MORRISON RESTAURANTS INC.
DEFERRED COMPENSATION PLAN
(As Restated Effective January 1, 1994)
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
effective as of January 1, 1988 the Morrison Incorporated
Deferred Compensation Plan for the benefit of a select group of
management and highly compensated employees, which was amended
and restated by indenture dated December 18, 1989 and which was
last amended by indenture dated December 1, 1992 (the "Plan");
and
WHEREAS, the Primary Sponsor desires to amend and restate
the Plan to revise the manner by which eligible members may
select rates of returns to be credited to their accounts and
for other reasons;
NOW, THEREFORE, the Primary Sponsor does hereby amend and
restate the Plan, effective January 1, 1994, to read as
follows:
MORRISON RESTAURANTS INC.
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
SECTION 1 DEFINITIONS
SECTION 2 ELIGIBILITY
SECTION 3 DEFERRAL ELECTIONS
SECTION 4 CREDITING ACCOUNTS
SECTION 5 HARDSHIP PAYMENTS
SECTION 6 DEATH BENEFITS
SECTION 7 PAYMENT OF BENEFITS ON RETIREMENT
OR DEATH
SECTION 8 PAYMENT OF BENEFITS ON OTHER
TERMINATIONS OF EMPLOYMENT
SECTION 9 ADMINISTRATION OF THE PLAN
SECTION 10 CLAIM REVIEW PROCEDURE
SECTION 11 LIMITATION OF ASSIGNMENT, PAYMENTS TO
LEGALLY INCOMPETENT DISTRIBUTEE AND
UNCLAIMED PAYMENTS
SECTION 12 LIMITATION OF RIGHTS
SECTION 13 AMENDMENT TO OR TERMINATION OF THE PLAN
SECTION 14 ADOPTION OF PLAN BY AFFILIATES
SECTION 15 MISCELLANEOUS
SECTION 1
DEFINITIONS
Whenever 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 bookkeeping accounts established
and maintained by the Plan Administrator to reflect the
interest of a Member under the Plan and shall include the
following:
(a) "Employee Deferred Account" which shall reflect
credits to a Member's Account made on his behalf pursuant
to Plan Section 3.1, as adjusted to reflect designated
rates of return and other credits or charges.
(b) "Company Matching Account" which shall reflect
credits to a Member's Account made on his behalf pursuant
to Plan Section 3.2, as adjusted to reflect designated
rates of return and other credits or charges.
1.2 "Accrued Benefit" means the balance of a Member's
Account.
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 and
(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.
1.4 "Annual Compensation" means "Annual Compensation,"
as that term is defined under the Salary Deferral Plan for
purposes of making contributions pursuant to a salary deferral
election, as the same may be amended from time to time, but
without regard to the limit on compensation that may be
recognized under Code Section 401(a)(17), plus any Deferral
Amounts credited to a Member during the Plan Year.
1.5 "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 "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 parents, or
(d) if no parent is alive, the legal representative of the
deceased Member's estate. Changes in designations of
Beneficiaries may be made upon written notice to the Plan
Administrator in such form as the Plan Administrator may
prescribe.
1.6 "Board of Directors" means the Board of Directors of
the Primary Sponsor.
1.7 "Change of Control" means any event that pursuant to
the requirements of Article X of the Primary Sponsor's
Certificate of Incorporation, as amended from time to time,
requires the affirmative vote of the holders of not less than
eighty percent (80%) of the Voting Stock (as defined therein);
provided, however, that no event shall constitute a Change of
Control if approved by the Board of Directors a majority of
whom are "present directors" and "new directors." For purposes
of the preceding sentence, "present directors" shall mean
individuals who as of January 1, 1993 were members of the Board
of Directors and "new directors" shall mean any director whose
election by the Board of Directors in the event of a vacancy or
whose nomination for election by the Primary Sponsor's
stockholders was approved by a vote of at least three-quarters
of the directors then still in office who are "present
directors" and "new directors;" provided that any director
elected to the Board of Directors solely to settle a threatened
or actual proxy contest shall in no event be deemed to be a
"new director."
1.8 "Code" means the Internal Revenue Code of 1986, as
amended.
1.9 "Company Stock Rate of Return" means a designated
rate of return that corresponds, in whole or in part, to
changes in the value of securities of the Primary Sponsor or
any affiliate.
1.10 "Deferral Amount" means an amount credited to the
Employee Deferred Account of a Member at the election of a
Member pursuant to Plan Section 3.1.
1.11 "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.
1.12 "Effective Date" means, as to the Primary Sponsor,
January 1, 1988, and as to each other Plan Sponsor which adopts
the Plan, the date designated as such by the adopting Plan
Sponsor.
1.13 "Eligible Employee" means any person who is a
"highly compensated employee," within the meaning of Code
Section 414(q), as amended.
1.14 "Employee" means any person who is employed by a
Plan Sponsor or an Affiliate for purposes of the Federal
Insurance Contributions Act.
1.15 "Entry Date" means the first day of each payroll
period.
1.16 "Member" means any Eligible Employee or former
Eligible Employee who has become a participant in the Plan, for
so long as his benefits hereunder have not been paid out.
1.17 "Plan Administrator" means the organization or
person designated by the Primary Sponsor to administer the Plan
or, in the absence of any such designation, the Primary
Sponsor.
1.18 "Plan Sponsor" means individually the Primary
Sponsor and any other Affiliate or other entity which has
adopted the Plan.
1.19 "Plan Year" means the calendar year.
1.20 "Reporting Person" means each Member who, on a
particular date or dates, the Primary Sponsor reasonably
believes is subject to the reporting requirements of Section
16(a) of the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, with respect
to equity securities of the Primary Sponsor or any affiliate.
1.21 "Retirement Date" means the first day of the month
coinciding with or immediately following the date on which the
Member retires on or after attaining age 55 or becoming subject
to a Disability.
1.22 "Salary Deferral Plan" means the Morrison
Restaurants Inc. Salary Deferral Plan, as the same may be
amended from time to time.
1.23 "Valuation Date" means the last day of each month or
any other day which the Plan Administrator declares to be a
Valuation Date.
