SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 11)
AMDOCS LIMITED
----------------------------------------------------------------------
(Name of Issuer)
Ordinary Shares, par value (pound)0.01
----------------------------------------------------------------------
(Title of Class of Securities)
G02602 10 3
----------------------------------------------------------------------
(Cusip Number)
Wayne Wirtz, Esq.
SBC Communications Inc.
175 East Houston
San Antonio, TX 78205
(210) 351-3736
----------------------------------------------------------------------
(Name and Address, and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 27, 2004
----------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
(continued on following pages)
(Page 1 of 12 Pages)
- -------------------------------------------------------------------------------
CUSIP NO. G02602 10 3 13D/A Page 2 of 57 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON SBC COMMUNICATIONS INC.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 43-1301883
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS AF
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER 6,200,000
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -------------------------------------------------------------------------------
8 SHARED VOTING POWER 6,547,698
- -------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER 6,200,000
- -------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER 6,547,698
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON 12,747,698
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.2%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON HC
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CUSIP NO. G02602 10 3 13D/A Page 3 of 57 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON SBC INTERNATIONAL, INC.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 43-1380735
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -------------------------------------------------------------------------------
8 SHARED VOTING POWER 6,547,698
- -------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER 0
- -------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER 6,547,698
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON 6,547,698
- -------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.2%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CUSIP NO. G02602 10 3 13D/A Page 4 of 57 Pages
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON SBC OPTION DELIVERY, LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER 0
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- -------------------------------------------------------------------------------
8 SHARED VOTING POWER 5,195,823
- -------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER 0
- -------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER 5,195,823
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON 5,195,823
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON CO
- -------------------------------------------------------------------------------
Page 5 of 57 Pages
AMENDMENT NO. 11 TO SCHEDULE 13D
RELATING TO ORDINARY SHARES
OF AMDOCS LIMITED
This statement on Schedule 13D filed on February 22, 2000 (the "Original
13D"), as amended by Amendment No. 1 filed on February 22, 2001, Amendment No. 2
filed on February 27, 2001, Amendment No. 3 filed on June 21, 2001, Amendment
No. 4 filed on December 7, 2001, Amendment No. 5 filed on December 7, 2001,
Amendment No. 6 filed on January 31, 2002, Amendment No. 7 filed on September 9,
2002, Amendment No. 8 filed on November 14, 2002, and Amendment No. 9 filed on
June 17, 2004, Amendment No. 10 filed on September 27, 2004, by SBC
Communications Inc. ("SBC") is hereby further amended to report a change in
ownership of shares of Amdocs Limited (the "Company").
Item 1. Security and Issuer
This statement relates to the Ordinary Shares, par value (pound)0.01
(the "Shares"), of Amdocs Limited, a company organized under the laws of the
Island of Guernsey. The Shares trade on the New York Stock Exchange under the
symbol "DOX". The principal executive office of the Company is Suite 5, Tower
Hill House Le Bordage, St. Peter Port, Island of Guernsey, GY1 3QT Channel
Islands.
Item 4. Purpose of Transaction
On December 27, 2004, SBCI contributed 6,200,000 Shares to Mellon Trust of
New England, N.A. (formerly known as Boston Safe Deposit & Trust Co.), as
Trustee under the terms of the Master Trust Agreement for SBC Communications
Inc. Deferred Compensation Plans and Other Executive Benefit Plans, as amended
(the "Master Trust Agreement"), to provide for payment of obligations of SBC and
its affiliates under the terms of certain SBC benefits plans (the "Participating
Trusts"). A copy of the Master Trust Agreement is attached as Exhibit 1 to this
statement. The Master Trust Agreement provides that, subject to the terms of the
Master Trust Agreement, the Trustee has the power to dispose of any assets of
the trust and to vote all shares of corporate stock held by the trust subject to
the terms of the Master Trust Agreement. The Master Trust Agreement requires
that the Trustee invest the trust fund of the trust in accordance with the
written directions of SBC. SBC has given written instructions to the Trustee for
the investment of all of the trust fund including, without limitation,
instructions to hold and not to sell the Shares contributed to the trust by
SBCI.
Page 6 of 57 Pages
From and after a Change in Control (as defined for the purposes of the
Master Trust Agreement) SBC will no longer be entitled to direct the Trustee
with respect to the investment of the trust. SBC has the right to reacquire all
or part of the Shares at any time by substituting readily marketable property of
equivalent value. In addition, although the terms of the Master Trust Agreement
do not require the Trustee to act at SBC's direction with respect to voting of
the Shares, the Trustee has advised SBC that the Trustee does not believe that
it may vote the Shares except in accordance with SBC's written instructions.
Item 5. Interest in Securities of the Issuer
(a) As a result of the contribution of Shares to the trust, SBCI, a
wholly-owned subsidiary of SBC, has had its beneficial ownership of Shares
reduced to 6,547,698 Shares representing 3.2% of the outstanding Shares and
the 6,200,000 Shares contributed to the trust remain beneficially owned by
SBC for an aggregate beneficial ownership of 6.2% of the outstanding
Shares. SBCO, a wholly-owned subsidiary of SBCI, beneficially owns
5,195,823 Shares representing 2.5% of the outstanding Shares (which are
included in the earlier amount for SBCI). As of June 30, 2004, the capital
structure of the Company consists of 206,135,000 Shares (according to Form
6-K filed by the Company on August 13, 2004). SBC possesses ultimate
beneficial ownership of the reported Shares held by SBCI and SBCO by virtue
of its ownership of SBCI and SBCO.
(b) SBC beneficial ownership interest:
Percent of class.............................................6.2%
Sole power to vote or to direct the vote.........6,200,000 Shares
Shared power to vote or to direct the vote.......6,547,698 Shares
Sole power to dispose or to direct
the disposition of..........................6,200,000 Shares
Shared power to dispose or direct
the disposition of..........................6,547,698 Shares
SBCI beneficial ownership interest1:
Percent of class.............................................3.2%
Sole power to vote or to direct the vote.................0 Shares
Shared power to vote or to direct the vote.......6,547,698 Shares
Sole power to dispose or to direct
the disposition of..................................0 Shares
Shared power to dispose or direct
the disposition of..........................6,547,698 Shares
SBCO beneficial ownership interest2:
Percent of class.............................................2.5%
Sole power to vote or to direct the vote.................0 Shares
Shared power to vote or to direct the vote.......5,195,823 Shares
Sole power to dispose or to direct
the disposition of..................................0 Shares
Shared power to dispose or direct
the disposition of..........................5,195,823 Shares
Page 7 of 57 Pages
1 SBC has ultimate control over these Shares by virtue of its ownership
of SBCI.
2 Each of SBC and SBCI has ultimate control over these Shares by virtue of
their ownership of SBCO.
(c) The description of the contribution set forth in Item 4 is incorporated in
this Item 5(c) by reference.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer
The description of the contribution set forth in Item 4 is incorporated
in this Item 6 by reference.
Item 7. Material to be Filed as Exhibits
Exhibit No. Description
1-a Master Trust Agreement for SBC Communications Inc. Deferred
Compensation Plans and Other Executive Benefit Plans by and
between SBC Communications Inc. and Boston Safe Deposit and
Trust Co.
1-b First Resolution amending the Master Trust Agreement, effective
August 1, 1995.
1-c Second Resolution amending the Master Trust Agreement, effective
November 1, 1999.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
SBC COMMUNICATIONS INC.
Dated: December 27, 2004 By: /s/ Jonathan P. Klug
Jonathan P. Klug
Vice President and Treasurer
SBC INTERNATIONAL, INC.
