THE SPS PARTICIPANT TRUST – [COMPANY NAME] 3.3. Distributions to Participants.
The Trust shall distribute to a Participant from
DECLARATION OF TRUST
This Declaration of Trust of the SPS Participant Trust – [COMPANY NAME] is
made as of the _____ day of _______________, 201_ by Fidelity Personal Trust
Company, FSB, having a principal place of business in Boston, Massachusetts, as
Trustee (“Trustee”).
WITNESSETH
WHEREAS, certain employees and other individuals are participants
(“Participants”) in stock compensation plans (“Company Stock Plans”) of
[COMPANY NAME] (“Company”); and
WHEREAS, Participants may be entitled under the Company Stock Plans to
receive shares of stock or other payments of money or other property from the
Company related to Participants’ participation in Company Stock Plans (“Company
Stock”); and
WHEREAS, Company desires to establish this Trust in order to transfer
Participants’ Company Stock to Trustee to be held and managed by Trustee, subject
to the powers and duties hereinunder set forth, for the benefit of Participants; and
WHEREAS, Participants wish to consent to Company’s transfer of
Participants’ Company Stock to Trustee to be held and managed by Trustee, subject
to the powers and duties hereinunder set forth, for the benefit of Participants; and
WHEREAS, the Company and Trustee wish to establish a trust (hereinafter
called the "Trust") to receive and to hold Company Stock, cash related to
Participants’ participation in Company Stock Plans, and income earned with respect
to property held in the Trust (together “Stock Plan Proceeds”) that shall be held
therein on behalf of the Participants; and
WHEREAS, this Trust is intended to constitute a “grantor trust” established
by the Company for the benefit of each individual Participant under Section 671 of
the Internal Revenue Code, as amended;
NOW, THEREFORE, the Trustee agrees and declares that it will accept and
hold Stock Plan Proceeds from Participants, to be held and managed, subject to the
powers and duties hereinafter set forth, as follows:
Article I: Establishment of Trust.
1.1 Title. The Trust created pursuant to this instrument shall be called “The SPS
Participant Trust – [COMPANY NAME]” (hereinafter referred to as the “Trust”).
Article II: Purposes and Limitations
2.1. Purposes and Limitations. The Trust is created and is operated as a personal
trust established by the Company for the benefit of individual Participants who
contribute property to the Trust (each a “Participant”), to assist Participants in the
administration and execution of Participants’ participation in Company Stock Plans
and to hold on behalf of Participants Stock Plan Proceeds contributed to the Trust.
Under the Trust, a Participant is a Participant only for the period the Trust holds
property on behalf of that Participant; a Participant will cease to be a Participant
when the Trust no longer holds property on behalf of that Participant, and will
become a Participant when additional Stock Plan Proceeds are held by the Trust on
behalf of that Participant. Persons other than Participants will have no interest in
the trust.
2.2. “Substantial Owner”. For tax purposes, it is intended that each Participant
shall be treated as the “substantial owner” of that Participant’s property held by the
Trust within the meaning of subpart E, part 1, subchapter J, chapter 1, subtitle A of
the Internal Revenue Code of 1986, as amended (the "Code"), and shall be
construed accordingly.
2.3. Participant’s Share. The Trust shall separately account for each Participant’s
share of items of property, income and expense.
Article III: Participant Property
3.1. Receipt of Property. The Trust may receive and accept only Stock Plan
Proceeds from Company, which proceeds are provided for the benefit of
Participants.
3.2. Sale of Company Stock. Any Participant may request at any time that the
Trustee sell any or all of the Stock Plan Proceeds held by the Trustee on behalf of
that Participant. The Trustee shall hold cash proceeds from the sale of such Stock
Plan Proceeds, after payment of fees and expenses of the sale, as Stock Plan
Proceeds under this Trust on behalf of the Participant.
cash held on behalf of that Participant such amount as Participant may request, after
payment of fees and expenses of the distribution. The Trust shall be under no
obligation to distribute in kind any other property held on behalf of a Participant.
3.4. Delivery to Company. The delivery of cash or other property by the Trustee
to the Company on behalf of a Participant shall be treated for all purposes of this
Trust as delivery to the Participant.
3.5. Information Reporting to Company. The Trustee may, at Company request,
provide information and reports to Company regarding Participants, Participant
property held by the Trustee, communications between Participants and the Trustee,
and transactions carried out by Trustee on behalf of Participants.
