Funds available
to Plans established using the Sponsor's prototype documents, the
Administrative Committee will designate from among such Investment
Funds those which will be available under the Company's Plan. In
designating Investment Funds, the Administrative Committee will
comply with any minimum requirements of the Trustee intended to
insure that a sufficient number and variety is available under the
Company's Plan to meet the requirements of ERISA Section 404(c). The
Trustee shall make sufficient Investment Funds available to ensure
compliance with ERISA Section 404(c).
(b) Investment Funds will include common, collective or group trust
funds (a "group trust") maintained by the Trustee for investment by
qualified plans. Where a group trust is designated as an Investment
Fund, the Trustee may combine in the group trust assets of the Trust
with assets of other pension or profit-sharing or other plans or
trusts qualified under Code Section 401 (a) and exempt from tax
under Code Section 501 (a), or with assets of individual retirement
accounts exempt from tax under Code Section 408(e) or governmental
units described in Code Section 818(a)(6), and permitted by existing
or future rulings of the United States Treasury Department to pool
their respective funds in a group trust. The provisions of the group
trust shall be deemed a part of this Agreement with respect to any
such investment.
4.2 PARTICIPANT INVESTMENT CONTROL.
(a) Each Participant will have investment control over his Account(s).
Subject to the administrative rules and procedures of the Trustee,
each Participant will specify the Investment Fund or Investment
Funds available under the Company's Plan in which contributions to
the Plan on his behalf will be invested. Notwithstanding the
foregoing, the Administrative Committee and the Trustee may agree to
permit each Participant to transmit his investment instructions
directly to the Trustee by telephonic instructions pursuant to
Section 4.3(d). Similarly, subject to the administrative rules of
the Trustee and ERISA Section 404(c), a Participant may transfer any
amount in his Account(s) from one Investment Fund to another
Investment Fund available under the Company's Plan.
(b) A Participant will exercise his investment control under the
proceeding paragraph by delivering written instructions to the
Administrative Committee. The Administrative Committee will
consolidate Participants' investment instructions and will send such
instructions to the Trustee. The Trustee will invest future
contributions on behalf of a Participant in accordance with such
instructions, or the Trustee will transfer amounts from one
Investment Fund to another in accordance with such instructions. Any
such transfer will be effected in accordance with the Trustee's
administrative procedures-
(c) Each Participant will have full responsibility for the investment
results of his investment instructions under the preceding two
paragraphs. It is intended that ERISA Section 404(c) will apply to
the Company's Plan and that, as provided in such Section 404(c), the
Trustee, the Sponsor, ADP, the Company, and the Administrative
Committee will be fully protected in carrying out the Participant's
investment directions.
4.3 UNCLEAR OR MISSING INSTRUCTIONS; TRANSMISSION OF INSTRUCTIONS.
(a) If investment instructions accompanying contributions or otherwise
regarding investments for a Participant's Account(s) are not
received or are unclear in opinion of the Trustee, the Trustee may
hold any part of the assets affected by such missing or unclear
instructions in cash, or may return contributions, in either case
without liability for interest, rising or failing securities prices,
or other income, pending receipt of clear and complete instructions.
The Trustee will, in the case of missing or unclear instructions,
seek prompt clarification of unclear instructions or prompt
furnishing of missing instructions.
(b) The Trustee may rely upon written investment instructions from the
Administrative Committee. Such instructions may also be given to the
Trustee by facsimile or other electronic transmission which contains
duplicate or facsimile signatures until the Trustee receives notice
in writing from the Administrative Committee that the use of
facsimile or other electronic transmissions is no longer authorized.
(c) If the Trustee's procedures permit telephone investment
instructions, the Trustee may rely upon telephonic investment
instructions from any individual identified by the Administrative
Committee as authorized to communicate with the Trustee under this
Agreement unless the Trustee receives notice in writing that the use
of telephonic instructions is no longer authorized. Any investment
instructions given by telephone will be promptly confirmed in
writing by the Administrative Committee. If the Trustee fails to
receive a written confirmation of any investment instructions
transmitted by telephone within five business days following receipt
of such instructions, or if written confirmation conflicts with such
instruction, the Trustee will promptly notify the Administrative
Committee of such fact and request: (i) a delivery of such written
confirmation; or (ii) additional instructions if there is a conflict
between the telephonic instructions and the written confirmation.
