KIMBERLY-CLARK
CORPORATION
DEFINED
CONTRIBUTION PLANS TRUST
THIS AGREEMENT, made as of
October 1, 1996, by and between KIMBERLY-CLARK CORPORATION, a
Delaware corporation, with its principal offices at 351 Phelps
Drive, Irving, Texas 75038 (hereinafter referred to as the
“Company”), and FIRST TRUST NATIONAL ASSOCIATION, a
Minnesota corporation, with its principal offices at 180 East Fifth
Street, Saint Paul, MN 55101 (hereinafter referred to as the
“Trustee”),
WHEREAS, the Company has
adopted the Kimberly-Clark Corporation Salaried Employees Incentive
Investment Plans and the Kimberly-Clark Corporation Hourly
Employees Incentive Investment Plans (hereinafter referred to
individually as the “Salaried Plan” and the
“Hourly Plans, “ respectively, and collectively as the
“Plans”) for the exclusive benefit of such of its
eligible employees and eligible employees of its affiliates and
subsidiaries as become participants therein; and
WHEREAS, a Committee
(hereinafter referred to as the “IIP Committee”) has
been created to administer the Plans pursuant to the terms thereof;
and
WHEREAS, the Retirement
Trust Committee of the Company (hereinafter referred to as the
“Retirement Trust Committee”), which shall be the named
fiduciary for the Plans, has the authority to direct the investment
of assets held under the Plans; and
WHEREAS, the Company has
adopted the Kimberly-Clark Corporation Salaried Employees Incentive
Investment Plan Trust (the “Salaried Trust”) to hold
the assets of the Salaried Plan and the Kimberly-Clark Corporation
Hourly Employees Incentive Investment Plan Trust (the “Hourly
Trust”) to hold the assets of the Hourly Plan; and
WHEREAS, pursuant to
delegation of authority from the Chief Executive Officer, the
Retirement Trust Committee appointed First Trust National
Association as successor trustee of the Salaried Trust and the
Hourly Trust, effective July 1, 1996; and
WHEREAS, the Retirement
Trust Committee, pursuant to delegation of authority from the Chief
Executive Officer of the Company, has determined that the Salaried
Trust and the Hourly Trust shall be merged into a master trust to
hold, collectively, the assets of the Salaried Plan and the Hourly
Plan, with First Trust National Association acting as trustee
thereof, effective as of October 1, 1996; and
WHEREAS, funds have been
contributed and additional funds will from time to time be
contributed under the Plans, all of which funds, as and when
received by the Trustee, will constitute a trust fund to be held
for the benefit of the participants under the Plans or their
beneficiaries; and
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WHEREAS, the Company
desires the Trustee to hold, administer, invest and distribute such
funds and the Trustee is willing to hold, manage, administer,
invest and distribute such funds pursuant to the terms of this
Agreement;
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants herein
contained, the Company and the Trustee do hereby covenant and agree
as follows:
All contributions and
other property received by the Trustee in accordance with the
Plans, including the sums of money and other property transferred
to the Trustee, together with the income therefrom and any other
increment thereon (hereinafter referred to as the “Trust
Fund”) shall be held, managed, administered, invested, and
distributed by the Trustee pursuant to the terms of this Agreement
without distinction between principal and income and without
liability for the payment of interest thereon. The Trustee shall
not be responsible for the collection of any contributions to the
Plans.
All transfers to,
withdrawals from, and other transactions regarding the Trust Fund
shall be conducted in such a way that the proportionate interest in
the Trust Fund of each Plan and the fair market value of that
interest may be determined at any time. The undivided interest of
each Plan shall be debited or credited, as the case may be, for
(i) the entire amount of all contributions and loan repayments
received on behalf of that Plan, all benefit payments, or expenses
attributable solely to that Plan; (ii) its proportionate share
of each item of income, gain or loss, and other expenses; and
(ii) other transactions attributable to the Trust Fund as a
whole. As of each date for which the reports specified in
Article IX are provided by the Trustee, the Trustee shall
adjust the value of each Plan’s undivided interest in the
Trust Fund to reflect the net increase or decrease in such values
since the last such date.
