1
EXHIBIT 10.8
ADOPTION AGREEMENT FOR
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STATE STREET SOLUTIONS
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PROTOTYPE DEFINED CONTRIBUTION PLAN
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(Profit Sharing - Nonstandardized)
(001)
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ADOPTION AGREEMENT FOR
----------------------
STATE STREET SOLUTIONS
----------------------
PROTOTYPE DEFINED CONTRIBUTION PLAN
-----------------------------------
(Profit Sharing - Nonstandardized)
ADOPTION OF PLAN
----------------
[ ] ADOPTION - With the consent of State Street Bank and Trust Company (the
"sponsor"), the undersigned
(the "employer") hereby adopts as a profit sharing plan for its employees the
form of plan known as State Street Solutions Prototype Defined Contribution
Plan, and hereby agrees to become a party to the Trust Agreement under State
Street Solutions Prototype Defined Contribution Trust (the "trust"), which
forms a part of the plan.
[ ] AMENDMENT OF STATE STREET SOLUTIONS PROTOTYPE DEFINED CONTRIBUTION PLAN
(the "employer") previously has adopted a
profit sharing plan in the form of State Street Solutions Prototype Defined
Contribution Plan and the execution of this adoption agreement constitutes an
amendment of that plan.
[X] RESTATEMENT OF OTHER PROFIT SHARING PLAN - With the consent of State
Street Bank and Trust Company (the "sponsor"), the undersigned THE TIMBERLAND
COMPANY (the "employer") hereby adopts as a profit sharing plan for its
employees the form of plan known as State Street Solutions Prototype Defined
Contribution Plan, and hereby agrees to become a party to the Trust Agreement
under State Street Solutions Prototype Defined Contribution Trust (the
"trust"), which forms a part of the plan.
NAME OF PLAN. The name of this plan as adopted by the employer is the
TIMBERLAND RETIREMENT EARNINGS 401(K) (the "plan").
With respect to the variable features contained in the plan, the employer
hereby makes the following selections granted under the provisions of the
plan:
GENERAL INFORMATION (Sections 1 and 2 of the plan)
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1. ADOPTING ENTITY. The employer adopts the plan as: (subsection 1.2)
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[ ] (a) a single employer plan.
[X] (b) a plan of a controlled group of corporations or
trades or businesses under common control.
[ ] (c) a plan of an affiliated service group.
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Item (a) should be selected if the plan is being adopted by the employer
only. If the plan is adopted by one or more related employers in
addition to the employer, item (b) or (c) should be selected and the
related employers adopting the plan should be specified below:
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The adopting employers and the employer are referred to herein
collectively as the "employer."
2. EMPLOYER'S ADDRESS. The employer's principal business address is:
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THE TIMBERLAND COMPANY
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000 XXXXXX XXXXX
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STRATHAM, NH. 03885
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(subsection 1.4)
3. EMPLOYER'S NAME AND ID NUMBER. The employer's name and employer
identification number that will be used for filing annual
return/reports is:
THE TIMBERLAND COMPANY / 00-0000000
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4. EFFECTIVE DATE. The "effective date" of the initial adoption of this
plan or this plan amendment is OCTOBER 1, 1995 (subsection 2.6).
If this is an amendment and restatement of a prior profit sharing
plan, the initial effective date of the prior plan was
FEBRUARY 1, 1991.
5. EMPLOYER'S FISCAL YEAR. The last month and day of the employer's fiscal
year is DECEMBER 31 (subsection 2.11).
6. PLAN YEAR. The "plan year" of the plan shall be (subsection 2.21):
[X] (a) A calendar year.
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[ ] (b) The fiscal year of the employer.
[ ] (c) The fiscal year ending [specify month
and day].
[ ] (d) A short plan year beginning , 19 and
ending , 19 ; and thereafter the
plan year shall be as indicated in (a), (b) or (c)
above.
7. PLAN ADMINISTRATOR. The plan administrator(subsection 1.3)
of the plan is THE TIMBERLAND COMPANY (fill in the name(s) of the
individuals or entity that is responsible for administration of
the plan) and such other persons or entity as the employer shall
appoint from time to time. The employer will notify the trustee of any
change in the administrator.
COMPENSATION
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8. EXCLUSIONS FROM COMPENSATION. For purposes of subsection 2.3 of the
plan, the definition of compensation:
(a) [X] shall include
[ ] shall not include
---
all employer contributions made pursuant to a compensation
deferral (or reduction) election which are not includible
in the gross income of the employee under Sections
125, 402(e)(3), 402(h), 457(b), 403(b) or 414(h)(2)
of the Code; and
(b) [X] shall
[ ] shall not
exclude the following items from the compensation of an
employee:
BONUSES, OVERTIME PAY, INCENTIVE COMPENSATION, OR ANY OTHER
EXTRA RENUMERATION NOT CONSTITUTING DIRECT COMPENSATION FOR
SERVICES.
[If you exclude items from compensation under (b) above, the plan will
be required to demonstrate that the resulting definition of
compensation is non-discriminatory.]
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ELIGIBILITY TO PARTICIPATE
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9. ENTRY DATE. The entry date (subsection 2.9) is: [Select one]
[ ] (a) The first day of each month.
[X] (b) The first day of each plan year quarter.
[ ] (c) The first day of each plan year and the
first day of the seventh month of each
plan year.
[ ] (d) The last day of the sixth month of each
plan year and the last day of each plan
year.
[ ] (e) The first day of each plan year. [If you
select this option, the age requirement
in item 10(a) may not exceed 20-1/2 years
and the service requirement in item
10(b) may not exceed 1/2 year.]
[ ] (f) The date that the employee satisfies the
plan's eligibility requirements.
10. ELIGIBILITY REQUIREMENTS. Subject to the provisions of
subsection 3.1 of the plan, each employee of the employer
will be eligible to participate in the plan if the employee
satisfies all of the following eligibility requirements:
(a) MINIMUM AGE. The employee has attained at least
age 18 years (specify 21 or less - or specify
that "no" age requirement shall apply).
(subparagraph 3.1(a))
(b) MINIMUM SERVICE. The employee has completed at
least .5 year(s) of service (specify 2 or less).
If you permit compensation deferral contributions,
the employee will be eligible to participate
in the compensation deferral (and matching
contribution, if any) arrangement under this plan
if the employee completes at least .5 year of
service (specify 1 or less). (subparagraph 3.1(b))
(c) ELIGIBLE CLASSES. The employee belongs to at
least one of the groups or classes of employees
specified below (subparagraph 3.1(c)):
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[ ] All employees.
[ ] All employees who are not included in a unit of
employees covered by an agreement which the
Secretary of Labor finds to be a collective bargain-
ing agreement between employee representatives and
one or more employers, if there is evidence that
retirement benefits were the subject of good faith
bargaining between the employer and such employee
representatives, and participation in the plan has
not been extended to such unit of employees.
[X] Salary based employees who regularly work in the
United States.
[X] Hourly employees of The Timberland Company.
[ ] Commissioned salesmen
[ ] Other (specify)
.
[If you select any of the last four choices in item (c) above, the
plan must satisfy on a continuing basis the non-discrimination test of
Section 401(a)(4), the participation test of Section 401(a)(26) and
the coverage test of Section 410(b) of the Internal Revenue Code.
These participation and coverage tests will automatically be satisfied
if you select only the first or second choice in (c) above.]
YEAR OF SERVICE
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11. ELIGIBILITY SERVICE. A "year of service" (subsection 2.28) for
purposes of determining eligibility to participate in the plan shall be
computed in accordance with: [Select one]
[ ] (a) Hours of service completed in a year, in accordance with
subparagraph 2.28(a) of the plan.
[X] (b) Elapsed time, in accordance with subparagraph 2.28(b) of
the plan.
12. VESTING SERVICE. A "year of service" (subsection 2.28) for purposes
of determining vesting under the plan shall be computed in accordance
with: [Select one]
[ ] (a) Hours of service completed in a plan year, in accordance with
subparagraph 2.28(a)
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of the plan.
[X] (b) Elapsed time, in accordance with subparagraph 2.28(b) of the
plan.
This item must be completed even though the number "0"
has been specified in item 10(b).
13. HOURS OF SERVICE. [Do not complete item 13 if you selected both 11(b)
and 12(b) above]. If item 11(a) or 12(a) has been specified, an
employee shall be credited with hours of service (subsection 2.13), as
follows: [Select one]
[ ] (a) Actual hours of service for which an employee is paid or
entitled to payment.
