TRUST AGREEMENT
BETWEEN
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POLARIS INDUSTRIES INC.
AND
FIDELITY MANAGEMENT TRUST COMPANY
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POLARIS 401(K) RETIREMENT SAVINGS PLAN
TRUST
DATED AS OF APRIL 1, 1999
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TABLE OF CONTENTS
SECTION PAGE
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1 TRUST..................................................................2
2 EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS...............2
3 DISBURSEMENTS..........................................................2
(a) Administrator Directed Disbursements
(b) Participant Withdrawal Requests
(c) Limitations
4 INVESTMENT OF TRUST....................................................3
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) General Purpose Participant Loans
(f) Participant Loans for the Purchase of a Primary Residence
(g) Participation in Collective Investment Funds
(h) Reliance of Trustee on Directions
(i) Trustee Powers
5 RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED..............8
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 COMPENSATION AND EXPENSES..............................................9
7 DIRECTIONS AND INDEMNIFICATION.........................................10
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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8 RESIGNATION OR REMOVAL OF TRUSTEE......................................11
(a) Resignation
(b) Removal
9 SUCCESSOR TRUSTEE......................................................11
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 TERMINATION............................................................12
11 RESIGNATION, REMOVAL, AND TERMINATION NOTICES..........................12
12 DURATION...............................................................12
13 AMENDMENT OR MODIFICATION..............................................12
14 ELECTRONIC SERVICES....................................................13
15 GENERAL................................................................14
(a) Performance by Trustee, its Agents or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
16 GOVERNING LAW..........................................................14
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
SCHEDULES
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"A" Administrative Services
"B" Fee Schedule
"C" Investment Options
"D" Administrator's Authorization Letter
"E" Named Fiduciary's Authorization Letter
"F" IRS Determination Letter
"G" Telephone Exchange Guidelines
"H" Operational Guidelines for Non-Fidelity Mutual Funds
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TRUST AGREEMENT, dated as of the first day of April, 1999, between
POLARIS INDUSTRIES INC., a Delaware corporation, having an office at 1225
Highway 169 North, Minneapolis, MN 55441 (the "Sponsor"), and FIDELITY
MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at
82 Devonshire Street, Boston, Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Polaris 401(k) Retirement
Savings Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish a trust to hold and invest Plan
assets under the Plan for the exclusive benefit of participants in the Plan
and their beneficiaries; and
WHEREAS, as of the date of this Agreement set forth above, the Sponsor
also serves as the named fiduciary of the Plan (within the meaning of
section 402(a) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) (the "Named Fiduciary"); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid Plan
assets in trust among several investment options selected by the Named
Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan; and
WHEREAS, as of the date of this Agreement as set forth above, the
Sponsor serves as the administrator of the Plan (within the meaning of
section 3(16)(A) of ERISA) (the "Administrator"); and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial
in nature and are provided within a framework of plan provisions, guidelines
and interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
SECTION 1. TRUST. The Sponsor hereby establishes the Polaris 401(k)
Retirement Savings Plan Trust (the "Trust") with the Trustee. The Trust
shall consist of an initial contribution of money or other property
acceptable to the Trustee in its sole discretion, made by the Sponsor or
transferred from a previous trustee under the Plan, such additional sums of
money and Sponsor Stock (hereinafter defined) as shall from time to time be
delivered to the Trustee under the Plan, all investments made therewith and
proceeds thereof, and all earnings and profits thereon, less the payments
that are made by the Trustee as provided herein. The Trustee hereby accepts
the Trust on the terms and conditions set forth in this Agreement. In
accepting this Trust, the Trustee shall be accountable for the assets
received by it, subject to the terms and conditions of this Agreement.
SECTION 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS. Except
as provided under applicable law, no part of the Trust may be used for, or
diverted to, purposes other than the exclusive benefit of the participants in
the Plan or their beneficiaries or the reasonable expenses of Plan
administration.
SECTION 3. DISBURSEMENTS.