Distributions and
Participant Loans From Trust Fund
Subject to the provisions
of Article III hereof, the Trustee shall from time to time at
the direction of the IIP Committee or the recordkeeper make
distributions and participant loans out of the Trust Fund to such
persons, including the IIP Committee or any member thereof, in such
manner, in such amounts and for such purposes as may be specified
in the direction of the IIP Committee or the recordkeeper, in
accordance with those specifications as may be mutually agreed upon
by the Company and the Trustee. All promissory notes evidencing
participant loans from the Plans shall constitute assets of the
Trust Fund and shall be held by the Trustee in a separate fund for
such participant loans. The IIP Committee or the recordkeeper shall
provide the Trustee with such information as may from time to time
be required for the Trustee to exercise its rights under the
documents evidencing such participant loans, including but not
limited to the occurrence of events of default.
The Trustee shall deduct,
withhold and transmit to the proper taxing authorities any such
federal and state tax which it may be permitted or required to
deduct and withhold in accordance with
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applicable laws, and the
Plan account to be distributed or from which the loan is made in
such case shall be correspondingly reduced. The Trustee shall
prepare all necessary federal and state tax reporting required on
any distribution or participant loan from the Fund, and shall
reconcile all federal and state tax withholdings with each
Plan’s records, provided that the recordkeeper shall be
responsible for preparing, filing, and furnishing to participants
all federal and state tax statements (i.e., IRS Form 1099-R or
other similar tax form) required on any distribution or participant
loan from the Fund, unless otherwise agreed upon in writing by the
parties.
If any payment of benefits
directed to be made from the Trust Fund by the Trustee is not
claimed, the Trustee shall notify the Company of that fact promptly
as mutually agreed upon by the Company and the Trustee. The Trustee
shall dispose of such payments as the IIP Committee shall direct.
The Trustee shall not be liable for any payment made by it in good
faith without actual knowledge of the changed status or condition
of any recipient thereof.
Notwithstanding anything
to the contrary contained in this Agreement, or in any amendment
hereto, it shall be impossible for any part of the Trust Fund,
other than such part as is required to pay taxes and administration
expenses, to be used for, or diverted to, purposes other than for
the exclusive benefit of the participants under the Plans or their
beneficiaries.
In making a distribution
upon a direction as authorized herein, the Trustee may accept such
direction as a certification that such payment complies with the
provisions of this Article and need make no further
investigation.
Subject to the
restrictions set forth in the following paragraphs, the Trustee
shall, in its sole discretion, invest and reinvest the Trust Fund
in any securities or other property or part interest therein,
wherever situated, including specifically obligations or stock of
the Company. Such investments shall not be restricted to property
and securities of the character authorized for investment by
trustees under any present or future state laws.
The Trust Fund shall
consist of eleven investment funds: the Money Market Fund, the
Stable Income Fund, the KCTC Stable Income Fund (effective
January 1, 1997), the Bond Index Fund, the Medium-Term Managed
Fund, the Long-Term Managed Fund, the Stock Index Fund, the Growth
Stock Fund, the International Index Fund, the K-C Stock Fund, and
the SMI Stock Fund.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Money Market Fund shall be invested at the direction of the
Retirement Trust Committee
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or the Investment Manager
appointed pursuant to Article VI, directly or through a common
or collective trust fund, mutual fund, or other similar investment
facility, in short-term obligations issued or fully guaranteed as
to the payment of principal and interest by the United States of
America or any agency or instrumentality thereof.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Stable Income Fund shall be invested at the direction of the
Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in investment contracts issued by legal reserve life
insurance companies, banks, or other financial institutions;
individual or group annuity contracts or insurance policies issued
by legal reserve life insurance companies; money market securities;
or any combination thereof.