[ ] (b) 10 hours of service for each day or portion of a day.
[ ] (c) 45 hours of service for each week or portion of a week.
[ ] (d) 190 hours of service for each month or portion of a month.
COMPENSATION DEFERRAL CONTRIBUTIONS
-----------------------------------
14. COMPENSATION DEFERRAL CONTRIBUTIONS PERMITTED. Compensation deferral
contributions by participants under subsection 4.1 of the plan are
permitted.
[X] (a) Yes. A participant's compensation deferral contribution
election: [Select one]
[ ] (i) shall
[X] (ii) shall not apply to cash bonuses.
[ ] (b) No.
15. COMPENSATION DEFERRAL CONTRIBUTION LIMITS. Between 2% and 16%
of a participant's compensation (specify minimum and maximum whole
percentages) may be deferred by a participant and contributed to the plan
as compensation deferral contributions in accordance with subsections 4.1
and 6.2 of the plan. Compensation deferral contributions withheld from
participants' compensation are deemed to be made by the employer.
Compensation deferral contributions may not exceed the dollar limit in
effect under Section 402(g) of the Internal Revenue Code for any taxable
year, and excess deferrals
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under Section 402(g) must be remedied as a matter of plan
qualification. The plan contains limitations on the percentage of
compensation that "highly compensated employees" may elect to defer as
compared to all other participants (subsection 4.5). The plan also
contains a limitation ($9,240 for 1995, and indexed to the
cost-of-living) on the compensation deferral contributions made by any
participant for any calendar year (subsection 4.4). You may wish to
take these limitations into consideration when selecting the maximum
and minimum percentages above. Under no circumstances may a salary
reduction agreement or other deferral mechanism be adopted
retroactively.
16. COMPENSATION DEFERRAL CONTRIBUTION CHANGES. A participant may elect
to change the rate of his compensation deferral contributions under
subsection 4.3 of the plan as of the first payroll period
beginning on or after: [Select one]
[ ] (a) The first day of any plan year.
[ ] (b) The first day of any plan year and the first day of
the seventh month of any plan year.
[X] (c) The first day of any plan year quarter.
[ ] (d) The first day of any month.
VOLUNTARY PARTICIPANT CONTRIBUTIONS
-----------------------------------
17. VOLUNTARY CONTRIBUTIONS PERMITTED. If the employer has specified that
participants may make compensation deferral contributions under the
plan, participants also may elect to make voluntary contributions under
subsection 5.1 of the plan. Note: If you maintain another qualified
retirement plan that permits voluntary participant contributions, you
must check "No".
[ ] (a) Yes. A participant's voluntary contribution election:
[Select one]
[ ] (i) shall
[ ] (ii) shall not apply to cash bonuses.
[X] (b) No.
18. VOLUNTARY CONTRIBUTION LIMITS. If the employer has specified in item
17 above that participants may elect to make voluntary contributions,
such contributions may be between one and percent of their
compensation (specify a whole number, up to 10 percent).
The plan contains limitations on the percentage of compensation that
"highly compensated employees" may elect to contribute (when added
together with any employer matching contributions allocated to such
participants), as compared to all participants (subsection 4.6). You
may wish to take these limitations into account when setting the
maximum percentage in this item 18, unless you have prohibited highly
compensated employees from
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making contributions by item 29 below.
19. VOLUNTARY CONTRIBUTION CHANGES. If the employer has specified in item
17 above that participants may elect to make voluntary
contributions, a participant may elect to change the rate of his
voluntary contributions under subsection 5.3 of the plan as of the
first payroll period beginning on or after: [select one]
[ ] (a) The first day of any plan year.
[ ] (b) The first day of any plan year and the first day of
the seventh month of any plan year.
[ ] (c) The first day of any plan year quarter.
[ ] (d) The first day of any month.
MATCHING CONTRIBUTIONS
----------------------
20. EMPLOYER MATCHING CONTRIBUTIONS PERMITTED. In addition to the
compensation deferral contributions under subsection 6.2 of the plan,
the employer will make a matching contribution on behalf of each
participant under subsection 6.3 of the plan.
[X] Yes.
[ ] No.
21. AMOUNT OF MATCHING CONTRIBUTION. If the employer has specified that
it will make employer matching contributions on behalf of
participants, such matching contributions will be in an amount
determined as follows: [Select one]
[X] (a) 50% of the compensation deferral contributions made by
each participant.
[ ] (b) At a percentage of the compensation deferral
contributions to be determined solely in the discretion
of the employer in a nondiscriminatory manner.
[If (a) or (b) above is selected, the employer will not match
compensation deferral contributions in excess of $___________
or 4% of each participant's compensation --
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specify either a dollar amount or a whole percentage which is between
1% and the highest percentage specified in item 15.]
[ ] (c) $________ for each participant who made compensation
deferral contributions of at least ____% of
compensation.
[ ] (d) ____% of the compensation of each participant who
made compensation deferral contributions of at least
____% of compensation.
[ ] (e) In an amount to be determined solely in the discretion
of the employer in a nondiscriminatory manner, to be
allocated to those participants who made compensation
deferral contributions of at least ____% of
compensation, pro rata, according to the compensation
paid to them by the employer.
[ ] (f) ____% of that portion of the compensation deferral
contributions made by each participant which does
not exceed ____% of the participant's compensation; plus
____% of that portion, if any, of the compensation
deferral contributions made by each participant which
exceeds ____% of the participant's compensation but does
not exceed ____% of the participant's compensation; plus
____% of that portion, if any, of the compensation
deferral contributions made by each participant which
exceeds ____% of the participant's compensation but does
not exceed ____% of the participant's compensation.
Subsection 4.6 of the plan contains limitations on the percentage of
compensation which a highly compensated participant can have credited
to his account through employer matching contributions; and
Section 17 of the plan contains limitations on the total amount
which may be credited to a participant's account for any year.
22. COMPENSATION IN INITIAL YEAR OF PARTICIPATION. A participant's
compensation which is used in the allocation of employer matching
contributions under item 21(d) or (e) shall: [Select one]
[ ] (a) exclude compensation before becoming a participant.
[ ] (b) exclude compensation before meeting the plan's eligibility
requirements.
[ ] (c) include compensation in the first plan year of
participation.
23. EMPLOYEES ELIGIBLE TO RECEIVE MATCHING CONTRIBUTION. Employer
matching contributions made for each plan year shall be allocated and
credited to the employer matching contribution accounts of the
following participants: [Select one]
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[ ] (a) Participants who were employed by the employer during that
plan year, other than participants who resigned or were
dismissed prior to completing ____ (not more
than 1,000) hours of service during that plan year.
[X] (b) Participants who were employed by the employer during that
plan year.
[ ] (c) Participants who were employed by the employer on the last
day of that plan year.
[ ] (d) Participants who both were employed by the employer on the
last day of that plan year and had completed at least ____
(not more than 1,000) hours of service during that plan
year.
[Selection of more than 501 hours in item 23(a) or selection of item
23(c) or 23(d) could result in discrimination in operation and plan
disqualification.]
24. QUALIFIED MATCHING CONTRIBUTIONS. Employer matching contributions
made under item 20 may constitute "qualified matching contributions" or
the employer may make additional matching contributions which constitute
"qualified matching contributions" that are fully vested and subject to
distribution restrictions.
[ ] (a) Yes. The portion of the employer matching
contributions which constitutes
qualified matching contributions shall be:
[ ] (i) All matching contributions.
[ ] (ii) Only the portion of the matching contributions
required to satisfy the ADP test under
subsection 4.5 of the plan.
Qualified matching contributions shall be allocated to:
[ ] (iii) All participants.
[ ] (iv) All participants who are not highly compensated
employees.
[ ] (b) No.
EMPLOYER CONTRIBUTIONS
----------------------
25. ALLOCATION FORMULA. Employer contributions shall be allocated to
participants' accounts as follows:
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[ ] (a) COMPENSATION FORMULA: According to participants'
compensation as provided in subparagraph 8.7(a) of
the plan.
[ ] (b) PERMITTED DISPARITY FORMULA: According to a formula
which emphasizes compensation in excess of the
taxable wage base, as provided in subparagraph 8.7(b)
of the plan. The integration level shall be:
[ ] (i) $ (a dollar amount less than the
taxable wage base).
[ ] (ii) % (up to 100%) of the taxable wage base in
effect for the calendar year in which the plan
year begins.