(a) ADMINISTRATOR-DIRECTED DISBURSEMENTS. The Trustee shall make
disbursements in the amounts and in the manner that the Administrator directs
from time to time in writing. The Trustee shall have no responsibility to
ascertain such direction's compliance with the terms of the Plan or of any
applicable law or the direction's effect for tax purposes or otherwise; nor
shall the Trustee have any responsibility to see to the application of any
disbursement.
(b) PARTICIPANT WITHDRAWAL REQUESTS. The Administrator hereby directs
that, pursuant to the Plan, a participant withdrawal request (in-service,
hardship, or full withdrawal) may be made by the participant by telephone, or
in such other manner as may be agreed to from time to time by the Sponsor and
Trustee, and the Trustee shall process such request only after the identity
of the participant is
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verified by use of a personal identification number ("PIN") and social
security number. The Trustee shall forward the withdrawal document to the
participant for execution and submission for approval to the Administrator.
The Administrator shall have the responsibility for approving the withdrawal
and instructing the Trustee to send the proceeds to the Administrator or to
the participant if so directed by the Administrator.
(c) LIMITATIONS. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust
at the time of the disbursement. The Trustee shall make cash disbursements in
accordance with the applicable source and fund withdrawal hierarchy as
documented in the Plan Administrative Manual, unless the Administrator has
provided a written direction to the contrary.
SECTION 4. INVESTMENT OF TRUST.
(a) SELECTION OF INVESTMENT OPTIONS. The Trustee shall have no
responsibility for the selection of investment options under the Trust and
shall not render investment advice to any person in connection with the
selection of such options.
(b) AVAILABLE INVESTMENT OPTIONS. The Named Fiduciary shall direct the
Trustee as to the investment options in which the Trust shall be invested
during the period beginning on the date of the initial transfer of assets to
the Trust and ending on the date of the completion of the reconciliation of
participant records ("Recordkeeping Reconciliation Period"), and the
investment options which Plan participants may invest following the
Recordkeeping Reconciliation Period, subject to the following limitations.
The Named Fiduciary may determine to offer as investment options only: (i)
securities issued by the investment companies advised by Fidelity Management
& Research Company ("Fidelity Mutual Funds") and certain securities issued by
investment companies not advised by Fidelity Management & Research Company
("Non-Fidelity Mutual Funds") (collectively, "Mutual Funds"), (ii) equity
securities issued by the Sponsor or an affiliate which are publicly-traded
and which are "qualifying employer securities" within the meaning of section
407(d)(5) of ERISA ("Sponsor Stock"), (iii) notes evidencing loans to Plan
participants in accordance with the terms of the Plan, and (iv) collective
investment funds maintained by the Trustee for qualified plans.
The Trustee shall be considered a fiduciary with investment discretion
only with respect to Plan assets that are invested in collective investment
funds maintained by the Trustee for qualified plans.
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The investment options initially selected by the Named Fiduciary are
identified on Schedules "A" and "C" attached hereto. The Named Fiduciary may
add additional investment options with the consent of the Trustee and upon
mutual amendment of this Trust Agreement and the Schedules thereto to reflect
such additions.
(c) PARTICIPANT DIRECTION. As authorized under the Plan, each Plan
participant shall direct the Trustee in which investment option(s) to invest
the assets in the participant's individual accounts. Such directions may be
made by Plan participants by use of the telephone exchange system maintained
for such purposes by the Trustee or its agent, in accordance with written
Telephone Exchange Guidelines attached hereto as Schedule "G". In the event
that the Trustee fails to receive a proper direction, the assets shall be
invested in the investment option set forth for such purpose on Schedule "C",
until the Trustee receives a proper direction.
(d) MUTUAL FUNDS. The Named Fiduciary hereby acknowledges that it has
received from the Trustee a copy of the prospectus for each Fidelity Mutual
Fund selected by the Named Fiduciary as a Plan investment option or
short-term investment fund. All transactions involving Non-Fidelity Mutual
Funds shall be done in accordance with the Operational Guidelines attached
hereto as Schedule "H". Trust investments in Mutual Funds shall be subject
to the following limitations:
(i) EXECUTION OF PURCHASES AND SALES. Purchases and sales of
Mutual Funds (other than for exchanges) shall be made on the date on which
the Trustee receives from the Administrator in good order all information,
documentation and wire transfer of funds (if applicable) necessary to
accurately effect such transactions. Exchanges of Mutual Funds shall be
made in accordance with the Telephone Exchange Guidelines attached hereto as
Schedule "G".