The Trustee will have no other responsibility or liability with
regard to accepting investment instructions by telephone.
(d) Notwithstanding the foregoing, if the Trustee and the Administrative
Committee agree to permit each Participant to transmit his
investment instructions directly to the Trustee by telephone, each
Participant shall be assigned a personal identification number. The
Trustee shall be entitled to rely on any telephone instruction by an
individual identifying himself as a Participant as long as the
correct personal identification number is provided by such
individual. No written confirmation of any such Participant
investment instruction shall be required. The Trustee will have no
other responsibility or liability with regard to accepting
Participant investment instructions by telephone. The Trustee may
record any telephone instructions given by the Participant and, by
applying for and obtaining a personal identification number, the
Participant shall consent to any such recording.
4.4 LIMITATION ON INVESTMENTS.
(a) Notwithstanding any provision elsewhere herein to the contrary:
(i) no assets of the Trust, excluding assets which have been
invested in an Investment Fund, shall be invested in any
security issued by the Company or any affiliate of the
Company;
(ii) each Investment Fund shall limit investment in any security
issued by any Company which establishes a plan using the
Sponsor's prototype documents or by any affiliate of any such
Company to the extent required for the exemption contained in
Section 3(a)(2) of the Securities Act of 1933, as amended, to
be available with respect to the Plan and the interests
therein; and
(iii) each Investment Fund shall, to the extent required to satisfy
the requirements of ERISA Section 404(c), prohibit investment
in any security issued by any Company which establishes a Plan
using the Sponsor's prototype documents or by any affiliate of
any such Company.
(b) The Company will promptly advise the Trustee if and/or when the
Company or any of its affiliates is or becomes the issuer of any
publicly traded securities.
ARTICLE 5 - PROTECTIONS OF TRUSTEE
5.1 RELIANCE BY TRUSTEE.
(a) The Trustee may rely upon any decision of the Administrative
Committee or Company purporting to be made under the Plan, and upon
any information, statements, certifications, instructions or
directions submitted by the Company or the Administrative Committee
(including statements concerning the entitlement of any Participant
to benefits under the Plan or directions to make payments). The
Trustee will not be bound to inquire as to the basis of any such
decision, information, statements, certifications, instructions or
directions, and will incur no obligation or liability for any action
taken or omitted in good faith by the Trustee in reliance thereon.
(b) Whenever the Trustee is permitted or required to act upon the
instructions or directions of the Company, the Administrative
Committee or a Participant, the Trustee will be fully protected in,
and will not incur any liability for, not acting in the absence
thereof.
(c) The Company will certify to the Trustee the names of the members of
the Administrative Committee (and of any person authorized to act on
behalf
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of the Company or the Administrative Committee for purposes of the
Plan) and will provide the Trustee with specimen signatures of any
such person or persons. The Trustee may assume the authority of such
person or persons continues in effect until the Trustee receives
written advice from the Company or the Administrative Committee to
the contrary.
(d) The Trustee may consult with legal counsel (who may be counsel to
the Trustee or to the Company) concerning any questions which may
arise with respect to its rights and duties hereunder, and the
opinion of such counsel will be full and complete protection in
respect of, and the Trustee will not incur any liability for, any
action taken or omitted hereunder in good faith by the Trustee in
accordance with the opinion of such counsel.
5.2 ABSENCE OF INSTRUCTIONS.
If the Trustee receives no instructions from the Administrative Committee
or the Company in response to communications sent to the Administrative
Committee or the Company at the last known address of either as shown in
the records of the Trustee, the Trustee may make such determination with
respect to distributions and other administrative matters arising under
the Plan as it considers reasonable and in accordance with the provisions
of the Plan. Any determinations so made will be binding on all persons
having or claiming any interest under the Plan or Trust, and the Trustee
will incur no obligation or responsibility for any such determination made
or for any action taken by the Trustee in good faith in such
circumstances.
5.3 INDEMNIFICATION OF TRUSTEE.
The Company and the Administrative Committee and their respective
successors, assigns or legal representatives, will fully indemnify and
save harmless the Trustee and its employees, agents, successors and
assigns, from any loss (including reasonable attorneys' fees), liability
or responsibility arising out of the Trustee's actions or inactions
hereunder, unless such loss or liability arises out of the Trustee's
negligence, breach of its fiduciary duty, bad faith, or willful or gross
misconduct.