If the employer has adopted this plan as a paired plan with State Street
Solutions Prototype Defined Contribution Plan (Money Purchase -
Nonstandardized), only one of the plans may provide for permitted
disparity under item (b) above.
26. COMPENSATION IN INITIAL YEAR OF PARTICIPATION. A participant's
compensation which is used in the allocation of employer contributions
shall: [Select one]
[ ] (a) exclude compensation before becoming a participant.
[ ] (b) exclude compensation before meeting the plan's
eligibility requirements.
[ ] (c) include all compensation in the first plan year of
participation.
27. EMPLOYEES ELIGIBLE TO RECEIVE EMPLOYER CONTRIBUTION. Employer
contributions made for each plan year (and forfeitures, if
applicable) shall be allocated and credited to the employer
contribution accounts of the following participants: [Select one]
[ ] (a) Participants who were employed by the employer during
that plan year, other than participants who
resigned or were dismissed prior to completing
(not more than 1,000) hours of service during that plan
year.
[ ] (b) Participants who were employed by the employer during
that plan year.
[ ] (c) Participants who were employed by the employer on the
last day of that plan year.
[ ] (d) Participants who both were employed by the employer
on the last day of that plan year and had completed at
least (not more than 1,000)
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hours of service during that plan year.
[Selection of more than 501 hours in item 27(a) or selection of item
27(c) or 27(d) could result in discrimination in operation and plan
disqualification.]
28. QUALIFIED NONELECTIVE CONTRIBUTIONS. Employer contributions made under
subparagraph 6.1(b) of the plan may constitute "qualified
nonelective contributions" or the employer may make additional
contributions which constitute "qualified nonelective contributions
that are fully vested and subject to distribution restrictions.
[X] (a) Yes. The portion of the employer contributions which
constitutes qualified nonelective contributions shall be:
[ ] (i) All employer contributions.
[ ] (ii) Only the portion of the employer contributions
required to satisfy the ADP test under subsection
4.5 of the plan and the ACP test under
subsection 4.6 of the plan.
Qualified nonelective contributions shall be allocated to:
[ ] (iii) All participants.
[X] (iv) All participants who are not highly compensated
employees.
[ ] (b) No.
HIGHLY COMPENSATED EMPLOYEES
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29. CONTRIBUTIONS BY HIGHLY COMPENSATED EMPLOYEES PROHIBITED
--------------------------------------------------------
[ ] (a) COMPENSATION DEFERRAL CONTRIBUTIONS. Participants
who are deemed to be "highly compensated employees"
under subsection 2.12 of the plan (including certain
family members) shall not be permitted to make
compensation deferral contributions under the plan
(subsection 4.7).
[ ] (b) VOLUNTARY CONTRIBUTIONS. Participants who are deemed
to be "highly compensated employees" under
subsection 2.12 of the plan (including certain family
members) shall not be permitted to make voluntary
contributions under the plan (subsection 4.7).
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ACCOUNTING
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30. REGULAR ACCOUNTING DATE. A "regular accounting date" (under
subsection 8.2) for purposes of the plan shall mean: [Select one]
[X] (a) The last day of each plan year quarter.
[ ] (b) The last day of the six month of each plan year and
the last day of each plan year.
[ ] (c) The last day of each plan year.
31. APPLICATION OF FORFEITURES. Forfeitures arising during a plan year
(except forfeitures arising under subsection 4.6) under subsection
10.2 of the plan shall be applied as follows:
[ ] (a) Forfeitures shall be allocated to participants, in
accordance with subparagraph 8.8(a), or
[X] (b) Forfeitures shall be applied to reduce employer
matching contributions, if any, and then
employer contributions required under the plan, in
accordance with subparagraph 8.8(b) of the plan.
PLAN INVESTMENTS
----------------
32. Investment Options.
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[ ] (a) Investment options shall not be offered.
[X] (b) INVESTMENT OPTIONS - ALL ACCOUNTS. Participants
shall direct the investment of their account balances
under the plan among the various investment options
established by agreement between the employer and the
trustee.
[ ] (c) INVESTMENT OPTIONS - SPECIFIED ACCOUNTS ONLY.
Participants shall direct the investment of the
following accounts under the plan among the various
investment options established by agreement between the
employer and the trustee (select one or more):
[ ] (i) Compensation deferral contribution account.
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[ ] (ii) Voluntary contribution account.
[ ] (iii) Rollover account.
[ ] (iv) Matching contribution account.
[ ] (v) Employer contribution account.
The administrator shall direct the investment among the
investment options of the remaining accounts under the plan.
33. INVESTMENT INCREMENTS. If the employer has specified that
participants may direct the investment of their accounts under item
32(b) or (c) above, such directions must be in increments of:
[Select one]
[ ] (a) 10% and multiples thereof.
[X] (b) 1% (specify a whole number).
VESTING AND DISTRIBUTION OF BENEFITS
------------------------------------
34. VESTING OF EMPLOYER CONTRIBUTIONS. A participant's vested percentage
(subsection 10.2) in employer contributions will be determined under
the vesting period selected below: [Select one]
[ ] (a) 100% vested at all times (this box must be checked if
the number "2" has been specified in item 10(b)
or if you elected to treat all employer contributions
as "qualified nonelective contributions" in item
28(a)(i) above for purposes of the anti-discrimination
tests described in subsections 4.5 and 4.6 of the
plan).
[ ] (b) Years of Service Vested Percentage
---------------- -----------------
Less than 1 year %
1 year but less than 2 %
2 years but less than 3 %
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3 years but less than 4 % (20% or more)
4 years but less than 5 % (40% or more)
5 years but less than 6 % (60% or more)
6 years but less than 7 % (80% or more)
7 or more years 100%
[ ] (c) Years of Service Vested Percentage
---------------- -----------------
Less than 1 year %
2 years but less than 3 %
3 years but less than 4 %
4 years but less than 5 %
5 or more year 100%
If the plan becomes top-heavy (as defined in subsection 19.2 of the
plan), the vesting period must meet the requirements of subsection 19.5
of the plan.
35. VESTING OF MATCHING CONTRIBUTIONS. If employer matching contributions
may be made under item 20, a participant's vested percentage in
employer matching contributions will be determined under the vesting
period selected below: [Select one if applicable]
[ ] (a) 100% vested at all times (this box must be checked if
the number "2" has been specified in item 10(b)
or if you elected to treat all employer matching
contributions as "qualified matching contributions" in
item 24(a)(i) above for purposes of the
anti-discrimination test described in subsection 4.5 of
the plan).
[X] (b) Years of Service Vested Percentage
---------------- -----------------
Less than 1 year 0 %
1 year but less than 2 25 %
2 years but less than 3 50 %
3 years but less than 4 75 % (20% or more)
4 years but less than 5 100 % (40% or more)
5 years but less than 6 100 % (60% or more)
6 years but less than 7 100 % (80% or more)
7 or more years 100%
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[ ] (c) Years of Service Vested Percentage
---------------- -----------------
Less than 1 year %
1 year but less than 2 %
2 years but less than 3 %
3 years but less than 4 %
4 years but less than 5 %
5 or more years 100%
36. SERVICE BEFORE PLAN'S ESTABLISHMENT EXCLUDED. Years of service earned
prior to establishment of the plan shall be disregarded for
purposes of determining vesting under the plan:
[ ] Yes.
[X] No.
37. SERVICE BEFORE AGE 18 EXCLUDED. Years of service earned prior to
attaining age 18 years shall be disregarded for purposes of determining
vesting under the plan:
[ ] Yes.
[X] No.
38. NORMAL RETIREMENT AGE. For each participant, normal retirement age is:
[X] (a) Age 65 (not to exceed 65)
[ ] (b) The later of:
(i) age ____ (not to exceed 65)
(ii) the ____ (not to exceed 5th) anniversary of the
participation commencement date.
39. EARLY RETIREMENT. The plan provides for early retirement at or after
age ______ years and after completing ____ years of service.
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[ ] Yes. (If you select this option, you must fill in the early
retirement age and service requirement above.)
[X] No.
40. JOINT AND SURVIVOR ANNUITY. Benefits under the plan are subject to
the joint and survivor annuity requirements. (Once you respond to this
statement and select the optional form(s) of benefit, you cannot later
amend the plan or adoption agreement to change your response or remove
the option as to existing accounts.)