SECTION 2
ELIGIBILITY
2.1 Each Eligible Employee shall become a Member as
of the Entry Date coinciding with or next following the date on
which the Eligible Employee is identified by the Plan
Administrator as a "highly compensated employee," within the
meaning of Code Section 414(q), as amended.
2.2 A Member who ceases to be an Eligible Employee will
no longer be eligible to make further deferrals under the Plan
pursuant to Plan Section 3, but shall continue to be subject to
all other terms of the Plan so long as he remains a Member of
the Plan.
2.3 In the event the Member participates in a plan of a
Plan Sponsor or Affiliate intended to qualify under Code
Section 401(a) and containing a tax-qualified cash or deferred
arrangement qualified under Code Section 401(k), the Member
shall be suspended from continued participation under this Plan
to the extent required by such other plan as a result of a
hardship withdrawal made by such Member under such other plan.
SECTION 3
DEFERRAL ELECTIONS
3.1 Each Plan Year a Member who is an Eligible Employee
may elect to defer under the Plan a portion of the Annual
Compensation otherwise payable to him for the Plan Year, which
amount shall be at least two percent (2%) of Annual
Compensation and shall be in increments of one percent (1%) of
Annual Compensation, but not in excess of twenty percent (20%)
of Annual Compensation.
3.2 All elections to defer Annual Compensation under
Plan Section 3.1 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 amount of the
Annual Compensation of the Member that the Member desires to
defer. 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.
3.3 (a) Each Plan Sponsor proposes to credit on behalf
of each Member employed by that Plan Sponsor for
allocation to that Member's Company Matching Account an
amount equal to twenty percent (20%) of the Deferral
Amounts of a Member in the case of a Member who has been
employed by a Plan Sponsor for at least three (3) years,
but fewer than ten (10) years; (B) thirty percent (30%) of
the Deferral Amounts of a Member in the case of a Member
who has been employed by a Plan Sponsor for at least ten
(10) years, but fewer than twenty (20) years; or (C) forty
percent (40%) of the Deferral Amounts of a Member in the
case of a Member who either (I) has been employed by a
Plan Sponsor for at least twenty (20) years or (II) is
designated by the Plan Administrator, with the consent of
the Plan Sponsor, as one of a select group of Members to
receive such a matching credit.
Matching credits under Section 3.3(a) for any Plan Year
shall only be credited with respect to annual Deferral
Amounts of each Member equal to the Code Section 402(g)
limitation, as adjusted annually for inflation.
(b) For purposes of determining matching amounts to
be credited to a Member's Company Matching Account under
Plan Section 3.3(a), all or a portion of a Member's years
of employment with a predecessor employer may be counted
if at the time the individual became an Employee, or as
soon as practicable thereafter, the Plan Sponsor adopts
resolutions providing for the counting of such years of
employment in favor of that Member or of a group or
category of 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.
SECTION 4
CREDITING ACCOUNTS
4.1 As of each Valuation Date, Deferral Amounts
previously elected by a Member shall be credited to the
Member's Employee Deferred Account.
4.2 As of the last Valuation Date of each Plan Year or
any earlier Valuation Dates as may be selected by the Plan
Administrator, the amounts to be credited for the applicable
period pursuant to Plan Section 3.3 on behalf of a Member shall
be credited to the Member's Company Matching Account.
4.3 (a) As of each Valuation Date, each Member's Company
Matching Account (other than any Member who has received a
distribution of his Accrued Benefit prior to that
Valuation Date) shall be credited with a Company Stock
Rate of Return based upon the amount credited to the
Member's Company Matching Account as of the immediately
preceding Valuation Date.
(b) As of each Valuation Date, each Member's
Employee Deferred Account (other than any Member who has
received a distribution of his Accrued Benefit prior to
that Valuation Date) or portions thereof shall be credited
with a designated rate or rates of return, as applicable,
as selected by the Member, based upon the amount credited
to the Member's Employee Deferred Account as of the
immediately preceding Valuation Date. A Member's Employee
Deferred Account may be credited with such rate or rates
of return in accordance with the most recent investment
election properly and timely filed by the Member with the
Plan Administrator in accordance with such rules and
procedures designated by the Primary Sponsor. If no
election has been properly or timely filed with the Plan
Administrator or if the Plan Administrator suspends the
election of rates of return by Members, the Member's
Employee Deferred Account or Members' Employee Deferred
Accounts, as applicable, shall be credited with a
designated rate of return selected by the Primary Sponsor.
Any selection of designated rates of return by Reporting
Persons shall be subject to the restriction of Plan
Section 4.3(d).
(c) As of the last day of any Plan Year, one or
more Member's Employee Deferred Account (other than any
Member who has received a distribution of his Accrued
Benefit prior thereto) may be credited by the Plan Sponsor
with an additional amount as may be determined by the Plan
Sponsor in its sole discretion.
(d) Except as otherwise provided in this Section, no
Reporting Person shall be eligible to select a designated
rate of return for any portion of his Employee Deferred
Account that corresponds, in whole or in part, to changes
in value of securities of the Primary Sponsor or any
Affiliate (the "Company Stock Rate of Return") and if any
Member becomes a Reporting Person during a Plan Year and
that Member has elected for the Plan Year a Company Stock
Rate of Return for any portion of his Employee Deferred
Account, that portion of the Member's Employee Deferred
Account shall be credited with a rate of return for the
portion of the Plan Year ending with the Valuation Date
immediately prior to the Member's becoming a Reporting
Person, if any, equal to the Company Stock Rate of Return
and, for the remainder of the Plan Year or until such
earlier time as the Member elects an alternative
designated rate of return pursuant to Plan Section 4.3(b),
the rate of return (among those designated rates of return
made available by the Plan Administrator for the Plan
Year, other than the Company Stock Rate of Return) earning
the lowest return for the Plan Year. Notwithstanding the
foregoing provisions of this Section, the Plan
Administrator may in its discretion allow a Member who is
a Reporting Person or who becomes a Reporting Person to
select or to preserve a prior selection of a Company Stock
Rate of Return with respect to all or any portion of the
Member's Employee Deferred Account, in which case the
foregoing provisions of this Section shall not be given
effect as to that Member. The selection or preservation
of a prior selection of a Company Stock Rate of Return by
a Reporting Person pursuant to this Section shall be
subject to such terms and conditions as the Plan
Administrator may from time to time prescribe.