5.4 ALLOCATION OF RESPONSIBILITY.
The Trustee shall be responsible only for those functions which have been
assigned to it under the separate Plan document or under this Agreement.
Notwithstanding any provision elsewhere herein to the contrary, ~a) if and
to the extent that any non -discretionary administrative functions are
allocated to the Sponsor or ADP (or an affiliate of ADP) pursuant to a
written agreement to which the Company is a party then, except to the
extent otherwise provided in such agreement, the Trustee shall have no
responsibility for the performance of such functions and shall incur no
liability or obligations with respect thereto, (b) the Trustee shall be
entitled to rely upon information or instructions provided to it by the
Sponsor or ADP (or an affiliate of ADP) to the same extent as if such
information or instructions had been provided by the Administrative
Committee or the Participant, and (c) the Trustee shall have no
responsibility for information which may be in the possession of the
Sponsor or ADP (or any affiliate of ADP) until such information has been
received by the Trustee.
ARTICLE 6 - FEES AND EXPENSES
6.1 FEES AND EXPENSES.
(a) The Trustee's fees for performing its duties hereunder will be such
amounts as it establishes from time to time in its fee schedule
(provided that the Trustee may provide for different fees in a
written fee agreement with the Company). The Trustee may change its
fee schedule (or fee agreement) upon 60 days' advance written notice
to the Company. Such fees will be payable for each calendar month
and will not be prorated for periods of less than one calendar
month.
(b) The Trustee may charge a reasonable fee in addition to its normal
fees if it assumes any of the Administrative Committee's obligations
under the Plan, or if it provides any service not contemplated in
the fee schedule and which the Trustee deems to be necessary or
desirable or which the Administrative Committee or the Company
requests.
(c) ADP's annual maintenance fee shall be paid monthly in arrears, in
twelve installments, based on the value of all Plan assets as of the
last day of each month. Such charges shall be paid promptly after
the end of each month from the assets of the Trust. The Trustee is
hereby authorized to liquidate assets in the Trust in order to
provide for payment of such charges to ADP.
(d) The Company may authorize that all or any portion of the Company's
other fees and expenses of administering the Plan be paid from Trust
assets, and the Trustee will pay such fees and expenses as soon as
practicable (but no later than ten (10) days) after receiving notice
from the Company. The Company hereby authorizes that any and all
fees due to ADP under its Administrative Services Agreement with the
Company be paid, at ADP's request, from Trust assets if such fees
are not paid by the Company within 30 days of the date they are due
to be paid to ADP. The Trustee shall be fully protected in, and
shall not incur any liability for, any payment to ADP pursuant to
the preceding sentences.
(e) The Trustee's fee, any taxes of any kind which may be levied or
assessed upon or in respect of the Trust, and any and all expenses
reasonably incurred by the Trustee will, unless paid by the Company
at its option, be paid from the Trust. In order to provide for
payment of any such fee, taxes or expense, or the payment of any
other fee or expense of administering the Plan authorized by the
Company, the Trustee in its discretion may partially or fully
liquidate any asset in the Trust without liability for any loss
occasioned thereby~ in any such case, the Trustee will to the extent
reasonably practicable allocate expenses (and consequent liquidation
of assets) to the account(s) that gave rise to the fee, tax or
expense. Any expenses of the Trustee which are not paid from the
Trust for whatever reason will be the responsibility of the Company.
6.2 ERISA BOND.
The Trustee, and any other person who handles Plan assets, will be bonded
but only to the extent (if at all) required under ERISA, and no other bond
or security will be required for the faithful performance of their duties
hereunder.
ARTICLE 7 - ACCOUNTS AND REPORTS
7.1 ACCOUNTS AND REPORTS.
(a) The Trustee will keep full accounts of all its receipts,
disbursements and other transactions hereunder, and will determine
the fair market value of the assets of the Trust as of each
Valuation Date provided for under the Plan (and as of the last
business day of the Plan Year if not otherwise a Valuation Date).
The fiscal year of the Trust will coincide with the Plan Year.