[X] (a) No. Lump sum is normal form of benefit. Optional
form(s) of benefit, if any:
[ ] Installment payment.
[ ] Joint and survivor annuity. (If you select this
option, the joint and survivor annuity requirements of
Section 11 of the plan will apply to this form of
benefit).
[ ] (b) Yes. Joint and survivor annuity is normal form of
benefit. Optional form(s) of benefit:
[ ] (i) Lump sum payment.
[ ] (ii) Installment payment.
41. INSTALLMENTS FOR BENEFICIARIES. Participants may select an
installment method of payment for their beneficiaries.
[ ] Yes.
[X] No.
42. PROTECTED BENEFITS.
------------------
[ ] Benefits under the plan are payable under another
distribution option that is a "protected benefit" under
Section 411(d)(6) of the Internal Revenue Code. [Check this
box if the plan is a restatement, continuation, transferee,
etc. of another plan under which benefits were payable in a
form not selected in items 40 and 41. Attach a separate page
identifying the protected distribution option(s).]
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LOANS AND WITHDRAWALS
---------------------
43. LOANS. Loans to participants under subsection 12.4 of the plan are
permitted.
[X] Yes.
[ ] No.
44. HARDSHIP WITHDRAWALS. Hardship withdrawals of participants'
compensation deferral contributions shall be permitted (subsection
12.5).
[X] Yes.
[ ] No.
45. PRE-TERMINATION DISTRIBUTIONS. In addition to withdrawals described
in item 44 and subsection 12.1 of the plan, if any, pre-termination
distributions of account balances that are 100% vested (subsection
12.2) are permitted. [Select one]
[ ] (a) No.
[X] (b) Yes, after attaining age 59-1/2.
[ ] (c) Yes [except for compensation deferral contribution
accounts and employer contributions treated as
qualified matching contributions or qualified nonelective
employer contributions (and earnings thereon), if any]
after both attaining age ____ and completing ____ years
of participation in the plan (specify 5 or more).
LIMITATION ON ALLOCATIONS (Section 17 of the plan)
-------------------------
46. OTHER QUALIFIED PLANS MAINTAINED. If the employer maintains or ever
maintained another qualified plan in which any participant in this
plan is (or was) a participant or could become a participant, the
employer must complete this item if it desires to apply the Code Section
415 limits in a manner other than as provided in Section 17 of the plan.
The employer must also complete this item if it maintains a welfare
benefit fund, as defined in Section 419(e) of the Code, or an individual
medical account, as defined in Section 415(l)(2) of the Code, under
which amounts are treated as annual additions with respect to any
participant.
[ ] (a) Other Defined Contribution Plan(s) Maintained. If
the employer maintains other qualified defined
contribution plans other than a master or prototype
-18-
20
plan, any excess amount shall be considered
attributable to amounts last allocated to such other
plans and shall be handled in the manner provided for
in such plans as follows:
[Provide the method under which the plans will limit total annual
additions to the maximum permissible amount, and will properly
reduce any excess amounts in a manner that precludes employer
discretion.]
[ ] (b) DEFINED BENEFIT PLAN(S) MAINTAINED. If the employer
maintains, or at any time maintained, one or more
qualified defined benefit plans and the sum of the
defined contribution fraction and the defined benefit
fraction with respect to any participant for a
limitation year exceeds 1.0, the 1.0 limitation under
subsection 17.11 will be met by limiting the annual
addition to this plan as provided for in subsection
17.4 for the limitation years so that the sum of the
defined contribution fraction and the defined benefit
fraction do not exceed 1.0. If in any limitation year
the 1.0 limitation would be exceeded, the limitation
will be satisfied as follows:
[Provide the method under which the 1.0 limitation will be satisfied, in
a manner that precludes employer discretion.]
PREDECESSOR EMPLOYER
--------------------
47. EMPLOYMENT WITH PREDECESSOR EMPLOYER.
------------------------------------
[ ] Employment with the following "predecessor employers" (as
described in subsection 2.22) shall be considered employment
with the employer for the periods and purposes of the
plan set forth below:
---------------------------------------
-19-
21
---------------------------------------
MINIMUM CONTRIBUTION (TOP-HEAVY) (Section 19 of the plan)
--------------------------------
48. DEFINED BENEFIT PLAN MAINTAINED - 4% MINIMUM. The minimum employer
contribution figure specified under subsections 19.6 and 19.8 of the
plan will be 4 percent in order to preserve the method of calculating
the defined benefit and defined contribution fractions under subsection
17.12 of the plan.
[ ] Yes.
[ ] No.
49. MINIMUM BENEFIT UNDER OTHER EMPLOYER PLAN. The minimum employer
contribution or benefits required under Section 19 of the plan
will be provided to participants under another plan or plans maintained
by the employer.
[ ] Yes.
[ ] No.
The plan provides that, in the event the plan becomes top heavy, a
minimum contribution will be made by the employer, unless you specify
that such contributions (or a minimum benefit) will be provided for all
participants under another plan maintained by the employer.
50. DEFINED BENEFIT PLAN - ACTUARIAL ASSUMPTIONS. If the employer
maintains any defined benefit plan, the actuarial assumptions
utilized under such plan are as follows (subparagraph 19.2(c) of the
plan):
N/A
[Provide the interest rate and mortality factors used to determine the
present value of accrued benefits. If the employer does not
maintain a defined benefit plan, specify "N/A".]
The failure to properly complete the elections in this Adoption Agreement could
result in disqualification of the plan.
Only those elections that are completed shall be considered as provisions
applicable to and forming a part of the plan.
-20-
22
This Adoption Agreement may only be used in conjunction with basic plan document
01.
Terms used in this Adoption Agreement which are defined in State Street
Solutions Prototype Defined Contribution Plan shall have the meaning given
them therein.
The employer hereby acknowledges that it is adopting this profit sharing plan as
part of State Street Solutions Prototype Defined Contribution Plan Program (the
"program"). To the extent that federal legislation or other changes in the law
relating to employee benefit plans requires that the plan be amended, the
sponsor will amend the plan and furnish amended copies to the employer for
adoption as long as the employer is part of the program. The sponsor will
inform the employer of any amendment made to the plan or of the discontinuance
or abandonment of the plan by the sponsor. If the employer declines to adopt an
amendment furnished by the sponsor to comply with legal changes, the employer
will no longer be considered part of the program. The employer may amend the
plan or trust by giving notice to the sponsor in writing, but such amendment
will remove the employer from the program. The preceding sentence shall not
apply to the employer's addition of overriding plan language to this adoption
agreement, where such language is necessary to satisfy Sections 415 or 416 of
the Internal Revenue Code because of the required aggregation of multiple plans;
provided that the employer must obtain a determination letter in order to
continue reliance on the plan's qualified status. The sponsor reserves the
right to discontinue the Prototype Plan at any time by giving the employer 60
days' prior written notice. The sponsor's address and telephone number are State
Street Bank and Trust Company, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, (000) 000-0000.
The employer may not rely on the notification letter issued to the sponsor by
the Internal Revenue Service with respect to the qualification of the plan
and should apply to the appropriate Key District Director of the Internal
Revenue Service for a determination as to the qualification of the plan as
adopted by the employer.
* * *
The undersigned duly authorized owner, partner, or officer of the
employer hereby executes the plan and trust on behalf of the employer.
Dated this day of , 199 .
-------- ------------------- -------
---------------------------
Employer
By
------------------------
Its
----------------------
-21-
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The undersigned hereby consents to the adoption of the plan by the
employer.
Dated this day of , 199 .