Article III-A: In Case of Disability or Death of the Participant
3A.1. The Trustee shall be entitled to rely conclusively upon, and shall incur no
liability to any person for any action or non-action taken in good faith in reliance
upon any instructions or directions of an authorized agent (“Agent”). “Agent”
means the person or persons authorized by the Participant (or, following the death
of the Participant, a Beneficiary) in a form and manner acceptable to the Trustee to
act with respect to the Stock Plan Proceeds. The Trustee shall have no duty to
question the authority of any such Agent.
3A.2. Upon the death of a Participant, the Trustee shall distribute outright such
Participant's Stock Plan Proceeds held by the Trustee on behalf of such Participant,
if any, to the Beneficiary or Beneficiaries designated by the Participant to receive the
Stock Plan Proceeds upon death by a designation executed by the Participant
making specific reference to the Trust ("Trust Beneficiary Designation") in a form
and manner acceptable to the Trustee. Any such designation, or change or
revocation of a designation, shall not be effective unless it is received and accepted
by the Trustee no later than thirty days after the death of the Participant, and
provided, further, that such designation, change or revocation, shall not be effective
as to any assets distributed or transferred out of the Trust prior to the Trustee’s
receipt and acceptance of such designation, change or revocation. The latest such
designation or change or revocation shall control except as determined by applicable
law. If the Participant has not by the date of his or her death properly designated a
beneficiary under a Trust Beneficiary Designation, or if no primary or contingent
beneficiary survives the Participant, the Trustee shall distribute any such Stock Plan
Proceeds held on behalf of such Participant to the Participant’s estate. If any
Beneficiary is known by the Trustee to be a minor or otherwise under a legal
disability, the Trustee may, in its absolute discretion, make all, or any part of the
distribution to (i) a parent of the such person, (ii) the guardian, conservator, or other
legal representative, wherever appointed, or such person, (iii) a custodial account
established under a Uniform Gifts to Minors Act or similar act, (iv) any person
having control or custody of such person, or (v) to such person directly. Each
Beneficiary must provide the Trustee with all information and/or documents that
the trustee may require in its discretion in order to complete the distribution of
Stock Plan Proceeds under any laws or policies then in effect.
The Trustee may make any tax withholdings on behalf of the Participant or a
Beneficiary as may be required under any applicable tax laws. The Trustee shall have
no duty to inquire into whether the Stock Plan Proceeds may be subject to another
taxing jurisdiction outside of the laws of the United States, and shall incur no liability
for failing to withhold any such taxes that may be due as a result of such taxing
jurisdiction.
Article IV: Trustee’s Powers and Duties
4.1. In General. The Trustee shall have no power to manage, sell or otherwise
administer assets of the Trust except as specifically directed by the Participants
hereof or by Company. The Trustee shall hold and administer the assets of the Trust
pursuant to the terms of this Trust. The Trustee shall be responsible only for
contributions, transfers and deposits actually received by it hereunder. The Trustee
shall have no duty or authority to ascertain whether any contribution or transfers
should be made to it pursuant to the Company Stock Plan or to bring any action or
proceeding to enforce any obligation to make any such contribution or transfer. The
duties and obligations of the Trustee hereunder shall be limited to those expressly
imposed upon it by this Trust, notwithstanding any reference herein to Company
Stock Plans.
4.2. Investment.
(i) The Trustee shall hold the property contributed, transferred, or deposited to
the Trust, together with income and gains earned, without distinction between
principal and income.
(ii) The Trustee will provide safekeeping for all securities while they are in the
custody of the Trust and collect any dividends and other income earned on all assets
of the Trust. The Trustee may accept Participant requests for dividend reinvestment
whereby cash dividends paid with respect to Company Stock are used to acquire
additional shares of Company Stock.
(iii) The Trustee shall invest all cash in shares of Fidelity Cash Reserves Fund, a
mutual fund for which Fidelity Management Research Company, a Massachusetts
corporation, or one of its successors or affiliates serves as investment adviser or
manager, or a similar money market mutual fund, even to the extent of investing all
or substantially all of the Trust’s assets in one or more of such mutual funds;
(iv) When and if directed to do so, the Trustee shall have the power to sell,
exchange or transfer any such property at public or private sale for cash or on credit
and grant options for the purchase or exchange thereof.