Within a reasonable time after the end of the Plan Year, or within a
reasonable time after its removal or resignation or the termination
of the Trust, the Trustee will render to the Administrative
Committee a consolidated account of all transactions and other
actions taken in connection with its administration of the Trust
since the previous such accounting.
(b) No person other than the Administrative Committee will have the
right to demand or receive any report or account from the Trustee.
The written approval of any account by the Administrative Committee
will be final and binding upon the Administrative Committee, the
Company, the Participants and all persons who then are or thereafter
become interested in the Trust as to all matters and transactions
stated or shown therein. The failure of the Administrative Committee
to notffy the Trustee within 60 days after the Trustee's sending of
any account of its objections (if any) to the account will be the
equivalent of written approval. If the Administrative Committee
files any objections within such 60 day period with respect to any
matters or transactions stated or shown in the account and the
Administrative Committee and the Trustee cannot resolve such
objections, the Trustee will have the right to have such objections
settled by judicial proceedings. Nothing herein will deprive the
Trustee of the right to have a judicial settlement of its accounts.
In any proceeding for a judicial settlement of any account or for
instructions, the only necessary parties will be the Trustee and the
Administrative Committee (or, in the absence of an Administrative
Committee, the Company). In order to save the Trust from the expense
that might otherwise be incurred, it is a condition to the
acquisition of any interest in the Trust that no person other than
the Administrative Committee may institute or maintain any action or
proceeding against the Trustee (i) without first requesting the
Administrative Committee to resolve the question with the Trustee
and (ii) until after the Administrative Committee has had a
resonable opportunity to resolve such question or has declined to
pursue such question with the Trustee.
ARTICLE 8 - RESIGNATION OR REMOVAL OF TRUSTEE; TRANSFERS TO OTHER TRUSTS
8.1 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may resign at any time by giving 60 days' written notice
to the Company, ADP and the Sponsor. The Company may remove the
Trustee at any time by giving 60 days' written notice to the
Trustee, ADP, and the Sponsor. In either case, the notice period may
be reduced to such shorter period as the Trustee, ADP, the Sponsor
and the Company agree upon. The Trustee's removal or resignation
will be effective upon the last day of the notice period or, if
later, the acceptance of the Trust by the successor Trustee. Until
the effective date of the appointment of a successor Trustee (or the
termination of the Trust and complete distribution of its assets),
the incumbent Trustee will have full authority and responsibility to
act as Trustee hereunder.
(b) When the Trustee's resignation or removal becomes effective, the
Trustee will perform all acts necessary to transfer the assets of
the Trust and
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copies of the records of the Trust (and any other records being
maintained by the Trustee) to its successor. However, the Trustee
may reserve such portion to the Trust assets as it may reasonably
determine to be necessary for payment of its fees and any taxes and
expenses (including any fees and expenses of any person or entity
authorized by the Company to be paid from Trust assets), any balance
of such reserve remaining after payment of such fees, taxes and
expenses will be paid over to its successor.
(c) The resignation or removal of the Trustee will not terminate the
Trust. In the event of any vacancy in the position of Trustee,
whether by the resignation or removal of the Trustee, the Company
will appoint a successor Trustee and such appointment will become
effective upon the acceptance of its office by the successor
Trustee. If the Company does not appoint such a successor within 60
days after notice of resignation or removal is given, the Trustee
may appoint such a successor or apply to a court of competent
jurisdiction for such appointment. Each successor Trustee so
appointed and accepting the office of Trustee hereunder will have
all of the rights and powers and all of the duties and obligations
of the original Trustee under this Agreement.
(d) In the event that either (i) the Company removes the incumbent
Trustee without the Sponsor's written consent, or (ii) following the
resignation or removal of the incumbent Trustee appoints any
successor Trustee without the Sponsor's written consent, the Company
may no longer participate in the prototype Plan and Trust.
(e) No Trustee will be liable or responsible for anything done or
omitted in the administration of the Trust before it became Trustee
or after it ceases to be Trustee.
8.2 TRANSFERS TO OTHER TRUSTS.
(a) The Company may direct that all or a portion of the assets of the
Trust established hereunder be transferred from the Trustee to the
trustee of another trust established under the Plan at any time by
giving 60 days' written notice to the Trustee, ADP, and the Sponsor.