(ii) VOTING. At the time of mailing of notice of each annual or
special stockholders' meeting of any Mutual Fund, the Trustee shall send a copy
of the notice and all proxy solicitation materials to each Plan participant who
has shares of the Mutual Fund credited to the participant's accounts, together
with a voting direction form for return to the Trustee or its designee. The
participant shall have the right to direct the Trustee as to the manner in which
the Trustee is to vote the shares credited to the participant's accounts (both
vested and unvested). The Trustee shall vote the
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shares as directed by the participant. The Trustee shall not vote shares for
which it has received no directions from the participant.
During the Recordkeeping Reconciliation Period, the Named Fiduciary
shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote the shares of the Mutual Funds in the Trust. Following
the Recordkeeping Reconciliation Period the Named Fiduciary shall continue to
have the right to direct the Trustee as to the manner in which the Trustee is
to vote the Mutual Fund shares held in a short-term liquidity reserve for a
unitized investment option.
With respect to all rights other than the right to vote, the Trustee
shall follow the directions of the participant and if no such directions are
received, the directions of the Named Fiduciary. The Trustee shall have no
further duty to solicit directions from participants or the Named Fiduciary.
(e) GENERAL PURPOSE PARTICIPANT LOANS. The Administrator shall act as
the Trustee's agent for general purpose participant loan notes and as such
shall (i) separately account for repayments of such loans and clearly
identify such assets as Plan assets and (ii) collect and remit all principal
and interest payments to the Trustee. To originate a participant loan, the
Plan participant shall direct the Trustee as to the term and amount of the
loan to be made from the participant's individual account. Such directions
shall be made by Plan participants by use of the telephone exchange system
maintained for such purpose by the Trustee or its agent. The Trustee shall
determine, based on the current value of the participant's account on the
date of the request and any guidelines provided by the Sponsor, the amount
available for the loan. Based on the interest rate supplied by the Sponsor
in accordance with the terms of the Plan, the Trustee shall advise the
participant of such interest rate, as well as the installment payment
amounts. The Trustee shall distribute the Participant loan agreement and
truth-in-lending disclosure with the proceeds check to the participant. To
facilitate recordkeeping, the Trustee may destroy the original of any
promissory note made in connection with a loan to a participant under the
Plan, provided that the Trustee first creates a duplicate by a photographic
or optical scanning or other process yielding a reasonable facsimile of the
promissory note and the Plan participant's signature thereon, which duplicate
may be reduced or enlarged in size from the actual size of the original
promissory note.
(f) PARTICIPANT LOANS FOR THE PURCHASE OF A PRIMARY RESIDENCE. The
Administrator shall act as the Trustee's agent for participant loan notes for
the purchase of a primary residence and as such
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shall (i) separately account for repayments of such loans and clearly
identify such assets as Plan assets and (ii) collect and remit all principal
and interest payments to the Trustee. To originate a participant loan, the
Plan participant shall direct the Trustee as to the term and amount of the
loan to be made from the participant's individual account. Such directions
shall be made by Plan participants by use of the telephone exchange system
maintained for such purpose by the Trustee or its agent. The Trustee shall
determine, based on the current value of the participant's account on the
date of the request and any guidelines provided by the Sponsor, the amount
available for the loan. Based on the interest rate supplied by the Sponsor
in accordance with the terms of the Plan, the Trustee shall advise the
participant of such interest rate, as well as the installment payment
amounts. The Trustee shall forward the loan document to the participant for
execution and submission for processing to the Trustee. In all cases,
processing by the Trustee shall be made within thirty (30) days of the
participant's initial request (the origination date).