KCTC Stable Income Fund
(effective January 1, 1997)
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the KCTC Stable Income Fund shall be invested at the direction of
the Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in investment contracts issued by legal reserve life
insurance companies, banks, or other financial institutions;
individual or group annuity contracts or insurance policies issued
by legal reserve life insurance companies; money market securities;
or any combination thereof. The assets of the KCTC Stable Income
Fund initially shall include those investments held in the Fixed
Income Fund of the Kimberly-Clark Tissue Company Investment Plan
for Salaried Employees. As those assets mature, it is contemplated
that amounts held in the KCTC Stable Income Fund will be invested
in the same manner as the Stable Income Fund.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Bond Index Fund shall be invested at the direction of the
Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in obligations issued or fully guaranteed as to the
payment of principal and interest by the United States of America
or any agency or instrumentality thereof, investment grade bonds
issued by one or more corporations domiciled in the United States,
asset-backed securities, mortgage-backed securities, and other
similar securities, with the objective to track the Lehman Brothers
Aggregate Bond Index, an unmanaged broad-based index which is
designed to reflect the composition of the United States bond
market and which includes most intermediate and long-term fixed
rate bonds in the United States, or such other similar bond index
as may be selected by the Retirement Trust Committee from time to
time.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Medium-Term Managed Fund shall be invested at the direction of
the Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in investments in which the Money Market Fund or Bond
Index Fund could invest, as well as a diversified portfolio of
common and preferred stocks of corporations and other issues
convertible into such common and preferred stocks, which may
include growth and income,
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growth, and/or emerging
growth stocks, consistent with the medium-term investment horizon
of the fund.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Long-Term Managed Fund shall be invested at the direction of
the Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in investments in which the Bond Index Fund could invest
and money market securities, as well as a diversified portfolio of
common and preferred stocks of corporations and other issues
convertible into such common and preferred stocks, which may
include growth and income, growth, emerging growth, and/or
international stocks, consistent with the long-term investment
horizon of the fund.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Stock Index Fund shall be invested at the direction of the
Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in a diversified portfolio of common and preferred stocks
of corporations and other issues convertible into such common and
preferred stocks, with the objective to track the Standard &
Poors (S&P) 500 Stock Index, an unmanaged index which tracks
the performance of 500 industrial, transportation, utility, and
financial companies whose stocks are public traded, or such other
similar stock index as may be selected by the Retirement Trust
Committee from time to time.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the Growth Stock Fund shall be invested at the direction of the
Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in common and preferred stocks of medium to large
corporations and other issues convertible into such common and
preferred stocks, which may include securities identified as having
above average growth potential, and in money market
securities.
Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the International Index Fund shall be invested at the direction of
the Retirement Trust Committee or the Investment Manager appointed
pursuant to Article VI, directly or through a common or
collective trust fund, mutual fund, or other similar investment
facility, in common and preferred stocks of corporations in Europe,
Australia, and the Far East, and other issues convertible into such
common and preferred stocks, with the objective to track the Morgan
Stanley Capital International EAFE Index, an unmanaged market-value
weighted index of about 1,000 stocks from Europe, Australia, New
Zealand, and the Far East, or such other similar international
index as may be selected by the Retirement Trust Committee from
time to time.
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Funds designated by the
IIP Committee pursuant to Participant direction for investment in
the K-C Stock Fund, shall be invested in common stock of the
Company, although such may not be a legal investment for trustees
under state laws applicable hereto, and short term securities and
other similar investments for liquidity. Such stock shall be
acquired by the Trustee in the open market, or from private sources
(other than officers or directors of the Company); whether to
acquire such shares in the open market or to acquire such shares
from private sources and the time and prices and the quantities to
be acquired shall be within the sole discretion of the Trustee. The
Trustee may also acquire such shares through withdrawals,
distributions and forfeitures under the Plans, or contributions of
shares from participants (including officers and directors) or the
Company under the Plan; provided, however, that any shares
contributed by the Company shall be from shares held in the
treasury of the Company. With respect to the K-C Stock Fund, the
Trustee shall exercise or sell any rights to purchase shares of
common stock of the Company only as directed by the Retirement
Trust Committee. The Trustee shall manage the liquidity of the K-C
Stock Fund consistent with guidelines established by the Retirement
Trust Committee and communicated to the Trustee.
Funds may be designated by
the IIP Committee for investment by the Trustee in the SMI Stock
Fund, subject to the terms and conditions set forth herein. The SMI
Stock Fund shall consist of shares of the common stock of
Schweitzer-Mauduit International, Inc., a Delaware corporation
(“SMI”), distributed to the Plans in connection with
the pro rata distribution of 100 percent of the outstanding
shares of SMI stock to each holder of record of Company stock on or
about November 30, 1995, and such additional shares of SMI
stock acquired by the Trustee through dividends or stock splits
declared by SMI, as well as short term securities and other similar
investments for liquidity. No contributions shall be invested by
the Trustee in the SMI Stock Fund, and no transfers shall be made
by the Trustee to the SMI Stock Fund, unless otherwise directed by
the Retirement Trust Committee. Forfeitures under the Plans with
respect to amounts invested in the SMI Stock Fund shall be invested
in the K-C Stock Fund, unless otherwise directed by the Retirement
Trust Committee. To the extent that it becomes necessary to
purchase additional shares of SMI stock to be held in the SMI Stock
Fund (e.g., through reinvestment of interest, dividends or other
income or cash received from the sale of exchange of securities or
other property with respect to the SMI Stock Fund), the Trustee is
directed to acquire such stock in the open market, or from private
sources (other than officers or directors of the Company); whether
to acquire such shares in the open market or to acquire such shares
from private sources and the time and prices and the quantities to
be acquired shall be within the sole discretion of the Trustee. The
Trustee may also acquire such shares through withdrawals and
distributions under the Plans. The Trustee shall manage the
liquidity of the SMI Stock Funds consistent with guidelines
established by the Retirement Trust Committee and communicated to
the Trustee.