The notice period may be reduced to such shorter period as the
Trustee, ADP, the Sponsor and the Company agree upon. The transfer
will be effective upon the last day of the notice period or, if
later, the acceptance of the assets being transferred by such other
trustee. Until the effective date of the transfer of any such
assets, the Trustee will continue to have full authority and
responsibility to act as Trustee hereunder with respect to such
assets.
(b) When the transfer becomes effective, the Trustee will perform all
acts necessary to transfer the assets to be transferred from the
Trust and copies of the records of the Trust (and any other records
being maintained by the Trustee) to the other trustee.
(c) In the event the Company directs that any assets of the Trust be
transferred to the trustee of any other trust without the Sponsor's
written consent, the Company may no longer participate in the
prototype Plan and Trust.
(d) The Trustee will not be liable or responsible for any assets which
have been transferred to any other trust pursuant to this Section
8.2 or for any actions or omissions taken with respect to such
assets after such transfer.
ARTICLE 9 - AMENDMENT AND TERMINATION
9.1 AMENDMENT AND TERMINATION.
The Trustee may at any time and from time to time amend any or all
provisions of this Agreement. A copy of any such amendment will be
delivered to the Sponsor and the Company at least 60 days before the
effective date of such amendment (or such shorter notice period as the
Trustee, the Sponsor and the Company agree to), provided that, to the
extent necessary to retain the Plan's tax qualification, any amendment may
take effect retroactively. The Company will have the right to terminate
this Trust and will deliver a notice of termination specifying the
effective date thereof to the Trustee. No amendment or termination will
cause this Agreement to be inconsistent with the provisions of the Plan or
ERISA.
9.2 EFFECT OF TERMINATION.
In the event of termination of this Agreement, the Trustee will continue
to hold the Trust assets for application and disbursement in accordance
with the applicable terms of the Plan. The Trust created hereunder will
terminate upon the distribution or application of all the assets of the
Trust.
ARTICLE 10 - MISCELLANEOUS PROVISIONS
10.1 RELATIONSHIP TO PLAN DOCUMENT.
Certain provisions affecting the Trustee appear in the separate basic Plan
document and are not repeated in this Agreement. As indicated in the
preamble to this Agreement, unless the context clearly indicates
otherwise, any term defined in the Plan document will have the same
meaning when used in this Agreement. If and to the extent that any
provisions of this Agreement are inconsistent with any provision of the
Plan document affecting the rights or benefits of Participants, the Plan
document will control.
10.2 EXCLUSIVE BENEFIT.
In directing the Trustee hereunder, the Administrative Committee and the
Company will follow the provisions of the Plan and will not give any
direction at any time, either during the existence or upon the
discontinuance of the Plan, that would cause any assets of the Trust to be
used for or diverted to purposes other than the exclusive benefit of
Participants or their Beneficiaries in accordance with the Plan; provided
that assets may be used to pay fees and expenses incurred in the
administration of the Plan and the Trust or may be returned to the Company
as specifically provided in the Plan.
10.3 MERGER OR CONSOLIDATION.
Any corporation into which the Trustee merges or with which it is
consolidated or any corporation resulting from any merger or consolidation
to which the Trustee is a party, will be the Trustee hereunder without the
execution or filing of any additional instrument or the performance of any
further act.
10.4 INQUIRIES NOT REQUIRED.
No person dealing with the Trustee will be bound to see to the application
of any money or property paid or delivered to the Trustee or inquire into
the authority of the Trustee to enter into any transactions hereunder.
10.5 GOVERNING LAW.
To the extent that state law applies, the provisions of the Trust will be
construed, enforced and administered according to the laws of the
Commonwealth of Massachusetts without regard to its conflict of law
provisions.
10.6 THE SPONSOR AND ADP.
The Company and the Trustee acknowledge that neither the Sponsor nor ADP
(nor any affiliate of ADP) has (a) any discretionary authority or
discretionary control respecting management of the Plan or management or
disposition of Plan assets, (b) authority or responsibility to render
investment advice for a fee or other compensation, direct or indirect,
with respect to any moneys or other property of the Plan, or (c)
discretionary authority or discretionary responsibility in the
administation of the Plan.