(g) PARTICIPATION IN COLLECTIVE INVESTMENT FUNDS. To the extent that
the Named Fiduciary selects as an investment option the Managed Income
Portfolio of the Fidelity Group Trust for Employee Benefit Plans (the "Group
Trust"), the Sponsor hereby (A) agrees to the terms of the Group Trust and
adopts said terms as a part of this Agreement and (B) acknowledges that it
has received from the Trustee a copy of the Group Trust, the Declaration of
Separate Fund for the Managed Income Portfolio of the Group Trust, and the
Circular for the Managed Income Portfolio.
(h) RELIANCE OF TRUSTEE ON DIRECTIONS.
(i) The Trustee shall not be liable for any loss, or by reason of
any breach, which arises from any participant's exercise or non-exercise of
rights under this Section 4 over the assets in the participant's accounts.
(ii) The Trustee shall not be liable for any loss, or by reason of
any breach, which arises from the Named Fiduciary's exercise or non-exercise
of rights under this Section 4, unless it was clear on their face that the
actions to be taken under the Named Fiduciary's directions were prohibited by
the fiduciary duty rules of section 404(a) of ERISA or were contrary to the
terms of the Plan or this Agreement.
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(i) TRUSTEE POWERS. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b) and (c) of this Section 4, to
sell, exchange, convey, transfer, or otherwise dispose of any property held
in the Trust, by private contract or at public auction. No person dealing
with the Trustee shall be bound to see to the application of the purchase
money or other property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4, to
invest in Investment Contracts and short term investments (including interest
bearing accounts with the Trustee or money market mutual funds advised by
affiliates of the Trustee) and in collective investment funds maintained by
the Trustee for qualified plans, in which case the provisions of each
collective investment fund in which the Trust is invested shall be deemed
adopted by the Sponsor and the provisions thereof incorporated as a part of
this Trust as long as the fund remains exempt from taxation under Sections
401(a) and 501(a) of the Internal Revenue Code of 1986 (the "CODE"), as
amended.
(iii) To cause any securities or other property held as part of
the Trust to be registered in the Trustee's own name, in the name of one or
more of its nominees, or in the Trustee's account with the Depository Trust
Company of New York and to hold any investments in bearer form, but the books
and records of the Trustee shall at all times show that all such investments
are part of the Trust.
(iv) To keep that portion of the Trust in cash or cash balances
as the Named Fiduciary or Administrator may, from time to time, deem to be in
the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein
granted.
(vi) To borrow funds from a bank not affiliated with the Trustee
in order to provide sufficient liquidity to process Plan transactions in a
timely fashion; provided that the cost of such borrowing shall be allocated
in a reasonable fashion to the investment fund(s) in need of liquidity.
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(vii) To settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to commence or defend
suits or legal or administrative proceedings; to represent the Trust in all
suits and legal and administrative hearings; and to pay all reasonable
expenses arising from any such action, from the Trust if not paid by the
Sponsor.
(viii) To employ legal, accounting, clerical, and other assistance
as may be required in carrying out the provisions of this Agreement and to
pay their reasonable expenses and compensation from the Trust if not paid by
the Sponsor.
(ix) To invest all of any part of the assets of the Trust in any
collective investment trust or group trust which then provides for the
pooling of the assets of plans described in Section 401(a) and exempt from
tax under Section 501(a) of the Code, or any comparable provisions of any
future legislation that amends, supplements, or supersedes those sections,
provided that such collective investment trust or group trust is exempt from
tax under the Code or regulations or rulings issued by the Internal Revenue
Service; the provisions of the document governing such collective investment
trusts or group trusts, as it may be amended from time to time, shall govern
any investment therein and are hereby made a part of this Trust Agreement.
(x) To do all other acts although not specifically mentioned
herein, as the Trustee may deem necessary to carry out any of the foregoing
powers and the purposes of the Trust.
SECTION 5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED.
