MORRISON RESTAURANTS INC.
SALARY DEFERRAL PLAN
THIS INDENTURE made on the 31 day of December, 1993, by MORRISON
RESTAURANTS INC., f/k/a Morrison Incorporated, a corporation duly
organized and existing under the laws of the State of Delaware
(hereinafter called the "Primary Sponsor");
W I T N E S S E T H:
WHEREAS, the Primary Sponsor established by indenture dated June 1,
1968, the Morrison Employees Retirement Savings Trust, which was
subsequently renamed as the Morrison Incorporated Salary Deferral Plan
(the "Plan"), and which was last restated by indenture dated December 29,
1989;
WHEREAS, the Primary Sponsor now wishes to amend and restate the
Plan to comply with legislation subsequent to the Tax Reform Act of 1986,
and various regulations and rulings issued by government agencies thereon
and for other reasons;
WHEREAS, this plan is intended to be a profit sharing plan within
the meaning of Treasury Regulations Section 1.401-1(b)(1)(ii) and also
contains a cash or deferred arrangement as described in Section 401(k) of
the Internal Revenue Code of 1986; and
WHEREAS, the provisions of the Plan, as amended and restated herein,
shall apply only to Plan years beginning after December 31, 1988, and only
with respect to members who perform an Hour of Service (as defined in the
Plan) in Plan years beginning after December 31, 1988, except to the
extent the provisions are required to apply at an earlier date or are not
required to apply until a later date to comply with applicable law;
NOW, THEREFORE, the Primary Sponsor does hereby amend and restate
the Plan in its entirety, generally effective as of January 1, 1989, to
read as follows:
MORRISON RESTAURANTS INC.
SALARY DEFERRAL PLAN
PAGE
SECTION 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . 1
SECTION 2 ELIGIBILITY . . . . . . . . . . . . . . . . . . 10
SECTION 3 CONTRIBUTIONS . . . . . . . . . . . . . . . . . 11
SECTION 4 ALLOCATIONS . . . . . . . . . . . . . . . . . . 14
SECTION 5 WITHDRAWALS DURING EMPLOYMENT . . . . . . . . . 15
SECTION 6 DEATH BENEFITS. . . . . . . . . . . . . . . . . 17
SECTION 7 PAYMENT OF BENEFITS ON RETIREMENT OR DEATH. . . 18
SECTION 8 PAYMENT OF BENEFITS ON TERMINATION OF EMPLOYMENT 20
SECTION 9 ADMINISTRATION OF THE PLAN. . . . . . . . . . . 21
SECTION 10 CLAIM REVIEW PROCEDURE. . . . . . . . . . . . . 23
SECTION 11 LIMITATION OF ASSIGNMENT, PAYMENTS TO LEGALLY
INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS. 25
SECTION 12 PROHIBITION AGAINST DIVERSION . . . . . . . . . 26
SECTION 13 LIMITATION OF RIGHTS. . . . . . . . . . . . . . 26
SECTION 14 AMENDMENT TO OR TERMINATION OF THE PLAN AND THE
TRUST . . . . . . . . . . . . . . . . . . . . . 26
SECTION 15 ADOPTION OF PLAN BY AFFILIATES. . . . . . . . . 28
SECTION 16 QUALIFICATION AND RETURN OF CONTRIBUTIONS . . . 28
SECTION 17 SECTION 16 OF SECURITIES EXCHANGE ACT OF 1934 . 29
SECTION 18 INCORPORATION OF SPECIAL LIMITATIONS. . . . . . 29
APPENDIX ASPECIAL NONDISCRIMINATION RULES. . . . . . . . . A-1
APPENDIX BLIMITATION ON ALLOCATIONS. . . . . . . . . . . . B-1
APPENDIX CTOP-HEAVY PROVISION. . . . . . . . . . . . . . . C-1
SECTION 1
DEFINITIONS
Wherever used herein, the masculine pronoun shall be deemed to
include the feminine, and the singular to include the plural, unless the
context clearly indicates otherwise and the following words and phrases
shall, when used herein, have the meanings set forth below:
1.1 "Account" means the account established and maintained by the
Plan Administrator to reflect the interest of a Member in the Fund. In
addition to any other accounts as the Plan Administrator may establish and
maintain, the Plan Administrator shall establish and maintain separate
accounts (each of which shall be adjusted pursuant to the Plan to reflect
income, gains, losses and other credits or charges attributable thereto)
for each Member to be designated as follows:
(a) "Employee Deferred Account" which shall reflect a
Member's interest in contributions made by a Plan Sponsor under Plan
Section 3.1.
(b) "Company Matching Account" which shall reflect a
Member's interest in matching contributions made by a Plan Sponsor
under Plan Section 3.2. The Company Matching Account shall consist
of a Company Stock Subaccount which shall hold shares of Company
Stock attributable to Plan Sponsor matching contributions and cash
held pending the purchase of shares of Company Stock pursuant to
Plan Section 3.2(c) and an Other Investment Subaccount which shall
hold all other assets attributable to Plan Sponsor matching
contributions.
(c) "Voluntary Contribution Account" which shall reflect a
Member's interest in Voluntary Contributions made by a Member to the
Fund pursuant to Plan Section 3.3.
(d) "Rollover Account" which shall reflect a Member's
interest in Rollover Amounts.
1.2 "Accrued Benefit" means those shares of Company Stock and cash
held pending the purchase of shares of Company Stock credited to a
Member's Company Stock Subaccount of his Company Matching Account and the
value of his Other Investment Subaccount of his Company Matching Account
and the balance of his other Accounts.
1.3 "Affiliate" means (a) any corporation which is a member of the
same controlled group of corporations (within the meaning of Code Section
414(b)) as is a Plan Sponsor, (b) any other trade or business (whether or
not incorporated) under common control (within the meaning of Code Section
414(c)) with a Plan Sponsor, (c) any other corporation, partnership or
other organization which is a member of an affiliated service group
(within the meaning of Code Section 414(m)) with a Plan Sponsor, and
(d) any other entity required to be aggregated with a Plan Sponsor
pursuant to regulations under Code Section 414(o).
1.4 "Annual Compensation" means the amount paid to, or accrued by,
an Employee by or from a Plan Sponsor (and Affiliates for purposes of
Appendices A and C) during a Plan Year as compensation that would be
subject to income tax withholding under Code Section 3401(a) (but without
regard to any rules that limit the remuneration included in wages based on
the nature or location of the employment or the services performed, such
as the exception for agricultural labor in Code Section 3401(a)(2)), to
the extent not in excess of the Annual Compensation Limit. Notwith-
standing the above, Annual Compensation shall be determined as follows:
(a) (1) in determining with respect to each Plan Sponsor the
amount of contributions made by or on behalf of an Employee under
Plan Section 3 and allocations under Plan Section 4, and (2) for
purposes of applying the provisions of Appendix A hereto for such
Plan Years as the Secretary of the Treasury may allow, Annual
Compensation shall only include amounts received for the portion of
the Plan Year during which the Employee was a Member;
(b) for purposes of applying the Annual Compensation Limit,
with respect to Plan Sections 3 and 4 and Appendix A, the rules
contained in Subsection (c) of the Plan Section containing the
definition of the term "Highly Compensated Employee" shall apply,
except that in applying the rules, the term "family" shall include
only the spouse of the Member and any lineal descendants of the
Member who have not attained age 19 before the close of the Plan
Year; and
(c) for all purposes under the Plan except Appendices B and
C hereto (other than for purposes of determining who is a Key
Employee), Annual Compensation shall include any amount which would
have been paid during a Plan Year, but was contributed by a Plan
Sponsor on behalf of an Employee pursuant to a salary reduction
agreement which is not includable in the gross income of the
Employee under Code Section 125, 402(e)(3), or 402(h); and
(d) for purposes of applying the annual addition limits set
forth in Appendix B, the term Plan Sponsor as used in Plan Section
1.4 shall mean Plan Sponsor as that term is defined in Section 4 of
Appendix B.
1.5 "Annual Compensation Limit" means (a) $200,000 for the Plan
Year beginning on January 1, 1989, which amount may be adjusted for each
subsequent Plan Year through the Plan Year beginning on January 1, 1993,
based on changes in the cost of living as provided in regulations issued
by the Secretary of the Treasury, and (b) $150,000 for the Plan Year
beginning on January 1, 1994, which amount may be adjusted for each
subsequent Plan Year based on changes in the cost of living as provided in
regulations issued by the Secretary of the Treasury.
1.6 "Beneficiary" means the person or trust that a Member
designated most recently in writing to the Plan Administrator; provided,
however, that if the Member has failed to make a designation, no person
designated is alive, no trust has been established, or no successor
Beneficiary has been designated who is alive, the term "Beneficiary" means
(a) the Member's spouse or (b) if no spouse is alive, the Member's
surviving children, or (c) if no children are alive, the Member's parent
or parents, or (d) if no parent is alive, the legal representative of the
deceased Member's estate. Notwithstanding the preceding sentence, the
spouse of a married Member shall be his Beneficiary unless that spouse has
consented in writing to the designation by the Member of some other person
or trust and the spouse's consent acknowledges the effect of the
designation and is witnessed by a notary public or a Plan representative.
A Member may change his designation at any time. However, a Member may
not change his designation without further consent of his spouse under the
terms of the preceding sentence unless the spouse's consent permits
designation of another person or trust without further spousal consent and
acknowledges that the spouse has the right to limit consent to a specific
beneficiary and that the spouse voluntarily relinquishes this right.
Notwithstanding the above, the spouse's consent shall not be required if
the Member establishes to the satisfaction of the Plan Administrator that
the spouse cannot be located, if the Member has a court order indicating
that he is legally separated or has been abandoned (within the meaning of
local law) unless a "qualified domestic relations order" (as defined in
Code Section 414(p)) provides otherwise, or if there are other
circumstances as the Secretary of the Treasury prescribes. If the spouse
is legally incompetent to give consent, consent by the spouse's legal
guardian shall be deemed to be consent by the spouse.
1.7 "Board of Directors" means the Board of Directors of the
Primary Sponsor.
1.8 "Break in Service" means the failure of an Employee, in
connection with a termination of employment other than by reason of death
or attainment of a Retirement Date, to complete more than 500 Hours of
Service in any Plan Year.
1.9 "Code" means the Internal Revenue Code of 1986, as amended.
1.10 "Company Stock" means shares of any class of stock issued by
the Primary Sponsor or any Affiliate and constituting "qualifying employer
securities" within the meaning of ERISA Section 407(d)(5)
1.11 "Deferral Amount" means a contribution of a Plan Sponsor on
behalf of a Member pursuant to Plan Section 3.1.
1.12 "Direct Rollover" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
1.13 "Disability" means a disability of a Member within the meaning
of Code Section 72(m)(7), to the extent that the Member is, or would be,
entitled to disability retirement benefits under the federal Social
Security Act or to the extent that the Member is entitled to recover
benefits under any long term disability plan or policy maintained by the
Plan Sponsor. The determination of whether or not a Disability exists
shall be determined by the Plan Administrator and shall be substantiated
by competent medical evidence.
1.14 "Distributee" means an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order (as defined in
Code Section 414(p)) are Distributees with regard to the interest of the
spouse or former spouse.
1.15 "Effective Date" means January 1, 1989.
1.16 "Elective Deferrals" means, with respect to any taxable year
of the Member, the sum of
(a) any Deferral Amounts;
(b) any contributions made by or on behalf of a Member under
any other qualified cash or deferred arrangement as defined in Code
Section 401(k), whether or not maintained by a Plan Sponsor, to the
extent such contributions are not or would not, but for Code
Section 402(g)(1) be included in the Member's gross income for the
taxable year; and
(c) any other contributions made by or on behalf of a Member
pursuant to Code Section 402(g)(3).
1.17 "Eligible Employee" means any Employee of a Plan Sponsor other
than an Employee who is (a) an Employee covered by a collective bargaining
agreement between a union and a Plan Sponsor, provided that retirement
benefits were the subject of good faith bargaining, unless the collective
bargaining agreement provides for participation in the Plan; (b) a leased
employee within the meaning of Code Section 414(n)(2), or deemed to be an
Employee of a Plan Sponsor pursuant to regulations under Code Section
414(o); or, effective May 1, 1989, (c) an Employee who is a Highly
Compensated Employee. A Member who becomes a Highly Compensated Employee
during a Plan Year shall cease to be an Eligible Employee no later than
the first day of the immediately succeeding Plan Year.
1.18 "Eligible Retirement Plan" means an individual retirement
account described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code
Section 403(a) or a qualified trust described in Code Section 401(a) that
accepts the Distributee's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
1.19 "Eligible Rollover Distribution" means any distribution of all
or any portion of the Distributee's Account, except that an Eligible
Rollover Distribution does not include: any distribution that is one of a
series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the
Distributee's designated Beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is
required under Code Section 401(a)(9); and the portion of any distribution
that is not includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
1.20 "Eligibility Service" means a twelve-consecutive-month period
during which the Employee completes no less than 1,000 Hours of Service
beginning on the date on which the Employee first performs an Hour of
Service upon his employment or reemployment with a Plan Sponsor or, in the
event the Employee fails to complete 1,000 Hours of Service in that
twelve-consecutive-month period, any twelve-consecutive-month period
thereafter, beginning on the anniversary of the date the Employee first
performed an Hour of Service upon his employment or reemployment, during
which the Employee completes no less than 1,000 Hours of Service.
1.21 "Employee" means any person who is (a) employed by a Plan
Sponsor or an Affiliate for purposes of the Federal Insurance
Contributions Act, (b) a leased employee within the meaning of Code
Section 414(n)(2) with respect to a Plan Sponsor, or (c) deemed to be an
employee of a Plan Sponsor pursuant to regulations under Code Section
414(o).
1.22 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.23 "Fiduciary" means each Named Fiduciary and any other person
who exercises or has any discretionary authority or control regarding
management or administration of the Plan, any other person who renders
investment advice for a fee or has any authority or responsibility to do
so with respect to any assets of the Plan, or any other person who
exercises or has any authority or control respecting management or
disposition of assets of the Plan.
1.24 "Fund" means the amount at any given time of cash and other
property held by the Trustee pursuant to the Plan.
1.25 "Highly Compensated Employee" means each Employee who is
described in Subsection (a), unless the Plan Sponsor makes an election
pursuant to Subsection (b).
(a) (1) The Employee during the Plan Year immediately
preceding the Plan Year in question:
(A) was at any time an owner of more than five
percent (5%) of the outstanding stock of a Plan Sponsor
or Affiliate or more than five percent (5%) of the total
combined voting power of all stock of a Plan Sponsor or
Affiliate; or
(B) received Annual Compensation in excess of
$96,368 (for the Plan Year beginning in 1993) which
amount shall be adjusted for changes in the cost of
living as provided in regulations issued by the
Secretary of the Treasury; or
(C) received Annual Compensation in excess of
$64,245 (for the Plan Year beginning in 1993) which
amount shall be adjusted for changes in the cost of
living as provided in regulations issued by the
Secretary of the Treasury, and who was in the group
consisting of the most highly compensated twenty percent
(20%) of the Employees; or
(D) was at any time an officer of the Plan
Sponsor or of any Affiliate whose Annual Compensation
was greater than fifty percent (50%) of the amount in
effect under Code Section 415(b)(1)(A) for the calendar
year in which the Plan Year ends, where the term
"officer" means an administrative executive in regular
and continual service to the Plan Sponsor or Affiliate;
provided, however, that in no event shall the number of
officers exceed the lesser of Clause (i) or (ii) of this
Subparagraph (D), where:
(i) equals fifty (50) Employees; and
(ii) equals the greater of (I) three (3)
Employees or (II) ten percent (10%) of the number
of Employees during the Plan Year, with any
non-integer being increased to the next integer.
If for any year no officer of the Plan Sponsor meets the
requirements of this Subparagraph (D), the highest paid
officer of the Plan Sponsor for the Plan Year shall be
considered an officer for purposes of this
Subparagraph (D).
(2) The Employee during the Plan Year in question (A)
is described in Subsection (a)(1)(A), or (B) is both (i)
described in Subsection (a)(1)(B), (a)(1)(C), or (a)(1)(D),
and (ii) one of the 100 Employees who received the most Annual
Compensation during that Plan Year.