TRUSTEE COMPANY
Approved by: /s/ Xxxxxxx X. Xxxxxxxxxx, AVP Approved by: /s/ Xxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxx X. Marcman
(type or p-1)
Title: AVP Date: 4-1-92 Title: Vice President/ Treasurer Date: 2-24-92
THIS AGREEMENT SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE TRUSTEE
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FIRST AMENDMENT TO THE
AUTOMATIC DATA PROCESSING PROTOTYPE 401 (k)
TRUST AGREEMENT
This First Amendment, effective as of May 1, 1999, amends the Automatic
Data Processing Prototype 401 (k) Trust Agreement by and between SKYLANDS
COMMUNITY BANK (the "Company") and STATE STREET BANK AND TRUST COMPANY, as
trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company has previously entered into a trust agreement (the
"Trust") with the Trustee;
WHEREAS, the Company desires to provide daily valuation under their plan
established by the Company using the ADP Prototype 401(k) Plan (the "Plan");
WHEREAS, the Trustee desires, and the Company agrees, to amend the Trust
to accommodate daily valuation and provide changes and updates to certain Trust
provisions,
NOW THEREFORE, pursuant to Article 9, Section 9. 1, the Trustee hereby
amends the Trust as follows:
I. Section 2. 1 (a) is deleted in its entirety and Section 2.1 (b) is
relabeled 2.1 (a) and Section 2. 1 (c) is relabeled 2.1(b).
2. Section 2.4 shall be amended to include as the last sentence to the
paragraph, "In addition, the Trustee shall have no responsibility for
ensuring that funds are made available timely in order to effectuate a
subsequent purchase made as a result of a transfer from one Investment
Fund under the plan to another such Investment Fund."
3. Article 4 - Investment Funds, shall be revised to reflect the following:
4.1 Investments.
(a) By establishing and maintaining this Trust, the Company has selected
the Investment Funds as the investment vehicles to be available to
Participants under the Company's Plan. Investment Funds will
include, but not be limited to, common, collective or group trust
funds (a "group trust") maintained by the Trustee for investment by
qualified plans and registered investment companies; provided, that
any such fund shall be managed by an ERISA 3(38) investment manager
unless such fund is either maintained by the Trustee or is a
registered investment company. Where a group trust is designated as
an Investment Fund, the Trustee may combine in the group trust
assets of the Trust with assets of other pension or profit-sharing
or other plans or trusts qualified under Code Section 401(a) and
exempt from tax under Code Section 501(a), or with assets of
individual retirement accounts exempt from tax under Code Section
408(e) or governmental units described in Code Section 818(a)(6),
and permitted by existing or future rulings of the United States
Treasury Department to pool their respective funds in
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a group trust. The provisions of the group trust shall be deemed a
part of this Agreement with respect to any such investment.
(b) With respect to the assets under the control of an Investment
Manager (a bank with respect to its own common collective or
group trust fund) (including without limitation the Trustee),
and assets invested in registered investment companies,
whether open-end or closed-end, the Company through ADP will
direct the Trustee to invest the assets of the Company's Plan
as directed by the Participant in accordance with the relevant
provisions of the Plan document and related adoption
agreement, and this Agreement (including particularly Sections
4.2 hereof). In investing the assets of a Participant's
Account(s), including those assets for which the Trustee has
no investment responsibility, the Trustee will follow the
investment directions of the Participant as such directions
are communicated to the Trustee by ADP. The company intends
that the Plan will comply with Section 404(c) of the Employee
Retirement Income Security Act of 1974, as amended
(hereinafter referred to as "ERISA").
The following Section 4.5 shall be added to Article 4:
4.5 Management of Assets of Fund
(a) The Company, being a named fiduciary with respect to control
and management of the assets of the Plan, by action of its
Board of Directors, by adoption of the Plan, has appointed
Investment Managers to manage (including the power to acquire
and dispose of) the assets of the Plan and has also authorized
investment in registered investment companies, whether
open-end or closed-end. Any Investment Manager so appointed
must be a bank, as defined in the Investment Advisers Act of
1940, and must acknowledge in writing to the Company and to
the Trustee that he is a fiduciary with respect to the Plan.
The Trustee until notified in writing to the contrary shall be
fully protected in relying upon any written notice of the
appointment of an Investment Manager furnished to it by the
Company.