SECTION 5
HARDSHIP PAYMENTS
5.1 The Plan Administrator may pay all or a portion of a
Member's Deferral Amounts (reduced by negative rates of return
experienced) prior to the time such amounts otherwise become
payable in accordance with the 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 that term is defined under the
Salary Deferral Plan, as amended, and any other unforeseeable
circumstance determined to constitute a "Hardship"for purposes
of this Section by the Plan Administrator. For purposes of
this Section, the Plan Administrator shall have the sole and
absolute discretion, which shall be exercised in a
nondiscriminatory and uniform manner, to determine if a
"Hardship" exists with respect to a Member.
5.2 Hardship payments shall be made to a Member 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 amount to be distributed on
account of a Hardship shall be made by the Plan Administrator
in accordance with rules applied in a uniform and
nondiscriminatory manner. A payment under this Section shall
be made in a lump sum in cash to the Member and shall be
charged against the Member's Employee Deferred Account as of
the Valuation Date coinciding with or immediately preceding the
date of the payment.
SECTION 6
DEATH BENEFITS
6.1 Upon the death of a Member who dies prior to the
date on which he is entitled to the commencement of payments of
his Account, the Member's Beneficiary shall be entitled to the
full value of the Member's Account.
6.2 Upon the death of a Member who is no longer an
Employee, but prior to the complete payment of his Account, the
Member's Beneficiary shall be entitled to receive the unpaid
portion of the Member's Account. These payments shall be made
according to the manner and method by which payments were being
made to the Member during his lifetime, except as provided by
Plan Section 6.4.
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 If the Beneficiary is the estate of the Member, the
Plan Sponsor shall make payment of the unpaid balance of the
Member's Account in the form of a single lump-sum payment equal
to the unpaid balance of the Member's Account as of the
Valuation Date immediately preceding payment.
6.5 Any benefit payable under this Section 6 shall be
paid in accordance with and subject to the provisions of Plan
Section 7 after receipt by the Plan Administrator of notice of
the death of the Member.
SECTION 7
PAYMENT OF BENEFITS ON RETIREMENT OR DEATH
7.1 Upon the retirement or death of a Member, the
Accrued Benefit of the Member shall be determined as of the
Valuation Date coinciding with or immediately preceding the
Member's Retirement Date or death, increased by Deferral
Amounts and amounts credited pursuant to Plan Section 4.2
thereafter and adjusted for the appropriate designated rates of
return and any other amounts credited pursuant to Plan Section
4.3 through the Valuation Date immediately preceding the date
the Accrued Benefit is paid. Payment of the Member's Accrued
Benefit shall commence no later than sixty (60) days after the
Retirement Date or death of the Member.
7.2 The form of payment of the Accrued Benefit of a
Member shall be selected by the Plan Administrator and shall be
in either a lump sum or annual or more frequent installments.
The payment of a Member's Accrued Benefit shall be in cash or
such other property as determined by the Primary Sponsor;
except that on or after a Change of Control, payment of a
Member's Accrued Benefit shall be in cash. Notwithstanding the
foregoing, the Accrued Benefit of any Member who is or was a
Reporting Person at any time within six (6) months prior to the
date that his Accrued Benefit is paid shall be paid in cash.
SECTION 8
PAYMENT OF BENEFITS ON OTHER TERMINATIONS OF EMPLOYMENT
8.1 A Member shall be considered to have terminated
employment with the Plan Sponsor or any Affiliate on the date
determined by the Plan Administrator. Transfer of a Member
from one Plan Sponsor to another Plan Sponsor shall not be
deemed for any purpose under the Plan to be a termination of
employment by the Member.
8.2 In the event of the termination of employment of a
Member for reasons other than those specified in Sections 6 and
7 above, the Accrued Benefit of the Member shall be determined
as of the Valuation Date coinciding with or immediately
preceding the date of the termination of employment and shall
be increased by any Deferral Amounts credited to the Employee
Deferred Account of the Member since that Valuation Date.
While no further amounts credited pursuant to Plan Section 4.2
shall be made to the Member's Account after that Valuation
Date, the Member's Account shall be adjusted for the
appropriate designated rates of return and any other amounts
credited pursuant to Plan Section 4.3 through the Valuation
Date immediately preceding the date the Accrued Benefit is
paid.
8.3 A Member shall be entitled to payment of his
Accrued Benefit in the form set forth in Plan Section 7.2.
Payment shall commence at any time which the Plan Administrator
may select following termination of employment, which shall not
be later than sixty (60) days after the end of the Plan Year in
which the Member attains age 65.
SECTION 9
ADMINISTRATION OF THE PLAN
9.1 Operation of the Plan Administrator. The Primary
Sponsor shall be the Plan Administrator, unless it appoints
another 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 or resignation to 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.
9.2 Duties of the Plan Administrator.
(a) The Plan Administrator shall perform any act
which the Plan authorizes or requires of the Plan
Administrator by action taken in compliance with the Plan
and may designate in writing other persons to carry out
its duties under the Plan. The Plan Administrator may
employ persons to render advice with regard to any of the
Plan Administrator's duties.
(b) The Plan Administrator shall from time to time
establish rules, not contrary to the provisions of the
Plan, for the administration of the Plan and the
transaction of its business. All elections and
designations under the Plan by a Member 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 Members and Beneficiaries, subject to the
provisions of the Plan and subject to applicable law.
(c) The Plan Administrator shall furnish Members and
Beneficiaries with all disclosures now or hereafter
required by the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). 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.
(d) The statement of specific duties for a Plan
Administrator in this Section is not in derogation of any
other duties which a Plan Administrator has under the
provisions of the Plan or under applicable law.
(e) Each Plan Sponsor shall indemnify and hold
harmless each person constituting the Plan Administrator
from and against any and all claims and expenses
(including, without limitation, attorney's fees and
related costs) arising in connection with the performance
by the person of his duties in that capacity, other than
any of the foregoing arising in connection with the
willful neglect or willful misconduct of the person
acting.