The Plan Administrator may make an election to
substitute $64,245 (as adjusted) for $96,368 (as adjusted) in
Subparagraph (B) of Subsection (a)(1) provided that at all
times during the Plan Year the Plan Sponsor and its Affiliates
maintain significant business activities and have Employees in
at least two significantly separate geographic areas and
satisfy such other conditions as the Secretary of the Treasury
prescribes.
For purposes of Subparagraphs (C) and (D) of
Subsection (a)(1), the following shall be excluded when
determining the number of Employees in the most highly
compensated twenty percent (20%) of the Employees and the
number of officers:
(i) Employees who have not completed six (6)
months of service,
(ii) Employees who normally work less than
17-1/2 hours per week,
(iii) Employees who normally work during not more
than six (6) months during any Plan Year,
(iv) Employees who have not attained age 21,
(v) Employees who are included in a unit of
employees covered by an agreement which the Secretary of
Labor finds to be a collective bargaining agreement
between employee representatives and the Plan Sponsor or
its Affiliates, provided 90% or more of the Employees
are covered under collective bargaining agreements and
the Plan only covers Employees who are not covered under
the collective bargaining agreements.
(b) Notwithstanding the provisions of Subsection (a), the
Primary Sponsor may elect to determine each Highly Compensated
Employee to be each Employee who during the Plan Year in question is
described in Subsection (a) (determined without regard to the head
language of Subsection (a)(1)), pursuant to the provisions of Treas.
Reg. Section 1.414(q)-1T, Q&A-14(b).
(c) For purposes of this Section, if any Employee is a
member of the family of a five percent (5%) owner as defined in
Subsection (a)(1) of this Section or of a Highly Compensated
Employee whose Annual Compensation is such that he is among the ten
(10) Highly Compensated Employees receiving the greatest amount of
Annual Compensation during the Plan Year, then (1) the Employee
shall not be considered a separate Employee, and (2) any Annual
Compensation paid to the Employee, and any applicable contribution
or benefit on behalf of the Employee, shall be treated as if it were
paid to, or on behalf of, the five percent (5%) owner or the
Employee who is among the ten (10) Highly Compensated Employees
receiving the greatest amount of Annual Compensation during the Plan
Year. For purposes of this Subsection (c), the term "family" means
with respect to any Employee, the Employee's spouse and lineal
descendants or ascendants and the spouses of lineal descendants or
ascendants.
(d) For purposes of this Section, a former Employee shall be
treated as a Highly Compensated Employee if (1) the former Employee
was a Highly Compensated Employee at the time the former Employee
separated from service with the Plan Sponsor or Affiliate or (2) the
former Employee was a Highly Compensated Employee at any time after
the former Employee attained age 55.
(e) For purposes of this Section, Employees who are
nonresident aliens and who receive no earned income from the Plan
Sponsor or an Affiliate from sources within the United States shall
not be treated as Employees.
(f) For purposes of this Section, Annual Compensation shall
include amounts paid by Affiliates and shall be determined without
regard to the Annual Compensation Limit.
1.26 "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for a Plan Sponsor or any
Affiliate during the applicable computation period, and such hours
shall be credited to the computation period in which the duties are
performed.
(b) Each hour for which an Employee is paid, or entitled to
payment, by a Plan Sponsor or any Affiliate on account of a period
of time during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability), layoff, jury
duty, military duty or leave of absence.
(c) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by a Plan Sponsor or any
Affiliate, and such hours shall be credited to the computation
period or periods to which the award or agreement for back pay
pertains rather than to the computation period in which the award,
agreement or payment is made; provided, that the crediting of Hours
of Service for back pay awarded or agreed to with respect to periods
described in Subsection (b) of this Section shall be subject to the
limitations set forth in Subsection (e).
(d) Solely for purposes of determining whether a Break in
Service has occurred, each hour during any period that the Employee
is absent from work (1) by reason of the pregnancy of the Employee,
(2) by reason of the birth of a child of the Employee, (3) by reason
of the placement of a child with the Employee in connection with the
adoption of the child by the Employee, or (4) for purposes of caring
for such child for a period immediately following its birth or
placement. The hours described in this Subsection (d) shall be
credited (A) only in the computation period in which the absence
from work begins, if the Employee would be prevented from incurring
a Break in Service in that year solely because of that credit, or
(B), in any other case, in the next following computation period.
(e) The Plan Administrator shall credit Hours of Service in
accordance with the provisions of Section 2530.200b-2(b) and (c) of
the U.S. Department of Labor Regulations or such other federal
regulations as may from time to time be applicable and determine
Hours of Service from the employment records of a Plan Sponsor or in
any other manner consistent with regulations promulgated by the
Secretary of Labor, and shall construe any ambiguities in favor of
crediting Employees with Hours of Service. Notwithstanding any
other provision of this Section, in no event shall an Employee be
credited with more than 501 Hours of Service during any single
continuous period during which he performs no duties for the Plan
Sponsor or Affiliate.
(f) In the event that an individual becomes an Eligible
Employee of a Plan Sponsor by reason of (a) an acquisition by the
Plan Sponsor of substantially all of the assets of another
corporation or entity or a controlling interest of the stock of
another corporation; (b) a merger of the individual's prior employer
with the Plan Sponsor; or (c) the award of a food services or
similar contract to the Plan Sponsor resulting in the hiring of a
group of employees employed immediately prior to the award of the
contract at the same location by an unrelated employer, then each
such Eligible Employee may be credited Hours of Service based on the
services he or she performed with the prior employer in the manner
and subject to such conditions, if any, provided in resolutions
adopted by the Plan Sponsor; provided further that the crediting of
such Hours of Service shall not be permitted in a manner that
discriminates significantly in favor of Highly Compensated
Employees.
1.27 "Investment Committee" means a committee which may be
established to direct the Trustee with respect to investments of the
Fund.
1.28 "Investment Fund" means such subfunds of the Fund as may be
established by the Plan Administrator for the investment of Accounts.
1.29 "Investment Manager" means a Fiduciary, other than the
Trustee, the Plan Administrator, or a Plan Sponsor, who may be appointed
by the Primary Sponsor:
(a) who has the power to manage, acquire, or dispose of any
assets of the Fund or a portion thereof;
(b) who (1) is registered as an investment adviser under the
Investment Advisers Act of 1940; (2) is a bank as defined in that
Act; or (3) is an insurance company qualified to perform services
described in Subsection (a) above under the laws of more than one
state; and
(c) who has acknowledged in writing that he is a Fiduciary
with respect to the Plan.
1.30 "Member" means any Employee or former Employee who has become
a participant in the Plan for so long as his vested Accrued Benefit has
not been fully distributed pursuant to the Plan.
1.31 "Named Fiduciary" means only the following:
(a) the Plan Administrator;
(b) the Trustee;
(c) the Board of Directors;
(d) the Investment Committee; and
(e) the Investment Manager.
1.32 "Normal Retirement Age" means age 65.
1.33 "Plan Administrator" means the organization or person
designated to administer the Plan.
1.34 "Plan Sponsor" means individually the Primary Sponsor and any
Affiliate or other entity which has adopted the Plan and Trust.
1.35 "Plan Year" means the calendar year.
1.36 "Retirement Date" means the date on which the Member
(a) retires on or after attaining Normal Retirement Age or (b) becomes
subject to a Disability.
1.37 "Rollover Amount" means any amount not less than $200
transferred to the Fund by a Member (a) which amount qualifies as an
Eligible Rollover Distribution under Code Section 402(c)(4) or 403(a)(4),
or a rollover contribution under 408(d)(3)(A)(ii) and any regulations
issued thereunder and (b) any other amounts transferred to the Fund on
behalf of a Member in a trust-to-trust transfer from any plan meeting the
requirements of Code Section 401(a) which is not subject to Code Section
401(a)(11) or 417. No portion of a Rollover Amount may consist of after-
tax amounts.
1.38 "Trust" means the trust established under an agreement dated
December 29, 1989, between the Primary Sponsor and the Trustee to hold the
Fund or any successor agreement.
1.39 "Trustee" means the trustee under the Trust.
1.40 "Valuation Date" means the last day of each month or any other
day which the Plan Administrator declares to be a Valuation Date; provided
that, on a prospective basis after January 1, 1994, the Plan Administrator
may in its sole discretion declare that each Individual Fund may be valued
as frequently as each regular business day of the entity maintaining the
investments in which the Individual Funds are invested, in which case each
regular business day shall constitute Valuation Dates.
1.41 "Voluntary Contribution" means a non-deductible contribution
to the Fund made by the Member pursuant to Plan Section 3.3.
1.42 "Year of Service" means each Plan Year during which a Member
has completed no less than 1,000 Hours of Service.
SECTION 2
ELIGIBILITY
2.1 Each individual who was a Member on the day immediately
preceding the Effective Date shall continue to be a Member as the
Effective Date.
2.2 Each Eligible Employee shall become a Member as of the first
day of the first payroll period coinciding with or next following the
later of the date he (a) completes his Eligibility Service or (b) attains
age 21.
2.3 Each former Member who is reemployed by a Plan Sponsor shall
become a Member as of the date of his reemployment as an Eligible
Employee.
2.4 Each former Employee who completes his Eligibility Service but
terminates employment with a Plan Sponsor before becoming a Member shall
become a Member as of the latest of the date he (a) is reemployed,
(b) would have become a Member if he had not terminated employment, or
(c) becomes an Eligible Employee.
2.5 Solely for the purpose of contributing a Rollover Amount to
the Plan, an Eligible Employee who has not yet become a Member pursuant to
any other provision of this Plan Section 2 shall become a Member as of the
date on which the Rollover Amount is contributed to the Plan.
2.6 In the event that an individual becomes an Eligible Employee
of a Plan Sponsor by reason of (1) an acquisition by the Plan Sponsor of
substantially all of the assets of another corporation or entity or a
controlling interest of the stock of another corporation; (2) a merger of
the individual's prior employer with the Plan Sponsor; or (3) the award of
a food services or similar contract to the Plan Sponsor resulting in the
hiring of a group of employees employed immediately prior to the award of
the contract at the same location by an unrelated employer, then any such
Eligible Employee may become a Member on any earlier date than otherwise
specified in this Section 2 in the manner and subject to such conditions,
if any, provided in resolutions adopted by the Plan Sponsor.
SECTION 3
CONTRIBUTIONS
3.1 (a) The Plan Sponsor shall make a contribution to the Fund
on behalf of each Member who is an Eligible Employee and who has
elected to defer a portion of Annual Compensation otherwise payable
to him for the Plan Year and to have such portion contributed to the
Fund. The election must be made before the Annual Compensation is
payable and may only be made pursuant to an agreement between the
Member and the Plan Sponsor which shall be in such form and subject
to such rules and limitations as the Plan Administrator may
prescribe and shall specify the percentage of Annual Compensation
that the Member desires to defer and to have contributed to the
Fund. Once a Member has made an election for a Plan Year, the
Member may revoke or modify his election to reduce the rate of
future deferrals, effective as of the beginning of the payroll
period coinciding with or next following the Plan Administrator's
processing of the revocation or modification pursuant to normal
administrative procedures. Once an election has been revoked or
modified, any subsequent election by the Member shall be effective
as of the first day of the first payroll period coinciding with or
next following the Plan Administrator's processing of the election
pursuant to normal administrative procedures, except that at the
request of a Member in a form acceptable to the Plan Administrator,
the election may be given effect at a later date.
The contribution made by a Plan Sponsor on behalf of a Member
under this Plan Section 3.1(a) shall be in an amount equal to the
amount specified in the Member's deferral agreement, which amount
shall not be less than two percent (2%) nor greater than ten percent
(10%) of the Member's Annual Compensation. The Plan Administrator
may adjust said percentage applicable to a Member who becomes a
Highly Compensated Employees during a Plan Year on a prospective
basis, but in no event shall the percentage be greater than ten
percent (10%) of a Member's Annual Compensation.
(b) Elective Deferrals shall in no event exceed $8,994 (for
1993) in any one taxable year of the Member, which amount shall be
adjusted for changes in the cost of living as provided by the
Secretary of the Treasury. In the event the amount of Elective
Deferrals exceeds $8,994 (for 1993) as adjusted, in any one taxable
year then, (1) not later than the immediately following March 1, the
Member may designate to the Plan the portion of the Member's
Deferral Amount which consists of excess Elective Deferrals, and (2)
not later than the immediately following April 15, the Plan may
distribute the amount designated to it under Paragraph (1) above, as
adjusted to reflect income, gain, or loss attributable to it through
the date of the distribution, and reduced by any "Excess Deferral
Amounts," as defined in Appendix A hereto, previously distributed or
recharacterized with respect to the Member for the Plan Year
beginning with or within that taxable year. The payment of the
excess Elective Deferrals, as adjusted and reduced, from the Plan
shall be made to the Member without regard to any other provision in
the Plan. In the event that a Member's Elective Deferrals exceed
$8,994, as adjusted, in any one taxable year under the Plan and
other plans of the Plan Sponsor and its Affiliates, the Member shall
be deemed to have designated for distribution under the Plan the
amount of excess Elective Deferrals, as adjusted and reduced, by
taking into account only Elective Deferral amounts under the Plan
and other plans of the Plan Sponsor and its Affiliates.
3.2 (a) Each Plan Sponsor proposes to make matching
contributions to the Fund with respect to each Plan Year on behalf
of each Member entitled to an allocation under Plan Section 4.1 in
an amount equal to (i) twenty percent (20%) of the Member's Annual
Compensation deferred by the Member pursuant to Plan Section 3.1 in
the case of a Member who has completed at least three (3) Years of
Service but fewer than ten (10) Years of Service; (ii) thirty
percent (30%) of the Member's Annual Compensation deferred by the
Member pursuant to Plan Section 3.1 in the case of a Member who has
completed at least ten (10) Years of Service but fewer than twenty
(20) Years of Service; and (iii) forty percent (40%) of the Member's
Annual Compensation deferred by the Member pursuant to Plan Section
3.1 in the case of a Member who has completed at least twenty (20)
Years of Service. The Plan Sponsor's contribution shall be reduced
to the extent necessary, if any, to comply with the limitations in
Appendices A and B hereof.
(b) Notwithstanding any other provision of this Plan Section
3.2 to the contrary, in the case of a Member who becomes a Highly
Compensated Employee during a Plan Year, the Plan Sponsor proposes
to make a matching contribution, in lieu of any contribution on
behalf of the Highly Compensated Employee under Plan Section 3.2(a),
on behalf of such Highly Compensated Employee in an amount equal to
twenty percent (20%) of the Highly Compensated Employee's Annual
Compensation contributed to the Member's Employee Deferred Account
pursuant to Plan Section 3.1, regardless of the Member's Years of
Service.
(c) Plan Sponsor contributions made pursuant to this Plan
Section may be made in cash or in kind, including, without
limitation, shares of Company Stock, at the discretion of the Plan
Sponsor. Unless the Primary Sponsor directs otherwise, the Trustee
shall use Plan Sponsor matching contributions made in the form of
cash to acquire shares of Company Stock that are issued and
outstanding. The Primary Sponsor may request the Trustee to acquire
the necessary shares by purchasing (i) newly issued shares of
Company Stock, or (ii) shares of Company Stock held as treasury
shares.
(d) Effective July 1, 1992, for purposes of determining the
amount of matching contributions to be credited to a Member's
Company Matching Account, all or a portion of a Member's years of
employment with a predecessor employer may be counted if the Member
became an Eligible Employee of a Plan Sponsor by reason of (1) an
acquisition by the Plan Sponsor of substantially all of the assets
of another corporation or entity or of a controlling interest of the
stock of another corporation; (2) a merger of the Member's prior
employer with the Plan Sponsor; or (3) the award of a food services
or similar contract to the Plan Sponsor resulting in the hiring of a
group of employees employed immediately prior to the award of the
contract at the same location by an unrelated employer and if, at
the time of the acquisition, merger or award or as soon as
practicable thereafter, the Plan Sponsor adopts resolutions
providing for the counting of such years of employment in favor of a
group or category of similarly situated individuals that included
the Member. The counting of any such years of employment shall be
specified in those resolutions and shall be subject to such
conditions, if any, provided therein; provided further that the
counting of any such years of employment shall not be made in a
manner that discriminates in favor of Highly Compensated Employees.