Any monies of the
investment funds comprising the Trust Fund may, to facilitate
investment, transfers or distributions hereunder, be invested in
short term securities or in other investments commonly referred to
as short-term investment funds or facilities
(“STIF”).
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The Company shall notify
the Trustee of contributions designated for investment in each of
the above investment Funds in accordance with procedures and within
the time periods mutually agreed upon by the Company and the
Trustee, and the Trustee shall notify the Investment Managers of
such contributions in accordance with procedures and within the
time periods established by the Investment Manager or as mutually
agreed upon by the Trustee and the Investment Manager. The Company
shall transfer such contributions to the Trustee, and the Trustee
shall transmit such contributions to the Investment Managers for
investment, in accordance with procedures and within the time
periods mutually agreed upon by the Company and the Trustee, and as
established by the Investment Manager or as mutually agreed upon by
the Trustee and the Investment Manager. It is contemplated that the
Trustee will transmit funds to the Investment Managers for
investment on the same business day of receipt of such funds from
the Company, provided that the Company transfers such funds to the
Trustee within the time period mutually agreed upon by the Company
and the Trustee.
The Trustee is further
authorized to hold, for the purpose of administration or
distribution thereof, a portion of the Trust Fund uninvested
whenever and for so long as is required for the payment in cash of
Plans accounts normally expected to mature in the near future; to
hold uninvested reasonable amounts of cash whenever it is deemed
advisable to do so to facilitate disbursements, pending investments
or for other operational reasons; and to deposit the same, without
any liability for interest earned thereon, in the banking
department of any corporate Trustee serving hereunder or of any
other bank, trust company or other financial institution including
those affiliated in ownership with the Trustee, notwithstanding the
banking department’s or other affiliate’s receipt of
“float” from such uninvested cash.
All interest, dividends or
other income as well as any cash received from the sale or exchange
of securities or other property, produced by each such investment
fund shall be reinvested in the same investment fund which produced
such interest, dividends and other income.
The Trustee shall make
transfers among the investment funds in accordance with the
directions of the IIP Committee pursuant to participant direction
and may dispose of such investments in any of the investment funds
as may be necessary to enable it to make any such
transfers.
The Retirement Trust
Committee shall have the authority to terminate an investment Fund,
to direct that an investment Fund be established, to appoint or
terminate the Investment Manager for a fund pursuant to
Article VI hereof, to withdraw or limit participation in a
particular investment Fund, and to consolidate any separate
investment Fund with any other separate investment Fund having the
same investment objectives which are established under any other
retirement plan or trust of the Company or its affiliates and which
are managed by the same Investment Manager, provided that the
records of the Trustee shall reflect the relative interests of the
separate trusts in such commingled fund.
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Powers and
Authority of Trustee
Subject to the provisions
set forth in Article IV, this Article V, and
Article VI, the Trustee shall have full power and authority in
its sole discretion, to do all acts and to exercise any and all
powers which would be lawful for it were it in its own right the
actual owner of the Trust Fund, including by way of illustration,
but not limitation, the following:
5.1 To purchase or
subscribe for any securities or other property and to retain in
trust such securities or other property, including but not limited
to securities of the Company which are “qualifying employer
securities” within the meaning of section 407(d)(5) of the
Employee Retirement Income Security Act of 1974, as amended from
time to time (“ERISA”), which are held in the K-C Stock
Fund;
5.2 To sell for cash or on
credit, to grant options, convert, redeem, exchange for other
securities or other property, or otherwise to dispose of any
securities or other property at any time held by it.
5.3 To settle, compromise
or submit to arbitration, any claims, debts or damages, due or
owing to or from the Trust, to commence or defend suits or legal
proceedings and to represent the Trust in all suits or legal
proceedings, provided that the Trustee shall be indemnified against
all reasonable expenses and liabilities sustained by it by reason
thereof (including reasonable attorneys’ fees).
5.4 To exercise any
conversion privileges and/or subscription right available in
connection with any securities or other property at any time held
by it; to oppose or to consent to the reorganization,
consolidation, merger, or readjustment of the finances of any
corporation, company or association or to the sale, mortgage,
pledge or lease of the property of any corporation, company or
association any of the securities of which may at any time be held
by it and to do any act with reference thereto, including the
exercise of options, the making of agreements or subscriptions and
the payment of expenses, assessments or subscriptions, which may be
deemed necessary or advisable in connection therewith, and to hold
and retain any securities or other property which it may so
acquire.