Dated: December 27, 2004 By: /s/ Jonathan P. Klug
Jonathan P. Klug
Vice President and Treasurer
SBC OPTION DELIVERY, LLC
By SBC Hedging Management, LLC
Manager of SBC Option Delivery, LLC
Dated: December 27, 2004 By: /s/ Hal E. Rainbolt
Hal E. Rainbolt
Director, SBC Hedging Management, LLC
MASTER
TRUST AGREEMENT FOR
SOUTHWESTERN BELL CORPORATION
DEFERRED COMPENSATION PLANS AND OTHER
EXECUTIVE BENEFIT PLANS
By and Between
SOUTHWESTERN BELL CORPORATION,
PARTICIPATING TRUST TRUSTEES
And
BOATMEN'S TRUST COMPANY, AS TRUSTEE
TABLE OF CONTENTS
Page
PREAMBLE 1
ARTICLE I Effective Date; Duration 3
1.1 Effective Date and Trust Year 3
1.2 Duration 3
ARTICLE II Trust Fund 3
2.1 Contributions` 3
2.2 Investments 4
2.3 Excess Assets 7
2.4 Subtrusts 8
2.5 Substitution of Other Property 10
2.6 Administrative Powers of Trustee 10
ARTICLE III Administration 14
3.1 Committees; Company Representatives 14
3.2 Payments From Trust Fund 15
3.3 Valuations 17
3.4 Records 18
3.5 Accountings 18
3.6 Expenses and Fees 19
ARTICLE IV Liability 19
4.1 Indemnity 19
4.2 Bonding 19
Page
ARTICLE V Insolvency 20
5.1 Determination of Insolvency 20
5.2 Insolvency Administration 20
5.3 Termination of Insolvency
Administration 21
5.4 Creditors' Claims During Solvency 22
ARTICLE VI Successor Trustees 22
6.1 Resignation and Removal 22
6.2 Appointment of Successor 22
6.3 Accountings; Continuity 23
ARTICLE VII General Provisions 23
7.1 Interests Not Assignable 23
7.2 Amendments 24
7.3 Applicable Law 24
7.4 Agreement Binding on All Parties 24
7.5 Notices and Directions 24
7.6 No Implied Duties 25
7.7 Beneficiary(ies); Beneficiary Benefits 25
7.8 Gender, Singular and Plural 25
ARTICLE VIII Insurer 25
8.1 Insurer Not a Party 25
8.2 Authority of Trustee 25
8.3 Contract Ownership 25
8.4 Limitation of Liability 25
8.5 Change of Trustee 25
INDEX OF TERMS
TERM SECTION PAGE
- ---- ------- ----
Board 5.1.2 20
Change in Control 2.2.2 4
Code Preamble 2
Committee 2.2.1 4
Company Heading 1
Contracts 2.2.1 4
ERISA Preamble 2
Excess Assets 2.3 7
Expert 2.6.2 12
Insolvency Administration 5.2.1 20
Insolvent 5.1.1 20
Insurer 2.2.1 4
Investment Manager 2.2.4 6
Participant Trust 2.4.2 8
Participating Trust Preamble 1
Participating Trust Trustee Heading 1
Plan Preamble 2
Potential Change in Control 2.1 4
Potential Change in Control
Funding Amount 2.1 4
Segregated Fund 2.2.4 6
Solvency 5.4.2 22
Subtrust 2.4.1 8
Trustee Heading 1
Written Consent of Participants 2.2.2 5
MASTER TRUST AGREEMENT FOR
SOUTHWESTERN BELL CORPORATION
SENIOR MANAGEMENT DEFERRED COMPENSATION PLANS AND
OTHER EXECUTIVE BENEFIT PLANS
This Trust Agreement is made and entered into by and between
SOUTHWESTERN BELL CORPORATION, a Delaware corporation (the "Company"), BOATMEN'S
TRUST COMPANY, a Missouri corporation (the "Trustee"), and Boatmen's Trust
Company as trustee of each Participating Trust (as such term is hereinafter
defined). Boatmen's Trust Company acting in its capacity as trustee of each
Participating Trust is hereinafter referred to as the "Participating Trust
Trustee". The parties agree as follows:
The Company and the Participating Trust Trustees hereby
establish with the Trustee a trust to hold all monies and other property,
together with the earnings, income, additions and appreciation thereon and
thereto, as shall be paid or transferred to it hereunder in accordance with the
terms and conditions of this Trust Agreement. The Trustee hereby accepts the
trust established under this Trust Agreement and agrees to hold, IN TRUST, all
monies and other property transferred to it hereunder for the uses and purposes
and upon the terms and conditions set forth herein, and the Trustee further
agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
PREAMBLE
The Company and the Participating Trust Trustees have entered
into the following trust agreements, each of which is incorporated herein by
this reference, thereby establishing eight separate trusts (each of which is
referred to herein as a "Participating Trust"):
o Trust Agreement for Southwestern Bell Corporation
Senior Management Deferred Compensation Plan of 1988
o Trust Agreement for Southwestern Bell Corporation
Senior Management Deferred Compensation Plan of 1988
(Early Payment Option)
o Trust Agreement for Southwestern Bell Corporation
Senior Management Deferred Compensation Plan
o Trust Agreement for Southwestern Bell Corporation
Management Deferred Compensation Plan of 988
o Trust Agreement for Southwestern Bell Corporation
Management Deferred Compensation Plan
o Trust Agreement for Southwestern Bell Corporation
Compensation Deferral Plan
o Trust Agreement for Southwestern Bell Corporation
Senior Management Supplemental Retirement Income Plan
o Trust Agreement for Southwestern Bell Corporation
Management Pension Plan (Benefits In Excess of Code
ss. 415 Limitations)
-2-
The Company and the Participating Trust Trustees wish to
establish his trust to facilitate the administration of the Participating
Trusts.
The Company and/or the respective Participating Trust Trustee
shall provide the Trustee with certified copies of the following items: (i)
Participating Trust Agreement; and (ii) lists and specimen signatures of
representatives authorized to take action in regard to the administration of the
Participating Trust and/or this trust, including any changes of such
representatives promptly following any such change.
The purpose of this trust is to facilitate the administration
of the Participating Trusts which were themselves each established for the
benefit of eligible participants of the plan to which the Participating Trust
relates (each such plan being hereinafter referred to as a "Plan").
This trust shall be and hereby is declared to be subject to
the provisions of each Participating Trust.
The Company and the Participating Trust Trustees and the
Trustee agree that the trust hereby created has been established to facilitate
the administration of the Participating Trusts (which themselves were each
established to pay obligations of the Company pursuant to a Plan) and is subject
to the rights of general creditors of the Company, and accordingly is a grantor
trust under the provisions of Sections 671 through 677 of the Internal Revenue
Code of 1986 as amended (the "Code"). The Company hereby agrees to report all
items of income and deduction of the trust on its own income tax returns; and
the Company shall have no right to any distributions from the trust or any claim
against the trust for funds necessary to pay any income taxes which the Company
is required to pay on account of reporting the income of the trust on its income
tax returns. No contribution to or income of the trust is intended to be taxable
to Plan participants until benefits are distributed to them.
Each Plan is intended to be "unfunded" and maintained
"primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees" for purposes of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and as such is
intended not to be covered by Parts 2 through 4 of subtitle B of Title I of
ERISA (relating to participation and vesting, funding and fiduciary
responsibility). The existence of this trust is not intended to alter this
characterization of any Plan.
-3-
Any additional trust may become a Participating Trust
hereunder with the consent of the Company and the Trustee upon adoption of this
Agreement and delivery to the Trustee of assets to purchase units hereunder for
such trust in accordance with 2.1 and 3.3 hereof.
ARTICLE I
Effective Date; Duration
1.1 Effective Date and Trust Year
This trust shall become effective when the Trust Agreement has
been executed by the Company, the Participating Trust Trustees and the Trustee
and the Company and/or a Participating Trust Trustee has made a contribution to
the trust. The trust year shall be the calendar year.
1.2 Duration
1.2.1 This trust shall continue in effect until all assets of the trust fund are
exhausted through distribution of Participating Trust assets in accordance with
the provisions of the Participating Trusts or return of Participating Trust
assets to the Participating Trust Trustees or to the Company in accordance with
Participating Trust provisions. Notwithstanding the foregoing, this trust shall
terminate on the day before twenty-one years after the death of the last
survivor of all of the present or future participants in any Plan who are now
living and those persons now living who are designated as beneficiaries of any
such participants in accordance with the terms of any Plan.
ARTICLE II
Trust Fund
2.1 Contributions
The Company and the Participating Trust Trustees hereby
establish with the Trustee, and the Trustee hereby accepts, a trust consisting
of such cash or other property acceptable to the Trustee as shall be paid or
delivered to the Trustee from time to time by the Company or any Participating
Trust Trustee together with the earnings, income, additions and appreciation
thereon and thereto. All such payments and deliveries of cash or other property
shall be deemed to be made as of the Valuation Date (as such term is hereinafter
defined) coinciding with or next following such payment or delivery and shall
purchase units in accordance with the provisions of 3.3. With respect to
contributions made by the Company, the Company shall designate the Participating
Trust for which such contributions are made; provided, however, the Company may
designate that funds it contributes not be allocated to any Participating Trust
but instead that such contribution be allocated to the Company's account that
shall be maintained hereunder. The Trustee shall hold the fund in trust and
manage and administer it in accordance with the terms and provisions of this
Agreement.
-4-
Before a Potential Change in Control (as such term is defined
in the Participating Trusts), subject to 3.2.1, the Trustee shall transfer from
the Company's account hereunder to the account of any Participating Trust such
amount as the Company directs. Upon a Potential Change in Control, any funds
then held in the Company's account hereunder shall be allocated as of the
Valuation Date coinciding with or next following the Potential Change in Control
to the Participating Trusts hereunder. The amount allocated to each such
Participating Trust shall be that portion of the total amount in the Company's
account that is proportional to the ratio of a Participating Trust's Potential
Change in Control Funding Amount (as such term is defined in the Participating
Trusts) to the aggregate of the Potential Change in Control Funding Amounts of
all of the Participating Trusts.
2.2 Investments
2.2.1 The trust fund may be invested primarily in insurance or annuity contracts
("Contracts"). Such Contracts may be purchased by the Company and transferred to
the Trustee by the Company or a Participating Trust Trustee as in-kind
contributions or may be purchased by the Trustee with the proceeds of cash
contributions (or may be purchased upon direction by the Company pursuant to
2.2.2 or an Investment Manager pursuant to 2.2.4). The Company's contributions
to the trust shall include sufficient cash to make projected premium payments on
such Contracts and payments of interest due on loans secured by the cash value
of such Contracts, unless the Company makes such payments directly. The Trustee
shall have the power to exercise all rights, privileges, options and elections
granted by or permitted under any Contract or under the rules of the issuing
insurance company ("Insurer"), including the right to obtain policy loans
against the cash value of the Contract. The Company or a Participating Trust
Trustee or a Committee (as such term is defined in the Participating Trusts) may
from time to time direct the Trustee in writing as to the designation of the
beneficiary of a Plan participant under a Contract for any part of the death
benefits payable to such beneficiary thereunder, and the Trustee shall file such
designation with the Insurer.