3.3 Subject to such rules and limitations as the Plan
Administrator may from time to time prescribe, each Member who contributed
at least two percent (2%) of his Annual Compensation under Plan Section
3.1 may contribute to the Fund as a Voluntary Contribution an amount of
his Annual Compensation not in excess of ten percent (10%) thereof;
provided, however, that this limitation shall apply in the aggregate to
all Voluntary Contributions made by a Member to two (2) or more plans
maintained by the Plan Sponsor. Voluntary Contributions shall be made to
the Fund through regular payroll deductions or in such other manner as
shall be agreed upon by each Member and the Plan Administrator. The Plan
Administrator may, at any time, suspend the making of any further
Voluntary Contributions. Any Member who becomes a Highly Compensated
Employee during a Plan Year shall be ineligible to make further Voluntary
Contributions.
3.4 Any Member may, with the consent of the Plan Administrator and
subject to such rules and conditions as the Plan Administrator may
prescribe, transfer a Rollover Amount to the Fund; provided, however, that
the Plan Administrator shall not administer this provision in a manner
which is discriminatory in favor of Highly Compensated Employees.
3.5 Contributions may be made only in cash or other property which
is acceptable to the Trustee. In no event will the sum of contributions
under Plan Sections 3.1, 3.2 and 3.3 exceed the deductible limits under
Code Section 404.
SECTION 4
ALLOCATIONS
4.1 As soon as reasonably practicable following the date of
withholding by the Plan Sponsor, if applicable, and receipt by the
Trustee, Plan Sponsor contributions made on behalf of each Member under
Plan Sections 3.1 and 3.2, Voluntary Contributions and Rollover Amounts
contributed by the Member shall be allocated to the Employee Deferred
Account, Voluntary Contribution Account and Rollover Account,
respectively, of the Member on behalf of whom the contributions were made.
4.2 Except as otherwise provided in the Plan and the Trust, as of
each Valuation Date, the Trustee shall determine the net income or net
loss of the Fund as hereinafter set forth.
(a) The net income or net loss of the Company Stock
Subaccounts shall be determined separately by the Trustee and
allocated to each Member's Account as follows:
(1) Any cash dividends with respect to Company Stock
allocated to the Company Stock Subaccount of a Member as of
the record date on which such cash dividend was declared shall
be immediately allocated to the Other Investment Subaccount of
the Member's Account.
(2) Any additional shares of Company Stock which are
issued with respect to any Company Stock held in a Company
Stock Subaccount for any reason, including, but not limited
to, stock dividends, mergers or stock splits, shall be
immediately allocated to the Company Stock Subaccount as of
the date on which the additional shares of Company Stock are
delivered to the Trustee. The additional shares of Company
Stock shall be credited to each Company Stock Subaccount based
upon the number of shares of Company Stock in each Company
Stock Subaccount as of the record date on which the stock
dividend or other issuance was declared or received, as the
case may be.
(b) The net income or net loss of the Other Investment
Subaccounts shall be determined separately by the Trustee and
allocated to each Member's Account as follows:
(1) To the cash income, if any, since the last
Valuation Date, there shall be added or subtracted, as the
case may be, any net increase or decrease, since the last
Valuation Date, in the fair market value of the assets of each
Individual Fund, any gain or loss on the sale or exchange of
assets of the Individual Fund since the last Valuation Date,
accrued interest since the last Valuation Date with respect to
any interest bearing security as to which the purchaser would
be required to pay such accrued interest in addition to the
quoted price, the amount of any dividend which shall have been
declared since the last Valuation Date but not paid on shares
of stock owned by the Individual Fund if the market quotation
used in determining the value of such shares is ex-dividend,
and the amount of any other assets of the Individual Fund
determined by the Trustee to be income since the last
Valuation Date.
(2) From the sum thereof there shall be deducted all
charges, expenses, and liabilities accrued since the last
Valuation Date which are proper under the provisions of the
Plan and Trust and which in the discretion of the and which in
the discretion of the Trustee are properly chargeable against
income of the Individual Fund for the period.
The net income or net loss so determined shall be allocated as
of the Valuation Date to the Other Investment Subaccounts of each
Member in the proportion that the balance of the Member's Other
Investment Subaccount invested in the Individual Fund as of the
preceding Valuation Date bears to the total value of all Members'
Other Investment Subaccounts invested in the Individual Fund as of
the preceding Valuation Date.
SECTION 5
WITHDRAWALS DURING EMPLOYMENT
5.1 Effective January 1, 1994, subject to the rules and conditions
as the Plan Administrator may prescribe, by request, a Member may receive
a distribution as soon as administratively practicable of all or a portion
of the balance of his Rollover Account and Voluntary Contribution Account;
provided any such Rollover Amounts have been held in the Plan for a
minimum of two (2) years. Any request for a distribution under this
Section must be made on the forms and in the manner prescribed by the Plan
Administrator.
5.2 The Trustee shall, upon the direction of the Plan
Administrator, distribute all or a portion of a Member's Employee Deferred
Account consisting of Deferral Amounts (but not earnings thereon) prior to
the time such account is otherwise distributable in accordance with the
other provisions of the Plan; provided, however, that any such
distribution shall be made only if the Member is an Employee and
demonstrates that he is suffering from "hardship" as determined herein.
For purposes of this Plan Section, a distribution will be deemed to be an
account of hardship if the distribution is on account of:
(a) expenses for medical care described in Code
Section 213(d) incurred by the Member, his spouse, or any
dependents of the Member (as defined in Code Section 152) or
necessary for these persons to obtain medical care described
in Code Section 213(d);
(b) purchase (excluding mortgage payments) of a
principal residence for the Member;
(c) payment of tuition and related educational fees
for the next twelve (12) months of post-secondary education
for the Member, his spouse, children, or dependents;
(d) the need to prevent the eviction of the Member
from his principal residence or foreclosure on the mortgage of
the Member's principal residence; or
(e) any other contingency determined by the Internal
Revenue Service to constitute an "immediate and heavy
financial need" within the meaning of Treasury Regulations
Section 1.401(k)-1(d).
5.3 In addition to the requirements set forth in Plan Section 5.2,
any distribution pursuant to Plan Section 5.2 shall not be in excess of
the amount necessary to satisfy the need determined under Plan Section 5.2
and shall also be subject to the requirements of Subsection (a) or (b) of
this Plan Section.
(a) (1) The Member shall first obtain all distributions,
other than hardship distributions, and all nontaxable loans
currently available under all plans maintained by the Plan
Sponsor;
(2) the Plan Sponsor shall not permit Elective
Deferrals or after-tax employee contributions to be made to
the Plan or any other plan maintained by the Plan Sponsor, for
a period of twelve (12) months after the Member receives the
distribution pursuant to this Plan Section; and
(3) the Plan Sponsor shall not permit Elective
Deferrals to be made to the Plan or any other plan maintained
by the Plan Sponsor for the Member's taxable year immediately
following the taxable year of the hardship distribution in
excess of the limit under Plan Section 3.1(b) for the taxable
year, less the amount of the Elective Deferrals made to the
Plan or any other plan maintained by the Plan Sponsor for the
taxable year in which the distribution under this Plan Section
occurs.
(b) (1) The Member shall first obtain all other
distributions, other than hardship distributions, and all
nontaxable loans available under all plans maintained by the
Plan Sponsor; and
(2) the Plan Administrator shall determine that it can
reasonably rely on the Member's certification by execution of
a form provided by the Plan Administrator that the need
determined under Plan Section 5.2 cannot be relieved --
(A) through reimbursement or compensation by
insurance or otherwise,
(B) by reasonable liquidation of the assets of
the Member, his spouse and minor children, to the extent
that the liquidation would not itself cause an immediate
and heavy financial need and to the extent that the
assets of the spouse and minor children are reasonably
available to the Member,
(C) by cessation of Elective Deferrals, or
(D) by other distributions or nontaxable (at the
time of the distribution) loans from plans maintained by
the Plan Sponsor or any other employer, or by borrowing
from commercial sources on reasonable commercial terms.
Such distribution shall be made only in accordance with such rules,
policies, procedures, restrictions, and conditions as the Plan
Administrator may from time to time adopt. Any determination of the
existence of hardship and the amount to be distributed on account thereof
shall be made by the Plan Administrator (or such other person as may be
required to make such decisions) in accordance with the foregoing rules as
applied in a uniform and nondiscriminatory manner; provided that, unless
the Member requests otherwise, any such distribution shall include the
amount necessary to pay any federal, state and local income taxes and
penalties reasonably anticipated to result from the distribution.
5.4 Any distribution under this Plan Section shall be made in a
lump sum to the Member, and shall be subject to the Eligible Rollover
Distribution requirements set forth in Plan Section 7.3.
SECTION 6
DEATH BENEFITS
6.1 Upon the death of a Member who is an Employee at the time of
his death, his Beneficiary shall be entitled to the full value of his
Accrued Benefit.
6.2 Upon the death of a Member who is not an Employee at the time
of his death, prior to the distribution of his vested Accrued Benefit, his
Beneficiary shall be entitled to his vested Accrued Benefit.
6.3 If, subsequent to the death of a Member, the Member's
Beneficiary dies while entitled to receive benefits under the Plan, the
successor Beneficiary, if any, or the Beneficiary listed under Subsection
(a), (b) or (c) of the Plan Section containing the definition of the term
"Beneficiary" shall generally be entitled to receive benefits under the
Plan. However, if the deceased Beneficiary was the Member's spouse at the
time of the Member's death, or if no successor Beneficiary shall have been
designated by the Member and be alive and no Beneficiary listed under
Subsection (a), (b) or (c) of the Plan Section containing the definition
of the term "Beneficiary" shall be alive, the Member's unpaid vested
Accrued Benefit shall be paid to the personal representative of the
deceased Beneficiary's estate.
6.4 Any benefit payable under this Section 6 shall be paid in
accordance with and subject to the provisions of Plan Section 7 or Plan
Section 8, whichever is applicable, after receipt by the Trustee from the
Plan Administrator of notice of the death of the Member.
SECTION 7
PAYMENT OF BENEFITS ON RETIREMENT OR DEATH
7.1 The Accrued Benefit of a Member who has attained a Retirement
Date or has attained Normal Retirement Age or died while an Employee shall
be fully vested and nonforfeitable. As of a Member's Retirement Date or
death while an Employee, he or his Beneficiary shall be entitled to his
Accrued Benefit to be paid in accordance with this Plan Section 7. The
Accrued Benefit of a Member which is to be paid under this Section 7 shall
be determined as of the Valuation Date coinciding with or immediately
preceding the date the Accrued Benefit is valued for imminent payout
purposes pursuant to normal administrative procedures, and shall be
increased by any amounts allocated to the Member's Account after that
Valuation Date and reduced by any distributions made from the Member's
account after that Valuation Date. Payments to a Member, or to the
Beneficiary of a deceased Member, shall commence as soon as
administratively feasible after the Member's Retirement Date or death. If
the amount of the payment required to commence on a date cannot be
ascertained by that date, payment shall commence retroactively to that
date and shall commence no later than sixty (60) days after the earliest
date on which the amount of payment can be ascertained.
7.2 The payment of a Member's Accrued Benefit shall be in the form
of one lump sum in cash. If the Member's interest in the Morrison Stock
Fund (as defined in the Trust) equals or exceeds the value of one hundred
(100) shares of Company Stock, that interest may be distributed in the
form of whole shares of Company Stock if the Member so elects by written
instrument delivered to the Plan Administrator.
7.3 Notwithstanding any provisions of the Plan to the contrary
that would otherwise limit a Distributee's election under this Plan
Section 7, effective January 1, 1993, a Distributee may elect, at the time
and in the manner prescribed by the Plan Administrator, to have any
portion of a distribution pursuant to this Plan Section which is an
Eligible Rollover Distribution paid directly to an Eligible Retirement
Plan specified by the Distributee in a direct rollover so long as all
Eligible Rollover Distributions to a Distributee for a calendar year total
or are expected to total at least $200 and, in the case of a Distributee
who elects to directly receive a portion of an Eligible Rollover
Distribution and directly roll the balance over to an Eligible Rollover
Plan, the portion that is to be directly rolled over totals at least $500.
7.4 Notwithstanding any provision of the Plan to the contrary,
effective January 1, 1994, if a Member's vested Accrued Benefit exceeds
$3,500, it shall not be distributed before the Member's "required
beginning date," as defined in Plan Section 7.5(c), or death without the
consent of the Member.
7.5 Notwithstanding any other provisions of the Plan,
(a) Prior to the death of a Member, all retirement payments
hereunder shall --
(1) be distributed to the Member not later than the
required beginning date (as defined below) or,
(2) be distributed, commencing not later than the
required beginning date (as defined below)--
(A) in accordance with regulations prescribed by
the Secretary of the Treasury, over the life of the
Member or over the lives of the Member and his
designated individual Beneficiary, if any, or
(B) in accordance with regulations prescribed by
the Secretary of the Treasury, over a period not
extending beyond the life expectancy of the Member or
the joint life and last survivor expectancy of the
Member and his designated individual Beneficiary, if
any.
(b) (1) If --
(A) the distribution of a Member's retirement
payments have begun in accordance with Subsection (a)(2)
of this Plan Section, and
(B) the Member dies before his entire vested
Accrued Benefit has been distributed to him,
then the remaining portion of his vested Accrued Benefit shall
be distributed at least as rapidly as under the method of
distribution being used under Subsection (a)(2) of this Plan
Section as of the date of his death.
(2) If a Member dies before the commencement of
retirement payments hereunder, the entire interest of the
Member shall be distributed within five (5) years after his
death.
(3) If --
(A) any portion of a Member's vested Accrued
Benefit is payable to or for the benefit of the Member's
designated individual Beneficiary, if any,
(B) that portion is to be distributed, in
accordance with regulations prescribed by the Secretary
of the Treasury, over the life of the designated
individual Beneficiary or over a period not extending
beyond the life expectancy of the designated individual
Beneficiary, and
(C) the distributions begin not later than one
(1) year after the date of the Member's death or such
later date as the Secretary of the Treasury may by
regulations prescribe,
then, for purposes of Paragraph (2) of this Subsection (b),
the portion referred to in Subparagraph (A) of this Paragraph
(3) shall be treated as distributed on the date on which the
distributions to the designated individual Beneficiary begin.
(4) If the designated individual Beneficiary referred
to in Paragraph (3)(A) of this Subsection (b) is the surviving
spouse of the Member, then --
(A) the date on which the distributions are
required to begin under Paragraph (3)(C) of this
Subsection (b) shall not be earlier than the date on
which the Member would have attained age 70-1/2, and
(B) if the surviving spouse dies before the
distributions to such spouse begin, this Subsection (b)
shall be applied as if the surviving spouse were the
Member.
(c) For purposes of this Plan Section, the term "required
beginning date" means April 1 of the calendar year following the
calendar year in which the Member attains age 70-1/2.
Notwithstanding the foregoing, in the case of a Member who is not
described in Section 1(b)(3) of Appendix C hereto and who has
attained age 70-1/2 before January 1, 1988, the term "required
beginning date" means April 1 of the calendar year following the
calendar year in which the Member retires or otherwise terminates
employment.
(d) Distributions will be made in accordance with the
regulations under Code Section 401(a)(9), including the minimum
distribution incidental benefit requirement of Treas. Reg. Section
1.401(a)(9)-2.
SECTION 8
PAYMENT OF BENEFITS ON TERMINATION OF EMPLOYMENT
8.1 Transfer of a Member from one Plan Sponsor to another Plan
Sponsor or to an Affiliate shall not be deemed for any purpose under the
Plan to be a termination of employment of the Member.
8.2 In the event of the termination of employment of a Member for
reasons other than death or attainment of a Retirement Date, the Member's
Accrued Benefit shall be determined as of the Valuation Date coinciding
with or immediately preceding the date the Member's Accrued Benefit is
valued for imminent payout purposes pursuant to normal administrative
procedures, increased by any contributions or Rollover Amounts allocated
to the Account of the Member after that Valuation Date and reduced by any
distributions therefrom.
8.3 That portion of a Member's Accrued Benefit in which he is
vested shall be the balance of his Account as of the Valuation Date
coinciding with or immediately preceding the date his Accrued Benefit is
paid.