9.3 Action by the Primary Sponsor or a Plan Sponsor.
Any action to be taken by the Primary Sponsor or 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 to determine the basis of any payment
obligations of any Plan Sponsor.
SECTION 10
CLAIM REVIEW PROCEDURE
10.1 In the event that a Member or Beneficiary is denied
a claim for benefits under a Plan, the Plan Administrator shall
provide to such claimant 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 such material or
information is necessary; and
(d) an explanation of the Plan's claim review
procedure.
10.2 After receiving written notice of the denial of a
claim, a claimant or his representative may:
(a) request a full and fair review of such denial by
written application to the Plan Administrator;
(b) review pertinent documents; and
(c) submit issues and comments in writing to the
Plan Administrator.
10.3 If the claimant wishes such a review of the
decision denying his claim to benefits under the Plan, he must
submit such written applications to the Plan Administrator
within sixty (60) days after receiving written notice of the
denial.
10.4 Upon receiving such 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 such written application for review.
10.5 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 such scheduled hearing. The claimant
or his representative, if any, may request that the hearing be
rescheduled, for his convenience, on another reasonable date or
at another reasonable time or place.
10.6 All claimants requesting a review of the decision
denying their claim for benefits may employ counsel for
purposes of the hearing.
10.7 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.
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 Plan Administrator
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 Whenever the Plan Administrator cannot, within a
reasonable time after payments are to commence, locate any
person to or for the benefit of whom such payments are to be
made, after making a reasonable effort to locate such person,
the Plan Administrator may direct that the payment and any
remaining payments otherwise due to the Member be cancelled on
the records of the Plan, 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 re-credit the Member's account and provide for
payment of the re-credited amount to the Member as soon as
administratively feasible.
SECTION 12
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 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 13
AMENDMENT TO OR TERMINATION OF THE PLAN
13.1 The Primary Sponsor reserves the right at any time
to modify or amend or terminate the Plan. No such
modifications or amendments shall have the effect of
retroactively changing or depriving Members or Beneficiaries of
benefits 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. Notwithstanding the foregoing,
each Plan Sponsor may terminate its own participation in the
Plan.
13.2 Each Plan Sponsor other than the Primary Sponsor
shall have the right to terminate its participation in the Plan
by resolution of its board of directors or other appropriate
governing body and notice in writing to the Primary Sponsor.
Any termination by a Plan Sponsor shall not be a termination as
to any other Plan Sponsor.
13.3 If the Plan is terminated by the Primary Sponsor it
shall terminate as to all Plan Sponsors.
SECTION 14
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 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 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.
SECTION 15
MISCELLANEOUS
15.1 All payments provided under the Plan shall be paid
from the general assets of the applicable Plan Sponsor and no
separate fund shall be established to secure payment.
Notwithstanding the foregoing, the Primary Sponsor may
establish a grantor trust to assist it and other Plan Sponsors
in funding Plan obligations, and any payments made to a Member
or Beneficiary from such trust shall relieve the Plan Sponsor
from any further obligations under the Plan only to the extent
of such payment.
15.2 Each Plan Sponsor shall withhold from any benefits
payable under the Plan all federal, state and local income
taxes or other taxes required to be withheld pursuant to
applicable law.
15.3 To the extent not preempted by applicable federal
law, the Plan shall be governed by and construed in accordance
with the laws of the State of Alabama.
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 Councel & Secretary
[CORPORATE SEAL]
TRUST AGREEMENT
THIS TRUST AGREEMENT made as of the 1 day of December,
1992, by and among Morrison Restaurants Inc., formerly Morrison
Incorporated, a corporation organized under the laws of the State
of Delaware (the "Primary Sponsor"), each related corporation or
business executing this Trust Agreement (the Primary Sponsor and
each related corporation or business being sometimes hereinafter
referred to as a "Plan Sponsor"); and AmSouth Bank N.A. (the
"Trustee");
W I T N E S S E T H:
WHEREAS, the Primary Sponsor by indenture effective as of
January 1, 1988 established the Morrison Incorporated Deferred
Compensation Plan to provide benefits in the form of deferred
compensation to a select group of management or highly
compensated employees of the Primary Sponsor or any of its
related corporations or businesses; and
WHEREAS, the Morrison Incorporated Deferred Compensation
Plan has been renamed the Morrison Restaurants Inc. Deferred
Compensation Plan (the "Plan"); and
WHEREAS, the Primary Sponsor by agreement dated June 16,
1988 established an irrevocable grantor trust (the "Trust"),
within the meaning of Section 671 of the Internal Revenue Code of
1986, as amended (the "Code") to assist the Primary Sponsor and
any of its related corporations or businesses in meeting its
obligations under the Plan; and
WHEREAS, the Primary Sponsor desires to amend and restate
the trust agreement between the Primary Sponsor and AmSouth Bank
N.A., dated as of May 1, 1990 and last amended by indenture dated
May 8, 1992, which agreement, as amended, contains the existing
terms of the Trust (the "Prior Trust Agreement"); and
WHEREAS, the Board of Directors of the Primary Sponsor has
approved the amendment and restatement of the Prior Trust
Agreement as embodied herein (the "Trust Agreement");
NOW, THEREFORE, the Primary Sponsor hereby restates the
Trust, effective as of January 1, 1993, as follows:
SECTION 1.
INCORPORATION OF PLAN
All terms and conditions set forth in the Plan are
incorporated by reference except to the extent that the terms of
the Trust indicate to the contrary. In the event of a conflict
between the terms and provisions of the Trust Agreement and those
the Plan, the terms and provisions of the Trust Agreement shall
be given precedence. However, nothing contained in the Trust
Agreement is intended to diminish the amount of benefits required
to be paid for the benefit of any participant under the terms of
the Plan. To the extent possible, the terms and provisions of
the Plan and those of the Trust Agreement shall be interpreted as
mutually consistent.
SECTION 2.