-------- ------------------- -------
STATE STREET BANK AND TRUST COMPANY
By
---------------------------
Title
---------------------------
-00-
00
XXXXX XXXXXX SOLUTIONS
------------------------
PROTOTYPE DEFINED CONTRIBUTION TRUST
------------------------------------
25
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I 1
---------
Introduction 1
------------
Name 1
----
Purpose 1
-------
Controlling Law 1
---------------
Use of Terms 1
------------
ARTICLE II 2
----------
Fiduciary Responsibility 2
------------------------
ARTICLE III 2
-----------
The Trust Fund and Its Administration 2
-------------------------------------
The Trust Fund 2
--------------
Plan Administration 2
-------------------
General Powers 2
--------------
Investment Manager Accounts 8
---------------------------
Investment Options 9
------------------
Participant Directed Brokerage Accounts 9
---------------------------------------
Employer Stock Accounts 10
-----------------------
Employer Managed Investment Accounts 10
------------------------------------
Trustee Managed Investment Accounts 10
-----------------------------------
Compensation and Expenses 10
-------------------------
Limit of Trustee's Responsibility 11
---------------------------------
ARTICLE IV 11
----------
General Provisions 11
--------------------
Action by Employer 11
------------------
Warranty 11
--------
Disagreement as to Acts 11
-----------------------
Courts 11
------
Evidence 11
--------
Third Parties 12
-------------
No Reversion in Employer 12
------------------------
Interests Not Transferable 12
--------------------------
Indemnification 13
---------------
Litigation by Participants 13
--------------------------
Liabilities Mutually Exclusive 13
------------------------------
Waiver of Notice 13
----------------
Counterparts 13
------------
Gender and Number 13
-----------------
Successors 13
----------
Severability 14
------------
Statutory References 14
--------------------
Discretion of the Trustee Binding 14
---------------------------------
-i-
26
PAGE
----
Duration of Trust 14
-----------------
No Liability for Acts of Predecessor and Successor Trustees 14
-----------------------------------------------------------
ARTICLE V 14
---------
Amendment, Termination and Change of Trustee 14
--------------------------------------------
Amendment By Sponsor 14
--------------------
Amendment By Employer 15
---------------------
Termination 15
-----------
Resignation and Removal of Trustee 15
----------------------------------
ARTICLE VI 16
----------
Incorporation of Collective Investment Trusts 16
---------------------------------------------
-ii-
00
XXXXX XXXXXX SOLUTIONS
----------------------
PROTOTYPE DEFINED CONTRIBUTION TRUST
------------------------------------
ARTICLE I
---------
Introduction
------------
I-1. NAME. The trust set forth herein (the "trust") may be referred
to as "State Street Solutions Prototype Defined Contribution Trust".
I-2. PURPOSE. This trust agreement is intended to implement and form
a part of State Street Solutions Prototype Defined Contribution Plan (the
"plan") as adopted by the employer thereunder and sponsored by State Street
Bank and Trust Company (the "sponsor"). By signing the adoption agreement, the
employer has executed and become a party to this trust agreement, and the
provisions of and benefits under the plan, as so adopted by the employer, are
subject to the terms and conditions of this trust agreement. State Street Bank
and Trust Company shall serve as "trustee" pursuant to this trust agreement.
The trust is established, operated and maintained in the United States of
America exclusively for the investment and reinvestment of funds contributed
under the plan.
I-3. CONTROLLING LAW. Except to the extent superseded by laws of the
United States, the laws of the Commonwealth of Massachusetts shall be
controlling in all matters relating to this agreement.
I-4. USE OF TERMS. The terms "employer," "adoption agreement," and
"administrator," and words and phrases used and defined for purposes of the
plan are similarly used and defined for purposes of this trust. The terms
"trust," "agreement," "herein," "hereunder," and similar terms mean this
agreement and do not include the plan; but, unless qualified by the context or
otherwise defined in this agreement, a word, term or phrase defined in this
agreement is similarly defined for purposes of the plan.
28
ARTICLE II
----------
Fiduciary Responsibility
-------------------------
The employer, the administrator, the trustee, any investment manager
appointed pursuant to paragraph III-4, and any other fiduciaries with respect
to the plan or trust shall discharge their duties thereunder solely in the
interest of participants and beneficiaries, for the exclusive purpose of
providing their benefits and defraying reasonable expenses of plan and trust
administration, with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims.
ARTICLE III
-----------
The Trust Fund and Its Administration
-------------------------------------
III-1. THE TRUST FUND. The "trust fund" as at any date means all
property then held by the trustee under this agreement.
III-2. PLAN ADMINISTRATION. The plan is administered by the
"administrator", as designated by the employer in its adoption agreement for
the plan. The employer has also engaged the sponsor and its affiliates and
agents (the "recordkeeper") to provide certain administrative services with re-
spect to the plan, including but not limited to maintaining participant
accounts for all contributions, loans and loan repayments, rollovers, and other
deposits made for the purpose of determining how such deposits are to be
allocated to the investment funds of the plan, for determining requirements for
transfers among investment funds in accordance with the terms of the plan, for
maintaining participant records for the purpose of voting or tendering shares
in an investment fund, for distributing information about the investment funds
provided for under the plan, and for distributing participant statements at
periodic intervals. The trustee may rely upon a certification of the
administrator or the recordkeeper with respect to any instruction, direction or
approval of the administrator or the recordkeeper. The trustee shall be fully
protected in acting upon any instrument, certificate, or paper of the employer,
the administrator or the recordkeeper, believed by it to be genuine and to be
signed or presented by any authorized person, and the trustee shall be under no
duty to make any investigation or inquiry as to any statement contained in any
such writing but may accept the same as fully authorized by the employer, the
administrator or the recordkeeper, as the case may be. References in this
agreement to actions by the administrator shall include similar actions by the
recordkeeper.
III-3. GENERAL POWERS. With respect to the management and control of
the assets of the trust fund, the trustee shall have and exercise investment
power and authority (i)
-2-
29
over Trustee Managed Investment Accounts as provided in paragraph III-9,
(ii) upon the direction of the administrator or named fiduciary with respect to
an Employer Managed Investment Account under paragraph III-8, (iii) upon the
direction of a participant with respect to a Participant Directed Brokerage
Account under paragraph III-6, and (iv) upon the direction of an investment
manager with respect to an Investment Manager Account under paragraph III-4.
Subject to the preceding sentence, the trustee shall have the following powers,
rights and duties in addition to those provided elsewhere in this agreement, the
plan or by law:
(a) To acquire and become the policyholder under group
annuity contracts issued by a legal reserve life insurance company;
and to manage, sell, contract to sell, grant options to purchase,
convey, exchange, transfer, abandon, improve, repair, insure, lease
for any term (although commencing in the future or extending beyond
the term of this trust) and otherwise deal with all property, real
or personal, in such way, for such considerations, and on such
terms and conditions as the trustee decides.
(b) To retain in cash such amounts as the trustee considers
advisable and as are permitted by applicable law; to invest and
reinvest part or all of the balance of the trust fund in stocks,
bonds, notes, mortgages, mutual fund shares or other property of
any kind, real or personal, including one or more group annuity,
deposit administration or separate account contracts issued by a
legal reserve life insurance company; and to diversify such
investments so as to minimize the risk of large losses, unless
under the circumstances it is clearly prudent not to do so.
(c) To deposit cash in any depositary (including the banking
department of the trustee) without liability for interest and,
without limiting the generality of the foregoing, to invest cash in
savings accounts or time certificates of deposit bearing a
reasonable rate of interest in the banking department of the
trustee.
(d) To trade in financial options and futures, including index
options and options on futures and to execute in connection
therewith such account agreements and other agreements including
contracts for the exchange of interest rates, or investment
performance, currencies or other notional principal contracts in
such form and upon such terms as an investment manager or the
administrator shall direct.
(e) To make any payment or distribution from the trust fund as
directed by the administrator without inquiring as to whether a
payee or distributee is entitled thereto or as to whether it is
proper, and the trustee shall not be liable for a payment or
dis-
-3-
30
tribution made as directed by the administrator without notice
or knowledge that the payment or distribution is not proper under
the terms of the plan or this agreement; and to notify the
administrator if a payment or distribution is returned to the
trustee, and the trustee shall have no obligation to search for or
ascertain the whereabouts of a payee or distributee.
(f) To the extent permitted by law, to borrow from anyone, with
the employer's approval, such sum or sums from time to time as the
trustee considers desirable to carry out this trust, and to
mortgage or pledge all or part of the trust fund as security,
provided that the trustee shall not borrow to acquire employer
securities (as described in paragraph III-7), or pledge employer
securities held under the trust as security for any loan.
(g) To retain any funds or property subject to any dispute
without liability for interest and to decline to make payment or
delivery thereof until final adjudication by a court of competent
jurisdiction or until an appropriate release is obtained.
(h) To begin, maintain or defend any litigation necessary in
connection with the administration of the plan or this trust,
except that, unless otherwise required by law, the trustee shall
not be obliged or required to do so unless indemnified to the
trustee's satisfaction.
(i) To compromise, contest, arbitrate or abandon claims or demands.