8.4 The Member shall be entitled to payment in the form of payment
set forth in Plan Section 7.2. Payment shall be made as soon as
administratively feasible after the Member terminates employment;
provided, however, effective January 1, 1994, if the Member's vested
Accrued Benefit exceeds $3,500 it will not be distributed before the
Member's "required beginning date," within the meaning of Plan
Section 7.5(c), or death without the Member's consent. In no event shall
payment be made later than sixty (60) days after the end of the Plan Year
in which the Normal Retirement Age of the Member occurs. Payment shall be
subject to the minimum distribution requirements set forth in Plan Section
7.5, and the Eligible Rollover Distribution requirements set forth in Plan
Section 7.3.
8.5 If a Member who has terminated employment with a Plan Sponsor
is reemployed by a Plan Sponsor or an Affiliate on or prior to the payment
to the payment to the Member of the full amount of his Accrued Benefit,
the Member's Account shall be treated as the Account of a Member who has
not terminated employment other than in regard to allocations of Plan
Sponsor contributions which would have been made to his Account at any
Valuation Date occurring while the Member was not employed by a Plan
Sponsor.
8.6 In the event that a Plan amendment directly or indirectly
changes the vesting schedule, the vesting percentage for each Member in
his Accrued Benefit accumulated to the date when the amendment is adopted
shall not be reduced as a result of the amendment. In addition, any
Member with at least three (3) Years of Service may irrevocably elect to
remain under the pre-amendment vesting schedule with respect to all of his
benefits accrued both before and after the amendment.
SECTION 9
ADMINISTRATION OF THE PLAN
9.1 Trust Agreement. The Primary Sponsor shall establish a Trust
with the Trustee designated by the Board of Directors for the management
of the Fund, which Trust shall form a part of the Plan and is incorporated
herein by reference.
9.2 Operation of the Plan Administrator. The Primary Sponsor
shall appoint a Plan Administrator. If an organization is appointed to
serve as the Plan Administrator, then the Plan Administrator may designate
in writing a person who may act on behalf of the Plan Administrator. The
Primary Sponsor shall have the right to remove the Plan Administrator at
any time by notice in writing. The Plan Administrator may resign at any
time by written notice of resignation to the Trustee and the Primary
Sponsor. Upon removal or resignation, or in the event of the dissolution
of the Plan Administrator, the Primary Sponsor shall appoint a successor.
9.3 Fiduciary Responsibility.
(a) The Plan Administrator, as a Named Fiduciary, may
allocate its fiduciary responsibilities among Fiduciaries other than
the Trustee, designated in writing by the Plan Administrator and may
designate in writing persons other than the Trustee to carry out its
fiduciary responsibilities under the Plan. The Plan Administrator
may remove any person designated to carry out its fiduciary
responsibilities under the Plan at any time by notice in writing to
such person.
(b) The Plan Administrator and each other Fiduciary may
employ persons to perform services and to render advice with regard
to any of the Fiduciary's responsibilities under the Plan. Charges
for all such services performed and advice rendered may be directly
paid by each Plan Sponsor but until paid shall constitute a charge
against the Fund.
(c) Each Plan Sponsor shall indemnify and hold harmless each
person constituting the Plan Administrator or the Investment
Committee, if any, from and against any and all claims, losses,
costs, expenses (including, without limitation, attorney's fees and
court costs), damages, actions or causes of action arising from, on
account of or in connection with the performance by such person of
his duties in such capacity, other than such of the foregoing
arising from, on account of or in connection with the willful
neglect or willful misconduct of such person.
9.4 Duties of the Plan Administrator.
(a) The Plan Administrator shall advise the Trustee with
respect to all payments under the terms of the Plan and shall direct
the Trustee in writing to make such payments from the Fund;
provided, however, in no event shall the Trustee be required to make
such payments if the Trustee has actual knowledge that such payments
are contrary to the terms of the Plan and the Trust.
(b) The Plan Administrator shall from time to time establish
rules, not contrary to the provisions of the Plan and the Trust, for
the administration of the Plan and the transaction of its business.
All elections and designations under the Plan by a Participant or
Beneficiary shall be made on forms prescribed by the Plan
Administrator. The Plan Administrator shall have discretionary
authority to construe the terms of the Plan and shall determine all
questions arising in the administration, interpretation and
application of the Plan, including, but not limited to, those
concerning eligibility for benefits and it shall not act so as to
discriminate in favor of any person. All determinations of the Plan
Administrator shall be conclusive and binding on all Employees,
Members, Beneficiaries and Fiduciaries, subject to the provisions of
the Plan and the Trust and subject to applicable law.
(c) The Plan Administrator shall furnish Members and
Beneficiaries with all disclosures now or hereafter required by
ERISA or the Code. The Plan Administrator shall file, as required,
the various reports and disclosures concerning the Plan and its
operations as required by ERISA and by the Code, and shall be solely
responsible for establishing and maintaining all records of the Plan
and the Trust.
(d) The statement of specific duties for a Plan
Administrator in this Plan Section is not in derogation of any other
duties which a Plan Administrator has under the provisions of the
Plan or the Trust or under applicable law.
9.5 Investment Manager. The Primary Sponsor may, by action in
writing certified by notice to the Trustee, appoint an Investment
Manager. Any Investment Manager may be removed in the same manner in
which appointed, and in the event of any removal, the Investment Manager
shall, as soon as possible, but in no event more than thirty (30) days
after notice of removal, turn over all assets managed by it to the Trustee
or to any successor Investment Manager appointed, and shall make a full
accounting to the Primary Sponsor with respect to all assets managed by it
since its appointment as an Investment Manager.
9.6 Investment Committee. The Primary Sponsor may, by action in
writing certified by notice to the Trustee, appoint an Investment
Committee. The Primary Sponsor shall have the right to remove any person
on the Investment Committee at any time by notice in writing to such
person. A person on the Investment Committee may resign at any time by
written notice of resignation to the Primary Sponsor. Upon such removal
or resignation, or in the event of the death of a person on the Investment
Committee, the Primary Sponsor may appoint a successor. Until a successor
has been appointed, the remaining persons on the Investment Committee may
continue to act as the Investment Committee.
9.7 Action by a Plan Sponsor. Any action to be taken by a Plan
Sponsor shall be taken by resolution or written direction duly adopted by
its board of directors or appropriate governing body, as the case may be;
provided, however, that by such resolution or written direction, the board
of directors or appropriate governing body, as the case may be, may
delegate to any officer or other appropriate person of a Plan Sponsor the
authority to take any such actions as may be specified in such resolution
or written direction, other than the power to amend, modify or terminate
the Plan or the Trust or to determine the basis of any Plan Sponsor
contributions.
SECTION 10
CLAIM REVIEW PROCEDURE
10.1 If a Member or Beneficiary is denied a claim for benefits
under a Plan, the Plan Administrator shall provide to the claimant written
notice of the denial within 90 days after the Plan Administrator receives
the claim, unless special circumstances require an extension of time for
processing the claim. If such an extension of time for processing is
required, written notice of the extension shall be furnished to the
claimant prior to the termination of the initial 90-day period. In no
event shall the extension exceed a period of 90 days from the end of such
initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Plan Administrator expects to render the final decision.
10.2 If the claimant is denied a claim for benefits, the Plan
Administrator shall provide, within the time frame set forth in Plan
Section 10.1, written notice of the denial which shall set forth:
(a) the specific reasons for the denial;
(b) specific references to the pertinent provisions of the
Plan on which the denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation
of why the material or information is necessary; and
(d) an explanation of the Plan's claim review procedure.
10.3 After receiving written notice of the denial of a claim, a
claimant or his representative may:
(a) request a full and fair review of the denial by written
application to the Plan Administrator;
(b) review pertinent documents; and
(c) submit issues and comments in writing to the Plan
Administrator.
10.4 If the claimant wishes a review of the decision denying his
claim to benefits under the Plan, he must submit the written application
to the Plan Administrator within sixty (60) days after receiving written
notice of the denial.
10.5 Upon receiving the written application for review, the Plan
Administrator may schedule a hearing for purposes of reviewing the
claimant's claim, which hearing shall take place not more than thirty (30)
days from the date on which the Plan Administrator received the written
application for review.
10.6 At least ten (10) days prior to the scheduled hearing, the
claimant and his representative designated in writing by him, if any,
shall receive written notice of the date, time, and place of the scheduled
hearing. The claimant or his representative may request that the hearing
be rescheduled for his convenience on another reasonable date or at
another reasonable time or place.
10.7 All claimants requesting a review of the decision denying
their claim for benefits may employ counsel for purposes of the hearing.
10.8 No later than sixty (60) days following the receipt of the
written application for review, the Plan Administrator shall submit its
decision on the review in writing to the claimant involved and to his
representative, if any; provided, however, a decision on the written
application for review may be extended, in the event special circumstances
such as the need to hold a hearing require an extension of time, to a day
no later than one hundred twenty (120) days after the date of receipt of
the written application for review. The decision shall include specific
reasons for the decision and specific references to the pertinent
provisions of the Plan on which the decision is based.
SECTION 11
LIMITATION OF ASSIGNMENT, PAYMENTS TO LEGALLY
INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS
11.1 No benefit which shall be payable under the Plan to any
person shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge
the same shall be void; and no such benefit shall in any manner be liable
for, or subject to, the debts, contracts, liabilities, engagements or
torts of any person, nor shall it be subject to attachment or legal
process for, or against, such person, and the same shall not be recognized
under the Plan, except to such extent as may be required by law.
Notwithstanding the above, this Plan Section shall not apply to a
"qualified domestic relations order" (as defined in Code Section 414(p)),
and benefits may be paid pursuant to the provisions of such an order. The
Plan Administrator shall develop procedures (in accordance with applicable
federal regulations) to determine whether a domestic relations order is
qualified, and, if so, the method and the procedures for complying
therewith.
11.2 If any person who shall be entitled to any benefit under the
Plan shall become bankrupt or shall attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge such benefit under the Plan,
then the payment of any such benefit in the event a Member or Beneficiary
is entitled to payment shall, in the discretion of the Plan Administrator,
cease and terminate and in that event the Trustee shall hold or apply the
same for the benefit of such person, his spouse, children, other
dependents or any of them in such manner and in such proportion as the
Plan Administrator shall determine.
11.3 Whenever any benefit which shall be payable under the Plan is
to be paid to or for the benefit of any person who is then a minor or
determined to be incompetent by qualified medical advice, the Plan
Administrator need not require the appointment of a guardian or custodian,
but shall be authorized to cause the same to be paid over to the person
having custody of such minor or incompetent, or to cause the same to be
paid to such minor or incompetent without the intervention of a guardian
or custodian, or to cause the same to be paid to a legal guardian or
custodian of such minor or incompetent if one has been appointed or to
cause the same to be used for the benefit of such minor or incompetent.
11.4 If the Plan Administrator cannot ascertain the whereabouts of
any Member to whom a payment is due under the Plan, the Plan Administrator
may direct that the payment and all remaining payments otherwise due to
the Member be cancelled on the records of the Plan and the amount thereof
applied as a forfeiture to reduce Plan Sponsor contributions, except that,
in the event the Member later notifies the Plan Administrator of his
whereabouts and requests the payments due to him under the Plan, the Plan
Sponsor shall contribute to the Plan an amount equal to the payment to be
paid to him as soon as administratively feasible.
SECTION 12
PROHIBITION AGAINST DIVERSION
At no time shall any part of the Fund be used for or diverted to
purposes other than the exclusive benefit of the Members or their
Beneficiaries, subject, however, to the payment of all taxes and
administrative expenses and subject to the provisions of the Plan with
respect to returns of contributions.
SECTION 13
LIMITATION OF RIGHTS
Membership in the Plan shall not give any Employee any right or
claim except to the extent that such right is specifically fixed under the
terms of the Plan. The adoption of the Plan and the Trust by any Plan
Sponsor shall not be construed to give any Employee a right to be
continued in the employ of a Plan Sponsor or as interfering with the right
of a Plan Sponsor to terminate the employment of any Employee at any time.
SECTION 14
AMENDMENT TO OR TERMINATION OF THE
PLAN AND THE TRUST
14.1 The Primary Sponsor reserves the right at any time to modify
or amend or terminate the Plan or the Trust in whole or in part; provided,
however, that the Primary Sponsor shall have no power to modify or amend
the Plan in such manner as would cause or permit any portion of the funds
held under a Plan to be used for, or diverted to, purposes other than for
the exclusive benefit of Members or their Beneficiaries, or as would cause
or permit any portion of a fund held under the Plan to become the property
of a Plan Sponsor; and provided further, that the duties or liabilities of
the Trustee shall not be increased without its written consent. No such
modifications or amendments shall have the effect of retroactively
changing or depriving Members or Beneficiaries of rights already accrued
under the Plan. No Plan Sponsor other than the Primary Sponsor shall have
the right to so modify, amend or terminate the Plan or the Trust.
Notwithstanding the foregoing, each Plan Sponsor may terminate its own
participation in the Plan and Trust pursuant to the Plan.
14.2 Each Plan Sponsor other than the Primary Sponsor shall have
the right to terminate its participation in the Plan and Trust by
resolution of its board of directors or other appropriate governing body
and notice in writing to the Primary Sponsor and the Trustee unless such
termination would result in the disqualification of the Plan or the Trust
or would adversely affect the exempt status of the Plan or the Trust as to
any other Plan Sponsor. If contributions by or on behalf of a Plan
Sponsor are completely terminated, the Plan and Trust shall be deemed
terminated as to such Plan Sponsor. Any termination by a Plan Sponsor,
shall not be a termination as to any other Plan Sponsor.
14.3 (a) If the Plan is terminated by the Primary Sponsor or if
contributions to the Trust should be permanently discontinued, it
shall terminate as to all Plan Sponsors and the Fund shall be used,
subject to the payment of expenses and taxes, for the benefit of
Members and Beneficiaries, and for no other purposes, and the
Account of each affected Member shall be fully vested and
nonforfeitable, notwithstanding the provisions of the Plan Section
which sets forth the vesting schedule.
(b) In the event of the partial termination of the Plan,
each affected Member's Account shall be fully vested and
nonforfeitable, notwithstanding the provisions of the Plan Section
which sets forth the vesting schedule.
14.4 In the event of the termination of the Plan or the Trust with
respect to a Plan Sponsor, the Accounts of the Members with respect to the
Plan as adopted by such Plan Sponsor shall be held subject to the
instructions of the Plan Administrator; provided that the Trustee shall
not be required to make any distribution until it receives a copy of an
Internal Revenue Service determination letter to the effect that the
termination does not affect the qualified status of the Plan or the exempt
status of the Trust or, in the event that such letter is applied for and
is not issued, until the Trustee is reasonably satisfied that adequate
provision has been made for the payment of all taxes which may be due and
owing by the Trust.
14.5 In the case of any merger or consolidation of the Plan with,
or any transfer of the assets or liabilities of the Plan to, any other
plan qualified under Code Section 401, the terms of the merger,
consolidation or transfer shall be such that each Member would receive (in
the event of termination of the Plan or its successor immediately
thereafter) a benefit which is no less than the benefit which the Member
would have received in the event of termination of the Plan immediately
before the merger, consolidation or transfer.
14.6 Notwithstanding any other provision of the Plan, an amendment
to the Plan --
(a) which eliminates or reduces an early retirement benefit,
if any, or which eliminates or reduces a retirement-type subsidy (as
defined in regulations issued by the Department of the Treasury), if
any, or
(b) which eliminates an optional form of benefit
shall not be effective with respect to benefits attributable to service
before the amendment is adopted. In the case of a retirement-type subsidy
described in Subsection (a) above, this Plan Section shall be applicable
only to a Member who satisfies, either before or after the amendment, the
preamendment conditions for the subsidy.
SECTION 15
ADOPTION OF PLAN BY AFFILIATES
Any corporation or other business entity related to the Primary
Sponsor by function or operation and any Affiliate, if the corporation,
business entity or Affiliate is authorized to do so by written direction
adopted by the Board of Directors, may adopt the Plan and the related
Trust by action of the board of directors or other appropriate governing
body of such corporation, business entity or Affiliate. Any adoption
shall be evidenced by certified copies of the resolutions of the foregoing
board of directors or governing body indicating the adoption and by the
execution of the Trust by the adopting corporation, or business entity or
Affiliate. The resolution shall state and define the effective date of
the adoption of the Plan by the Plan Sponsor and, for the purpose of Code
Section 415, the "limitation year" as to such Plan Sponsor.