2.2.2 The trustee shall invest the trust fund in accordance with written
directions by the Company. However, after a Change in Control (as such term is
defined in the Participating Trusts) no investments shall be made in any
securities or instruments issued by the Company or other assets of the Company
without the written Consent of Participants (as such term is defined in the
Participating Trusts). The Trustee shall act only as an administrative agent in
carrying out directed investment transactions and shall not be responsible for
the investment decision. If a directed investment transaction violates any duty
to diversify, to maintain liquidity or to meet any other investment standard
under this trust or applicable law, the entire responsibility shall rest upon
the Company. The Trustee shall be fully protected in acting upon or complying
with any investment objectives, guidelines, restrictions or directions provided
in accordance with this paragraph.
-5-
Notwithstanding the foregoing, after a Change in Control the
Company shall no longer be entitled to direct the Trustee with respect to the
investment of the trust fund pursuant to this 2.2.2, unless the Written Consent
of Participants is obtained for the Company to continue to have this right
pursuant to this 2.2.2. If such written Consent of Participants is not obtained,
the trust fund shall be invested by the Trustee pursuant to 2.2.3 or an
Investment Manager pursuant to 2.2.4 and the Trustee or Investment Manager shall
also have the right to invest the trust fund primarily in insurance or annuity
contracts pursuant to 2.2.1.
2.2.3 If the Trustee does not receive instructions from the Company for the
investment of part or all of the trust fund, the Trustee shall invest and
reinvest the assets of the trust as the Trustee, in its sole discretion, may
deem appropriate, including (without limiting the generality of the foregoing)
improved and unimproved real property, whether or not income producing, common
and preferred stocks, shares or certificates of participation issued by
investment companies, investment trusts and mutual funds, common or pooled
investment funds, bonds, debentures, mortgages, deeds of trust, insurance and
annuity contracts, notes secured by real or personal property, leases, ground
leases, limited partnership interests, real or personal property interests
owned, developed or managed by joint ventures or limited partnerships,
obligations of governmental bodies, both domestic and foreign, notes, commercial
paper, certificates of deposit, and other securities or evidences of
indebtedness, secured or unsecured, including variable amount notes, convertible
securities of all types and kinds, interest-bearing savings or deposit accounts
with any federally-insured bank (including the Trustee or an affiliate of the
Trustee) or any savings and loan association, and any other property permitted
as trust investments under applicable law; provided, however, the Trustee is
hereby specifically authorized to sell covered call options but shall not
purchase such options or otherwise deal in options or futures contracts.
The Trustee is hereby specifically authorized to invest in any common or pooled
investment fund or mutual fund now or hereafter maintained by the Trustee or an
affiliate of the Trustee and any interest-bearing savings or deposit accounts
with the banking department of the Trustee or an affiliate of the Trustee.
2.2.4 The Company may appoint one or more investment managers ("Investment
Manager") subject to the following provisions:
(a) The Company may appoint one or more Investment
Managers to manage (including the power to acquire and dispose
of) a specified portion of the assets of the trust
(hereinafter referred to as that Investment Manager's
"Segregated Fund"). Any Investment Manager so appointed must
be either (A) an investment adviser registered as such under
the Investment Advisers Act of 1940, (B) a bank, as defined in
that Act, or (C) an insurance company qualified to perform
services in the management, acquisition or disposition of the
assets of trusts under the laws of more than one state; and
any Investment Manager so appointed must acknowledge in
writing to the Company and to the Trustee that it is a
fiduciary with respect to the Plans. The Trustee, until
notified in writing to
-6-
the contrary, shall be fully protected in relying upon any
written notice of the appointment of an Investment Manager
furnished to it by the Company. In the event of any vacancy
in the office of Investment Manager, the Trustee shall be
deemed to be the Investment Manager of that Investment
Manager's Segregated Fund until an Investment Manager thereof
shall have been duly appointed; and in such event, until an
Investment Manager shall have been so appointed and
qualified, references herein to the Trustee's acting in
respect of that Segregated Fund pursuant to direction from the
Investment Manger shall be deemed to authorize the Trustee
to act in its own discretion in managing and controlling the
assets of that Segregated Fund, and subparagraph (c) below
shall have no effect with respect thereto and shall be
disregarded.
(b) Each Investment Manager appointed pursuant to
subparagraph (a) above shall have exclusive authority and
discretion to manage and control the assets of its Segregated
Fund and may invest and reinvest the assets of the Segregated
Fund in any investments in which the Trustee is authorized to
invest under 2.2.3, subject to the limitations of 2.2.3 and
subject to the terms and limitations of any written
instruments pertaining to its appointment as Investment
Manager. Copies of any such written instruments shall be
furnished to the Trustee. In addition, each Investment Manager
from time to time and at any time may delegate to the Trustee
(or in the event of any vacancy in the office of Investment
Manager, the Trustee may exercise in respect of that
Investment Manager's Segregated Fund) discretionary authority
to invest and reinvest otherwise uninvested cash held in its
Segregated Fund temporarily in bonds, notes or other evidences
of indebtedness issued or fully guaranteed by the United
States of America or any agency or instrumentality thereof, or
in other obligations of a short-term nature, including prime
commercial obligations or part interests therein.
(c) Unless the Trustee knowingly participates in, or
knowingly undertakes to conceal, an act or omission of an
Investment Manager, knowing such act or omission to be a
breach of the fiduciary responsibility of the Investment
Manager with respect to any Plan, the Trustee shall not be
liable for any act or omission of any Investment Manager and
shall not be under any obligation to invest or otherwise
manage the assets of any Plan that are subject to the
management of any Investment Manager. Without limiting the
generality of the foregoing, the Trustee shall not be liable
by reason of its taking or refraining from taking at the
direction of an Investment Manager any action in respect of
that Investment Manager's Segregated Fund. The Trustee shall
be under no duty to question or to make inquiries as to any
direction or order or failure to give direction or order by
any Investment Manager; and the Trustee shall be under no duty
to make any review of investments acquired for the trust at
the direction or order of any Investment Manager and shall be
under no duty at any time to make any recommendation with
respect to disposing of or continuing to retain any such
investment.
-7-
2.3 Excess Assets
Excess Assets (as such term is defined in the Participating
Trusts) allocable to any Participating Trust that are held in this trust may be
returned to the Company in accordance with the provisions of such Participating
Trust and 3.2 hereof. Funds not allocated to any Participating Trust shall not
be returned to the Company (payments made out of the Company's account on behalf
of a Participating Trust pursuant to 3.2 shall not constitute a return to the
Company of any unallocated funds).
2.4 Subtrusts
2.4.1 Upon written direction of the Company, the Trustee shall establish a
separate subtrust ("Subtrust") for each participant in a Plan. The Subtrust
shall reflect an undivided interest in the Participating Trust's assets of the
trust fund and shall not require any segregation of particular assets. In the
event the Company directs the Trustee to establish separate Subtrusts, the
Company shall direct the Trustee with respect to the allocation of assets of the
trust fund among each separate Subtrust. After a Change in Control, any such
direction by the Company with respect to the allocation of assets of the trust
fund among separate Subtrusts may be made only with the Written Consent of
Participants affected thereby. If the Trustee does not receive a valid direction
with respect to the allocation of assets of the trust fund among separate
Subtrusts within 90 days after such Subtrusts are established, the assets of the
trust fund or affected portion thereof shall be allocated in accordance with the
provisions of the applicable Participating Trust. With respect to any new
contributions to the trust by the Company after separate Subtrusts have been
established, the Company shall designate each participant for which such
contributions are made. The Trustee shall have no duty to inquire whether any of
the foregoing allocations of assets of the trust fund or contributions to the
trust are made in compliance with the terms of any Plan.
After establishment of separate Subtrusts, the interest of
each Subtrust in this trust shall be accounted for as a separate fund of the
trust and no part of the assets allocable to one participant and his/her
Subtrust shall be utilized to provide any benefits under any Plan to any other
participant.
The Trustee shall allocate investment earnings and losses of
the trust fund among the Subtrusts in proportion to their account balances.
Payments to general creditors during Insolvency Administration under 5.2 shall
be charged against each Subtrust in proportion to its account balance plus
payment therefrom to the beneficiary thereof made during the previous duration
of said Subtrust, except that payment of benefits to a Plan participant as a
general creditor shall be charged against the Subtrust for that participant.
2.4.2 Upon direction of a Participating Trust Trustee, the Trustee shall
establish a separate subtrust for each participant (each a "Participant Trust")
in a Plan. The Participant Trust shall reflect an undivided interest in the
Participating Trust's assets of the trust fund and shall not require any
segregation of particular assets. The assets of the trust shall be allocated to
such separate Participant Trusts in accordance with the
-8-
provisions of the applicable Participating Trust. After such allocation, the
interest of each Participant Trust in this trust shall be accounted for as a
separate fund of the trust and no part of the assets allocable to one
participant and his/her Participant Trust shall be utilized to provide any
benefits under any Plan to any other participant.
(a) With respect to any new contributions to the trust by the Company after the
Participant Trusts have been established, the Company shall designate each
participant and his/her associated Participant Trust for which such
contributions are made.
(b) Investment earnings and losses of the trust fund of the Plan shall be
allocated among the Participant Trusts in proportion to their account
balances. Payments to general creditors during Insolvency Administration
shall be charged, until each such trust is exhausted, against each
Participant Trust in proportion to its account balance plus payments
therefrom to the beneficiary thereof made during the previous duration of
said Participant Trust, except that payment of benefits to a Plan
participant as a general creditor shall be charged against the appropriate
Participant Trust for that participant.