(j) Except to the extent otherwise required by the Code or
ERISA or agreed to between the trustee and the employer, or as
provided in paragraph III-7 with respect to employer securities, to
give proxies to vote stocks and other voting securities, to join in
or oppose (alone or jointly with others) voting trusts, mergers,
consolidations, foreclosures, reorganizations, liquidations, or
other changes in the financial structure of any corporation, and to
exercise or sell stock subscription or conversion rights, only as
directed by the person or entity with investment authority over
such stock or security.
(k) To hold securities or other property in the name of a
nominee, in a depositary, or in any other way, with or without
disclosing the trust relationship; provided, however, that except
as authorized by regulations issued by the Secretary of Labor, the
indicia of ownership of the assets of the trust fund shall not be
maintained
-4-
31
outside the jurisdiction of the district courts of the
United States.
(l) To report to the employer and the administrator on each
accounting date under the plan, or as soon thereafter as
practicable, or at such other times as may be agreed to by the
employer or administrator and the trustee, the then net worth of
the trust fund (that is, the fair market value of all assets com-
prising the trust fund, less liabilities, if any, other than
liabilities to persons entitled to benefits under the plan)
determined on the basis of such evidence, data or information as
the trustee considers pertinent and reliable.
(m) To furnish to the employer and the administrator an annual
account or an account for such other period as may be agreed to by
the employer or the administrator and the trustee, or as may be
required under this agreement or the plan, showing all investments,
receipts, disbursements, and other transactions involving the trust
during the accounting period, and also showing the assets of the
trust fund held at the end of the period, which, to the extent
permitted by law, shall be conclusive on all persons, including the
employer, except as to any act or transaction as to which the
employer or the administrator files with the trustee written
exceptions or objections within sixty days after receipt of the
account.
(n) To pay out of the trust fund all real and personal property
taxes, income taxes and other taxes of any and all kinds levied or
assessed under existing or future laws against the trust fund.
(o) To maintain records and accounts reflecting all receipts
and disbursements under this agreement and such other records and
accounts as may be agreed to by the employer or the administrator
and the trustee, all of which shall be open to the inspection of
the employer or the administrator at all reasonable times, and may
be audited from time to time by anyone named by the employer or the
administrator.
(p) To employ agents, attorneys, accountants or other persons
(who also may be employed by the employer) and to delegate to them
such powers as the trustee considers desirable (except that the
trustee may not delegate its responsibilities as to the management
or control of the assets of the trust fund), provided that such
delegation, and the acceptance thereof, by such agents, attorneys,
accountants or other persons, shall be in writing; and,
-5-
32
to the extent permitted by law, the trustee shall be protected in
acting or refraining from acting on the advice of persons so
employed without court action.
(q) To appoint a bank, trust company, or broker or dealer
registered under the Securities Exchange Act of 1934 to act as
custodian with respect to any portion of the trust fund; and a
custodian so appointed shall have custody of such assets as are
deposited with it and as custodian such rights, powers and duties
with respect thereto as shall be agreed upon from time to time by
the trustee and such custodian.
(r) To furnish the employer with such information in the
trustee's possession as the employer may need for tax or other
purposes.
(s) At the direction of the employer or the administrator, to
receive, hold and invest any funds or other property transferred to
the trustee from:
(i) any other trust forming a part of a plan intended
to meet the requirements of Section 401(a) of the Code;
(ii) an employee of the employer if such funds or
property qualify as a rollover described in Section 402(c) of
the Code; or
(iii) an individual retirement account or individual
retirement annuity maintained by an employee of the employer,
if such funds or property qualify as a rollover contribution
described in Section 408(d)(3) of the Code; and to allocate,
credit and distribute any such funds and other property so
transferred in accordance with the terms of the plan.
(t) To transfer all or any portion of the trust fund to another
trust or trusts forming a part of a plan or plans that are intended
to meet the requirements of Section 401(a) of the Code, as directed
by the administrator.
(u) To transfer an eligible rollover distribution described in
Section 402(c)(4) of the Code directly to an eligible retirement
plan described in Section 402(c)(8)(B) of the Code, as directed by
the
-6-
33
administrator.
(v) To perform any and all other acts which in the trustee's
judgment are necessary or appropriate for carrying out its duties
under this agreement.
The trustee shall transmit promptly to the administrator or the
investment manager, as the case may be, all notices of conversion, redemption,
tender, exchange, subscription, class action, claim in insolvency proceedings or
other rights or powers relating to any of the securities in the trust fund,
which notices are received by the trustee from its agents or custodians, from
issuers of the securities in question and from the party (or its agents)
extending such rights. The trustee shall have no obligation to determine the
existence of any conversion, redemption, tender, exchange, subscription, class
action, claim in insolvency proceedings or other right or power relating to any
of the securities in the trust fund of which notice was given prior to the
purchase of such securities by the trust fund, and shall have no obligation to
exercise any such right or power unless the trustee is informed of the existence
of the right or power.
The trustee shall not be liable for any untimely exercise or assertion
of such rights or powers described in the paragraph immediately above in
connection with securities or other property of the trust fund at any time held
by it unless (i) it or its agents or custodians are in actual possession of such
securities or property and (ii) it receives directions to exercise any such
rights or powers from the administrator or an investment manager, as the case
may be, and both (i) and (ii) occur at least three business days prior to the
date on which such rights or powers are to be exercised.
If the trustee is directed by the administrator or an investment manager
to purchase securities issued by any foreign government or agency thereof, or by
any corporation or other entity domiciled outside of the United States, it shall
be the responsibility of the administrator or investment manager, as the case
may be, to advise the trustee in writing with respect to any laws or regulations
of any foreign countries or any United States territory or possession which
shall apply in any manner whatsoever to such securities, including, without
limitation, receipt by the trustee of dividends, interest or other distributions
on such securities.
All Investment Company shares shall be registered in the name of the
trustee or its nominee. Subject to any requirement of applicable law, the
trustee will transmit to the administrator copies of any notices of
shareholders' meetings, proxies and proxy-soliciting materials, prospectuses and
the annual or other reports to shareholders, with respect to Investment Company
shares held in the trust. The trustee shall act in accordance with appropriate
directions received from the administrator with respect to matters to be voted
upon by the shareholders of the Investment Company. Such directions must be in
writing on a form approved by the trustee, signed by the addressee and delivered
to the trustee within the time prescribed by it. The trustee will not vote
Investment Company shares as to which it receives no written directions. For
the purposes of this paragraph, Investment Company means a registered
-7-
34
investment company provided that its prospectus offers its shares under the
plan.
III-4. INVESTMENT MANAGER ACCOUNTS. The employer may appoint one or
more investment managers to manage the investment of any part or all of the
assets of the trust fund. Except as otherwise provided by law, the trustee
shall have no obligation for investment of any assets of the trust fund which
are subject to management by an investment manager. Appointment of an
investment manager shall be made by written notice to the investment manager and
the trustee, which notice shall specify those powers, rights and duties of the
trustee under this agreement that are allocated to the investment manager and
that portion of the assets of the trust fund subject to investment management.
An investment manager so appointed pursuant to this paragraph shall be either a
registered investment adviser under the Investment Advisers Act of 1940, a bank,
as defined in said Act, or an insurance company qualified to manage, acquire
and dispose of the assets of the plan under the laws of more than one state of
the United States. Any such investment manager shall acknowledge to the
employer in writing that it accepts such appointment and that it is a fiduciary
with respect to the plan and trust. An investment manager may resign at any
time upon written notice to the trustee and the employer. The employer may
remove an investment manager at any time by written notice to the investment
manager and the trustee.
The trustee shall have no liability (i) for the acts or omissions of any
investment manager (except to the extent the trustee itself is serving as
investment manager); (ii) for following directions, including investment
directions of an investment manager (other than the trustee) or the employer or
named fiduciary, which are given in accordance with this trust agreement; (iii)
for failing to act in the absence of investment manager direction; or (iv) for
any loss of any kind which may result by reason of the manner of division of the
trust fund or investment fund into investment accounts.
An investment manager shall certify, at the request of the trustee, the
value of any securities or other property held in any investment account managed
by such investment manager, and such certification shall be regarded as a
direction with regard to such valuation. The trustee shall be entitled to
conclusively rely upon such valuation for all purposes under this trust
agreement.
Except as otherwise provided in this trust agreement, the investment
manager of an investment account shall have the power and authority, to be
exercised in its sole discretion at any time and from time to time, to issue
orders for the purchase or sale of securities directly to a broker. Written
notification of the issuance of each such order shall be given promptly to the
trustee by the investment manager and the confirmation of each such order
shall be confirmed to the trustee by the broker. Unless otherwise directed by
the investment manager, such notification shall be authority for the trustee to
pay for securities purchased or to deliver securities sold as the case may be.