(v) The Trustee shall have no other powers with respect to the investment of
assets hereunder. The Trustee is specifically not empowered to receive transfers of
any listed stocks or securities, any readily-marketable assets, any operating assets of a
going business, any unlisted stock of a single issuer that represents 80 percent or
more of the stock of such issuer, or any general or limited partnership interests,
unless in connection with a merger or acquisition or other corporate reorganization
of the issuer of the shares.
(vi) The Trustee shall deliver to the Participant (with a copy, upon request, to
Company) all prospectuses and proxies that may come into the Trustee’s possession
by reason of its holding of Stock Plan Proceeds, including shares of Company Stock
and shares of money market mutual funds pursuant to Article 4.2(iii) (“Shares”). The
Participant may direct the Trustee as to the manner in which any Shares held in the
Trust shall be voted with respect to any matters as to which the Trustee as holder of
record is entitled to vote, coming before any meeting of shareholders of the issuer
of such Shares. All such directions shall be in a form and manner acceptable to the
Trustee, and delivered to the Trustee or its designee within the time prescribed by it.
The Trustee shall vote only those Shares with respect to which it has received timely
directions from the Participant.
(vii) The Trustee shall be entitled to rely conclusively upon, and shall be fully
protected in any action or non-action taken in good faith in reliance upon any
instructions, notices, communications, directions or instruments of Company or of a
Participant, written or otherwise, believed to have been genuine and properly
executed.
4.3. Additional Powers and Duties of the Trustee. In extension and not in
limitation of any common law or statutory power, the Trustee shall have and may
exercise at any time or times, without license of court or notice to or consent of
beneficiaries, the following powers, authorities and discretions:
(i) To exercise all powers conferred on the Trustee by applicable law, unless
expressly provided otherwise herein;
(ii) To the extent permitted by law, the Trustee may, by appropriate written
instrument, delegate all or any part of its powers and responsibilities for such period
and subject to such conditions as the Trustee may determine. By way of clarification
and not in limitation of the foregoing, the Trustee may delegate Trustee’s powers to
receive direction from Participants and to exercise Trustee’s powers pursuant to
such direction, including but not limited to Trustee’s powers and responsibilities
under Article 4.2. To the extent that the Trustee delegates all or any part of its
responsibilities with respect to the Trust, the Trustee shall retain only such
responsibility for the Trust’s actions with respect to its assets as is provided by
applicable law;
(iii) To participate in any plan or reorganization, consolidation, merger,
combination, liquidation or other similar plan relating to any such property, and to
consent to or oppose any such plan or any action thereunder, or any contract, lease,
mortgage, purchase, sale or other action by any corporation or other entity;
(iv) To deposit any such property with any protective, reorganization or similar
committee; to delegate discretionary power to any such committee; and to pay part
of the expenses and compensation of any such committee and any assessments
levied with respect to any property so deposited;
(v) To exercise any conversion privilege or subscription right available in
connection with any such property; to oppose or consent to the reorganization,
consolidation, merger or readjustment of the finances of any corporation, company
or association, or to the sale, mortgage, pledge or lease of the property of any
corporation, company or association any of the securities of which may at any time
be held in the Trust and to do any act with reference thereto, including the exercise
of options, the making of agreements or subscriptions and the payment of expenses,
assessments or subscriptions, which may be deemed necessary or advisable in
connection therewith, and to hold and retain any securities or other property which
it may so acquire;
(vi) To commence or defend suits or legal proceedings and to represent the Trust
in all suits or legal proceedings; to settle, compromise or submit to arbitration, any
claims, debts or damages, due or owing to or from the Trust;
(vii) To exercise, personally or by general or limited power of attorney, any right,
including the right to vote, appurtenant to any securities or other such property;
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(viii) To borrow money from any lender in such amounts and upon such terms and
conditions as shall be deemed advisable or proper to carry out the purposes of the
Trust and to pledge any securities or other property for the repayment of any such
loan;
(ix) To register any securities held by it in its own name or in the name of any
custodian of such property or of its nominee, including the nominee of any system
for the central handling of securities, with or without the addition of words
indicating that such securities are held in a fiduciary capacity, to deposit or arrange
for the deposit of any such securities with such a system and to hold any securities in
bearer form;
(x) To make, execute and deliver, as the Trustee, any and all deeds, leases, notes,
bonds, guarantees, mortgages, conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the accomplishment of any of the
foregoing powers;
(xi) To transfer assets of the Trust to a successor trustee;
(xii) To exercise, generally, any of the powers which an individual owner might
exercise in connection with property, either real, personal or mixed, held by the
Trust, and to do all other acts that the Trustee may deem necessary or proper to
carry out any of the powers set forth in this Article IV or otherwise in the best
interests of the Trust;
(xiii) To invest in shares of mutual funds or money market funds pursuant to
Article 4.2(iii), although a corporation or other entity affiliated with the Trustee
(“Affiliated Entity”) may serve as the investment manager or adviser, custodian,
transfer agent, registrar, sponsor, underwriter, distributor, and/or other service
provider, and for which the Trustee or Affiliated Entity receives compensation for
such services. The Affiliated Entity may receive such compensation in addition to
the trustee fees paid to the Trustee; and
(xiv) To engage any Affiliated Entity or any other entity or person to provide
services to the Trust, including, without limitation, the ability to employ agents,
custodians, investment counsel and attorneys, transfer agents, investment managers
or advisers, and to pay or receive reasonable expenses incurred and reasonable
compensation for services rendered, in addition to that of the Trustees, including
but not limited to solicitation expenses, investment management fees and brokerage
commissions, custodian fees, servicing and operating fees, insurance expenses,
auditor and legal fees, sub-account maintenance costs, beneficiary communications,
and all other proper charges and disbursements by the Trustee which may be paid to
service providers, including affiliates of the Trustee.