Notwithstanding the foregoing, however, if the Plan and Trust as adopted
by an Affiliate or other corporation or business entity under the
foregoing provisions shall fail to receive the initial approval of the
Internal Revenue Service as a qualified Plan and Trust under Code Sections
401(a) and 501(a), any contributions by the Affiliate or other corporation
or business entity after payment of all expenses will be returned to such
Plan Sponsor free of any trust, and the Plan and Trust shall terminate, as
to the adopting Affiliate or other corporation or business entity.
SECTION 16
QUALIFICATION AND RETURN OF CONTRIBUTIONS
16.1 If the Plan and the related Trust fail to receive the initial
approval of the Internal Revenue Service as a qualified plan and trust
within one (1) year after the date of denial of qualification (a) the
contribution of a Plan Sponsor after payment of all expenses will be
returned to a Plan Sponsor free of the Plan and Trust, (b) contributions
made by a Member shall be returned to the Member who made the
contributions, and (c) the Plan and Trust shall thereupon terminate.
16.2 All Plan Sponsor contributions to the Plan are contingent
upon deductibility. To the extent permitted by the Code and other
applicable laws and regulations thereunder, upon a Plan Sponsor's request,
a contribution which was made by reason of a mistake of fact or which was
nondeductible under Code Section 404, shall be returned to a Plan Sponsor
within one (1) year after the payment of the contribution, or the
disallowance of the deduction (to the extent disallowed), whichever is
applicable.
In the event of a contribution which was made by reason of a mistake
of fact or which was nondeductible, the amount to be returned to the Plan
Sponsor shall be the excess of the contribution above the amount that
would have been contributed had the mistake of fact or the mistake in
determining the deduction not occurred, less any net loss attributable to
the excess. Any net income attributable to the excess shall not be
returned to the Plan Sponsor. No return of any portion of the excess
shall be made to the Plan Sponsor if the return would cause the balance in
a Member's Account to be less than the balance would have been had the
mistaken contribution not been made.
SECTION 17
SECTION 16 OF SECURITIES EXCHANGE ACT OF 1934
Notwithstanding any other provision of this Plan, the provisions of
this Plan that set forth the formula or formulas that determine the
amount, price or timing of awards to persons subject to the reporting
requirements of Section 16 of the Securities Exchange Act of 1934 (the
"Act") and any other provisions of this Plan of the type referred to in
Section 16b-3(c)(2)(ii) of the Act shall not be amended more than once
every six months, other than to comport with changes in the Code, ERISA,
or the rules thereunder. Further, to the extent required, the persons
described in the preceding sentence shall be subject to such withdrawal,
investment and other restrictions necessary to satisfy Rule 16b-3 under
the Act. This Section 17 is intended to comply with Rule 16b-3 under the
Act and shall be effective only to the extent required by such rule and
shall be interpreted and administered in accordance with such rule.
SECTION 18
INCORPORATION OF SPECIAL LIMITATIONS
Appendices A, B, and C to the Plan, attached hereto, are
incorporated by reference and the provisions of the same shall apply
notwithstanding anything to the contrary contained herein.
IN WITNESS WHEREOF, the Primary Sponsor has caused this indenture to
be executed as of the date first above written.
MORRISON RESTAURANTS INC.
By: /s/ Samuel E. Beall, III
Title: President and Chief Executive
Officer
ATTEST:
/s/ Pfilip G. Hunt
Title: Senior Vice President,
General Counsel and Secretary
[CORPORATE SEAL]
APPENDIX A
SPECIAL NONDISCRIMINATION RULES
SECTION 1
As used in this Appendix, the following words shall have the
following meanings:
(a) "Eligible Member" means a Member who is an Employee
during any particular Plan Year.
(b) "Highly Compensated Eligible Member" means any Eligible
Member who is a Highly Compensated Employee.
(c) "Matching Contribution" means any contribution made by a
Plan Sponsor to a Company Matching Account and any other
contribution made to a plan by a Plan Sponsor or an Affiliate on
behalf of an Employee on account of a contribution made by an
Employee or on account of an Elective Deferral.
(d) "Qualified Matching Contributions" means Matching
Contributions which are immediately nonforfeitable when made, and
which would be nonforfeitable, regardless of the age or service of
the Employee or whether the Employee is employed on a certain date,
and which may not be distributed, except upon one of the events
described under Code Section 401(k)(2)(B) and the regulations
thereunder.
(e) "Qualified Nonelective Contributions" means
contributions of the Plan Sponsor or an Affiliate, other than
Matching Contributions or Elective Deferrals, which are non-
forfeitable when made, and which would be nonforfeitable regardless
of the age or service of the Employee or whether the Employee is
employed on a certain date, and which may not be distributed, except
upon one of the events described under Code Section 401(k)(2)(B) and
the regulations thereunder.
SECTION 2
In addition to any other limitations set forth in the Plan, for each
Plan Year one of the following tests must be satisfied:
(a) the actual deferral percentage for the Highly
Compensated Eligible Members must not be more than the actual
deferral percentage of all other Eligible Members multiplied by
1.25; or
(b) the excess of the actual deferral percentage for the
Highly Compensated Eligible Members over that of all other Eligible
Members must not be more than two (2) percentage points, and the
actual deferral percentage for the Highly Compensated Eligible
Members must not be more than the actual deferral percentage of all
other Eligible Members multiplied by two (2).
The "actual deferral percentage" for the Highly Compensated Eligible
Members and all other Eligible Members for a Plan Year is the average in
each group of the ratios, calculated separately for each Employee, of the
Deferral Amounts contributed by the Plan Sponsor on behalf of an Employee
for the Plan Year to the Annual Compensation of the Employee in the Plan
Year. In addition, for purposes of calculating the "actual deferral
percentage" as described above, Deferral Amounts of Employees who are not
Highly Compensated Employees which are prohibited by Code Section
401(a)(30) shall not be taken into consideration. Except to the extent
limited by Treasury Regulation Section 1.401(k)-1(b)(5) and any other
applicable regulations promulgated by the Secretary of the Treasury, all
or part of the Qualified Matching Contributions and Qualified Nonelective
Contributions made pursuant to the Plan may be treated as Deferral Amounts
for purposes of determining the "actual deferral percentage."
SECTION 3
If the Deferral Amounts contributed on behalf of any Highly
Compensated Eligible Member exceeds the amount permitted under the "actual
deferral percentage" test described in Section 2 of this Appendix A for
any given Plan Year, then before the end of the Plan Year following the
Plan Year for which the Excess Deferral Amount was contributed, (a) the
amount of the Excess Deferral Amount for the Plan Year, as adjusted to
reflect income, gain, or loss attributable to it through the date the
Excess Deferral Amount is distributed to the Member and reduced by any
excess Elective Deferrals as determined pursuant to Plan Section 3.1
previously distributed to the Member for the Member's taxable year ending
with or within the Plan Year, may be distributed to the Highly Compensated
Eligible Member or (b) to the extent provided in regulations issued by the
Secretary of the Treasury, the Plan Administrator may, in its discretion,
allow each affected Member to elect, within two and one-half months after
the end of the Plan Year for which the Excess Deferral Amount was
contributed, to treat the Excess Deferral Amount, unadjusted for earnings,
gains, and losses, but as so reduced, as an amount distributed to the
Member and then contributed as an after-tax contribution by the Member to
the Plan ("recharacterized amounts"). The income allocable to such Excess
Deferral Amount shall be determined in a similar manner as described in
Plan Section 4.2. The Excess Deferral Amount to be distributed or
recharacterized shall be reduced by Deferral Amounts previously
distributed or recharacterized for the taxable year ending in the same
Plan Year, and shall also be reduced by Deferral Amounts previously
distributed or recharacterized for the Plan Year beginning in such taxable
year. For all other purposes under the Plan other than this Appendix A
recharacterized amounts shall continue to be treated as Deferral Amounts.
In the event the multiple use of limitations contained in Sections 2(b)
and 5(b) of this Appendix, pursuant to Treasury Regulations Section
1.401(m)-2 as promulgated by the Secretary of the Treasury, requires a
corrective distribution, such distribution shall be made pursuant to this
Section 3, and not Section 6 of Appendix A.
For purposes of this Section 3, "Excess Deferral Amount" means, with
respect to a Plan Year, the excess of:
(a) the aggregate amount of Deferral Amounts contributed by
a Plan Sponsor on behalf of Highly Compensated Eligible Members for
the Plan Year, over
(b) the maximum amount of Deferral Amounts permitted under
Section 2 of this Appendix A for the Plan Year, which shall be
determined by reducing the Deferral Amounts contributed on behalf of
Highly Compensated Eligible Members in order of the actual deferral
percentages beginning with the highest of such percentages.
Distribution of the Excess Deferral Amounts for any Plan Year shall be
made to the Highly Compensated Eligible Members on the basis of the
respective portions of the Excess Deferral Amount attributable to each
Highly Compensated Eligible Member. As to any Highly Compensated Employee
who is subject to the family aggregation rules of Subsection (b) of the
Plan Section containing the definition of the term "Highly Compensated
Employee," any distribution of such Highly Compensated Employee's
allocable portion of the Excess Deferral Amount for a Plan Year shall be
allocated among the family members of such Highly Compensated Employee who
are combined to determine the actual deferral percentage in proportion to
the Deferral Amounts taken into account under this Section 3.
SECTION 4
The Plan Administrator shall have the responsibility of monitoring
the Plan's compliance with the limitations of this Appendix A and shall
have the power to take all steps it deems necessary or appropriate to
ensure compliance, including, without limitation, restricting the amount
which Highly Compensated Eligible Members can elect to have contributed
pursuant to Plan Section 3.1. Any actions taken by the Plan Administrator
pursuant to this Section 4 shall be pursuant to non-discriminatory
procedures consistently applied.
SECTION 5
In addition to any other limitations set forth in the Plan, Matching
Contributions under the Plan and the amount of nondeductible employee
contributions under the Plan, for each Plan Year must satisfy one of the
following tests:
(a) The contribution percentage for Highly Compensated
Eligible Members must not exceed 125% of the contribution percentage
for all other Eligible Members; or
(b) The contribution percentage for Highly Compensated
Eligible Members must not exceed the lesser of (1) 200% of the
contribution percentage for all other Eligible Members, and (2) the
contribution percentage for all other Eligible Members plus two (2)
percentage points.
Notwithstanding the foregoing, for purposes of this Section 5, the terms
Highly Compensated Eligible Member and Eligible Member shall not include
any Member who is not eligible to receive a Matching Contribution under
the provisions of the Plan, other than as a result of the Member failing
to contribute to the Plan or failing to have an Elective Deferral
contributed to the Plan on the Member's behalf. Notwithstanding the
foregoing, if Qualified Matching Contributions are taken into account for
purposes of applying the test contained in Section 2 of this Appendix A,
they shall not be taken into account under this Section 5. In applying
the above tests, the Plan Administrator shall comply with any regulations
promulgated by the Secretary of the Treasury which prevent or restrict the
use of the test contained in Section 2(b) of this Appendix A and the test
contained in Section 5(b) of this Appendix A. The "contribution
percentage" for Highly Compensated Eligible Members and for all other
Eligible Members for a Plan Year shall be the average of the ratios,
calculated separately for each Member, of (A) to (B), where (A) is the
amount of Matching Contributions under the Plan (excluding Qualified
Matching Contributions which are used to apply the test set forth in
Section 2 of this Appendix A or Matching Contributions which are used to
satisfy the minimum required contributions to the Accounts of Eligible
Members who are not Key Employees pursuant to Section 1 of Appendix C to
the Plan) and nondeductible employee contributions made under the Plan for
the Eligible Member for the Plan Year, and where (B) is the Annual
Compensation of the Eligible Member for the Plan Year. Except to the
extent limited by Treasury Regulation Section 1.401(m)-1(b)(5) and any
other applicable regulations promulgated by the Secretary of the Treasury,
a Plan Sponsor may elect to treat Deferral Amounts and Qualified
Nonelective Contributions as Matching Contributions for purpose of
determining the "contribution percentage," provided the Deferral Amounts,
excluding those treated as Matching Contributions, satisfy the test set
forth in Section 2 of Appendix A.
SECTION 6
If the Matching Contributions and nondeductible employee
contributions and, if taken into account under Section 5 of this
Appendix A, the Deferral Amounts made by or on behalf of Highly
Compensated Eligible Members exceed the amount permitted under the
"contribution percentage test" for any given Plan Year, then, before the
close of the Plan Year following the Plan Year for which the excess
aggregate contributions were made, the amount of the excess aggregate
contributions attributable to the Plan for the Plan Year, as adjusted to
reflect any income, gain or loss attributable to such contributions
through the date the excess aggregate contributions are distributed, shall
be distributed. The income allocable to such contributions shall be
determined in a similar manner as described in Plan Section 4.2. As to
any Highly Compensated Employee, any distribution of his allocable portion
of the excess aggregate contributions for a Plan Year shall first be
attributed to any nondeductible employee contributions made by the Member
during the Plan Year for which no corresponding Plan Sponsor contribution
is made and then to any remaining nondeductible employee contributions
made by the Member during the Plan Year and any Matching Contributions
thereon. As between the Plan and any other plan or plans maintained by
the Plan Sponsor in which excess aggregate contributions for a Plan Year
are held, each such plan shall distribute a pro-rata share of each class
of contribution based on the respective amounts of a class of contribution
made to each plan during the Plan Year. The payment of the excess
aggregate contributions shall be made without regard to any other
provision in the Plan. In the event the multiple use of limitations
contained in Sections 2(b) and 5(b) of this Appendix, pursuant to Treasury
Regulation Section 1.401(m)-2 as promulgated by the Secretary of the
Treasury, requires a corrective distribution, such distribution shall be
made pursuant to Section 3 of Appendix A, and not this Section 6.
For purposes of this Section 6, with respect to any Plan Year,
"excess aggregate contributions" means the excess of:
(a) the aggregate amount of the Matching Contributions and
nondeductible employee contributions and, if taken into account
under Section 5 of this Appendix A, the Deferral Amounts actually
made on behalf of Highly Compensated Eligible Members for the Plan
Year, over
(b) the maximum amount of the contributions permitted under
the limitations of Section 5 of this Appendix A, determined by
reducing contributions made on behalf of Highly Compensated Eligible
Members in order of their contribution percentages beginning with
the highest of such percentages.
Distribution of nondeductible employee contributions or Matching
Contributions in the amount of the excess aggregate contributions for any
Plan Year shall be made with respect to Highly Compensated Employees on
the basis of the respective portions of the excess aggregate contributions
attributable to each Highly Compensated Employee. As to any Highly
Compensated Employee who is subject to the family aggregation rules of
Subsection (b) of the Plan Section containing the definition of the term
"Highly Compensated Employee," any distribution of such Highly Compensated
Employee's allocable portion of the excess aggregate contributions for a
Plan Year shall be allocated among the family members of such Highly
Compensated Employee which are combined to determine the contribution
percentage in proportion to the contributions taken into account under
this Section 6.
The determination of the amount of excess aggregate contributions under
this Section 6 shall be made after (1) first determining the excess
Elective Deferrals under Plan Section 3.1(b), and (2) then determining the
Excess Deferral Amounts under Section 3 of this Appendix A.
SECTION 7
Except to the extent limited by rules promulgated by the Secretary
of the Treasury, if a Highly Compensated Eligible Member is a participant
in any other plan of the Plan Sponsor or any Affiliate which includes
Matching Contributions, deferrals under a cash or deferred arrangement
pursuant to Code Section 401(k), or nondeductible employee contributions,
any contributions made by or on behalf of the Member to the other plan
shall be allocated with the same class of contributions under the Plan for
purposes of determining the "actual deferral percentage" and "contribution
percentage" under the Plan; provided, however, contributions that are made
under an "employee stock ownership plan" (within the meaning of Code
Section 4975(e)(7)) shall not be combined with contributions under any
plan which is not an employee stock ownership plan (within the meaning of
Code Section 4975(e)(7)).