ESTABLISHMENT OF THE FUND
The Primary Sponsor has established a fund with the Trustee
(the "Fund") to be held and administered in accordance with this
Trust. The Trustee shall accept as part of the Fund all assets
as may be delivered by a Plan Sponsor to the Trustee and shall
also include all income accruing thereon, except as otherwise
provided in this Trust Agreement.
SECTION 3.
INVESTMENT OF THE FUND
(a) Subject to the provisions of Subsections (b) and (c)
below, the Trustee shall invest the principal and income of the
Fund without distinction between principal and income in
securities or in property, real or personal and wherever
situated, as the Trustee shall deem advisable, in its sole
discretion. Without limiting the foregoing, the Trustee may
purchase, acquire, retain, sell, transfer, pledge or encumber
common or preferred stocks, including stock of the Primary
Sponsor or any affiliate, shares of mutual funds, including
mutual funds for which the Trustee is an advisor, trust and
participation certificates, bonds and mortgages, other evidences
of indebtedness or ownership, annuity contracts and ordinary and
term life insurance contracts of life insurance companies,
savings accounts or plans, including savings accounts or plans
established or to be established by the Trustee, and group trusts
or collective investment funds including group trusts or
collective investment funds operated by the Trustee.
(b) The Fund shall be invested by the Trustee with the
goal of achieving on an annual basis an average rate of return
that equals or exceeds the weighted average of those designated
rates of return to be credited to Accounts for the same period,
as contemplated by Plan Section 4.3 and identified by the Primary
Sponsor from time to time (the "Investment Goal"). The Trustee
shall incur no liability merely for a failure to achieve the
Investment Goal for any period; provided that during the period
the Fund was invested in accordance with applicable fiduciary
standards and with a view towards achieving the Investment Goal.
(c) Prior to the date a Change of Control (as defined in
Section 13(c) hereof) occurs, the Primary Sponsor, and on or
after the date a Change of Control occurs, the Trustee, may
appoint one or more investment managers (the "Investment
Managers") which shall be banks, investment advisers registered
under the Investment Advisers Act of 1940, or insurance
companies, to direct the Trustee as to the investment of all or
a portion of the Fund for the exclusive benefit of the
participants of the Plans and their beneficiaries.
Notwithstanding the foregoing, prior to the date a Change of
Control occurs, the Primary Sponsor may appoint the Trustee (or
any of its affiliates) as an Investment Manager, if it is
otherwise qualified to serve as an Investment Manager and in such
instance, the Trustee shall have discretion over the investment
of the Fund, subject to the provisions of Subsection (b) above.
The Primary Sponsor shall notify the Trustee of the
appointment of any Investment Manager (other than the Trustee)
under this Subsection by delivering to the Trustee (i) an
executed copy of an instrument under which the Investment Manager
was appointed to act hereunder and setting forth the investment
powers of the Investment Manager and (ii) a written instrument
executed by the Investment Manager in which it acknowledges that
it has agreed to act as such. Any notice of appointment pursuant
to this Subsection shall constitute a representation and warranty
by the Primary Sponsor that the Investment Manager is qualified
under and has been appointed in accordance with the provisions
hereof. Notwithstanding anything herein contained to the
contrary, during the term of its appointment, the Investment
Manager shall have the sole responsibility for the investment and
reinvestment of the portion of the Fund for which it was
appointed to act, and, subject to the limitations on the types of
appropriate investments set forth in Subsection (b) hereof, shall
have full power in its discretion to direct the Trustee with
respect to the exercise by it of its investment powers, including
the voting of shares (except as otherwise provided by Section
13(d) hereof). Pending receipt of instructions from any
Investment Manager with respect thereto and subject to any
investment guidelines agreed to in writing from time to time
pursuant to Subsection (b) hereof, any cash received by the
Trustee from time to time shall be invested by the Trustee in
demand and term notes (including those commonly known as "master
notes") maturing not more than three years after the date of
purchase thereof, United States Treasury bills, other government
and agency obligations maturing not more than three years after
the date of purchase thereof, group annuity or other contracts
providing a guaranteed rate of return with a maturity not
exceeding three years, certificates of deposit, commercial paper,
government guaranteed paper, common or collective trust funds,
money market mutual funds, other money market instruments,
savings accounts or other deposits with a financial institution
(including the Trustee, if a financial institution is serving as
such) and part interests in any one or more of the foregoing.
The Primary Sponsor may terminate its appointment of an
Investment Manager at any time and shall in writing notify the
Trustee of such termination, and may thereafter appoint a
successor Investment Manager in the same manner as provided above
in this Subsection. Any successor Investment Manager shall
thereafter, until its appointment is terminated, be deemed to be
an "Investment Manager" for all purposes of this Agreement. If
there shall be more than one Investment Manager, the portion of
the Fund to be invested by each Investment Manager shall be held
in a separate account and the powers and authority of each
Investment Manager shall be divided as set forth in the
instruments appointing such Investment Managers.
So long as an Investment Manager (other than the Trustee or
one of its affiliates) is serving as such, the Trustee shall be
under no duty or obligation to review the assets comprising any
portion of the Fund managed by the Investment Manager, to make
any recommendations with respect to the investment or
reinvestment thereof, or to determine whether any direction
received from any Investment Manager is proper or within the
terms of this Trust Agreement or to monitor the activities of any
Investment Manager.
(d) The Trustee shall have no liability or responsibility
to the Primary Sponsor or any persons claiming any interest in
the Fund for acting without question on the direction of, or for
failing to act in the absence of any direction from, any
Investment Manager unless the Trustee participated knowingly in,
or knowingly undertook to conceal, an act or omission of any
Investment Manager constituting a breach of its duties hereunder,
knowing such act or omission was a breach of such duties;
provided, however, that the Trustee shall not be deemed to have
"participated" in a breach by any Investment Manager for the
purposes of this undertaking solely as a result of the
performance by the Trustee or its officers, employees or agents
of any custodial, reporting, recording, and bookkeeping functions
with respect to any assets of the Fund managed by any Investment
Manager or solely as a result of settling purchase and sale
transactions entered into or directed by any Investment Manager,
or to have "knowledge" of any such breach solely as a result of
the information received by the Trustee or its officers,
employees or agents in the normal course in performing such
functions or settling such transactions. If the Trustee has
actual knowledge of a breach committed by any Investment Manager,
it shall promptly notify the Primary Sponsor in writing thereof,
and the Trustee, except as required by applicable law, shall
thereafter have no responsibility to remedy such breach.