4.4. Limitation. Notwithstanding any powers granted to the Trustee pursuant to
this Trust or to applicable law, the Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains therefrom,
within the meaning of Article 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Code.
Article V: Disposition of Income
5.1. During the term of this Trust, all income received by the Trust, net of
expenses, shall be accumulated and held by the Trustee as set forth herein.
5.2 For purposes of U.S. federal income taxes, pursuant to the Internal Revenue
Code, the Participant shall be treated as the owner of the Participant’s portion of the
Trust, and shall be treated as having received items of income, deductions, and
credits attributable to the Participant’s portion of the Trust.
Article VI: Responsibility and Indemnification of the Trustee
6.1. The Trustee shall act with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in like capacity and
familiar with such material would use in the conduct of an enterprise of a like
character and with like aims; provided, however, that the Trustee shall not be liable
in discharging its duties hereunder, including without limitation its duty to invest and
reinvest the assets of the Trust, if it acts in good faith and in accordance with the
terms of this Trust and in accordance with applicable federal or state laws, rules or
regulations. Notwithstanding the foregoing and anything in this Trust to the
contrary, the Trustee shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by a Participant with respect to
that Participant or property held by the Trust on behalf of that Participant.
6.2. If the Trustee undertakes or defends any litigation arising in connection with
this Trust, the Participants agree to indemnify the Trustee against the Trustee's
reasonable costs, expenses and liabilities (including, without limitation, reasonable
attorneys' fees and expenses) relating thereto and to be liable for such payments,
unless the Trustee is judicially determined not to have acted in good faith, as
required by Article 6.1.
6.3. The Participants shall indemnify and save harmless the Trustee from and
against any and all claims, losses, damages, expenses (including reasonable attorneys'
fees and expenses) and liability to which the Trustee may be subjected by reason of Trustee, incomplete or not clear, the Trustee may request instructions or other
any act done or omitted to be done in its capacity as Trustee hereunder, except information from the Participant. Pending receipt of any such instructions or other
where the same is due to the willful misconduct of the Trustee. information, the Trustee shall not be liable to anyone for any loss resulting from any
delay, action or inaction on the part of the Trustee. In all cases, the Trustee shall not
Article VII: Compensation and Expenses of the Trustee have any duty to question any such instructions or information from a Participant or
7.1. The Trustee shall be paid for reasonable expenses incurred by the Trustee in to otherwise advise the Participant regarding any matter relating thereto.
its administration of the Trust.
10.3. Notwithstanding any other provisions of this instrument, the Trustee is
7.2. The Trustee shall be paid reasonable compensation for its services hereunder, empowered to make a distribution from the Stock Plan Proceeds or provide
without reduction for any other fees or compensation paid to any Affiliated Entity. information about Stock Plan Proceeds absent the instructions or approval from a
Participant, an Agent, or a Beneficiary, if directed to do so pursuant to a court order
7.3. Payments due to the Trustee under this Article 7 may be paid entirely or in or levy of any kind, or in the event the Trustee resigns or is removed as Trustee.
part by a third party, including but not limited to the Company or the administrator The Trustee shall have no duty to inquire into the validity of any such court order or
of or other service provider to the Company Stock Plans. levy, and shall be entitled to rely conclusively upon, and shall incur no liability to any
7.4. The Trustee may charge the Trust for reasonable compensation not paid by a person for any action or non-action taken in good faith in reliance upon any such
third party, provided that the Trustee has provided notice to the Company and to court order or levy.
the Participants at least thirty (30) days prior to commencing such charges. Any Article XI: Miscellaneous
charges under this Article 7.4 shall be paid by the assets of the Trust and shall
constitute a charge upon the Trust. 11.1. Any provision of this Trust prohibited by law shall be ineffective to the extent
of any such prohibition, without invalidating the remaining provisions hereof.