Upon the direction of the investment manager, the trustee will execute and
deliver appropriate trading authorizations, but no such authorization shall be
deemed to increase the liability or responsibility of the trustee under this
trust agreement.
-8-
35
III-5. INVESTMENT OPTIONS. The employer from time to time and in
accordance with provisions of the plan, may direct the trustee, with the
trustee's consent, to establish one or more separate investment options within
the trust fund, each separate option being hereinafter referred to as an
"investment fund", which may be invested in (i) shares of investment companies
registered under the Investment Company Act of 1940, (ii) collective funds
maintained by a bank or trust company, (iii) various classes of securities of
the employer, (iv) participant directed brokerage accounts, (v) pools of
insurance contracts, (vi) funds managed by a registered investment manager, bank
or insurance company, (vii) accounts managed by named fiduciaries for the plan;
and (viii) other investment options available from time to time under the plan.
The trustee shall have no liability for any loss of any kind which may result by
reason of the manner of division of the trust fund into investment funds, or for
the investment management of these accounts, except as provided in paragraph
III-9 respecting a trustee managed investment account, if any. The trustee
shall transfer to each such investment fund such portion of the assets of the
trust fund as the employer or the administrator directs. The trustee shall not
incur any liability on account of following any direction of the employer or the
administrator, and the trustee shall be under no duty to review the investment
guidelines, objectives and restrictions so established. To the extent that
directions from the employer or the administrator to the trustee represent
investment instructions of the plan's participants, the trustee shall have no
responsibility for such investment elections and shall incur no liability on
account of the direct and necessary results of investing the assets of the trust
fund in accordance with such participant investment instructions.
All interest, dividends and other income received with respect to, and
any proceeds received from the sale or other disposition of, securities or other
property held in an investment fund shall be credited to and reinvested in such
investment fund. All expenses of the trust fund which are allocable to a
particular investment fund shall be so allocated and charged. Subject to the
provisions of the plan, the employer may direct the trustee to eliminate an
investment fund or funds, and the trustee shall thereupon dispose of the assets
of such investment fund and reinvest the proceeds thereof in accordance with the
directions of the administrator.
III-6. PARTICIPANT DIRECTED BROKERAGE ACCOUNTS. The trustee shall, if
so directed by the employer, segregate all or a portion of the trust fund held
by it into one or more separate investment accounts to be known as "Participant
Directed Brokerage Accounts". Whenever a participant is directing the
investment and reinvestment of a Participant Directed Brokerage Account, the
participant shall have the powers and duties which an investment manager would
have under this trust agreement if an investment manager were then serving, and
the trustee shall be protected to the same extent as it would be protected under
this trust agreement as to directions or the absence of directions of an
investment manager. A participant shall be entitled to give orders directly to
a broker for the purchases and sale of securities. The broker shall provide
confirmation of each order to both the participant and to the administrator,
which shall maintain records in such form as to satisfy reporting requirements
of the plan.
-9-
36
III-7. EMPLOYER STOCK ACCOUNTS. The employer may direct the trustee,
with the trustee's consent, to establish one or more investment funds
substantially all of the assets of which shall be invested in securities which
constitute "qualifying employer securities" within the meaning of Section 407 of
ERISA (an "Employer Stock Account"). It shall be the duty of the employer to
determine that such investment is not prohibited by Sections 406 or 407 of
ERISA. In addition, during any time when there is no investment manager with
respect to an Employer Stock Account (such as before an investment management
agreement takes effect or after it terminates), the administrator shall direct
the investment and reinvestment of such Employer Stock Account. Except to the
extent otherwise required by the Code or ERISA or agreed to between the trustee
and the employer, the trustee shall exercise all voting or tender or exchange
offer rights with respect to all qualifying employer securities held by it in an
Employer Stock Account only as directed by the administrator.
III-8. EMPLOYER MANAGED INVESTMENT ACCOUNTS. The trustee shall, if so
directed in writing by the employer, segregate all or a portion of the trust
fund held by it into one or more separate investment accounts to be known as
"Employer Managed Investment Accounts". The employer, by written notice to the
trustee, may at any time relinquish its powers under this paragraph III-8 and
direct that an Employer Managed Investment Account shall no longer be
maintained. Whenever the administrator or named fiduciary is directing the
investment and reinvestment of an investment account or an Employer Managed
Investment Account, the administrator or named fiduciary shall have the powers
and duties which an investment manager would have under this trust agreement if
an investment manager were then serving, and the trustee shall be protected to
the same extent as it would be protected under this trust agreement as to
directions or the absence of directions of an investment manager.
III-9. TRUSTEE MANAGED INVESTMENT ACCOUNTS. The trustee shall have no
duty or responsibility to direct the investment and reinvestment of the trust
fund, any investment fund or any investment account unless expressly agreed to
in writing between the trustee and the Employer. In the event that the trustee
enters into such an agreement, it shall have the powers and duties of an
investment manager under this trust agreement with regard to such investment
account.
III-10. COMPENSATION AND EXPENSES. Except as otherwise provided below
in this agreement, all reasonable costs, charges, and expenses incurred in the
administration of this trust and the plan, including compensation to the trustee
(as agreed upon between the employer and the trustee), compensation to an
investment manager (as agreed upon between the employer and the investment
manager), and any compensation to agents, attorneys, accountants and other
persons employed by the trustee, will be paid from the trust fund to the
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extent not paid by the employer. Expenses incurred in connection with the sale,
investment and reinvestment of the trust fund (such as brokerage, postage,
express and insurance charges and transfer taxes) shall be paid from the trust
fund.
III-11. LIMIT OF TRUSTEE'S RESPONSIBILITY. No power, duty or
responsibility is imposed upon the trustee under the plan, except as set forth
in this agreement. Until they determine or are advised to the contrary, the
trustee and any investment manager (appointed as provided in paragraph III-4)
may assume that this trust is qualified under Section 401(a), and is entitled to
tax exemption under Section 501(a), of the Code.
ARTICLE IV
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General Provisions
------------------
IV-1. ACTION BY EMPLOYER. Any action required or permitted to be taken
by the employer under the trust shall be by resolution of its Board of
Directors, by resolution of a duly authorized committee of its Board of
Directors, or by a person or persons authorized by resolution of its Board of
Directors or such committee, if the employer is a corporation; by written
instrument signed by its managing partner or partners, or by a person or persons
authorized by such managing partner or partners, if the employer is a
partnership; and by written instrument signed by the employer, if the employer
is a sole proprietor.
IV-2. WARRANTY. The employer warrants that all directions or
authorizations by it or by the administrator, whether for the payment of money
or otherwise, will comply with the plan and this trust.
IV-3. DISAGREEMENT AS TO ACTS. If there is a disagreement between the
trustee and anyone as to any act or transaction reported in any accounting, the
trustee shall have the right to a settlement of its account by any proper court.
IV-4. COURTS. Except as otherwise provided by law, in case of any
court proceedings involving the employer, the trustee or the trust fund, only
the employer and the trustee shall be necessary parties to the proceedings, and
no other person shall be entitled to notice of process. A final judgment
entered in any such proceedings shall be conclusive.
IV-5. EVIDENCE. Evidence required of anyone under this agreement may
be by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or presented by
the proper party or parties.
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IV-6. THIRD PARTIES. Except as otherwise provided by law, the
trustee's exercise or non-exercise of its powers and discretions in good faith
shall be conclusive on all persons. No one shall be obliged to see to the
application of any money paid or property delivered to the trustee, except to
the extent such person is acting as an investment manager as respects such money
or property. The certificate of the trustee that it is acting according to this
agreement will fully protect all persons dealing with the trustee. An insurance
company may assume that this agreement and the plan have not been amended or
changed unless notice of such amendment or change is received by the insurance
company at its home office.
IV-7. NO REVERSION IN EMPLOYER. The employer shall have no right,
title or interest in the trust fund, nor shall any part of the trust fund revert
or be repaid to the employer, directly or indirectly, unless:
(a) the Internal Revenue Service initially determines that the
plan does not meet the requirements of Section 401(a) of the Code,
in which event the contributions made to the plan by the employer
shall be returned to it within one year after the adverse
determination;
(b) a contribution is made by the employer by mistake of fact
and such contribution is returned to the employer within one year
after payment to the trustee; or
(c) a contribution conditioned on the deductibility thereof is
disallowed as an expense for federal income tax purposes and such
contribution (to the extent disallowed) is returned to the employer
within one year after the disallowance of the deduction.