(e) The Primary Sponsor may, prior to a Change of Control,
direct the Trustee in writing to transfer any portion of the Fund
to a subtrustee and to enter into an agreement with the
subtrustee reflecting the subtrust arrangement. In the event of
a Change of Control, the Primary Sponsor may only direct the
Trustee to transfer a portion of the Fund to a subtrustee with
the consent of a majority of the participants of the Plan and the
designated beneficiaries of deceased participants. The Trustee
may terminate a subtrust at any time and direct the subtrustee to
return the portion of the Fund held by the subtrustee; provided
that prior to a Change of Control the subtrust may only be
terminated with the consent of the Primary Sponsor.
SECTION 4.
POWERS OF THE TRUSTEE
In the administration of the Trust, in addition to any
powers or authority of the Trustee under this Trust or which the
Trustee may have under applicable law, the Trustee is authorized
and empowered to do the following, without advertisement, 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, securities of a Plan Sponsor and
real property leased to or used by a Plan Sponsor;
(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 disposition;
(c) Except as provided in Section 13(d) hereof, to vote any
stocks, bonds or other securities, including securities of the
Plan Sponsor; 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, consent to,
or otherwise participate in corporate reorganizations or other
changes affecting corporate securities, 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 securities or other property held as part
of the Fund;
(d) To register any investment 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
records of the Trustee shall at all times show that all the
investments are part of the Trust;
(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, actuaries and attorneys (who may be counsel for the
Trustee) and to pay their reasonable expenses and compensation,
to consult with counsel (who, without limitation, may be counsel
to the Trustee) and shall be protected to the extent the law
permits in acting upon the advice of counsel in regard to legal
questions, and the Trustee shall periodically review the
performance of the persons to whom these duties have been
delegated, but the Trustee shall not be liable for relying upon
the advice and expertise of any such person to the extent
permitted by law, provided the Trustee's decisions in selecting
and retaining such person were prudently made;
(g) To borrow or raise moneys for the purposes of the Trust
in the amounts, and upon the terms and conditions, as the Trustee
in its discretion may deem advisable; and for any sums borrowed
to issue its promissory note as Trustee, and to secure the
repayment thereof by pledging all or any part of the Trust; 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 any borrowing;
(h) To make, execute, acknowledge and deliver any documents
of transfer and conveyance and any 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 Trust, to
commence or defend any suits or legal or administrative
proceedings arising, necessary or appropriate in connection with
the Trust, the administration and operation thereof or the powers
or authority of the Trustee under the Trust, and to represent the
Trust in all suits and legal and administrative proceedings;
(j) To keep portions of the Trust in cash or cash balances
as the Trustee may deem to be in the best interest of the Trust;
(k) To register any investment 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
records of the Trustee shall at all times show that all the
investments are part of the Trust; and
(l) 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.
SECTION 5.
FUNDING
(a) Payments to the Trustee by each Plan Sponsor shall be
made as follows:
(i) Contributions shall be paid to the Trustee within
a reasonable period of time after the date that the Deferral
Amounts otherwise would have been paid to Members in an amount
equal to (A) the aggregate Deferral Amounts elected by Members
for the period and (B) corresponding amounts to be credited to
Members' Company Matching Accounts under Plan Section 3.2.
(ii) In the event that the designated rates of return
to be credited to Members' Accounts as of the last Valuation Date
of each Plan Year exceed the aggregate net income, gains and
credits of the Trust as of the same Valuation Date, the Plan
Sponsor shall make a contribution to the Trust within a
reasonable period of time after that Valuation Date in an amount
equal to the excess. In the event that the designated rates of
return and other amounts to be credited to Members' Accounts
pursuant to Plan Section 4.3 as of the last Valuation Date of
each Plan Year are less than the aggregate net income, gains and
credits of the Trust as of the same Valuation Date, the Trustee
shall apply the difference as a credit towards future
contributions required of the Plan Sponsor pursuant to this
Subsection (a), unless the Primary Sponsor directs otherwise
pursuant to Subsection (c) below.
(b) The Trustee shall be responsible for assets actually
received by it as Trustee and shall have no duty or authority to
compute amounts to be contributed or to review the computation of
amounts to be contributed.
(c) Prior to a Change of Control, the Primary Sponsor may
from time to time direct the Trustee to determine the amount by
which the assets in the Trust exceed the amount needed to pay all
unpaid benefits accrued under the Plan (the "Surplus Amount").
If the Trustee determines that the Trust has a Surplus Amount,
the Primary Sponsor may advise the Trustee that the Primary
Sponsor is entitled to receive the Surplus Amount. The Trustee
shall make payment to the Primary Sponsor of the Surplus Amount
as soon as administratively practicable following receipt of the
notification provided for in this Subsection.
SECTION 6.
DUTIES OF THE TRUSTEE
(a) Except for records dealing solely with the Trust and
its investments and disbursements, which shall be maintained by
the Trustee, each Plan Sponsor shall maintain all records
contemplated by the Plan.
(b) Each Plan Sponsor shall furnish to the Trustee all the
information necessary to determine the benefits payable to or
with respect to each participant in the Plan, including any
benefits payable after a participant's death. Each Plan Sponsor
shall from time to time, and at least annually, and promptly upon
the request of the Trustee furnish updated information to the
Trustee. In the event the Plan Sponsor refuses or neglects to
provide any updated information as contemplated herein, the
Trustee shall rely upon the most recent information furnished to
it by the Plan Sponsor; provided, however, that on or after a
Change of Control, the Trustee shall rely in its discretion upon
(i) information furnished to it by the Plan Sponsor prior to a
Change of Control, (ii) information furnished to it by the Plan
Sponsor on or after a Change of Control and/or (iii) any
information received by it from a participant or designated
beneficiary unless the recipient actually knows that any such
information is false. The Trustee has no responsibility to
verify information provided to them by the Plan Sponsor or any
participant or designated beneficiary.