5.5 To enter into a line
of credit or establish a credit facility with, or borrow money
from, any lender in such amounts and upon such terms and conditions
as shall be deemed advisable or proper to carry out the purposes of
the Trust, and to pledge any securities or other property for the
repayment of such loan.
5.6 To employ suitable
agents, experts and counsel (which may be counsel to the Company)
and to pay their reasonable expenses and compensation in accordance
with the provisions of Article VII. The Trustee may act in
reliance upon the advice, opinions, records, statements, and
computations of any agents, experts and counsel, and shall be fully
protected in relying in good faith on such advice, opinions,
records, statements and computations, except to the extent provided
otherwise under ERISA.
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5.7 To register any
securities held by it hereunder in its own name or in the name of a
nominee with or without the addition of words indicating that such
securities are held in a fiduciary capacity and to hold any
securities in bearer form.
5.8 To form corporations
and to create trusts to hold title to any securities or other
property, all upon such terms and conditions as may be deemed
advisable.
5.9 To make, execute and
deliver, as Trustee, any and all deeds, leases, mortgages,
conveyances, contracts, waivers, releases or other instruments in
writing necessary or proper for the accomplishment of any of the
foregoing powers.
5.10 Except as provided in
Sections 5.13 and 5.14, to exercise, personally or by general
or by limited power of attorney, any right, including the right to
vote, appurtenant to any securities or other property held by it at
any time.
5.11 Only when and if so
directed by the Retirement Trust Committee or the Investment
Manager appointed pursuant to Article VI, to purchase from
legal reserve life insurance companies individual and group annuity
contracts and insurance policies of such kind and in such amount as
the Retirement Trust Committee or the Investment Manager in its
discretion may deem proper for the purposes of the Stable Income
Fund or KCTC Stable Income Fund, and to use funds of the Stable
Income Fund or KCTC Stable Income Fund to maintain such contracts
and policies in force. Title to and all rights and privileges under
such annuity contracts and insurance policies shall be vested in
the Trustee. The Trustee shall have no duty to inquire into the
terms and provisions of any such annuity contracts and insurance
policies purchased by it upon the direction of the Retirement Trust
Committee or the Investment Manager.
5.12 To transfer, at any
time and from time to time, such part or all of the investments
Funds designated in Article IV to any trust which is invested
in property of the kind specified for the respective investment
funds, and which is qualified under Section 401(a) and exempt from
tax under Section 501(a) of the Internal Revenue Code of 1986, as
amended from time to time (the “Code”), maintained as a
medium for the collective investment of funds of pension, profit
sharing or other employee benefit trusts, whether maintained by the
Trustee or any Investment Manager, including but not limited to
(i) THE PLANS AND DECLARATION OF TRUST — FIRST TRUST
NATIONAL ASSOCIATION COLLECTIVE AND POOLED INVESTMENT FUNDS FOR
EMPLOYEE BENEFIT TRUSTS, (ii) 1995 AMENDED AND RESTATED
DECLARATION OF TRUST — AMERCIAN EXPRESS TRUST COLLECTIVE
INVESTMENT FUNDS FOR EMPLOYEE BENEFIT TRUSTS, and (iii) such
collective investment trust maintained by BARCLAYS GLOBAL
INVESTORS, N.A., as amended from time to time, and to withdraw any
part or all of the Trust Fund so transferred. The provisions of any
such declaration of trust shall be deemed to be a part of this
Agreement.
5.13 The Trustee shall
vote the common stock of SMI held by the Trustee in the SMI Stock
Fund. The Trustee shall also respond to a tender or exchange offer
for any or all shares of SMI stock held by the Trustee in the SMI
Stock Fund.