(b) (i) The Investment Manager appointed pursuant to paragraph (a)
above shall have exclusive authority and discretion to manage
and control the assets of the Trust and, pursuant to such
authority and discretion, may direct the Trustee from time to
time and at any time:
(A) To invest and reinvest the Trust, without distinction
between principal and income, in shares of stock
(whether common or preferred) or other evidences of
ownership, bonds, debentures, notes or other evidences
of indebtedness, unsecured or secured by mortgages on
real or personal property wherever situated (including
any part interest in a bond and mortgage or note and
mortgage whether insured or uninsured), and other
property, or part interest in property, real or
personal, foreign or domestic, whether or not productive
of income or consisting of wasting assets;
(B) To invest and reinvest the Trust in a common,
collective, or group trust administered by a bank other
than the Trustee, the provisions of which trust
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shall be deemed a part of this Agreement but only with
respect to any such investment;
(C) To sell, convey, redeem, exchange, grant options for the
purchase or exchange of, or otherwise dispose of, any
real or personal property held in the Trust, at public
or private sale, for cash or upon credit, with or
without security, without obligation on the part of any
person dealing with the Trustee to see to the
application of the proceeds of or to inquire into the
validity, expediency or propriety of any such
disposition;
(D) To manage, operate, repair and improve, and mortgage or
lease for any length of time any real property held in
the Trust; to renew or extend any mortgage, upon any
terms the Investment Manager may deem expedient; to
agree to reduction of the rate of interest or any other
modification in the terms of any mortgage or of any
guarantee pertaining to it; to enforce any covenant or
condition of any mortgage or guarantee or to waive any
default in the performance thereof; to exercise and
enforce any right of foreclosure; to bid in property on
foreclosure; to take a deed in lieu of foreclosure with
or without paying consideration therefor and in
connection therewith to release the obligation on the
bond secured by the mortgage; and to exercise and
enforce in any action, suit or proceeding at law or in
equity any rights or remedies in respect of any mortgage
or guarantee;
(E) To exercise, personally or by general or limited proxy,
the right to vote any shares of stock, bonds or other
securities held in the Trust; to delegate discretionary
voting power to trustees of a voting trust for any
period of time; and to exercise, personally or by power
of attorney, any other right appurtenant to any
securities or other property of the Trust;
(F) To join in or oppose any reorganization,
recapitalization, consolidation, merger or liquidation,
or any plan therefor, or any lease, mortgage or sale of
the property of any organization the securities of which
are held in the Trust; to pay from the Trust any
assessments, charges or compensation specified in any
plan of reorganization, recapitalization, consolidation,
merger or liquidation; to deposit any property with any
committee or depositary; and to retain any property
allotted to the Trust in any reorganization,
recapitalization, consolidation, merger or liquidation;
(G) To exercise or sell any conversion or subscription or
other rights appurtenant to any stock, security or other
property held in the Trust;
(H) To borrow from any lender (other than the Trustee in its
individual capacity or any other party in interest with
respect to the Plan) money, in any amount and upon any
reasonable terms and conditions, for purposes of this
Agreement, and to pledge or mortgage any property held
in the Trust to secure the repayment of any such loan;
and
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(1) To compromise, settle or arbitrate any claim, debt or
obligation of or against the Trust; to enforce or
abstain from enforcing any right, claim, debt or
obligation; and to abandon any property determined by
the Investment Manager to be worthless.
(c) The Trustee shall exercise the powers set forth in paragraph (b)(i) above
only when and to the extent directed in writing by the Investment Manager.
The Investment Manager, from time to time and at any time, may issue
orders for the purchase or sale of securities directly to a broker or
dealer, and for such purpose, the Trustee will upon request execute and
deliver to the Investment Manager one or more trading authorizations.
Written notification of the issuance of each such order shall be given
promptly to the Trustee by the Investment Manager, and the execution of
each such order shall be confirmed by the broker to the Investment Manager
and to the Trustee. Such notification shall be authority to the Trustee to
receive securities purchased against payment therefor and to deliver
securities sold against receipt of the proceeds therefrom, as the case may
be.