(c) Following the establishment of Participant Trusts, a Plan's benefits shall
be paid to each participant or his/her beneficiary(ies) in accordance with
the terms of the Plan until all assets allocable to his/her Participant
Trust are exhausted. Thereafter, a participant shall have no claim against
any of the other assets of this trust. Notwithstanding the foregoing, if at
any time after the establishment of Participant Trusts, the value of a
participant's Participant Trust shall be $100,000 or less, distribution of
the value of such Participant Trust shall be made by the Trustee to such
participant at such time in a lump sum. Thereafter, such participant shall
have no claim against any of the other assets of this trust, but shall
retain any rights which he may have against the Company pursuant to the
Plan.
(d) If at any time after the establishment of Participant Trusts in accordance
with this 2.4.2, the Company shall fund the trust to the level required by
the applicable Participating Trust to avoid the establishment of separate
Participant Trusts, then at the Company's option and upon notice by the
Company to the Trustee to such effect, the requirement of this 2.4.2 for
separate Participant Trusts shall cease (and the provisions related thereto
shall have no force or effect) and such requirement shall thereafter
recommence only if the Participating Trust funding level thereafter falls
below the level described in the applicable Participating Trust as
requiring the establishment of separate Participant Trusts.
2.5 Substitution of Other Property
2.5.1 The Company shall have the power to reacquire part or all of the trust
fund at any time, by substituting for it other readily marketable property of
equivalent value, net of any costs of disposition. Such power is exercisable in
a nonfiduciary capacity and may be exercised without the consent of participants
or any other person.
-9-
2.5.2 The value of any insurance Contracts reacquired under 2.5.1 shall be the
present value of future projected cash flow or benefits payable under the
Contract, but not less than the cash surrender value. The projection shall
include death benefits based on reasonable mortality assumptions. The value of
all other assets in the trust fund shall be fair market value. Values shall be
determined by the Trustee and may be based on the determination of Experts (See
2.6.2).
2.6 Administrative Powers of Trustee
2.6.1 Subject in all respects to applicable provisions of this Trust Agreement,
the Participating Trust Agreements and the Plans, including limitations on
investment of the trust fund, the Trustee shall have the rights, powers and
privileges of an absolute owner when dealing with property of the trust,
including (without limiting the generality of the foregoing) the powers listed
below:
(a) To sell, convey, transfer, exchange, partition,
lease, and otherwise dispose of any of the assets of the trust
at any time held by the Trustee under this Trust Agreement;
(b) To exercise any option, conversion privilege or
subscription right given the Trustee as the owner of any
security held in the trust; to vote any corporate stock either
in person or by proxy, with or without power of substitution;
to consent to or oppose any reorganization, consolidation,
merger, readjustment of financial structure, sale, lease or
other disposition of the assets of any corporation or other
organization, the securities of which may be an asset of the
trust; and to take any action in connection therewith and
receive and retain any securities resulting therefrom;
(c) To deposit any security with any protective or
reorganization committee, and to delegate to such committee
such power and authority with respect thereto as the Trustee
may deem proper, and to agree to payout of the trust such
portion of the expenses and compensation of such committee as
the Trustee, in its discretion, shall deem appropriate;
(d) To cause any property of the trust to be issued,
held or registered in the name of the Trustee as trustee, or
in the name of one or more of its nominees, or one or more
nominees of any system for the central handling of securities,
or in such form that title will pass by delivery, provided
that the records of the Trustee shall in all events indicate
the true ownership of such property;
(e) To renew or extend the time of payment of any
obligation due or to become due;
(f) To commence or defend lawsuits or legal or
administrative proceedings; to compromise, arbitrate or settle
claims, debts or damages in favor of or against the trust; to
deliver or accept, in either total or partial
-10-
satisfaction of any indebtedness or other obligation,
any property; to continue to hold for such period of time as
the Trustee may deem appropriate any property so received; and
to pay all costs and reasonable attorneys' fees in connection
therewith out of the assets of the trust;
(g) To grant options to purchase or to acquire
options to purchase any real property;
(h) To foreclose any obligation by judicial
proceeding or otherwise;
(i) To manage any real property in the trust in the
same manner as if the Trustee were the absolute owner thereof,
including the power to lease the same for such term or terms
within or beyond the existence of the trust and upon such
conditions, including (but not by way of limitation)
agreements for the purchase or disposal of buildings thereon
and options to the tenant to renew such lease from time to
time, or to purchase such property, as the Trustee may deem
proper;
(j) To borrow money from any person in such amounts,
upon such terms and for such purposes as the Trustee, in its
discretion, may deem appropriate; and in connection therewith,
to execute promissory notes, mortgages or other obligations
and to pledge or mortgage any trust assets as security; and to
lend money on a secured or unsecured basis to any person other
than a party in interest;
(k) To appoint one or more persons or entities as
ancillary trustee or sub-trustee for the purpose of investing
in and holding title to real or personal property or any
interest therein located outside the State of Missouri;
provided that any such ancillary trustee or sub-trustee shall
act with such power, authority, discretion, duties, and
functions of the Trustee as shall be specified in the
instrument establishing such ancillary or subtrust, including
(without limitation) the power to receive, hold and manage
property, real or personal, or undivided interests therein;
and the Trustee may pay the reasonable expenses and
compensation of such ancillary trustees or sub-trustees out of
the trust;
(l) To deposit any securities held in the trust with
a securities depository;
(m) To hold such part of the assets of the trust
uninvested for such limited periods of time as may be
necessary for purposes of orderly account administration or
pending required directions, without liability for payment of
interest;
(n) To determine how all receipts and disbursements
shall be credited, charged or apportioned as between income
and principal, and the decision of the Trustee shall be final
and not subject to question by any participant or beneficiary
of the trust; and
-11-
(o) Generally to do all acts, whether or not
expressly authorized, which the Trustee may deem necessary or
desirable for the orderly administration or protection of the
trust fund.
2.6.2 The Trustee may engage one or more independent attorneys, accountants,
actuaries, appraisers or other experts (each an "Expert") for any purpose,
including the determination of Excess Assets (as such term is defined in the
Participating Trusts). The determination of an Expert shall be final and binding
on the Company, the Participating Trust Trustees, the Trustee, and all of the
Plans' participants unless within 30 days after receiving a determination deemed
by any participant to be adverse, any participant initiates suit in a court of
competent jurisdiction seeking appropriate relief. The Trustee shall have no
duty to oversee or independently evaluate the determination of the Expert. The
Trustee shall be authorized to pay the fees and expenses of any Expert out of
the assets of the trust fund.
2.6.3 The Company shall from time to time pay taxes (references in this Trust
Agreement to the payment of taxes shall include interest and applicable
penalties) of any and all kinds whatsoever which at any time are lawfully levied
or assessed upon or become payable in respect of the trust fund, the income or
any property forming a part thereof, or any security transaction pertaining
thereto. To the extent that any taxes levied or assessed upon the trust fund are
not paid by the Company or contested by the Company pursuant to the last
sentence of this paragraph, the Trustee shall pay such taxes out of the trust
fund, and the Company shall upon demand by the Trustee deposit into the trust
fund an amount equal to the amount paid from the trust fund to satisfy such tax
liability. If requested by the Company, the Trustee shall, at the company's
expense, contest the validity of such taxes in any manner deemed appropriate by
the Company or its counsel, but only if it has received an indemnity bond or
other security satisfactory to it to pay any expenses of such contest.
Alternatively, the Company may itself contest the validity of any such taxes,
but any such contest shall not affect the Company's obligation to reimburse the
trust fund for taxes paid from the trust fund.
2.6.4 In the event a Plan's participant's beneficiary designation results in a
participant or the participant's spouse being deemed to have made a
"generation-skipping transfer" as defined in Section 2611 of the Code, then to
the extent that the participant or participant's "executor", as said term is
defined in the Code (or the spouse of the participant or said spouse's statutory
executor in the case of a generation-skipping transfer deemed to have been made
by a participant's spouse), have not previously used the total
generation-skipping transfer exemption that is available under Section 2631 of
the Code to such transferor, such unused exemption shall be allocated in the
manner prescribed by Section 2632 of the Code, except that (a) any
generation-skipping transfer resulting from said beneficiary designation shall
be excluded from the allocation; and (b) the method of allocation under Section
2632 shall be reversed so that such unused portion of said transferor's
exemption shall be applied first to trusts or trust equivalents of which
transferor is the deemed transferor and from which taxable distributions occur
and, second, to direct skips occurring at said transferor's death. Any portion
of said transferor's total generation-skipping transfer exemption not used
pursuant to the provisions of the previous sentence shall be allocated to the
transfer resulting from the beneficiary designation that gives rise to the
generation-skipping transfer hereunder.