5.14 The Trustee shall
vote the common stock of the Company held in the K-C Stock Fund,
only in accordance with the directions of the IIP Committee. In the
event that the IIP Committee
9
informs the Trustee in
writing that it is not able to direct the Trustee as to the voting
of any non-directed shares of common stock of the Company held in
the K-C Stock Fund for which direction has not been received from
participants for any reason, then the Trustee shall vote such
shares in the same manner and proportion as the shares of common
stock of the Company with respect to which it received direction
from participants. Each participant under the Plans (or in the
event of his death, his beneficiary) shall have the right to direct
the Trustee in writing how to respond to a tender or exchange offer
for any or all whole shares of common stock of the Company held by
the Trustee and attributable to his accounts in the K-C Stock Fund
as of the last day of the month preceding such offer. The IIP
Committee shall notify each participant (or beneficiary) and exert
its best efforts to timely distribute or cause to be distributed to
him such information as will be distributed to stockholders of the
Company in connection with any such tender or exchange offer. Upon
timely receipt of such instructions, the Trustee shall tender such
shares of common stock of the Company as and to the extent so
instructed. If the Trustee shall not receive instructions from a
participant (or beneficiary) regarding any such tender or exchange
offer for such shares of common stock of the Company, such
participant or beneficiary shall be deemed to have timely
instructed the Trustee not to tender or exchange such shares, and
the Trustee shall have no discretion in such matter and shall take
no action with respect thereto. With respect to shares of common
stock of the Company in the K-C Stock Fund for which the Trustee is
not subject to receiving such instruction, whether because such
shares are unallocated or as otherwise provided by the Plans or by
law, the Trustee shall tender such shares in the same ratio as the
number of shares for which it receives instructions to tender bears
to the total number of shares for which it is subject to receiving
instructions, and shall have no discretion in such matter and shall
take no action with respect thereto other than as specifically
provided in this sentence. The instructions received by the Trustee
from participants shall be held by the Trustee in strict confidence
and shall not be divulged or released to any person, including
employees, officers and directors of the Company; provided,
however, that to the extent necessary for the operation of the
Plans, such instructions may be released by the Trustee to a
recordkeeper, auditor or other person providing services to the
Plans.
The Trustee in the
acquisition, disposition and management of investments for or under
the Trust may acquire and hold any securities or other property
even though the Trustee, in its individual or any other capacity,
shall have invested or may thereafter invest, its own or other
funds in the same or related securities or other property, the
interest, principal or other avails of which may be payable at
different rates or different times or may have a different rank or
priority; and may acquire and hold any securities or other property
even though in connection therewith the Trustee, in its individual
or any other capacity, may receive compensation reasonably and
customarily due in the course of its regular activities; and may
make investments even though the proceeds thereof may directly or
indirectly be used to pay off loans made by the Trustee in its
individual capacity.
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Company
Directed or Investment Manager Accounts
Notwithstanding anything
in this Agreement to the contrary, the Retirement Trust Committee
or any Investment Manager appointed by the Retirement Trust
Committee shall have the right from time to time to direct the
Trustee with respect to the acquisition, retention, management and
disposition of the assets from time to time comprising the Trust
Fund (such assets so acquired to be referred to as the
“Company Directed” or “Investment Manager
Accounts”). The Trustee shall follow all such directions of
the Retirement Trust Committee or any Investment Manager appointed
by the Retirement Trust Committee and shall have no duty or
obligation to review the assets from time to time so acquired, nor
to make any recommendations with respect to the investment,
reinvestment or retention thereof. Except as otherwise provided in
section 5.13 and 5.14 of Article V of this Agreement, the
Trustee shall vote the proxies thereon as directed by the
Retirement Trust Committee for Company Directed Accounts or any
Investment Manager appointed by the Retirement Trust Committee for
Investment Manager Accounts. With respect to Company Directed or
Investment Manager Accounts, the Trustee shall have no liability to
the Company, administrative committee or other authorized person,
or any Participant or Beneficiary under the Trust for acting
without question on the direction of, or for failure to act in the
absence of directions from, the Retirement Trust Committee or any
Investment Manager appointed by the Retirement Trust Committee, as
applicable. The Trustee shall be indemnified and held harmless from
and against any and all liability or expense to which the Trustee
shall be subjected by reason of carrying out any directions of the
Retirement Trust Committee or any Investment Manager appointed by
the Retirement Trust Committee made pursuant to this paragraph,
including all expenses reasonably incurred in its defense if the
Company fails to provide such defense.
Notwithstanding the
foregoing provisions, the Trustee, at the direction of the
Retirement Trust Committee or the Investment Manager appointed by
the Retirement Trust Committee, shall have the power, right and
authority to invest cash balances held by it from time to time
which are part of the funds managed by the Retirement Trust
Committee or any Investment Manager appointed by the Retirement
Trust Committee in investments commonly referred to as short-term
investment funds of facilities (“STIF”), and the
Trustee, without prior approval or direction, shall have the power,
right and authority to sell such short-term investments as may be
necessary to carry out the instructi
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