Contributions may be returned to the employer pursuant to subparagraph
(a) above only if they are conditioned upon initial qualification of the plan,
and an application for determination was made by the time prescribed by law for
filing the employer's Federal income tax return for the taxable year in which
the plan was adopted (or such later date as the Secretary of the Treasury may
prescribe). The amount of any contribution that may be returned to the employer
pursuant to subparagraph (b) or (c) above must be reduced by any portion thereof
previously distributed from the trust fund and by any losses of the trust fund
allocable thereto, and in no event may the return of such contribution cause any
participant's account balances to be less than the amount of such balances had
the contribution not been made under the plan. The employer shall have sole
responsibility for determining whether any of the conditions for repayment of
contributions under subparagraphs (a) through (c) above have been met.
IV-8. INTERESTS NOT TRANSFERABLE. The interests of persons entitled to
benefits under the plan are not subject to their debts or other obligations and,
except as may be required by a qualified domestic relations order as defined in
Section 414(p) of the Code, may
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not be voluntarily or involuntarily sold, transferred, alienated, assigned or
encumbered.
IV-9. INDEMNIFICATION. To the extent permitted by applicable law, the
employer shall indemnify and save harmless the trustee for and from any loss or
expense (including reasonable attorneys' fees) arising (a) out of an authorized
action hereunder taken in good faith by the trustee or any matter as to which
this agreement provides that the trustee is directed, protected, not liable, or
not responsible, or (b) by reason of any breach of any statutory or other duty
owed to the plan by the employer, the administrator, or any investment manager
or any delegate of any of them (and for the purposes of this sentence the
trustee shall not be considered to be such a delegate), whether or not the
trustee may also be considered liable for that other person's breach under the
provisions of Section 405(a) of ERISA.
IV-10. LITIGATION BY PARTICIPANTS. If a legal action begun against the
trustee or the employer by or on behalf of any person results adversely to that
person, or if a legal action arises because of conflicting claims to a
participant's or other person's benefits, the cost to the trustee or the
employer of defending the action will be charged to the extent permitted by law
to the sums, if any, which were involved in the action or were payable to the
person concerned.
IV-11. LIABILITIES MUTUALLY EXCLUSIVE. To the extent permitted by law,
the trustee, an investment manager and the employer shall be responsible only
for its own acts or omissions and the trustee shall not be required to collect
any contribution from the employer or any other person or to verify that it is
in the proper amount. No insurance company shall be a party to this agreement
for any purpose or be responsible for the validity of this agreement, it being
intended that an insurance company shall be liable only for the obligations set
forth in the contracts issued by it.
IV-12. WAIVER OF NOTICE. Any notice required under this agreement may
be waived by the person entitled to such notice.
IV-13. COUNTERPARTS. This agreement may be executed in two or more
counterparts, any one of which will be an original without reference to the
others.
IV-14. GENDER AND NUMBER. Where the context admits, words in the
masculine gender shall include the feminine and neuter genders, the singular
shall include the plural, and the plural shall include the singular.
IV-15. SUCCESSORS. This agreement shall be binding on all persons
entitled to benefits under the plan and their respective heirs and legal
representatives, on the employer and its successors and assigns and on the
trustee and its successors. The term "employer" as used in the plan and this
agreement includes any entity that continues the plan and this trust in effect,
as provided in the plan.
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IV-16. SEVERABILITY. If any provision of the plan or this agreement is
held to be illegal or invalid, such illegality or invalidity shall not affect
the remaining provisions of the plan and this agreement, and they shall be
construed and enforced as if such illegal or invalid provision had never been
inserted therein.
IV-17. STATUTORY REFERENCES. Any references in the plan or this
agreement to a Section of the Internal Revenue Code (the "Code"), the Employee
Retirement Income Security Act of 1974 ("ERISA") or the Tax Reform of 1986 shall
include any comparable section or sections of any future legislation which
amends, supplements or supersedes said Section.
IV-18. DISCRETION OF THE TRUSTEE BINDING. Wherever in this trust it is
provided that a power may be exercised or an action taken by the trustee
requiring the exercise of discretion, the exercise of discretion by the trustee
in conformance with Article II of the trust shall be absolute and bind- ing on
the employer and participants under the plan.
IV-19. DURATION OF TRUST. Unless sooner terminated, the trust created
under this trust agreement shall continue for the maximum period of time which
the laws of the Commonwealth of Massachusetts shall permit.
IV-20. NO LIABILITY FOR ACTS OF PREDECESSOR AND SUCCESSOR TRUSTEES.
The trustee shall have no liability for the acts or omissions of any
predecessors or successors in office.
ARTICLE V
---------
Amendment, Termination and Change of Trustee
--------------------------------------------
V-1. AMENDMENT BY SPONSOR. The employer, by signing the adoption
agreement, authorizes and empowers the sponsor to amend the trust from time to
time, subject to the following:
(a) Except as provided in subparagraphs (b) and (c) next below,
no such amendment shall become effective until at least 30 days'
prior written notice thereof has been given to the employer.
(b) An amendment of the trust made under this paragraph, which
the sponsor deems necessary or appropriate to enable the trust to
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meet the requirements of Section 401(a) of the Code, or any future
legislation amending, supplementing or superseding said Section,
may be made effective as of any date the sponsor deems appropriate.
(c) An amendment of the trust made under this paragraph to
conform the trust to any change in any law of the United States,
any state or political subdivision thereof, or to any rule or
regulation thereunder, may take effect as of the date such
amendment is required to be effective under such law, rule or
regulation.
(d) Except as provided in paragraph IV-7, under no condition
shall an amendment result in the return or repayment to the
employer of any part of the trust fund or the income from it or
result in the distribution of the trust fund for the benefit of
anyone other than persons entitled to benefits under the plan.
V-2. AMENDMENT BY EMPLOYER. This trust may not be amended by the
employer, except with the advance written consent of the trustee. Except as
provided in paragraph IV-7, under no condition shall an amendment result in the
return or repayment to the employer of any part of the trust fund or the income
from it or result in the distribution of the trust fund for the benefit of
anyone other than persons entitled to benefits under the plan.
V-3. TERMINATION. If the plan is terminated, this trust, including all
rights, titles, powers, duties, discretions and immunities imposed on or
reserved to the trustee, the administrator and the employer nevertheless shall
continue in effect until all assets have been distributed by the trustee as
directed by the administrator under the plan. Notwithstanding the foregoing,
the trustee shall not be required to pay out any assets of the trust fund upon
termination of the trust until the trustee has received written certification
from the administrator that all provisions of law with respect to such
termination have been complied with. The trustee shall rely conclusively on
such written certification, and shall be under no obligation to investigate or
otherwise determine its propriety.
V-4. RESIGNATION AND REMOVAL OF TRUSTEE. The trustee acting hereunder
may resign at any time by giving thirty days' prior written notice to the
employer, which notice may be waived by the employer. The employer may remove
the trustee at any time upon thirty days' prior written notice to the trustee,
which notice may be waived by the trustee. In case of the resignation or removal
of the trustee, the employer shall promptly appoint a successor trustee, and if
no successor trustee has been appointed by the effective date of the trustee's
resignation, the trustee may petition a court of competent jurisdiction to
appoint a successor trustee at the expense of the trust fund. Any successor
trustee shall have the same powers and duties as those conferred by this
agreement as if originally named trustee. The removal of a trustee and the
appointment of a new trustee shall be by a written instrument delivered to the
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trustee. Upon the appointment of a successor trustee, the resigning or removed
trustee shall transfer or deliver the trust fund to such successor trustee.
ARTICLE VI
----------
Incorporation of Collective Investment Trusts
---------------------------------------------
Notwithstanding any other provisions of this agreement, the trustee or
any investment manager may cause any part or all of the trust assets for which
it has investment responsibility to be invested in any common, collective or
commingled trust fund or pooled investment fund qualified under Section 401(a)
and entitled to tax exemption under Section 501(a) of the Code. To the extent
trust assets are invested in any such common, collective or commingled trust
fund or pooled investment fund, the provisions of the documents under which such
fund is maintained, as amended from time to time, shall govern any investment
therein, and such provisions are hereby incorporated herein and made a part of
this agreement.
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