Except to the extent limited by rules promulgated by the Secretary
of the Treasury, if the Plan and any other plans which include Matching
Contributions, deferrals under a cash or deferred arrangement pursuant to
Code Section 401(k), or nondeductible employee contributions are
considered as one plan for purposes of Code Section 401(a)(4) and
410(b)(1), any contributions under the other plans shall be allocated with
the same class of contributions under the Plan for purposes of determining
the "contribution percentage" and "actual deferral percentage" under the
Plan; provided, however, contributions that are made under an "employee
stock ownership plan" (within the meaning of Code Section 4975(e)(7))
shall not be combined with contributions under any plan which is not an
employee stock ownership plan (within the meaning of Code Section
4975(e)(7)).
APPENDIX B
LIMITATION ON ALLOCATIONS
SECTION 1
The "annual addition" for any Member for any one limitation year may
not exceed the lesser of:
(a) $30,000 (or, if greater, one-quarter of the dollar
limitation in effect under Code Section 415(b)(1)(A)), adjusted for
changes in the cost of living as provided in regulations issued by
the Secretary of the Treasury); or
(b) 25% of the Member's Annual Compensation.
SECTION 2
For the purposes of this Appendix B, the term "annual addition" for
any Member means for any limitation year, the sum of certain Plan Sponsor
and Member contributions, and other amounts as determined in Code
Section 415(c)(2) in effect for that limitation year.
SECTION 3
In the event that a Plan Sponsor maintains a defined benefit plan
under which a Member also participates, the sum of the defined benefit
plan fraction and the defined contribution plan fraction for any
limitation year for any Member may not exceed 1.0.
(a) The defined benefit plan fraction for any limitation
year is a fraction:
(1) the numerator of which is the projected annual
benefit of the Member under the defined benefit plan
(determined as of the close of such year); and
(2) the denominator of which is the lesser of
(A) the product of 1.25, multiplied by the
maximum annual benefit allowable under Code
Section 415(b)(1)(A), or
(B) the product of
(i) 1.4, multiplied by
(ii) the amount which may be taken into
account under Code Section 415(c)(1)(B) (or Code
Section 415(c)(7), if applicable) with respect to the
Member for the limitation year.
SECTION 6
For purposes of this Appendix B, the term "limitation year" shall mean
a Plan Year unless a Plan Sponsor elects, by adoption of a written resolution,
to use any other twelve-month period adopted in accordance with regulations
issued by the Secretary of the Treasury. For purposes of applying the
limitations set forth in this Appendix B, the term "Plan Sponsor" shall mean
a Plan Sponsor and any other corporations which are members of the same
controlled group of corporations (as described in Code Section 414(b), as
modified by Code Section 415(h)) as is a Plan Sponsor, any other trades or
businesses (whether or not incorporated) under common control (as described
in Code Section 414(c), as modified by Code Section 415(h)) with a Plan
Sponsor, any other corporations, partnerships, or other organizations which
are members of an affiliated service group (as described in Code
Section 414(m)) with a Plan Sponsor, and any other entity required to be
aggregated with a Plan Sponsor pursuant to regulations under Code
Section 414(o).
SECTION I.
For purposes of applying the limitations of this Appendix B, all defined
contribution plans maintained or deemed to be maintained by a Plan Sponsor
shall be treated as one defined contribution plan, and all defined benefit
plans now or previously maintained or deemed to be maintained by a Plan
Sponsor shall be treated as one defined benefit plan. In the event any of the
actions to be taken pursuant to Section 6 of this Appendix or pursuant to any
language of similar import in another defined contribution plan are required
to be taken as a result of the annual additions of a Member exceeding the
limitations set forth in Section 1 of this Appendix because of the Member's
participation in more than one defined contribution plan, the actions shall
first be taken with respect to this Plan.
SECTION II.
In the event that as a result of a reasonable error in estimating the
Member's Annual Compensation, the annual addition allocated to the Account of
a Member exceeds the limitations set forth in Section 1 of this Appendix B or
in the event that the aggregate contributions made on behalf of a Member under
both a defined benefit plan and a defined contribution plan, subject to the
reduction of allocations in other defined contribution plans required by
Section 5 of this Appendix B, cause the aggregate limitation fraction set
forth in Section 3 of this Appendix B to be exceeded, the Plan Administrator
shall, in writing, direct the Trustee to take such of the following actions
as the Plan Administrator shall deem appropriate, specifying in each case the
amount or amounts of contributions involved:
1. A Member's annual addition shall be reduced by distributing
to the Member Voluntary Contributions made by the Member which cause the
annual addition to exceed such limitations;
2. If further reduction is necessary, contributions made by the
Plan Sponsor on behalf of the Member pursuant to Plan Section 3.1 with
respect to which no contribution is made under Plan Section 3.2 shall
be reduced in the amount of the remaining excess and distributed to the
Member;
3. If further reduction is necessary, contributions made by the
Plan Sponsor on behalf of the Member pursuant to Plan Section 3.1 and
contributions of the Plan Sponsor thereon pursuant to Plan Section 3.2
shall be reduced in the amount of the remaining excess. The amount of
the reduction under Plan Section 3.1 shall be distributed to the Member.
The amount of the reduction under Plan Section 3.2 shall be reallocated
to the Company Matching Accounts of Members who are not affected by the
limitation in the same proportion as the contribution of the Plan
Sponsor for the year is allocated under Plan Section 4.1 to the Accounts
of such Members; and
4. If the contribution of the Plan Sponsor would cause the
annual addition to exceed the limitations set forth herein with respect
to all Members under the Plan, the portion of such contribution in
excess of the limitations shall be segregated in a suspense account.
While the suspense account is maintained, (1) no Plan Sponsor
contributions under the Plan shall be made which would be precluded by
this Appendix B, (2) income, gains and loses of the Fund shall not be
allocated to such suspense account and (3) amounts in the suspense
account shall be allocated in the same manner as Plan Sponsor
contributions under the Plan as of each Valuation Date on which Plan
Sponsor contributions may be allocated until the suspense account is
exhausted. In the event of the termination of the Plan, the amounts in
the suspense account shall be returned to the Plan Sponsor to the extent
that such amounts may not then be allocated to the Members' Accounts.
APPENDIX C
TOP-HEAVY PROVISIONS
SECTION 1
As used in this Appendix, the following words shall have the following
meanings:
(a) "Determination Date" means, with respect to any Plan Year,
the last day of the preceding Plan Year, or, in the case of the first
Plan Year, means the last day of the first Plan Year.
(b) "Key Employee" means an Employee or former Employee
(including a Beneficiary of a Key Employee or former Key Employee) who
at any time during the Plan Year containing the Determination Date or
any of the four (4) preceding Plan Years is:
(1) An officer described in the Subsection of the Plan
Section containing the definition of the term "Highly Compensated
Employee";
(2) One of the ten (10) Employees owning both (A) more
than one-half percent (1/2%) of the outstanding stock of the Plan
Sponsor or an Affiliate, more than one-half percent (1/2%) of the
total combined voting power of all stock of the Plan Sponsor or
an Affiliate, or more than one-half percent (1/2%) of the capital
or profits interest in the Plan Sponsor or an Affiliate, and (B)
the largest percentage ownership interests in the Plan Sponsor or
any of its Affiliates, and whose Annual Compensation is equal to
or greater than the amount in effect under Section 1(a) of
Appendix B to the Plan for the calendar year in which the
Determination Date falls; or
(3) An owner of more than five percent (5%) of the
outstanding stock of the Plan Sponsor or an Affiliate or more than
five percent (5%) of the total combined voting power of all stock
of the Plan Sponsor or an Affiliate; or
(4) An owner of more than one percent (1%) of the
outstanding stock of the Plan Sponsor or an Affiliate or more than
one percent (1%) of the total combined voting power of all stock
of the Plan Sponsor or an Affiliate, and who in such Plan Year had
Annual Compensation from the Plan Sponsor and all of its
Affiliates of more than $150,000.
Employees other than Key Employees are sometimes referred to in this
Appendix as "non-key employees."
(c) "Required Aggregation Group" means:
(1) each plan of the Plan Sponsor and its Affiliates which
qualifies under Code Section 401(a) in which a Key Employee is a
participant, and
(2) each other plan of the Plan Sponsor and its Affiliates
which qualifies under Code Section 401 (a) and which enables any
plan described in Subsection (a) of this Section to meet the
requirements of Code Section 401(a)(4) or 410.
(d) (1) "Top-Heavy" means:
(A) if the Plan is not included in a Required
Aggregation Group, the Plan's condition in a Plan Year for
which, as of the Determination Date:
(i) the present value of the cumulative
Accrued Benefits under the Plan for all Key Employees
exceeds 60 percent of the present value of the
cumulative Accrued Benefits under the Plan for all
Members; and
(ii) the Plan, when included in every
potential combination, if any, with any or all of:
(I) any Required Aggregation Group, and
(II) any plan of the Plan Sponsor which
is not part of any Required Aggregation Group
and which qualifies under Code Section 401 (a)
is part of a Top-Heavy Group (as defined in
Paragraph (2) of this Subsection); and
(B) if the Plan is included in a Required
Aggregation Group, the Plan's condition in a Plan Year for
which, as of the Determination Date:
(i) the Required Aggregation Group is a
Top-Heavy Group (as defined in Paragraph (2) of this
Subsection); and
(ii) the Required Aggregation Group, when
included in every potential combination, if any, with
any or all of the plans of the Plan Sponsor and its
Affiliates which are not part of the Required
Aggregation Group and which qualify under Code
Section 401(a), is part of a Top-Heavy Group (as
defined in Paragraph (2) of this Subsection).
(C) For purposes of Subparagraphs (A)(ii) and
(B)(ii) of this Paragraph (1), any combination of plans
must satisfy the requirements of Code Sections 401(a)(4)
and 410.
(2) A group shall be deemed to be a Top-Heavy Group if:
(A) the sum, as of the Determination Date, of the
present value of the cumulative accrued benefits for all
Key Employees under all plans included in such group
exceeds
(B) 60 percent of a similar sum determined for all
participants in such plans.
(3) (A) For purposes of this Section, the present value
of the accrued benefit for any participant in a defined
contribution plan as of any Determination Date or last day
of a plan year shall be the sum of:
(i) as to any defined contribution plan
other than a simplified employee pension, the account
balance as of the most recent valuation date
occurring within the plan year ending on the
Determination Date or last day of a plan year, and
(ii) as to any simplified employee pension,
the aggregate employer contributions, and
(iii) an adjustment for contributions due as
of the Determination Date or last day of a plan year.
In the case of a plan that is not subject to the minimum
funding requirements of Code Section 412, the adjustment in
Clause (iii) of this Subparagraph (A) shall be the amount
of any contributions actually made after the valuation date
but on or before the Determination Date or last day of the
plan year to the extent not included under Clause (i) or
(ii) of this Subparagraph (A); provided, however, that in
the first plan year of the plan, the adjustment in
Clause (iii) of this Subparagraph (A) shall also reflect
the amount of any contributions made thereafter that are
allocated as of a date in such first plan year. In the
case of a plan that is subject to the minimum funding
requirements, the account balance in Clause (i) and the
aggregate contributions in Clause (ii) of this
Subparagraph (A) shall include contributions that would be
allocated as of a date not later than the Determination
Date or last day of a plan year, even though those amounts
are not yet required to be contributed, and the adjustment
in Clause (iii) of this Subparagraph (A) shall be the
amount of any contribution actually made (or due to be
made) after the valuation date but before the expiration of
the extended payment period in Code Section 412(c)(10) to
the extent not included under Clause (i) or (ii) of this
Subparagraph (A).
(B) For purposes of this Subsection, the present
value of the accrued benefit for any participant in a
defined benefit plan as of any Determination Date or last
day of a plan year must be determined as of the most recent
valuation date which is within a 12-month period ending on
the Determination Date or last day of a plan year as if
such participant terminated as of such valuation date;
provided, however, that in the first plan year of a plan,
the present value of the accrued benefit for a current
participant must be determined either (i) as if the
participant terminated service as of the Determination Date
or last day of a plan year or (ii) as if the participant
terminated service as of such valuation date, but taking
into account the estimated accrued benefit as of the
Determination Date or last day of a plan year. For
purposes of this Subparagraph (B), the valuation date must
be the same valuation date used for computing plan costs
for minimum funding, regardless of whether a valuation is
performed that year. The actuarial assumptions utilized in
calculating the present value of the accrued benefit for
any participant in a defined benefit plan for purposes of
this Subparagraph (B) shall be established by the Plan
Administrator after consultation with the actuary for the
plan, and shall be reasonable in the aggregate and shall
comport with the requirements set forth by the Internal
Revenue Service in Q&A T-26 and T-27 of Regulation
Section 1.416-1.
(C) For purposes of determining the present value
of the cumulative accrued benefit under a plan for any
participant in accordance with this Subsection, the present
value shall be increased by the aggregate distributions
made with respect to the participant (including
distributions paid on account of death to the extent they
do not exceed the present value of the cumulative accrued
benefit existing immediately prior to death) under each
plan being considered, and under any terminated plan which
if it had not been terminated would have been in a Required
Aggregation Group with the Plan, during the 5-year period
ending on the Determination Date or last day of the plan
year that falls within the calendar year in which the
Determination Date falls.
(D) For purposes of this Paragraph (3), participant
contributions which are deductible as "qualified retirement
contributions" within the meaning of Code Section 219 or
any successor, as adjusted to reflect income, gains,
losses, and other credits or charges attributable thereto,
shall not be considered to be part of the accrued benefits
under any plan.
(E) For purposes of this Paragraph (3), if any
employee is not a Key Employee with respect to any plan for
any plan year, but such employee was a Key Employee with
respect to such plan for any prior plan year, any accrued
benefit for such employee shall not be taken into account.
(F) For purposes of this Paragraph (3), if any
employee has not performed any service for any Plan Sponsor
or Affiliate maintaining the plan during the five-year
period ending on the Determination Date, any accrued
benefit for that employee shall not be taken into account.
(G) (i) In the case of an "unrelated rollover"
(as defined below) between plans which qualify under
Code Section 401(a), (a) the plan providing the
distribution shall count the distribution as a
distribution under Subparagraph (C) of this
Paragraph (3), and (b) the plan accepting the
distribution shall not consider the distribution part
of the accrued benefit under this Section; and
(ii) in the case of a "related rollover" (as
defined below) between plans which qualify under Code
Section 401(a), (a) the plan providing the
distribution shall not count the distribution as a
distribution under Subparagraph (C) of this
Paragraph (3), and (b) the plan accepting the
distribution shall consider the distribution part of
the accrued benefit under this Section.
For purposes of this Subparagraph (G), an "unrelated rollover" is a rollover
as defined in Code Section 402(c)(4) or 408(d)(3) or a plan-to-plan transfer
which is both initiated by the participant and made from a plan maintained by
one employer to a plan maintained by another employer where the employers are
not Affiliates. For purposes of this Subparagraph (G), a "related rollover"
is a rollover as defined in Code Section 402(c)(4) or 408(d)(3) or a
plan-to-plan transfer which is either not initiated by the participant or made
to a plan maintained by the employer or an Affiliate.
SECTION 2
(a) Notwithstanding anything contained in the Plan to the
contrary, except as otherwise provided in Subsection (b) of this
Section, in any Plan Year during which the Plan is Top-Heavy,
allocations of Plan Sponsor contributions for the Plan Year for the
Account of each Member who is not a Key Employee and who has not
separated from service with the Plan Sponsor prior to the end of the
Plan Year shall not be less than 3 percent of the Member's Annual
Compensation. For purposes of this Subsection, an allocation to a
Member's Account resulting from any Plan Sponsor contribution
attributable to a salary reduction or similar arrangement shall not be
taken into account.
(b) (1) The percentage referred to in Subsection (a) of this
Section for any Plan Year shall not exceed the percentage at which
allocations are made or required to be made under the Plan for the
Plan Year for the Key Employee for whom the percentage is highest
for the Plan Year. For purposes of this Paragraph, an allocation
to the Account of a Key Employee resulting from any Plan Sponsor
contribution attributable to a salary reduction or similar
agreement shall be taken into account.
(2) For purposes of this Subsection (b), all defined
contribution plans which are members of a Required Aggregation
Group shall be treated as part of the Plan.
(3) This Subsection (b) shall not apply to any plan which
is a member of a Required Aggregation Group if the plan enables
a defined benefit plan which is a member of the Required
Aggregation Group to meet the requirements of Code Section
401(a)(4) or 410.