(a) GENERAL. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) ACCOUNTS. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of the last day of
each fiscal quarter of the Plan and, if not on the last day of a fiscal
quarter, the date on which the Trustee resigns or is removed as provided in
Section 8 of this Agreement or is terminated as provided in Section 10 (the
"Reporting Date"). Within thirty (30) days following each Reporting Date or
within sixty (60) days in the case of a Reporting Date caused by the
resignation or
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removal of the Trustee, or the termination of this Agreement, the Trustee
shall file with the Administrator a written account setting forth all
investments, receipts, disbursements, and other transactions effected by the
Trustee between the Reporting Date and the prior Reporting Date, and setting
forth the value of the Trust as of the Reporting Date. Except as otherwise
required under ERISA, upon the expiration of six (6) months from the date of
filing such account with the Administrator, the Trustee shall have no
liability or further accountability to anyone with respect to the propriety
of its acts or transactions shown in such account, except with respect to
such acts or transactions as to which the Sponsor shall within such six (6)
month period file with the Trustee written objections.
(c) INSPECTION AND AUDIT. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to the termination of this
Agreement, by the Administrator or any person designated by the
Administrator. Upon the resignation or removal of the Trustee or the
termination of this Agreement, the Trustee shall provide to the
Administrator, at no expense to the Sponsor, in the format regularly provided
to the Administrator, a statement of each participant's accounts as of the
resignation, removal, or termination, and the Trustee shall provide to the
Administrator or the Plan's new recordkeeper such further records as are
reasonable, at the Sponsor's expense.
(d) EFFECT OF PLAN AMENDMENT. A confirmation of the current qualified
status of the Plan is attached hereto as Schedule "F". The Trustee's
provision of the recordkeeping and administrative services set forth in this
Section 5 shall be conditioned on the Sponsor delivering to the Trustee a
copy of any amendment to the Plan as soon as administratively feasible
following the amendment's adoption, with, if requested, an IRS determination
letter or an opinion of counsel substantially in the form of Schedule "F"
covering such amendment, and on the Administrator providing the Trustee on a
timely basis with all the information the Administrator deems necessary for
the Trustee to perform the recordkeeping and administrative services and such
other information as the Trustee may reasonably request.
(e) RETURNS, REPORTS AND INFORMATION. The Administrator shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide
the Administrator with such information as the Administrator may reasonably
request to make these filings. The Administrator shall also be responsible
for making any disclosures
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to Participants required by law, except such disclosure as may be required
under federal or state truth-in-lending laws with regard to Participant
loans, which shall be provided by the Trustee.
SECTION 6. COMPENSATION AND EXPENSES. Within thirty (30) days of receipt of
the Trustee's bill, which shall be computed and billed in accordance with
Schedule "B" attached hereto and made a part hereof, as amended from time to
time, the Sponsor shall send to the Trustee a payment in such amount or the
Sponsor may direct the Trustee to deduct such amount from participants'
accounts. All expenses of the Trustee relating directly to the acquisition
and disposition of investments constituting part of the Trust, and all taxes
of any kind whatsoever that may be levied or assessed under existing or
future laws upon or in respect of the Trust or the income thereof, shall be a
charge against and paid from the appropriate Plan participants' accounts.
SECTION 7. DIRECTIONS AND INDEMNIFICATION.
(a) IDENTITY OF ADMINISTRATOR AND NAMED FIDUCIARY. The Trustee shall
be fully protected in relying on the fact that the Named Fiduciary and the
Administrator under the Plan are the individuals or persons named as such
above or such other individuals or persons as the Sponsor may notify the
Trustee in writing.
(b) DIRECTIONS FROM ADMINISTRATOR. Whenever the Administrator provides
a direction to the Trustee, the Trustee shall not be liable for any loss, or
by reason of any breach, arising from the direction (i) if the direction is
contained in a writing (or is oral and immediately confirmed in a writing)
signed by any individual whose name and signature have been submitted (and
not withdrawn) in writing to the Trustee by the Administrator in the form
attached hereto as Schedule "D", and (ii) if the Trustee reasonably believes
the signature of the individual to be genuine, unless it is clear on the
direction's face that the actions to be taken under the direction would be
prohibited by the fiduciary duty rules of Section 404(a) of ERISA or would be
contrary to the terms of this Agreement. For purposes of this Section, such
direction may also be made via electronic data transfer ("EDT") in accordance
with procedures agreed to by the Administrator and the Trustee; provided,
however, that the Trustee shall be fully protected in relying on such
direction as if it were a direction made in writing by the Administrator.
