Plan document versus trust agreement versus proxy statement. which go

[fidu]

there is a descrepency regarding proxy voting procedures btw the trust agreement and the proxy statement (and potentially the plan document). which prevails.

The Trustee was directed in the trust agreement to vote as directed by each participant However, the proxy statement states sent out by the sponsor states that any unvoted shares shall be voted by the Trustee in the same proportion as votes received.

[david rigby]

Get thee to an attorney!

[Mike Preston]

Pax is right!

However, I'd be very surprised if the Trustee were to be relieved of its fiduciary liability to vote the unvoted shares by a statement in the proxy which calls for the Trustee to vote the shares based on any predetermined method. If challenged, I would back the party that says the Trustee retains the fiduciary duty to vote the shares according to the normal fiduciary responsibilities it accepted when becoming Trustee.

But with that said, Pax is right!

[mal]

The settlors have the right to dictate how

the trustees will use the assets of the trust.

The plan is simply an offshoot of the trust. The

settlors have established areas in which the

trustees are free to act, and areas in which

they must defer to the expressed intent of

the settlors. Trustees are free to operate within

the expressed framework but may generally

may not amend a plan so as to be in conflict

with the trust.

Therefore, in cases where the plan conflicts with

the terms of the trust I believe the trust controls.

But hey, thats just my opinion. Get to your own

attorney.

[Kirk Maldonado]

Mal:

Your advice is accurate as it applies to personal trusts, but unfortunately, these are subject to ERISA. Completely different standards apply here.