(4) If the Plan Sponsor maintains a defined benefit plan
which is qualified under Code Section 401(a) and which would be
Top-Heavy within the meaning of the Plan for its plan year ending
within or coincident with the Plan Year, no allocation shall be
made pursuant to Subsection (a) of this Section on behalf of any
Member who participates in the defined benefit plan and acquires
a year of service within the meaning of paragraphs (4), (5) and
(6) of Code Section 411(a) under the defined benefit plan for the
plan year, if the defined benefit plan provides generally that the
accrued benefit of the member when expressed as an annual
retirement benefit shall not, when expressed as a percentage of
the Member's compensation, be less than the lesser of (A) 2
percent multiplied by the number of such Years of Service in plan
years during which such plan was Top-Heavy, or (B) 20 percent.
SECTION 3
In any limitation year (as defined in Section 4 of Appendix B to the
Plan) which contains any portion of a Plan Year in which the Plan is Top-
Heavy, the number "1.0" shall be substituted for the number "1.25" in Section
3 of Appendix B to the Plan.
SECTION 4
Notwithstanding anything contained in the Plan to the contrary, in any
Plan Year during which the Plan is Top-Heavy, a Member's interest in his
Accrued Benefit shall not vest at any rate which is slower than the following
schedule, effective as of the first day of that Plan Year:
Full Years Percentage
of Service Vested
Less than 3 0%
3 or more 100%
The Schedule set forth above in this Section 4 shall be inapplicable to a
Member who has failed to perform an Hour of Service after the Determination
Date on which the Plan has become Top-Heavy. When the Plan ceases to be Top-
Heavy, the Schedule set forth above in this Section 4 shall cease to apply;
provided however, that the provisions of the Plan Section dealing with changes
in the vesting schedule shall apply.
TRUST AGREEMENT
TO THE
MORRISON RESTAURANTS INC.
SALARY DEFERRAL PLAN
THIS TRUST AGREEMENT made as of the 31 day of December, 1993, by and
between MORRISON RESTAURANTS INC., f/k/a/ Morrison Incorporated, a
corporation organized and existing under the laws of the State of Delaware
(the "Primary Sponsor"); each other Affiliate or other entity adopting the
Morrison Restaurants Inc. Salary Deferral Plan (the "Plan"), as provided
therein and executing this trust pursuant thereto; and AMSOUTH BANK N.A. of
Birmingham, Alabama (the "Trustee");
W I T N E S S E T H:
WHEREAS, the Primary Sponsor maintains the Plan and related trust (the
"Trust"), which is intended to qualify as a profit sharing plan under section
401(a) of the Internal Revenue Code and also contains a cash or deferred
arrangement as described in Section 401(k) of the Internal Revenue Code, for
the exclusive benefit of Members thereunder and their Beneficiaries;
WHEREAS, the Primary Sponsor and Trustee previously entered into
certain trust agreements reflecting the terms of the Trust, the most recent
of which was dated December 29, 1989 (the "Prior Trust Agreement");
WHEREAS, the Primary Sponsor has restated the Plan, generally effective
January 1, 1989; and
WHEREAS, the Primary Sponsor and Trustee desire to restate the Prior
Trust Agreement to make conforming amendments;
NOW, THEREFORE, in consideration of the foregoing and of the further
obligations and undertakings as hereinafter set forth, the Primary Sponsor
and Trustee hereby amend and restate the Prior Trust Agreement, effective
January 1, 1994, as follows:
SECTION 1
DEFINITIONS
All terms and definitions contained in the Plan are hereby incorporated
in the Trust Agreement by reference except to the extent that the terms of
the Trust Agreement clearly indicate to the contrary.
SECTION II
THE FUND
The Primary Sponsor hereby establishes the Fund with the Trustee. The
Fund shall be held, managed and administered by the Trustee in trust in
accordance with the provisions of the Plan and of the Trust without
distinction between principal and income. At no time shall any part of the
Fund be used for or diverted to purposes other than the exclusive benefit of
the Members or their Beneficiaries, subject, however, to the payment of taxes
and administrative expenses and to the return of contributions to a Plan
Sponsor under the specific conditions set forth in the Plan.
SECTION III
MAINTENANCE OF AND DISTRIBUTIONS FROM ACCOUNTS
A. The Plan Administrator shall maintain Accounts in accordance with
the Plan.
B. The Trustee may rely upon a notice given in accordance with the
terms of the Plan. The Trustee shall not be charged with any notice unless
given in accordance with the Plan, including notification of any changes in
the identity or authority of any Fiduciary (other than the Trustee) or any
other person acting in regard to the Plan.
C. The Trustee shall make payments out of the Fund to the persons,
in the manner and in the amounts specified in written directions received by
it from the Plan Administrator. The Plan Administrator assumes all
responsibility with respect to the directions and the application of the
payments. The Trustee is under no duty to enforce payments of any
contributions to the Fund and is not responsible for the adequacy of the Fund
to discharge liabilities arising in connection with the Plan or Trust.
D. If any dispute arises as to the persons to whom the payment of
any funds or delivery of any assets shall be made by the Trustee, the Trustee
may withhold the payment or delivery until the dispute has been determined
by a court of competent jurisdiction or has been settled by the parties
concerned and may, in its sole discretion, submit the dispute to a court of
competent jurisdiction.
SECTION 5
INVESTMENTS
A. Subject to the provisions of Sections V, VI and VIII hereof, the
Trustee agrees to invest the assets of the Fund with the care, skill and
diligence under the circumstances then prevailing that a prudent man acting
in like capacity and familiar with such matters pursuant to the Trust would
use in the conduct of an enterprise of a like character and with like aims.
B. Subject to the terms of the Plan and the Trust Agreement and the
provisions of ERISA, the Trustee shall invest the principal and income of the
Fund without distinction between principal and income, in such securities or
in such property, real, personal, or mixed and wherever situated, as the
Trustee in its sole discretion deems advisable. Without limiting the
foregoing, the Trustee may make investments in, and may purchase, acquire,
obtain, retain, sell, transfer, pledge, hypothecate or encumber common or
preferred stocks, shares of mutual funds, trust and participation
certificates, bonds and mortgages, other evidences of indebtedness or
ownership, annuity contracts of life insurance companies, savings accounts
or plans, including, without limitation, savings accounts or plans
established by the Trustee, covered call options, put options, and financial
futures contracts, irrespective of whether the securities or property shall
be of a character authorized by applicable state law for trust investments.
C. The Trustee shall not invest in any securities issued by a Plan
Sponsor or any affiliate (as defined in ERISA Section 407(d)(7)) of a Plan
Sponsor unless the securities are "Qualifying Employer Securities," which
means (i) securities of a Plan Sponsor or any affiliate which are stock, or
(ii) a marketable obligation, as defined in ERISA Section 407(e), of a Plan
Sponsor or any affiliate. Also, the Trustee shall not invest in any real
property leased to or used by a Plan Sponsor or any affiliate of a Plan
Sponsor unless the real property is "Qualifying Employer Real Property,"
which means parcels of real property and related personal property which are
leased to the Plan Sponsor or to any affiliate and which are geographically
dispersed and are suitable (or adaptable without excessive cost) for more
than one use. The Trustee may invest up to one hundred percent (100%) of the
Fund in Qualifying Employer Securities, but shall not be required to invest
in either Qualifying Employer Securities or Qualifying Employer Real Property
if the Trustee makes a good faith determination that the investment would be
contrary to ERISA or the Code.
D. In addition to any other investments proper under the Trust, the
Trustee shall, after receiving written approval from the Primary Sponsor,
from time to time invest all or any part of the Fund in one or more group
trusts or collective investment funds (including, without limitation, such
trusts or funds now or hereafter established by the then Trustee and, more
specifically, the AmSouth Bancorporation Collective Investment Trust and the
funds maintained thereunder, including the General Equity Fund, the General
Fixed Income Fund, the General Intermediate Maturity Fund, the General
Limited Maturity Fund, and the Short-Term Investment Fund and the AmSouth
Master Money Market Account of AmSouth Bank N.A.) which contemplate the
commingling for investment purposes of the funds therein with trust assets
of other pension plans as defined in ERISA which are qualified under Code
Section 401 and which may be established by other businesses, institutions
and organizations other than the Trustee. To the extent required by Revenue
Ruling 81-100 and to the extent consistent with the Trust, the terms and
provisions of the declaration of trust creating any group trust or collective
investment fund in which the Fund is invested are hereby adopted and made a
part hereof, and any part of the Fund so invested shall be subject to all of
the terms and provisions of any declaration of trust creating the group trust
or collective investment fund. The Trustee shall from time to time withdraw
from the group trust or collective investment fund such part of the Fund, as
the Primary Sponsor directs.
E. The Trustee shall invest the assets of the Plan allocated to
Company Matching Accounts primarily in shares of Qualifying Employer
Securities; otherwise, the normal investment goals and objectives of the
Trustee are capital growth, conservation of principal and production of
income through the receipt of interest or dividends from investments.
SECTION 6
INVESTMENT MANAGER
A. If an Investment Manager is designated in accordance with the
Plan, the Trustee shall either (1) turn over to the Investment Manager for
investment all or such portion of the Fund as is specified in a written
direction to the Trustee from the Primary Sponsor, in which case the assets
shall continue to be a part of the Fund, even though not in the Trustee's
possession, or (2) invest and reinvest all or such portion of the Fund as is
specified in a written direction to the Trustee from the Primary Sponsor in
the manner in which the Investment Manager directs the Trustee in writing.
In either event, whether the Trustee actually gives the Investment Manager
possession of a portion of the Fund or is required to invest a portion of the
Fund as directed by the Investment Manager, the Trustee shall have no
discretion with respect to the investment or reinvestment of that portion of
the Fund and shall not be liable for that portion of the Fund or for any acts
or omissions of the Investment Manager or for following or for taking or
refraining from taking any action at any direction of the Investment Manager
given prior to receipt by the Trustee of written notice from the Primary
Sponsor of revocation of the designation of the Investment Manager or for the
failure of the Investment Manager to give a direction or for any act or
omission in connection with its failure. The Trustee shall have no
responsibility for any assets of the Fund while in the possession of the
Investment Manager or while the assets have not been returned to the
possession of the Trustee, and the Trustee shall be entitled to rely upon
notice of the designation of an Investment Manager from the Primary Sponsor
until notified in writing by the designating party that the designation is
no longer in effect.
B. During any period of time in which an Investment Manager directs
the investment of a portion of the Fund, the Trustee, or its designated
agent, shall continue to receive all securities purchased against payment
therefor and to deliver all securities sold against receipt of the proceeds
therefrom. Any Investment Manager authorized to direct investments may issue
orders on behalf of the Trustee for the purchase or sale of securities
directly to a broker or dealer and for such purpose the Trustee shall, upon
request, execute and deliver to the Investment Manager one or more trading
authorizations. Written notification of the issuance of each order shall be
given promptly to the Trustee by the Investment Manager and the execution of
each order shall be confirmed by the broker to the Investment Manager and the
Trustee. The notification shall be authority of the Trustee to receive
securities purchased against payment therefor and to deliver securities sold
against receipt of the proceeds therefrom. All directions concerning invest-
ments of the Investment Manager shall be signed by any person acting on
behalf of the Investment Manager as may be duly authorized in writing. The
transmission by the Investment Manager to the Trustee of directions by
photostatic teletransmission with duplicate or facsimile signatures shall be
considered a delivery in writing of the directions until the Trustee is
notified in writing by the Primary Sponsor that the use of any device
transmitting duplicate or facsimile signatures is no longer authorized. The
Trustee may rely upon directions which it receives by photostatic
teletransmission prior to receipt of notice from the Primary Sponsor that
they are no longer authorized, and the Trustee shall not be responsible for
the consequences of any unauthorized use of a device which use was not known
by the Trustee at the time to be unauthorized.
C. The Trustee shall be under no duty to make any review of
investments acquired for the Plan at the direction or order of an Investment
Manager or to make any recommendation with respect to disposing of or
continuing to retain any such investment.
D. The Trustee shall have no obligation to determine the existence
of any conversion, redemption, exchange, subscription or other right relating
to any securities purchased, of which notice was given prior to the purchase
of the securities, and shall have no obligation to exercise any right unless
the Trustee is informed of its existence by the Investment Manager and is
requested in writing by the Investment Manager to exercise the right within
a reasonable time before the time for its exercise expires.
E. In the event that the Trustee is directed to purchase securities
issued by any foreign government or agency thereof, or by any corporation
domiciled outside of the continental limits of the United States or its
territories, it shall be the responsibility of the Investment Manager to
advise the Trustee in writing with respect to any laws or regulations of any
such foreign countries which shall apply to the securities, including, but
not limited to, receipt of dividends or interest by the Trustee from such
securities.
SECTION 7
INVESTMENT COMMITTEE
A. If an Investment Committee is designated by the Primary Sponsor
in accordance with the Plan, the Trustee shall, unless the Primary Sponsor
otherwise directs the Trustee in writing, invest the Fund as the Investment
Committee directs. However, the Trustee shall only be subject to proper
directions of the Investment Committee which are made in accordance with the
terms of the Plan and which are not contrary to ERISA.
B. The Primary Sponsor may in writing direct that only a portion of
the Fund shall be invested as the Investment Committee directs, in which case
the Trustee shall invest the balance of the Fund pursuant to Section IV
hereof, subject to Sections V and VIII hereof.
SECTION 8
TRUSTEE POWERS
In the administration of the Trust, in addition to, and not in
limitation of, any powers or authority of the Trustee under the Trust or
which the Trustee may have under applicable law in addition thereto (all such
additional powers and authority being specifically hereby granted to the
Trustee), the Trustee is authorized and empowered to do the following,
without advertisement and without order of court and without having to post
bond or make any returns or report of its doings to any court:
A. To purchase or subscribe for any securities or property,
including, without limitation, shares of mutual funds and to retain the same
in trust;
B. To sell, exchange, convey, transfer, or otherwise dispose of, any
securities or property held by it, by private contract or at public auction,
with or without advertising, and no person dealing with the Trustee shall be
bound to see to the application of the purchase money or to inquire into the
validity, expediency or propriety of any sale or other disposition;
C. To vote any stocks, bonds or other securities; to give general
or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription rights or
other options, and to make any payments incidental thereto; to oppose or to
consent to, or otherwise participate in, corporate reorganizations or other
changes affecting corporate securities, and to delegate discretionary powers,
and to pay any assessments or charges in connection therewith; and generally
to exercise any of the powers of an owner with respect to stocks, bonds,
securities or other property held as part of the Fund; provided, however,
that the voting, tendering or similar rights with respect to any Qualifying
Employer Securities which are subject to investment direction by Members
shall be exercised by Members or, where applicable, their Beneficiaries;
D. To register any investment held as a part of the Fund in its own
name or in the name of a nominee, and to hold any investment in bearer form
or through or by a central clearing corporation maintained by institutions
active in the national securities markets, but the books and records of the
Trustee shall at all times show that all investments are part of the Fund;
E. To write covered call options and to purchase or sell put options
and financial futures contracts;
F. To employ and act through suitable agents, accountants,
appraisers and attorneys (who may be counsel for the Trustee) and to pay
their reasonable expenses and compensation, and the Trustee may consult with
counsel (who, without limitation, may be counsel to the Trustee or to a Plan
Sponsor), and shall be protected to the extent the law permits in acting upon
the advice of counsel in regard to legal questions, and may also employ
agents and expert assistants and delegate to them the ministerial duties
which it sees fit, in which event the Trustee shall periodically review the
performance of the persons to whom these duties have been delegated;
G. To borrow or raise money for the purposes of the Trust in such
amounts and upon such terms and conditions as the Trustee in its absolute
discretion may deem advisable; and for any sums so borrowed to issue its
promissory note as Trustee, and to secure the repayment thereof by pledging
all or any part of the Fund; and no person lending money to the Trustee shall
be bound to see to the application of the money lent or to inquire into the
validity, expediency or propriety of the borrowing;
H. To make, execute, acknowledge and deliver any and all documents
of transfer and conveyance and all other instruments or agreements that may
be necessary or appropriate to carry out the powers of the Trustee under the
Trust or incidental thereto;
I. To settle, compromise or submit to arbitration any claims, debts
or damages due or owing to or from the Fund, to commence or defend any legal
or administrative proceedings arising, necessary or appropriate in connection
with the Plan, the Trust, the Fund, the administration thereof or the powers
or authority of the Trustee under the Trust, and to represent the Plan, the
Trust, and the Fund in all legal and administrative proceedings;
J. To keep such portions of the Fund in cash or cash balances as the
Trustee may deem to be in the best interest of the Trust, it being understood
that the Trustee shall not be required to pay any interest on any cash
balances; and
K. Generally, to do all acts and to execute and deliver all
instruments as in the judgment of the Trustee may be necessary or desirable
to carry out any powers or authority of the Trustee, without advertisement,
without order of court and without having to post bond or make any returns
or report of its doings to any court.