(c) Upon proper notification from the Plan Sponsor prior to
a Change of Control or upon an independent determination by the
Trustee on or after a Change of Control (based on such
information as the Trustee shall be entitled to rely upon
pursuant to Subsection (b) above), when, in the opinion of the
Plan Sponsor prior to a Change of Control or Trustee on or after
a Change of Control, as applicable, a participant's benefits
under the Plan have become payable, the Plan Sponsor or Trustee,
as applicable, shall notify the participant or the beneficiary of
a deceased participant and, if applicable, the Trustee. Such
notice shall include the amount of such benefits, the terms of
payment, the amount of any taxes required to be withheld from
such amount, and the name, address and social security number of
the recipient. Upon the receipt of a notification or after
making its determination, as applicable, the Trustee shall
commence distributions from the Fund in accordance therewith to
the person or persons so indicated.
(d) The Plan Sponsors shall have full responsibility for
the payment of all taxes of any nature levied, assessed or
imposed upon the Fund, including the payment of all withholding
taxes to the appropriate taxing authority and shall also furnish
each participant or beneficiary with the appropriate tax
information form evidencing such payment and the amount thereof.
(e) Prior to a Change of Control, the Trustee shall have no
responsibility for determining whether any participant or
beneficiary has died or whether a participant's rights under the
terms of the Plan have been forfeited and shall be entitled to
rely upon information furnished by the Plan Sponsor. On or after
a Change of Control, the Trustee shall determine whether a
participant's benefit shall be deemed forfeited or whether a
participant or beneficiary has died based on information supplied
under Subsection (b) hereof; provided, however, that a certified
death certificate received by the Trustee shall be conclusive
evidence of the death of any person regardless of the source of
such certificate.
(f) Nothing provided in this Trust Agreement shall relieve
a Plan Sponsor of its liabilities to pay the benefits provided
under the Plan except to the extent such liabilities are met by
application of Fund assets.
(g) Each Plan Sponsor agrees that by the establishment of
this Trust it hereby forgoes forgoes any judicial review of any
independent determination by the Trustee as to the benefit
payable to any persons hereunder. If a dispute arises as to the
amounts or timing of any such benefits or the persons entitled
thereto under the Plans or this Trust Agreement, the Plan Sponsor
agrees that such dispute shall be resolved by binding arbitration
proceedings convened in Mobile, Alabama and conducted in
accordance with the rules of the American Arbitration Association
and that the results of such proceedings shall be conclusive and
shall not be subject to judicial review. It is expressly
understood that pending the resolution of any such dispute,
payment of benefits shall be made and continued by the Trustee in
accordance with its independent determination and that the
Trustee shall have no liability with respect to such payments.
The Plan Sponsor also agrees to pay the entire cost of any
arbitration or legal proceeding initiated by it or by the Trustee
or by any participant or beneficiary, including the legal fees of
the Trustee and the participant or other claimant regardless of
the outcome of any such proceeding.
SECTION 7.
DISTRIBUTIONS FROM THE FUND
(a) Consistent with the provisions of Section 9 hereof, the
Trustee is authorized to pay from the Fund reasonable expenses of
the Trustee, including fees of accountants and legal counsel to
the Trust, and the Trustee's compensation.
(b) The Trustee shall make any distribution required
pursuant to this Trust Agreement by mailing its check or other
evidence of payment to the person to whom such distribution or
payment is to be made at such address as was last furnished to
the Trustee or, if agreeable to the Plan Sponsor and the affected
participant and so directed in a written notice to the Trustee by
those parties, by crediting the account of such person or by
transferring funds to such person's account by bank or wire
transfer. The Trustee shall not be required to make any
investigation to determine the whereabouts or mailing address of
any person. If the person to receive a distribution can not be
found, the Trustee shall hold payment or deposit same in a bank
(including the Trustee, if a financial institution is serving as
such) for the credit of that person without liability for
interest thereon. If a check or other evidence of payment of the
benefit hereunder has been mailed to the last address of the
person furnished the Trustee and is returned unclaimed, the
Trustee shall notify the Plan Sponsor and shall discontinue
further payments to the payee until it receives instructions from
the Plan Sponsor.
(c) The Trustee shall not be bound by any instruction,
direction or notice unless and until it has been received in
writing by the Trustee and may rely upon any instruction,
direction or notice of a continuing nature until the Trustee
receives a writing which revokes that instruction, direction or
notice. The Trustee may without liability assume that any such
instruction, direction or notice is genuine unless it has actual
knowledge or, after receiving notification of a problem, has
reasonably determined that the instruction, direction or notice
is not genuine.
(d) The Trustee shall not be responsible for the
application of any assets held as part of the Fund which have
been distributed pursuant to the Plan and the Trust Agreement.
SECTION 8.
CLAIMS OF CREDITORS
(a) The Fund assets shall be treated as general assets of
the Plan Sponsor and shall remain subject to claims of the
general creditors of the Plan Sponsor under applicable state and
federal law. Nothing in the Trust Agreement shall affect the
rights of any participant as general creditor of the Plan
Sponsor. No participant shall have a preferred claim on or any
beneficial ownership in the Fund prior to the time for
distribution to the participant under the terms of a Plan or the
terms of this Trust Agreement. In the event that the Plan
Sponsor becomes insolvent as described in Subsection (c) below,
each participant shall be deemed to waive any priority the
participant may have under law as an employee with respect to any
claim against the Plan Sponsor and the Trust beyond the rights
the participant would have as a general creditor of the Plan
Sponsor.
(b) Except as otherwise provided by Subsection (c) below,
no benefit which shall be payable under the Trust 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, charge or otherwise dispose of the same shall be void.
No benefit shall in any manner be 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
any person, except to the extent provided by Subsection (c) below
and as may otherwise be required by law.