-12-
Notwithstanding any provisions in a Plan or this Trust
Agreement to the contrary, the Company and Trustee may withhold any benefits
payable to a beneficiary as a result of the death of the participant or any
other beneficiary until such time as (a) the Company or Trustee is able to
determine whether a generation-skipping transfer tax, as defined in Chapter 13
of the Code, or any substitute provision therefor, is payable by the Company or
Trustee; and (b) the Company or Trustee has determined the amount of
generation-skipping transfer tax that is due, including interest thereon. If any
such tax is payable, the Company or Trustee shall reduce the benefits otherwise
payable hereunder to such beneficiary by the amount necessary to provide said
beneficiary with a benefit equal to the amounts that would have been payable if
the original benefits had been calculated on the basis of a present value at the
time of the generation-skipping transfer equal to the then present value of the
originally contemplated benefit less an amount equal to the generation-skipping
transfer tax and any interest thereon that is payable as a result of the death
in question. The Company or Trustee may also withhold from distribution by
further reduction of the then net present value of benefits calculated in
accordance with the terms of the previous sentence such amounts as the Company
or Trustee feels are reasonably necessary to pay additional generation-skipping
transfer tax and interest thereon from amounts initially calculated to be due.
Any amounts so withheld shall be payable as soon as there is a final
determination of the applicable generation-skipping tax and interest thereon. No
interest shall be payable by the Company or Trustee to any beneficiary for the
period of time that is required from the date of death to the time when the
aforementioned generation-skipping transfer tax determinations are made and the
amount of benefits payable to a beneficiary can be fully determined.
ARTICLE III
Administration
3.1 Committees; Company Representatives
3.1.1 Each Plan is administered by a Committee appointed by the Company. A
Committee has general responsibility to interpret its Plan and determine the
rights of participants and beneficiaries.
3.1.2 The Trustee shall be given the names and specimen signatures of the
members of each Committee and any other Company and Participating Trust
Trustee's representatives authorized to take action in regard to the
administration of a Plan and/or this trust. The Trustee shall accept and rely
upon the names and signatures until notified of any change. Instructions to the
Trustee shall be signed for the Committee by such person as the Committee may
designate and for the Company by such representative as the Company may
designate.
3.2 Payments From Trust Fund
-13-
3.2.1 From time to time, upon receipt of written directions from the Company or
a Participating Trust Trustee, delivered before a Valuation Date, the Trustee
shall make payments on behalf of a Participating Trust from the Company's
account or the beneficial interest of a Participating Trust to such persons, in
such manner and in such amounts as the Company or Participating Trust Trustee,
as applicable, shall direct, and amounts paid out of the trust pursuant to such
direction shall cease to constitute a part of this trust. All such payments
shall be made as of the Valuation Date next following receipt of such written
direction.
3.2.2 The Trustee, as directed by the Company, shall make any required income
tax withholding and shall pay amounts withheld to taxing authorities on the
Company's behalf or determine that such amounts have been paid by the Company.
3.2.3 The Company or a Participating Trust Trustee, by written direction
delivered to the Trustee not less than 10 days before a Valuation Date, may
direct the withdrawal and transfer to a Participating Trust as of that Valuation
Date of part or all of a Participating Trust's entire beneficial interest in the
fund. The Trustee shall determine the value of such beneficial interest as of
that Valuation Date and transfer the amount of such value to that Participating
Trust as soon as practicable after such Valuation Date, either in cash, or, in
the discretion of the Trustee, in other property or partly in cash and partly in
other property. This trust shall terminate upon the complete withdrawal
therefrom of the entire beneficial interests of all Participating Trusts.
3.2.4 The Trustee shall use the assets of the trust or any Subtrust or any
Participant Trust to make benefit payments or other payments in the following
order of priority;
(a) All assets of the trust or any Subtrust or any
Participant Trust other than Contracts with Insurers, in such
order as the Trustee may determine;
(b) Cash contributions from the Company; and the
Company hereby agrees to make cash contributions to the trust
to enable the Trustee to make all benefit payments and other
payments when due, unless the Company makes such payments
directly, whenever the Trustee or a Participating Trust
Trustee advises the Company that the assets of the trust or
any Subtrust or any Participant Trust, other than Contracts
with Insurers, are insufficient to make such payments; and
(c) Contracts with Insurers held in the trust or any
Subtrust or any Participant Trust; and in using any such
Contracts, the Trustee shall first borrow 50% of the cash
surrender value of each such Contract, proceeding in order of
Contracts from the Contracts which have been in force for the
longest times (and in alphabetical order based on the last
name of the insured for Contracts placed in force on the same
date) to the Contracts which have most recently been placed in
force; and thereafter the Trustee shall surrender Contracts in
the same order of priority as set forth above.
-14-
Notwithstanding the foregoing, the Trustee may use the assets
of the trust or any Subtrust or any Participant Trust in any other order of
priority directed by the Company with the Written Consent of Participants
affected thereby.
3.2.5 The Trustee and each Participating Trust Trustee hereby appoint Company as
paying agent of each Participating Trust and this trust. Company shall advise
each Participating Trust Trustee and the Trustee monthly by the 20th of each
month regarding amounts required to be paid during the following month to each
Plan's participants and beneficiaries. The Trustee and Participating Trust
Trustees shall advise the Company as to cash available to pay such benefits. At
the end of each month, this trust on behalf of each Participating Trust, to the
extent directed by the Company, shall deposit with the Company as paying agent
for this trust and the Participating Trust, from such Participating Trust's
portion of the fund, an amount up to that necessary for the Company to pay
benefits to participants and beneficiaries during the following month on behalf
of such Participating Trust. Deposit of any such trust/Participating Trust
monies with the Company shall not constitute a return to the Company of any
assets of any Participating Trust. Company shall make payments to participants
and beneficiaries on behalf of the applicable Participating Trust. Amounts
necessary to pay benefits to participants and beneficiaries that are not
provided by the Participating Trust shall be paid by the Company. Rather than
charge a payment made pursuant to this 3.2.5 to a particular Participating
Trust, the Company may direct the Trustee to charge such payment against the
Company's account maintained hereunder.
3.3 Valuations
3.3.1 As of the last day of November, 1989 and as of the last day of each month
thereafter or more frequently as agreed upon by the Company, the Participating
Trust Trustees and the Trustee (hereinafter called "Valuation Dates"), the
Trustee shall determine the fair market value of the fund in such manner as the
Trustee in its discretion shall prescribe and the Company shall approve, but in
accordance with a method consistently followed and uniformly applied. In
determining fair market value, the Trustee shall utilize and shall be entitled
to rely upon the Company, published quotations or pricing services that the
Trustee deems reliable, or in the absence thereof, upon estimates or appraisals
of value obtained from sources that the Trustee deems qualified, including
bankers, brokers, dealers or others, who are familiar with the type of
investment involved and who may be employees of the Trustee. The Trustee's
reasonable valuations shall be binding on the Participating Trusts and all
persons interested therein.
3.3.2 (a) For purposes of valuing the beneficial interests of Participating
Trusts and of the Company's account maintained hereunder, the fund shall be
divided into units without distinction between principal and income. Each unit
shall represent a proportionate undivided beneficial interest in the fund as a
whole, but shall not represent any right, title, or interest in or to any
specific asset of the fund, title to which shall be in the Trustee. All units of
the fund shall be of equal value. No unit shall have any priority or preference
over any other. No participating Trust may assign any part of its equity or
interest in the fund.
-15-
(b) Upon any payment by the Company on behalf of the Company
account or by the company on behalf of a participating Trust or by a fiduciary
of a Participating Trust of the Trustee pursuant to 2.1, the Company account or
Participating Trust, as applicable, shall be deemed to have bought, at a unit
price equal to the unit value on that date, one or more full and/or fractional
units having an aggregate value equal to the amount of the payment. The Trustee
may accept property at its fair market value in lieu of cash in payment of the
purchase price of units. There shall be no limit on the number of units the
Company account or any one Participating Trust may buy.
(c) When directed by the Company or a Plan's Committee or a
Participating Trust Trustee to make a payment out of the beneficial interest of
the Participating Trust as provided in 3.2, the Trustee shall cancel a number of
full and/or fractional units having an aggregate value equal to the amount of
the payment. Any payment made out of the beneficial interest of the Company
account shall cancel a number of full and/or fractional units having an
aggregate value equal to the amount of the payment. Neither the Company account
nor any Participating Trust shall have claims to any part of the fund in excess
of the value of such account's or Participating Trust's units.
(d) At the inception of the fund, the value of each unit shall
be $10.00. Thereafter, the Trustee shall revalue each unit as of each Valuation
Date. Revaluation shall be made by establishing as provided in 3.3.1 the fair
market value of the fund as of the close of business on the Valuation Date and
dividing that value by the total number of units of the fund outstanding on that
date. Such revaluation shall be made in accordance with a method consistently
followed and uniformly applied and shall be completed as soon as practicable
after the Valuation Date. On any Valuation Date, the Trustee may either increase
or decrease the number of outstanding units in the fund.
3.4 Records
The Trustee shall keep complete records on the trust fund open
to the inspection by the Company and each Plan's Committee and Participating
Trust Trustees at all reasonable times. In addition to accountings required
below, the Trustee shall furnish to the Company and each Plan's Committee and
Participating Trust Trustees any information requested about the trust fund in
whatever format as the Company/Committees/Participating Trust Trustees may
reasonably request.
3.5 Accountings
3.5.1 The Trustee shall furnish the Company and each Participating Trust Trustee
with a complete statement of accounts annually within 60 days after the end of
the trust year showing assets and liabilities and income and expense for the
year of the trust and each Participating Trust and each Subtrust and each
Participant Trust and shall furnish the Company and each Participating Trust
Trustee with such complete statements at such other times as the Company and/or
each Participating Trust Trustee may reasonably request. The form and content of
the statement of account shall be sufficient for the Company to include in
computing its taxable income and credits the income, deductions and credits
against tax that are attributable to the trust fund and shall be in
-16-
whatever format as the Company may reasonably request.