Article VIII: Resignation and Removal of Trustee, Successor Trustee
11.2. Property held by the Trustee on behalf of Participants under this Trust may
8.1. The Trustee may resign at any time by written notice to the Company and to not be anticipated, assigned (either at law or in equity), alienated, pledged,
the Participants, which shall be effective thirty (30) days after delivery of such notice encumbered or subjected to attachment, garnishment, levy, execution or other legal
unless the Trustee agrees otherwise. or equitable process.
8.2. A Trustee resigning pursuant to Article 8.1 may appoint a successor Trustee, 11.3. The Trust created hereunder shall have its situs in The Commonwealth of
which may be an affiliate of the resigning Trustee, or may be any third party (such as Massachusetts.
an individual or a bank trust department or other party that may be granted
corporate trustee powers under state law) to replace the Trustee upon resignation. 11.4. This instrument and the Trust created hereunder shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
8.3. In the event that a Trustee resigning pursuant to Article 8.1 has not appointed
a successor Trustee, or in the event that party named as successor Trustee does not IN WITNESS WHEREOF, this instrument has been executed at Boston,
accept the appointment as Trustee, a successor Trustee may be appointed by a Massachusetts as of the day and year first hereinabove set forth, by
written instrument executed by a majority of the Participants on behalf of whom the
Trustee is then holding property.
8.4. The appointment of the successor Trustee shall be effective when accepted in FIDELITY PERSONAL TRUST COMPANY, FSB
writing by the successor Trustee, who 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 instrument necessary or reasonably requested by the successor
trustee to evidence the transfer. The successor Trustee need not examine the By:
records and acts of any prior Trustee, and may accept and rely upon any accounting Matthew Nash
made by or on behalf of any predecessor Trustee hereunder, and any statement or
representation made as to the assets comprising this Trust estate or as to any other
fact bearing upon the prior administration of the Trust. A Trustee shall not be liable 1.936190.101
for having accepted and relied upon such accounting, statement or representation if FORM-DOT-INTL-0112
it is later proved to be incomplete, inaccurate or untrue. A Trustee or successor
Trustee shall not be liable for any act or omission of any predecessor fiduciary, nor
have a duty to enforce any claims against any predecessor fiduciary on account of
any such act or omission.
Article IX: Amendment or Termination
9.1. This Trust may be amended or terminated by a written instrument executed by
the Trustee, to be effective no sooner than thirty (30) days after notice to the
Company and to the Participants of the Trust.
9.2. This Trust may be amended or terminated by a written instrument executed by
a majority of the Participants on behalf of whom the Trustee is then holding
property, to be effective no sooner than sixty (60) days after notice to the Trustee,
provided, however, that any such amendment that impacts the powers or duties of
the Trustee hereunder must be consented to in writing by the Trustee then acting.
Article X: Instructions, Notices and Communications
10.1. General. The Trustee shall be entitled to rely conclusively upon, and shall be
fully protected in any action or non-action taken in good faith in reliance upon, any
instructions, notices, communications or instruments, written or otherwise, believed
to have been genuine and properly executed. Any such notification may be proved
by original copy or reproduced copy thereof, including, without limitation, a copy
produced by photocopying, facsimile transmission, electronic record or electronic
imaging. For purposes of this Agreement, the Trustee may (but is not required to)
give the same effect to a telephonic instruction or an instruction received through
electronic commerce as it gives to a written instruction, and the Trustee’s action in
doing so shall be protected to the same extent as if such telephonic or electronic
commerce instructions were, in fact, a written instruction. Any such instruction may
be proved by audio recorded tape, data file or electronic record maintained by the
Trustee, or other means acceptable to the Trustee, as the case may be.
10.2 Incomplete or Unclear Instructions. If the Trustee receives instructions or
other information relating to the Participant which are, in the opinion of the
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