(c) DIRECTIONS FROM NAMED FIDUCIARY. Whenever the Named Fiduciary or
Sponsor provides a direction to the Trustee, the Trustee shall not be liable for
any loss, or by reason of any
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breach, arising from the direction (i) if the direction is contained in a
writing (or is oral and immediately confirmed in a writing) signed by any
individual whose name and signature have been submitted (and not withdrawn)
in writing to the Trustee by the Named Fiduciary in the form attached hereto
as Schedule "E" and (ii) if the Trustee reasonably believes the signature of
the individual to be genuine, unless it is clear on the direction's face that
the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of Section 404(a) of ERISA or would be contrary to the
terms of this Agreement. Such direction may also be made via EDT in
accordance with procedures agreed to by the Named Fiduciary and the Trustee;
provided, however, that the Trustee shall be fully protected in relying on
such direction as if it were a direction made in writing by the Named
Fiduciary.
(d) CO-FIDUCIARY LIABILITY. In any other case, the Trustee shall not
be liable for any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided in section
405(a) of ERISA.
(e) INDEMNIFICATION. The Sponsor shall indemnify the Trustee against,
and hold the Trustee harmless from, any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against the Trustee by reason of any claim, regulatory proceeding,
or litigation arising from any act done or omitted to be done by any
individual or person with respect to the Plan or Trust, excepting only any
and all loss, etc., arising solely from the Trustee's negligence or bad faith.
(f) SURVIVAL. The provisions of this Section 7 shall survive the
termination of this Agreement.
SECTION 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) RESIGNATION. The Trustee may resign at any time upon sixty (60)
days' notice in writing to the Sponsor, unless a shorter period of notice is
agreed upon by the Sponsor.
(b) REMOVAL. The Sponsor may remove the Trustee at any time upon sixty
(60) days' notice in writing to the Trustee, unless a shorter period of
notice is agreed upon by the Trustee.
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SECTION 9. SUCCESSOR TRUSTEE.
(a) APPOINTMENT. If the office of Trustee becomes vacant for any
reason, the Sponsor may in writing appoint a successor trustee under this
Agreement. The successor trustee shall have all of the rights, powers,
privileges, obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor trustee
shall not be liable for the acts or omissions of the other with respect to
the Trust.
(b) ACCEPTANCE. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action on the
part of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably
may be requested in writing by the Sponsor or the successor trustee to vest
title to all Trust assets in the successor trustee or to deliver all Trust
assets to the successor trustee.
(c) CORPORATE ACTION. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through reorganization, consolidation, or
merger, or any similar transaction, shall, upon consummation of the
transaction, become the successor trustee under this Agreement.
SECTION 10. TERMINATION. This Agreement may be terminated at any time by
the Sponsor upon sixty (60) days' notice in writing to the Trustee. On the
date of the termination of this Agreement, the Trustee shall forthwith
transfer and deliver to such individual or entity as the Sponsor shall
designate, all cash and assets then constituting the Trust. If, by the
termination date, the Sponsor has not notified the Trustee in writing as to
whom the assets and cash are to be transferred and delivered, the Trustee may
bring an appropriate action or proceeding for leave to deposit the assets and
cash in a court of competent jurisdiction. The Trustee shall be reimbursed
by the Sponsor for all costs and expenses of the action or proceeding
including, without limitation, reasonable attorneys' fees and disbursements.
SECTION 11. RESIGNATION, REMOVAL, AND TERMINATION NOTICES. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Mary Zins,
Corporate Human Resources Manager, Polaris Industries, 1225 Highway, 169 North,
Minneapolis, Minnesota 55441, and to the Trustee c/o John M. Kimpel, Fidelity
Investments, 82 Devonshire Street,
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Boston, Massachusetts 02109, or to such other addresses as the parties have
notified each other of in the foregoing manner.