3.5.2 The Company and/or each Participating Trust Trustee may object to an
accounting within 180 days after it is furnished and require that it be settled
by audit by a qualified, independent certified public accountant. The auditor
shall be chosen by the Trustee from a list of at least five such accountants
furnished by the Company or Participating Trust Trustee at the time the audit is
requested. Either the Company or Participating Trust Trustee or the Trustee may
require that the account be settled by a court of competent jurisdiction, in
lieu of or in conjunction with the audit. All expenses of any audit or court
proceedings, including reasonable attorneys' fees, shall be allowed as
administrative expenses of the trust.
3.5.3 If neither the Company nor Participating Trust Trustees object to an
accounting within the time provided, the account shall be settled for the period
covered by it.
3.5.4 When an account is settled, it shall be final and binding on all parties,
including all participants and persons claiming through them.
3.6 Expenses and Fees
3.6.1 The trustee shall be reimbursed for all expenses and shall be paid a
reasonable fee fixed by agreement with the Company from time to time. No
increase in the fee shall be effective before 60 days after the Trustee gives
notice to the Company of the increase. The trustee shall notify the Company
periodically of expenses and fees.
3.6.2 The Company shall pay administrative fees and expenses. If not so paid,
the fees and expenses shall be paid from the trust fund. The Company shall
reimburse the trust fund for any fees and expenses paid out of it.
ARTICLE IV
Liability
4.1 Indemnity
Subject to such limitations as may be imposed by applicable
law, the Company shall indemnify and hold harmless the trustee from any claim,
loss, liability or expense arising from any action or inaction in administration
of this trust based on direction or information from either the Company, any
Committee, any Participating Trust Trustee, any Investment Manager or any
Expert, absent willful misconduct or bad faith on the part of the Trustee or
Participating Trust Trustee.
4.2 Bonding
The Trustee need not give any bond or other security for
performance of its duties under this trust.
-17-
ARTICLE V
Insolvency
5.1 Determination of Insolvency
5.1.1 The Company is "Insolvent" for purposes of this trust if:
(a) The Company is unable to pay its debts as they come due; or
(b) The Company is the subject of a pending proceeding as a debtor under the
federal Bankruptcy Code (or any successor federal statute).
5.1.2 The Company shall promptly give notice to the Trustee upon becoming
Insolvent. The Chief Executive officer of the Company and the Board (as such
term is defined in the Participating Trusts) shall be obligated to give such
notice. If the Trustee receives such notice or receives from any other person
claiming to be a creditor of the Company a written allegation that the Company
is Insolvent, the Trustee shall independently determine whether such Insolvency
exists. The expenses of such determination shall be allowed as administrative
expenses of the trust.
5.1.3 The Trustee shall continue making payments from the trust fund to
participants under any Plan while it is determining the existence of Insolvency.
Such payments shall cease and the Trustee shall commence Insolvency
Administration under 5.2 upon the earlier of:
(a) A determination by the Trustee or a court of competent jurisdiction that the
Company is Insolvent; or
(b) 30 days after the notice or allegation of
Insolvency is received under 5.1.2, unless the Trustee or a
court of competent jurisdiction has determined that the
Company is not Insolvent since receipt of such notice or
allegation.
5.1.4 The Trustee shall have no obligation to investigate the financial
condition of the Company prior to receiving a notice or allegation of Insolvency
under 5.1.2.
5.2 Insolvency Administration
5.2.1 During "Insolvency Administration", the Trustee shall hold the trust fund
for the benefit of the general creditors of the Company and make payments only
in accordance with 5.2.2. The Trustee shall continue the investment of the trust
fund in accordance with 2.2.
5.2.2 The Trustee shall make payments out of the trust fund in one
or more of the following ways:
-18-
(a) To general creditors in accordance with
instructions from a court, or a person appointed by a court,
having jurisdiction over the Company's condition of
Insolvency;
(b) To any Plan's participants and beneficiaries in
accordance with such instructions; or
(c) in payment of its own fees or expenses.
5.2.3 the Trustee shall have a priority claim against the trust fund with
respect to its own fees and expenses.
5.3 Termination of Insolvency Administration
5.3.1 Insolvency Administration shall terminate when the Trustee
determines that the Company:
(a) Is not Insolvent, in response to a notice or
allegation of Insolvency under 5.1.2; or
(b) Has ceased to be Insolvent; or
(c) Has been determined by a court of competent
jurisdiction not to be Insolvent or to have ceased to be
Insolvent.
5.3.2 Upon termination of Insolvency Administration under 5.3.1, the trust fund
shall continue to be held for the benefit of the participants in the Plans.
Benefit payments due during the period of Insolvency Administration shall be
made as soon as practicable, together with interest from the due dates at the
following rates:
(a) if a Plan is deferred compensation plan or other
defined contribution plan, at the rate credited on the
participant's account under such plan.
(b) if a Plan is a supplemental executive retirement
plan or other defined benefits plan or any other plan (other
than a plan referred to in (a) immediately above), at a rate
equal to the interest rate fixed by the Pension Benefit
Guaranty Corporation for valuing immediate annuities in the
preceding month.
5.4 Creditors' Claims During Solvency
5.4.1 During periods of Solvency the Trustee shall hold the trust fund
exclusively to pay the Plans' benefits and fees and expenses of the trust until
all Plan benefits have been paid. Creditors of the Company shall not be paid
during Solvency from the trust fund, which may not be seized by or subjected to
the claims of such creditors in any way.
-19-
5.4.2 A period of "Solvency" is any period not covered by 5.2.
ARTICLE VI
Successor Trustees
6.1 Resignation and Removal
6.1.1 The Trustee may resign at any time by notice to the Company and the
Participating Trust Trustees, which shall be effective in 60 days unless the
Company and the Participating Trust Trustees and the Trustee agree otherwise.
6.1.2 The Trustees may be removed by the Company on 60 days' notice or shorter
notice accepted by the Trustee. After a Change in Control the Trustee may be
removed only with the Written Consent of Participants.
6.1.3 When resignation or removal is effective, the Trustee shall begin transfer
of assets to the successor Trustee immediately. The transfer shall be completed
within 60 days, unless the Company extends the time limit.
6.1.4 If the Trustee resigns or is removed, the Company shall appoint a
successor by the effective date of resignation or removal under 6.1.1 or 6.1.2.
After a Change in Control a successor Trustee may be appointed only with the
Written Consent of Participants. If no such appointment has been made, the
Trustee may apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of the Trustee in connection with
the proceeding shall be allowed as administrative expenses of the trust.
6.2 Appoint of Successor
6.2.1 The Company may appoint any national or state bank or trust company that
is unrelated to the Company as a successor to replace the Trustee upon
resignation or removal. The appointment shall be effective when accepted in
writing by the new Trustee, which shall have all of the rights and powers of the
former Trustee, including ownership rights in the trust assets. The former
trustee shall execute any instruments necessary or reasonably requested by the
Company or the successor trustee to evidence the transfer. After a Change in
Control a successor trustee may be appointed only with the Written Consent of
Participants.
6.2.2 The successor Trustee need not examine the records and acts of any prior
Trustee and may retain or dispose of existing trust assets, subject to Article
II. The successor Trustee shall not be responsible for, and the Company shall
indemnify and hold harmless the successor Trustee from any claim or liability
because of, any action or inaction of any prior Trustee or any other past event,
any existing condition or any existing assets.
-20-
6.3 Accountings; Continuity
6.3.1 A Trustee who resigns or is removed shall submit a final accounting to the
Company and Participating Trust Trustees as soon as practicable. The accounting
shall be received and settled as provided in 3.5 for regular accountings.
6.3.2 No resignation or removal of the Trustee or change in identity of the
Trustee for any reason shall cause a termination of any Plan or this trust.
ARTICLE VII
General Provisions
7.1 Interests Not Assignable
7.1.1 The interest of a participant in the trust fund may not be assigned,
pledged or otherwise encumbered, seized by legal process, transferred or
subjected to the claims of the participant's creditors in any way.
7.1.2 The Company may not create a security interest in the trust fund in favor
of any of its creditors. The Trustee shall not make payments from the trust fund
of any amounts to creditors of the Company who are not Plan participants, except
as provided in 5.2.
7.1.3 The participants shall have no interests in the assets of the trust fund
beyond the right to receive payment of Plan benefits from such assets outside
periods of Insolvency Administration under 5.2. During Insolvency Administration
the participants' rights to trust assets shall not be superior to those of any
other general creditors of the Company.
7.2 Amendments
The Company and the Participating Trust Trustees and the
Trustee may amend this trust at any time by a written instrument executed by all
parties; provided however, this Trust Agreement may not be amended to remove the
requirement that this Trust Agreement is subject to the provisions of each
Participating Trust.
7.3 Applicable Law
This trust shall be governed, construed and administered
according to the laws of Missouri, except as preempted by ERISA.
7.4 Agreement Binding on All Parties
This Trust Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of any and all present and future
parties.