SECTION 9
INVESTMENT FUNDS
A. The assets of the Fund shall be invested in at least four (4)
Individual Funds, with varying investment objectives, as the Primary Sponsor
shall from time to time determine with consent of the Trustee. One such
Individual Fund shall be established for investments in Qualifying Employee
Securities.
B. The Primary Sponsor, in its sole discretion may, from time to
time, establish one or more additional Individual Funds, or may change or
terminate the availability of any then existing Individual Fund or Individual
Funds for all Members, provided, however, that four (4) or more Individual
Funds remain available.
C. As to each of the Individual Funds, the Trustee shall be
authorized to purchase short-term investments pending the selection and
purchase of investments suitable for a particular Individual Fund. The
decision of the Trustee as to whether or not an investment is of a type which
may be purchased for any Individual Fund shall be conclusive. Pending the
selection and purchase of suitable investments, or the payment of expenses
or other anticipated distributions, the Trustee may retain in cash, without
liability for interest, such portion of an Individual Fund as it shall deem
reasonable under the circumstances.
D. The Trustee, at any time, may purchase for an Individual Fund any
property of another Individual Fund which would then be appropriate for
purchase by that Individual Fund and may exchange property of one Individual
Fund for property of another Individual Fund if the exchanged properties
would be appropriate for purchase by the respective Individual Funds. Each
purchase or exchange shall be made at the fair market value of the property
so purchased or exchanged.
E. The terms and provisions of this Section shall not in any way
limit the authority, powers, and duties of the Trustee as set forth in this
Trust except to the extent that Section 404(c) of ERISA applies to the
investment election made by any Member pursuant to the Plan and Trust. The
Trustee shall exercise or perform the same in regard to any Individual Fund
only in accordance with the purposes thereof. Further, the authority,
powers, and duties of the Trustee shall be subject to the limitations
provided in Sections V and VI of the Trust if an Investment Manager or an
Investment Committee is appointed as provided therein, which Investment Mana-
ger or Investment Committee may be appointed in respect of all or a part of
any Individual Fund or the Fund, but shall exercise or perform its authority,
powers, and duties only in a manner consistent with the purpose of the
Individual Fund or the Fund, as the case may be.
SECTION 10
INVESTMENT DIRECTION BY MEMBERS
A. Subject to any other rules and restrictions as the Plan
Administrator may prescribe from time to time, with respect to amounts
allocated to Employee Deferred Accounts and Rollover Accounts only, each
Member may (1) direct that a portion or all of his interest in one or more
of the Individual Funds be transferred to one or more of the other Individual
Funds or (2) change his election as to the Individual Funds in which future
contributions on his behalf to his Employee Deferred Account and Rollover
Account shall be invested. The provisions of this Section are contingent
upon the availability of transfers among the Individual Funds under the terms
of the investments made by each Individual Fund. An investment direction,
once given, shall be deemed to be a continuing direction until changed as
otherwise provided herein.
B. If no investment election is outstanding, all such contributions
shall be allocated to such Individual Fund as the Plan Administrator shall,
in its sole discretion, determine.
C. Investment directions by Members shall be subject to the
following:
(a) Each direction shall be on a form provided by the Plan
Administrator, shall state the Individual Fund(s) to which all or a
portion of the Member's Account shall be transferred, or, if
applicable, shall state how future contributions shall be invested
among the Individual Funds.
(b) Directions may be given effect for the immediately
succeeding Valuation Date occurring after written notice is given if
delivered to the Plan Administrator on or before the date required by
the Plan Administrator. Directions shall be effective only for the
date in respect of which they are given, unless the Plan Administrator
allows otherwise.
D. Each direction under the preceding paragraphs received by the Plan
Administrator shall be promptly delivered to the Trustee, and shall be
effective as to the Trustee only when received by the Trustee. If a Member
directs that all or a portion of his Account be invested in a particular
Individual Fund, the Trustee shall use its best efforts to carry out the
investment as soon as practicable. However, the Trustee shall never be held
liable for failure to carry out an investment direction within the terms of
the Trust if the Trustee has made a bona fide effort to follow the direction.
E. Any distribution to a Member pursuant to the Plan shall be pro
rata from each Individual Fund in which he has an interest or in such other
manner determined by the Plan Administrator and applied uniformly.
SECTION 11
VALUATION AND ALLOCATION
A. For all purposes under the Plan and the Trust, including
particularly, but without limitation, valuing the Fund and each Member's
Account and allocating to each Member's Account its share of the net income
or net loss of the Fund, the following rules shall apply:
(a) Transfers or payments of funds or assets and the income,
gain, loss, or expenses attributable thereto between Individual Funds
shall be deemed made as of the Valuation Date coinciding with or
immediately preceding the actual date of transfer or payment and the
funds or assets shall not be credited or charged after such date with
any earnings or losses of the Individual Fund from which transferred
or paid but shall be credited or charged after such date with any
earnings or losses of the Individual Fund to which transferred or paid.
(b) Transfers or payments from an Individual Fund to a Member
or his Beneficiary between Valuation Dates shall be charged against the
interest of the Member in the Individual Fund as of the next preceding
Valuation Date and contributions to an Individual Fund which are
allocated to the Account of a Member between Valuation Dates shall be
credited to the interest of such Member in such Individual Fund as of
the next succeeding Valuation Date.
(c) Fair market value of the assets of each Individual Fund
shall be determined separately and the net income or net loss of each
Individual Fund shall be determined separately.
(d) The value of a Member's Account, to the extent invested in
Individual Funds, shall be the sum of his proportionate interests in
each of the Individual Funds, and the aggregate net income or net loss
allocated to a Member's Account shall be the aggregate of the net
income or net loss allocated to his proportionate interests in each of
the Individual Funds.
B. Subject to the provisions of Subsections C. and D. below, the
Trustee shall as of each Valuation Date, and at such additional times as the
Primary Sponsor may in writing direct, determine the net income or net loss
and the fair market value of the assets in the Fund and each Individual Fund,
respectively, as determined below:
(e) To the cash income, if any, since the last Valuation Date,
there shall be added or subtracted, as the case may be, any net
increase or decrease, since the last Valuation Date, in the fair market
value of the assets of the Fund or Individual Fund, as applicable,
since the last Valuation Date, any gain or loss on the sale or exchange
of assets of the Fund or Individual Fund, as applicable, since the last
Valuation Date, accrued interest since the last Valuation Date with
respect to any interest-bearing security as to which the purchaser
would be required to pay the accrued interest in addition to the quoted
price, the amount of any dividend which shall have been declared since
the last Valuation Date but not paid on shares of stock owned by the
Trustee if the market quotation used in determining the value of such
shares is ex-dividend, and the amount of any other assets of the Fund
or Individual Fund determined by the Trustee to be income since the
last Valuation date;
(f) From the sum thereof there shall be deducted all charges,
expenses, and liabilities accrued since the last Valuation Date which
are proper under the provisions of the Plan and the Trust and which in
the discretion of the Trustee are properly chargeable against income
for the period.
C. Notwithstanding Subsection B hereof, in the event that an
Investment Manager is designated by the Primary Sponsor and if the Investment
Manager either directs the investment of or itself invests any assets of the
Fund, or in the event that an Investment Committee is appointed by the
Primary Sponsor and directs the investment of any assets of the Fund, and if
any of such assets are non-listed securities or are not publicly traded or
if the fair market value of any of such assets cannot be readily determined,
then the Investment Manager or the Investment Committee, whichever is
applicable, shall determine the net income or net loss and the fair market
value of such assets and the Trustee shall be entitled to rely upon such
determination.
D. In the event that an Investment Manager is designated by the Plan
Sponsor and if the Trustee gives the Investment Manager possession of any
portion of the assets of the Fund, then the Investment Manager shall
determine the net income or net loss and the fair market value of those
assets and the Trustee shall be entitled to rely upon the determination.
SECTION 12
TRUSTEE COMPENSATION
A. The Trustee's compensation shall be the amount agreed upon in a
separate written agreement between the Primary Sponsor and the Trustee. If
the Primary Sponsor fails to pay to the Trustee its compensation and expenses
within thirty (30) days after the Trustee presents its invoice to the Primary
Sponsor, the Trustee is authorized to use the assets held by it under the
Trust to pay its unpaid compensation and expenses. No person who serves as
the Trustee and who receives full-time pay from a Plan Sponsor shall be
entitled to receive any compensation from the Fund, except for the
reimbursement of expenses properly and actually incurred by him in his role
as Trustee.
B. All taxes of whatever kind or nature that may be levied or
assessed under existing or future laws upon, or in respect of, the Plan, the
Trust, the Fund or the income or gains thereof or therefrom shall be paid
from the Fund.
SECTION 13
TRUSTEE RESPONSIBILITY
The Trustee is not responsible for the application, investment or other
disposition of any funds or property held or managed by, or otherwise subject
to direction by, any person other than the Trustee. The Trustee is not
responsible for the application of any funds or property held by it under the
Trust which have been paid to the Plan Administrator or which have been paid
pursuant to the Plan and Trust or as directed by the Plan Administrator. The
Trustee has no responsibility with respect to any administration of the Plan
or the payment of any benefits under the Plan.
SECTION 14
RECORDKEEPING
The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions pursuant to the
Plan and the Trust, and all books and records relating thereto shall be open
to inspection and audit at all reasonable times by the Plan Administrator.
Within ninety (90) days following the later of the close of each Plan year
or the receipt of a Plan Sponsor's contribution, and within ninety (90) days
after a Report Date (which for purposes of this Trust shall mean the date of
the death, removal or resignation of any Trustee from time to time serving
hereunder, or the date of the termination of the Trust) the Trustee shall
file with the Plan Administrator its written account. The account shall set
forth (i) all investments, receipts, disbursements and other transactions
effected by it during such Plan Year or during the period from the last
Valuation Date to the Report Date and (ii) the determination of the Trustee
of the net income or net loss of the Fund for such Plan Year or during the
period from the last Valuation Date to the Report Date and the determination
of the Trustee of the fair market value of the assets of the Fund as at the
Valuation Date or as at the Report Date, as the case may be. Unless a Report
Date is also a Valuation Date, no allocation of earnings, gains or losses
shall be made to a Member's Account.
SECTION 15
REMOVAL OR RESIGNATION OF TRUSTEE,
AND AMENDMENT OR TERMINATION OF TRUST
A. The Trustee, or an individual Trustee, as applicable, may be
removed by the Primary Sponsor at any time upon thirty (30) days' notice in
writing to the Trustee and the Plan Administrator. Any Trustee serving
hereunder may resign at any time without leave of court, upon thirty (30)
days' notice in writing to the Plan Sponsor and the Plan Administrator.
B. Upon the death, removal or resignation of a Trustee, the Primary
Sponsor shall appoint a successor Trustee as soon as possible. If the former
Trustee was one of several Trustees, the remaining persons constituting the
Trustee may continue to act as Trustee until the Primary Sponsor appoints a
successor co-Trustee.
C. Any removal of a Trustee or appointment of a successor Trustee
shall be without leave of court by notice in writing signed by the Primary
Sponsor and delivered to the Trustee being removed or appointed, with a copy
to the Plan Administrator. Any successor Trustee serving at any time
hereunder shall serve with the same powers and duties as the Trustee named
herein.
D. Upon receipt by the Trustee (or by the Primary Sponsor in the
event of the death of a last remaining individual Trustee) of the designated
successor's acceptance of its appointment as successor Trustee hereunder, the
funds and properties then constituting the Fund shall be transferred to the
successor Trustee. However, the Trustee is not required to transfer funds
and properties to a successor trustee unless the Trustee is discharged from
all liability for any taxes which may be due and owing by the Plan and Trust,
or unless either (1) the successor trustee, who must be acceptable to the
Trustee, indemnifies the Trustee against any such liability or (2) each Plan
Sponsor so indemnifies the Trustee in a manner acceptable to the Trustee.
E. If the Primary Sponsor fails to appoint a successor trustee
before the expiration of the thirty (30) day notice period, or no written
acceptance is received from a successor Trustee, then at any time after the
end of the thirty (30) day notice period the Trustee may file an appropriate
action in a court of competent jurisdiction and assign to the custody of the
court the funds and properties then held by the Trustee constituting the
Fund.
F. Upon the transfer of the Fund to a successor trustee or to a
court of competent jurisdiction, as the case may be, the Trustee shall be
relieved of all further responsibilities in connection with the Plan, the
Trust or the Fund. The Trustee is authorized, however, to reserve therefrom
such money or property as it may deem advisable for payment of its fees and
expenses in connection with the settlement of its account or otherwise, and
any balance of the reserve remaining after the payment of such fees and
expenses shall be paid over to the successor trustee or to the court.
G. The Primary Sponsor reserves the right to amend this Trust
Agreement by written notice to the Trustee. However, no amendment which
affects the rights, duties or responsibilities of the Trustee may be made
without the Trustee's consent.
H. The Trust shall continue for such time as may be necessary to
accomplish the purposes for which it was created and shall terminate only
upon the complete distribution of the Fund. The Trust may be terminated as
of any date by the Primary Sponsor by written notice to the Trustee and the
Plan Administrator given in the manner prescribed in the Plan which specifies
the date as of which the Trust shall terminate. Upon termination of the
Trust, if the Trustee has not received instructions to the contrary from the
Primary Sponsor, the Trustee shall liquidate the Fund and, after paying the
reasonable expenses of the Trust, including expenses involved in the
termination, distribute the balance thereof according to the written
directions of the Plan Administrator. The Trustee is not required to make
any distribution until it receives a copy of an Internal Revenue Service
determination letter to the effect that the termination does not affect
either the qualified status of the Plan or the exempt status of the Trust,
or, if such letter is not issued, until the Trustee is reasonably satisfied
that adequate provision has been made for the payment of all taxes which may
be due and owing by the Trust. In no event shall any distribution be made
by the Trustee until the Trustee is reasonably satisfied that the
distribution will not be contrary to the applicable provisions of the Plan
dealing with terminations of the Plan and the Trust.
I. The Trust and the contributions made by each Plan Sponsor to the
Trustee are conditioned upon the conditions set forth in the Plan as to
qualification and returns of contributions, and the returns of contributions
by the Trustee to the Plan Sponsors in certain events is governed by such
provisions of the Plan.
J. If at any time more than one person or entity is serving as the
Trustee, the persons or entities so serving shall act by the action of a
majority, with or without a meeting, and any action may be evidenced by a
writing executed by a majority of the persons or entities constituting the
Trustee.
K. Each Plan Sponsor agrees at its sole cost and expense to
indemnify and hold harmless the Trust and the Trustee from and against any
claim, liability, loss, cost, expense, action or cause of action resulting
from or in connection with any claim asserted by any person or persons where
the Trustee has acted in good faith pursuant to the Trust or in reliance on
a written notice to the extent the notice is authorized in the Plan or Trust
and has been given in accordance with the terms and conditions of the Plan.
L. The Trust shall be administered, construed and enforced according
to the laws of the State of Alabama to the extent not preempted by federal
laws, and the Trustee shall be liable to account only in the courts of that
state and in any court of appropriate jurisdiction of the United States of
America. All transfers of funds or other property to or from the Trustee
shall be deemed to take place in the State of Alabama.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be executed on the day and year first above written.
PRIMARY SPONSOR:
MORRISON RESTAURANTS INC.
By: /s/ Samuel E. Beall, III
Title: President and Chief
Executive Officer
ATTEST:
/s/ Pfilip G. Hunt
Title: Senior Vice President,
General Counsel & Secretary
[CORPORATE SEAL]
TRUSTEE:
AMSOUTH BANK N.A.
By: /s/ Lynn E. Cushing
Title: Senior Vice President
ATTEST:
/s/ Donna P. Price
Title: Assistant Vice President
and Trust Officer
[SEAL]