SECTION 12. DURATION. This Trust shall continue in effect without limit as
to time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
SECTION 13. AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified at any time and from time to time only by an instrument executed by
both the Sponsor and the Trustee. Notwithstanding the foregoing, to reflect
increased operating costs the Trustee may once each calendar year amend
Schedule "B" without the Sponsor's consent upon seventy-five (75) days
written notice to the Sponsor.
SECTION 14. ELECTRONIC SERVICES.
(a) The Trustee may provide communications and services via electronic
medium ("Electronic Services"), including, but not limited to, Fidelity Plan
Sponsor WebStation, Client Intranet, Client e-mail, interactive software
products or any other information provided in an electronic format. The
Sponsor, its agents and employees agree to keep confidential and not publish,
copy, broadcast, retransmit, reproduce, commercially exploit or otherwise
redisseminate the data, information, software or services without the
Trustee's written consent.
(b) The Sponsor shall be responsible for installing and maintaining all
Electronic Services on its computer network and/or Intranet upon receipt in a
manner so that the information provided via the Electronic Service will
appear in the same form and content as it appears on the form of delivery,
and for any programming required to accomplish the installation. Materials
provided for Plan Sponsor's intranet web sites shall be installed by the
Sponsor and shall be clearly identified as originating from Fidelity. The
Sponsor shall promptly remove Electronic Services from its computer network
and/or Intranet, or replace the Electronic Service with an updated service
provided by the Trustee, upon written notification (including written
notification via facsimile) by the Trustee.
(c) All Electronic Services shall be provided to the Sponsor without
any express or implied legal warranties or acceptance of legal liability by
the Trustee relative to the use of material or Electronic Services by the
Sponsor. No rights are conveyed to any property, intellectual or tangible,
associated with the contents of the Electronic Services and related material.
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(d) To the extent that any Electronic Services utilize Internet
services to transport data or communications, the Trustee will take, and Plan
Sponsor agrees to follow, reasonable security precautions; however, the
Trustee disclaims any liability for interception of any such data or
communications. The Trustee shall not be responsible for, and makes no
warranties regarding access, speed or availability of Internet or network
services. The Trustee shall not be responsible for any loss or damage
related to or resulting from any changes or modifications to the electronic
material after delivering it to the Plan Sponsor.
SECTION 15. GENERAL.
(a) PERFORMANCE BY TRUSTEE, ITS AGENTS OR AFFILIATES. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates,
including Fidelity Investments Institutional Operations Company, Inc. or its
successor, and that certain of such services may be provided pursuant to one
or more other contractual agreements or relationships.
(b) ENTIRE AGREEMENT. This Agreement together with the schedules
attached hereto, which are hereby incorporated herein, contains all of the
terms agreed upon between the parties with respect to the subject matter
hereof.
(c) WAIVER. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(d) SUCCESSORS AND ASSIGNS. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) PARTIAL INVALIDITY. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
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(f) SECTION HEADINGS. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
SECTION 16. GOVERNING LAW.
(a) MASSACHUSETTS LAW CONTROLS. This Agreement is being made in the
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration
of this Agreement shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts, except to the extent those laws
are superseded under Section 514 of ERISA.
(b) TRUST AGREEMENT CONTROLS. This Agreement supersedes the "Polaris
Industries Inc. 401(k) Retirement/Savings Trust". The Trustee is not a party
to the Plan, and in the event of any conflict between the provisions of the
Plan and the provisions of this Agreement, the provisions of this Agreement
shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
POLARIS INDUSTRIES INC.
Attest: /s/ Janet L. Bishop By: /s/ Michael Malone
-------------------------- --------------------------
Secretary
Name: Michael Malone
-----------------------
Title:
----------------------
Date: 3/29/99
----------------------
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: /s/ Douglas O. Kant By: /s/ Carolyn Redden
------------------------- -------------------------
Assistant Clerk
Name: Carolyn Redden
-----------------------
Title: Vice President
----------------------
Date: 4/29/99
----------------------
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