-21-
7.5 Notices and Directions
Any notice or direction under this trust shall be in writing
and shall be effective when actually delivered or, if mailed, upon receipt. Mail
to a party shall be directed to the address stated below or to such other
address as the party may specify by notice to the other parties. Notices to any
Committee shall be sent to the address of the Company. Until notice is given to
the contrary, notices to the Company and Participating Trust Trustees and the
Trustee shall be addressed as follows:
Company: Southwestern Bell Corporation
One Bell Center
St. Louis, Missouri 63101-3099
Attention: Senior Vice President-Finance
and Treasurer
Trustee: Boatmen's Trust Company
510 Locust Street, P.O. Box 14737
St. Louis, Missouri 63178
Attention: Pension Administration
Participating Trust Boatmen's Trust Company
Trustees: 510 Locust Street, P.O. Box 14737
St. Louis, Missouri 63178
Attention: Pension Administration
7.6 No Implied Duties
The duties of the Trustee shall be those stated in this trust,
and no other duties shall be implied.
7.7 Beneficiary (ies); Beneficiary's Benefits
For purposes of this Trust Agreement, (1) any person to whom
payment under a Plan is made or is to be made in the event of a participant's
death shall be such participant's "beneficiary," (2) Benefits under a Plan paid
or to be paid to a participant's beneficiary shall be considered a benefit paid
or to be paid to the participant, as applicable, and (3) after the death of the
participant, a participant's beneficiary (ies), collectively, shall stand in the
place and stead of the participant and shall be considered the Plan participant
and treated as such, except such beneficiary (ies) shall have no vote and shall
not be counted as a participant for purposes of determining the Written Consent
of Participants pursuant to 1.2.6 of any participating Trust.
7.8 Gender, Singular and Plural
All pronouns and any variations thereof shall be deemed to
refer to the masculine or feminine, as the identity of the person or persons may
require. As the context may require, the singular may be read as the plural and
the plural as the singular.
-22-
ARTICLE VIII
INSURER
8.1 Insurer Not a Party
An Insurer shall not be deemed to be a party to this trust,
and its obligation shall be measured and determined solely by the terms of its
Contracts and other agreements executed by it.
8.2 Authority of Trustee
An Insurer shall accept the signature of the Trustee to any
documents or papers executed in connection with its Contracts. The signature of
the Trustee shall be conclusive proof to the Insurer that the person on whose
life an application is being made is eligible to have such Contract issued on
his life and is eligible for a Contract of the type and amount requested.
8.3 Contract Ownership
An Insurer shall deal with the Trustee as the sole and
absolute owner of the trust's interests in its Contracts and shall have not
obligation to inquire whether any action or failure to act on the part of the
Trustee is in accordance with our authorized by the terms of a Plan or a
Participating Trust or this trust.
8.4 Limitation of Liability
An Insurer shall be fully discharged from any and all liability for any
action taken or any amount paid in accordance with the direction of the Trustee
and shall have no obligation to see to the proper application of the amounts so
paid. The Insurer shall have no liability for the operation of this trust or a
Plan, whether or not in accordance with their terms and provisions.
8.5 Change of Trustee
An Insurer shall be fully discharged from any and all liability for
dealing with a party or parties indicated on its records to be the Trustee until
such time as it shall receive at its home office written notice of the
appointment and qualification of a successor Trustee.
-23-
IN WITNESS WHEREOF, the Company and participating Trust
Trustees and the Trustee have caused this Agreement to be executed by their
respective duly authorized officers on the date set forth below.
Company: SOUTHWESTERN BELL CORPORATION
Attest: By: /s/ C.C. Carr
Cassandra C. Carr
Ann Goddard Its Senior Vice President-Finance
Vice President And Treasurer
And Secretary
Executed: 11-3, 1989
Trustee: BOATMEN'S TRUST COMPANY
Attest: By: /s/ Lyle Brizendine
Lyle W. Brizendine
Assistant Secretary Its Senior Vice President
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Senior Management Deferred
Compensation Plan of 1988
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Senior Management Deferred
Compensation Plan of 1988 (Early Payment Option)
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Senior Management Deferred
Compensation Plan
-24-
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Management Deferred Compensation
Plan of 1988
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Management Deferred Compensation
Plan
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Compensation Deferral Plan
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Senior Management Supplemental
Retirement Income Plan
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
Boatmen's Trust Company as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern
Bell Corporation Management Pension Plan (Benefits
In Excess of Code ss. 415 Limitations)
Attest: By: /s/ Lyle Brizendine
Assistant Secretary Lyle W. Brizendine
Executed: 11-6, 1989
-25-
Acknowledgments
State of Missouri )
) ss.
County of St. Louis )
On this 3rd day of November, in the year 1989, before me personally
came Cassandra C. Carr, to me known, who, being by me duly sworn, did depose and
say that she resides at 1700 Mason Knoll Road, St. Louis, Missouri 63131: that
she is Senior Vice President-Finance and Treasurer of Southwestern Bell
Corporation, the corporation described in and which executed the above
instrument; that she knows the corporate seal of said corporation; that the seal
was affixed by authority of the Board of Directors of said corporation, and that
she signed her name thereto by like authority.
/s/ Barbara J. Salen
BARBARA J. SALEN
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS COUNTY
MY COMMISSION EXP AUG. 19, 1993
-26-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 3rd day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Trustee; that he
knows the corporate seal of said corporation; that the seal was affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-27-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Senior
Management Deferred Compensation Plan of 1988; that he knows the corporate seal
of said corporation; that the seal was affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-28-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Senior
Management Deferred Compensation Plan of 1988 (Early Payment Option); that he
knows the corporate seal of said corporation; that the seal was affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-29-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Senior
Management Deferred Compensation Plan; that he knows the corporate seal of said
corporation; that the seal was affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-30-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Management
Deferred Compensation Plan of 1988; that he knows the corporate seal of said
corporation; that the seal was affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-31-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Management
Deferred Compensation Plan; that he knows the corporate seal of said
corporation; that the seal was affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-32-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation
Compensation Deferral Plan; that he knows the corporate seal of said
corporation; that the seal was affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-33-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Senior
Management Supplemental Retirement Income Plan; that he knows the corporate seal
of said corporation; that the seal was affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
-34-
Acknowledgments
State of Missouri )
) ss.
City of St. Louis )
On this 6th day of November, in the year 1989, before me personally
came Lyle W. Brizendine, to me known, who, being by me duly sworn, did depose
and say that he resides at 1710 Connemara, St. Louis, Missouri 63021: that he is
Senior Vice President of Boatmen's Trust Company, the corporation described in
and which executed the above instrument in the capacity as Participating Trust
Trustee pursuant to Trust Agreement for Southwestern Bell Corporation Management
Pension Plan (benefits In Excess of Code ss. 415 Limitations); that he knows the
corporate seal of said corporation; that the seal was affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
/s/Susan M. McIntosh
SUSAN M. MCINTOCH
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS CITY
MY COMMISSION EXP APR. 13, 1993
FIRST AMENDMENT TO TRUST AGREEMENT
Effective August 1, 1995
This Amendment (the "First Amendment"), amends the MASTER
TRUST AGREEMENT FOR SOUTHWESTERN BELL CORPORATION DEFERRED COMPENSATION PLANS
AND OTHER EXECUTIVE BENEFIT PLANS (the "Trust Agreement"), previously made and
entered into by and between SBC COMMUNICATIONS INC., a Delaware corporation (the
"Company"), formerly known as Southwestern Bell Corporation, BOATMEN'S TRUST
COMPANY, a Missouri corporation (the "Trustee"), and BOATMEN'S TRUST COMPANY as
trustee of each Participating Trust in the Trust Agreement (BOATMEN'S TRUST
COMPANY acting in its capacity as trustee of each Participating Trust is
hereinafter referred to as the respective Participating Trust's "Participating
Trust Trustee"), which Trust Agreement is incorporated herein by this reference.
WHEREAS, the Company and the Participating Trust Trustees have
established with the Trustee a trust in accordance with the terms and conditions
of the Trust Agreement, and
WHEREAS, the Trustee has accepted the trust established under
the Trust Agreement and has agreed to hold, IN TRUST, all monies and other
property transferred to it thereunder for the uses and purposes and upon the
terms and conditions set forth therein, and
WHEREAS, the Trustee has further agreed to discharge and
perform fully and faithfully all of the duties and obligations imposed upon it
under the Trust Agreement, and
WHEREAS, the Company wishes to amend the Trust Agreement
consistent with the Amendment provision thereof, to reflect the recent name
change of the Company from Southwestern Bell Corporation to SBC Communications
Inc., and
WHEREAS, the Participating Trust Trustees and the Trustee
agree to the Amendment contained herein:
NOW, THEREFORE, the Company and the Participating Trust
Trustees and the Trustee hereby agree as follows:
(1) Effective August 1, 1995, the Trust Agreement shall be and
hereby is renamed the "MASTER TRUST AGREEMENT FOR SBC COMMUNICATIONS INC.
DEFERRED COMPENSATION PLANS AND OTHER EXECUTIVE BENEFIT PLANS"; and, coincident
with such change, the words "Southwestern Bell Corporation" wherever found in
the Trust Agreement shall be and hereby are replaced with the words "SBC
Communications Inc." and all references in the Trust Agreement to Southwestern
Bell Corporation shall mean and shall be construed as references to SBC
Communications Inc.
(2) Except as modified by this First Amendment, all other
terms and provisions of the Trust Agreement remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Participating Trust
Trustees and the Trustee have caused this First Amendment to be executed by
their respective duly authorized officers on the date set forth below.
Company: SBC COMMUNICATIONS INC.