(d) Unless the Trustee knowingly participates in, or knowingly undertakes to
conceal, an act or omission of the Investment Manager, knowing such act or
omission to be a breach of the fiduciary responsibility of the Investment
Manager with respect to the Plan, the Trustee shall not be liable for any
act or omission of the Investment Manager and shall not be under any
obligation to invest or otherwise manage the assets of the Plan that are
subject to the management of the Investment Manager. Without limiting the
generality of the foregoing, the Trustee shall not be liable by reason of
its taking or refraining from taking at the direction of the Investment
Manager any action pursuant to this Article, or pursuant to a notification
of an order to purchase or sell securities issued by the Investment
Manager, nor shall the Trustee be liable by reason of its refraining from
taking any action because of the failure of the Investment Manager to give
such direction or order; the Trustee shall be under no duty to question or
to make inquiries as to any direction or order or failure to give
direction or order by the Investment Manager; and the Trustee shall be
under no duty to make any review of investments acquired for the Trust at
the direction or order of the Investment Manager and shall be under no
duty at any time to make any recommendation with respect to disposing of
or continuing to retain any such investment.
(e) Without limiting the generality of the provisions of Article 5.3 hereof,
the Company agrees, to the extent pen-nitted by law, to indemnify the
Trustee and hold it harmless from and against any claim or liability that
may be asserted against it, otherwise than on account of the Trustee's own
negligence or willful misconduct, by reason of the Trustee's taking or
refraining from taking any action when acting in good faith in accordance
with this Article, including, without limiting the generality of the fore
going, any claim or liability that may be asserted against the Trustee on
account of failure to receive securities purchased, or failure to deliver
securities sold, pursuant to orders issued by the Investment Manager
directly to a broker or dealer or for any loss, expense or claim asserted
against the Trustee as a result of following Participant directions or
directions of the Administrative Committee or the Company.
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(f) To the extent a Participant has directed that his or her account shall be
invested in a registered investment company, the Trustee shall have no
investment responsibilities with respect thereto.
4. Article 7 - Accounts and Reports, shall be amended as follows:
7.1 Accounts and Reports
(a) The Trustee through its agent ADP, will keep full accounts of all its
receipts, disbursements and other transactions hereunder, and will
determine the fair market value of the assets of the Trust as of each
Valuation Date provided for under the Plan (and as of the last business
day of the Plan Year if not otherwise a Valuation date). The fiscal year
of the Trust will coincide with the Plan Year. Within a reasonable time
after the end of the Plan Year, or within a reasonable time after its
removal or resignation or the termination of the Trust, the Trustee,
through its agent ADP, will render to the Administrative Committee a
consolidated account of all transactions and other actions taken in
connection with its administration of the Trust since the previous such
accounting. The Trustee shall maintain record ownership of, and through
its agent ADP, account separately for, its collective investment funds,
and any registered investment companies or other Investment Funds of the
Trust.
(b) No person other than the Administrative Committee will have the right to
demand or receive any report or account from the Trustee. The written
approval of any account by the Administrative Committee will be final and
binding upon the Administrative Committee, the Company, the Participants
and all persons who then are or thereafter become interested in the Trust
as to all matters and transactions stated or shown therein. The failure of
the Administrative Committee to notify the Trustee within 60 days after
the Trustee's sending of any account of its objections (if any) to the
account will be the equivalent of written approval. If the Administrative
Committee files any objections within such 60 day period with respect to
any matters or transactions stated or shown in the account and the
Administrative Committee and the Trustee cannot resolve such objections,
the Trustee will have the right to have such objections settled by
judicial proceedings. Nothing herein will deprive the Trustee of the right
to have a judicial settlement of its accounts. In any proceeding for a
judicial settlement of any account or for instructions, the only necessary
parties will be the Trustee and the Administrative Committee (or, in the
absence of an Administrative Committee, the Company). In order to save the
Trust from the expense that might otherwise be incurred, it is a condition
to the acquisition of any interest in the Trust that no person other than
the Administrative Committee may institute or maintain any action or
proceeding against the Trustee (i) without first requesting the
Administrative Committee to resolve the question with the Trustee and (ii)
until after the Administrative Committee has had a reasonable opportunity
to resolve such question or has declined to pursue such question with the
Trustee.
All other provisions of the Trust shall remain in full force and effect.
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