Atttest: By: /s/ D. E Kiernan
Its Senior Vice President,
/s/ Judith M. Sahm Treasurer & Chief Financial
Secretary Officer
Executed: 9/22, 1995
Trustee: BOATMAN'S TRUST COMPANY
Attest: By: /s/ Lyle W. Brizendine
Its Executive Vice President
/s/ Paul J. Skyle
Assistant Secretary Executed: 9/27, 1995
BOATMEN'S TRUST COMPANY as
Participating Trust Trustee pursuant to the
Trust Agreement for each of the following:
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT DEFERRED COMPENSATION PLAN
OF 1988
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT DEFERRED COMPENSATION PLAN
OF 1988 (EARLY PAYMENT OPTION)
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT DEFERRED COMPENSATION PLAN
o SBC COMMUNICATIONS INC. MANAGEMENT
DEFERRED COMPENSATION PLAN OF 1988
o SBC COMMUNICATIONS INC. MANAGEMENT
DEFERRED COMPENSATION PLAN
o SBC COMMUNICATIONS INC. COMPENSATION
DEFERRAL PLAN
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT SUPPLEMENTAL RETIREMENT
INCOME PLAN
o SBC COMMUNICATIONS INC. PENSION BENEFIT
PLAN - NONBARGAINED PROGRAM (BENEFITS
IN EXCESS OF CODE SECTION 415
LIMITATIONS)
o SBC COMMUNICATIONS INC. PENSION MAKE-UP
DUE TO DEFERRED COMPENSATION
PARTICIPATION
Attest: By: /s/ Lyle W. Brizendine
Its Executive Vice President
/s/ Paul J. Skyle
Assistant Secretary Executed: 9/27, 1995
ACKNOWLEDGEMENTS
State of Texas )
) ss
City of San Antonio )
On this 22nd day of September, in the year 1995, before me
personally came Donald E. Kiernan, to me known, who, being by me duly sworn, did
depose and say that he is Senior Vice President, Treasurer & Chief Financial
Officer of SBC Communications Inc., the corporation described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal was affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
Vicki Brehm /s/ Vicki Brehm
Notary Public
State of Texas
My Comm. Exp. Aug. 9 1997
State of Missouri )
) ss
City of St. Louis )
On this 27th day of September, in the year 1995, before me
personally came Lyle W. Brizendine, to me known, who, being by me duly sworn,
did depose and say that he is Executive Vice President of Boatmen's Trust
Company, the corporation described in and which executed the above instrument in
the capacity as Trustee; that he knows the corporate seal of said corporation;
that the seal was affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Susan L. Sehrt
Susan L. Sehrt
Notary Public-State of Missouri
St. Louis County
My Commission Expires March 31, 1996
ACKNOWLEDGMENTS
State of Missouri )
) ss
City of St. Louis )
On this 27th day of September, in the year 1995, before me
personally came Lyle W. Brizendine, to me known, who, being by me duly sworn,
did depose and say that he is Executive Vice President of Boatmen's Trust
Company, the corporation described in and which executed the above instrument in
the capacity as Participating Trust Trustee pursuant to each Participating Trust
Trust Agreement; that he knows the corporate seal of said corporation; that the
seal was affixed by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
/s/ Susan L. Sehrt
Susan L. Sehrt
Notary Public-State of Missouri
St. Louis County
My Commission Expires March 31, 1996
SECOND AMENDMENT TO TRUST AGREEMENT
Effective November 1, 1999
This Amendment (the "Second Amendment"), amends the MASTER
TRUST AGREEMENT FOR SBC COMMUNICATIONS INC. DEFERRED COMPENSATION PLANS AND
OTHER EXECUTIVE BENEFIT PLANS (the "Trust Agreement"), between SBC
COMMUNICATIONS INC., a Delaware corporation (the "Company"), formerly known as
Southwestern Bell Corporation, BOSTON SAFE DEPOSIT AND TRUST COMPANY, successor
Trustee, a Massachusetts trust company and wholly-owned indirect subsidiary of
Mellon Bank Corporation (the "Trustee"), and BOSTON SAFE DEPOSIT AND TRUST
COMPANY as successor trustee of each Participating Trust in the Trust Agreement
(BOSTON SAFE DEPOSIT AND TRUST COMPANY acting in its capacity as the successor
trustee of each Participating Trust is hereinafter referred to as the respective
Participating Trust's "Participating Trust Trustee"), which Trust Agreement is
incorporated herein by this reference.
WHEREAS, the Company and the Participating Trust Trustees are
parties to a trust with the Trustee in accordance with the terms and conditions
of the Trust Agreement, and
WHEREAS, the Trustee has accepted the trust established under
the Trust Agreement and has agreed to hold, IN TRUST, all monies and other
property transferred to it thereunder for the uses and purposes and upon the
terms and conditions set forth therein, and
WHEREAS, the Trustee has further agreed to discharge and
perform fully and faithfully all of the duties and obligations imposed upon it
under the Trust Agreement, and
WHEREAS, the Company wishes to amend the Trust Agreement
consistent with the Amendment provision thereof, to permit the payment of
trustee, actuary and investment manager fees and expenses from funds allocated
to the Company's account maintained under the Trust Agreement, i.e., from funds
not allocated to any Participating Trust, and
WHEREAS, the Participating Trust Trustees and the Trustee
agree to the Amendment contained
herein:
NOW, THEREFORE, the Company and the Participating Trust
Trustees and the Trustee hereby agree as follows:
(1) Effective November 1, 1999, 3.6.2 of the Trust Agreement
shall be and hereby is replaced by the following:
3.6.2 The Company shall be responsible for the payment of the
fees and expenses of this trust, including but not limited
trustee fees, actuary fees and investment manager fees. The
Company shall pay such fees and expenses or may direct the
Trustee to pay such fees out of funds allocated to the
Company's account maintained under this trust, i.e., from
funds not allocated to any Participating Trust.
(2) Except as modified by this Second Amendment, all other
terms and provisions of the Trust Agreement remain in full force and effect.
IN WITNESS WHEREOF, the Company and Participating Trust
Trustees and the Trustee have caused this Second Amendment to be executed by
their respective duly authorized officers on the date set forth below.
Company: SBC COMMUNICATIONS INC.
Attest:
By: /s/ D.E. Kiernan
Its Senior Executive
Vice President and
Chief Financial Officer
/s/ Judith M. Sahm
Secretary
Executed: November 2, 1999
Trustee: BOSTON SAFE DEPOSIT AND TRUST
COMPANY
By: /s/ Douglas M. Cook
Attest: Its First Vice President
/s/ Kimberly A. Carr
Assistant Secretary Executed: November 19, 1999
BOSTON SAFE DEPOSIT AND TRUST COMPANY as
Participating Trust Trustee pursuant to the
Trust Agreement for each of the following:
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT DEFERRED COMPENSATION PLAN
OF 1988
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT DEFERRED COMPENSATION PLAN
OF 1988 (EARLY PAYMENT OPTION)
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT DEFERRED COMPENSATION PLAN
o SBC COMMUNICATIONS INC. MANAGEMENT
DEFERRED COMPENSATION PLAN OF 1988
o SBC COMMUNICATIONS INC. MANAGEMENT
DEFERRED COMPENSATION PLAN
o SBC COMMUNICATIONS INC. COMPENSATION
DEFERRAL PLAN
o SBC COMMUNICATIONS INC. SENIOR
MANAGEMENT SUPPLEMENTAL RETIREMENT
INCOME PLAN
o SBC COMMUNICATIONS INC. PENSION BENEFIT
PLAN-NONBARGAINED PROGRAM (BENEFITS IN
EXCESS OF CODE SECTION 415 LIMITATIONS)
o SBC COMMUNICATIONS INC. PENSION MAKE-UP
DUE TO DEFERRED COMPENSATION
PARTICIPATION
o RESTATED TRUST NO. 3 FOR PACIFIC TELESIS
GROUP EXECUTIVE SUPPLEMENTAL PENSION
BENEFITS
By: /s/ Douglas M. Cook
Its First vice President
Attest:
/s/ Kimberly A. Carr Executed: November 19, 1999
Assistant Secretary
ACKNOWLEDGEMENTS
State of Texas )
) ss
County of Bexar )
On this 1st day of November, in the year 1999, before me
personally came Donald E. Kiernan, to me known, who being by me duly sworn, did
depose and say that he is Senior Executive Vice President and Chief Financial
Officer of SBC Communications Inc., the corporation described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal was affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
/s/ Linda J. Snoga
Notary Public, State of Texas
My Commission Expires
January 21, 2002
ACKNOWLEDGEMENTS
Commonwealth of Massachusetts)
) ss
County of Middlesex )
On this 19th day of November, in the year 1999, before me
personally came Douglas M. Cook, to me known, who being by me duly sworn, did
depose and say that he is First Vice President of Boston Safe Deposit and Trust
Company, the corporation described in and which executed the above instrument in
the capacity as Trustee; that he knows the corporate seal of said corporation;
that the seal was affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Patricia S. Smith
My Commission Expires
May 10, 2002
ACKNOWLEDGEMENTS
Commonwealth of Massachusetts)
) ss
County of Middlesex )
On this 19th day of November, in the year 1999, before me
personally came Douglas M. Cook, to me known, who, being by me duly sworn, did
depose and say that he is First Vice President of Boston Safe Deposit and Trust
Company, the corporation described in and which executed the above instrument in
the capacity as Participating Trust Trustee pursuant to each Participating Trust
Trustee Agreement; that he knows the corporate seal of said corporation; that
the seal was affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
/s/ Patricia S. Smith
My Commission Expires
May 10, 2002