(c) The board of directors of a Plan Sponsor shall
immediately notify the Trustee in writing of the insolvency of
the Plan Sponsor. For purposes of this Subsection (c), the term
"insolvency" shall mean the inability of the Plan Sponsor to pay
its debts as they become due in the usual course of its business
or that the liabilities of the Plan Sponsor are in excess of its
assets. Upon receipt of the written notice, the Trustee shall
suspend all further payments to participants or their
beneficiaries and shall hold the assets of the Trust for the
benefit of the creditors of the Plan Sponsor in the manner
directed by a court of competent jurisdiction. If the Trustee
should receive any written allegation of the insolvency of the
Plan Sponsor, the Trustee shall suspend payments to participants
and hold the assets of the Trust for the benefit of the creditors
of the Plan Sponsor and, within a period of thirty (30) days
after the receipt of the written allegation, determine whether
the Plan Sponsor is insolvent. If the Trustee determines that
the Plan Sponsor is solvent, it shall immediately resume payments
to the participants or their beneficiaries. In the event that
the Trustee has actual knowledge of the insolvency of the Plan
Sponsor, the Trustee shall hold the assets of the Trust for the
benefit of the creditors of the Plan Sponsor in the manner
directed by a court of competent jurisdiction. Unless the
Trustee (i) has been notified in writing by the board of
directors of a Plan Sponsor of the insolvency of a Plan Sponsor,
(ii) has received any written allegation of the insolvency of a
Plan Sponsor or (iii) has actual knowledge of the insolvency of
a Plan Sponsor, the Trustee shall have no duty to inquire whether
a Plan Sponsor is insolvent.
SECTION 9.
FEES AND EXPENSES
The compensation and expenses of the Trustee shall be paid
from the assets of the Fund. Expenses of the Trustee shall
include the reasonable expenses and compensation of third parties
employed by the Trustee pursuant to Section 4(f) hereof.
SECTION 10.
ACCOUNTS
(a) The Trustee shall keep such records as the Trustee
considers necessary for the management of the Trust. The
Trustee's books and records of the Fund shall be open to
inspection by the Plan Sponsor and participants during regular
business hours of the Trustee.
(b) The Trustee may establish separate accounts within the
Fund for any group or category of the Plan as it determines
appropriate to maintain its books of accounts and other records
in accordance with the provisions of the Plan and the Trust
Agreement. The Plan Sponsors shall maintain or cause to be
maintained accounting records for the Plan sufficient to allow
the determination of the portion of the Fund which is allocable
both to each of the Plan Sponsors. Irrespective of the
comingling of assets of the Plan for investment in the Fund, no
portion of the Fund which is allocable to any one of the Plan
Sponsors shall be used to pay benefits or discharge liabilities
or obligations specifically allocable or attributable,
respectively, to any other Plan or any other Plan Sponsor.
(c) Within ninety (90) days after the close of each
calendar year, the date of the removal or resignation of the
Trustee, or the termination of the Trust, the Trustee shall
render to the Primary Sponsor a written account of its management
of the Fund covering the period since the previous account and
report. The written approval of that accounting and report by
the Primary Sponsor or the failure of the Primary Sponsor to
notify the Trustee of its disapproval of such accounting within
ninety (90) days after its receipt shall be final and binding as
to the Trustee's administration of the Trust for the period upon
the Primary Sponsor and all persons who have or may thereafter
have an interest in the Trust.
SECTION 11.
RESIGNATION, REMOVAL AND SUCCESSION
(a) The Trustee may resign at any time upon giving sixty
(60) days' prior written notice to the Primary Sponsor.
(b) The Trustee may be removed by the Primary Sponsor at
any time; provided, however, that in the event of a Change of
Control, the Trustee may thereafter be removed only after
securing the written consent of a majority of the participants of
the Plan and the designated beneficiaries of deceased
participants.
(c) Upon the removal or resignation of the Trustee, any
successor appointed shall have the same powers and duties as
those conferred upon the Trustee under this Trust. Prior to a
Change of Control, the appointment of any successor Trustee shall
be in the sole discretion of the Primary Sponsor. On or after a
Change of Control, the appointment of any successor Trustee shall
be made only with the consent of a majority of the participants
of the Plans and the designated beneficiaries of deceased
participants. Upon receipt by the Trustee of a written
acceptance of the appointment by the successor Trustee, the
Trustee shall transfer to the successor Trustee the assets
constituting the Trust; provided, however, the Trustee shall not
be required to pay over assets to a successor Trustee unless the
Trustee shall be discharged from all liability for any taxes
which may be due and owing by the Trust, or unless the successor
Trustee, who must be acceptable to the Trustee, indemnifies the
Trustee and the Trustee in its sole discretion agrees to accept
indemnification. In the event that within ninety (90) days after
the removal or resignation of the Trustee the Primary Sponsor
shall have failed to appoint a successor Trustee or the Trustee
shall not have received a written acceptance from a successor
Trustee, then the Trustee may file an appropriate action in a
court of competent jurisdiction and transfer to the custody of
the court the assets then held by the Trustee constituting the
Trust. Upon transfer to a successor Trustee or to the court, as
the case may be, the Trustee shall be relieved of all further
responsibilities and liabilities in connection with the Trust.
The Trustee is authorized, however, to reserve therefrom any
assets 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 the Trustee's fees and expenses shall be paid over to
the successor Trustee or to the court.
SECTION 12.
AMENDMENT AND TERMINATION
(a) Prior to a Change of Control, the Trust Agreement may
be amended any time and to any extent by a written instrument
executed by the Primary Sponsor, provided, however, that no such
amendment shall be effective to the extent that it purports to
make the Trust revocable. In addition, no such amendment shall
have the effect of reducing benefits accrued by participants
under the Plan, delaying the times at which distributions are
made from the Fund to participants and their beneficiaries or
allowing a Plan Sponsor or any other person to receive
distributions of the assets of the Fund not then permitted under
the terms of the Trust Agreement. On or after a Change of
Control, this Trust Agreement may only be amended with the
consent of a majority of the participants of the Plan and the
designated beneficiaries of deceased participants. No amendment
that purports to increase the duties or responsibilities of the
Trustee or to alter materially the manner in which the Trustee is
to discharge any continuing duties or responsibilities shall be
given effect without the consent of the Trustee and no other
amendment shall be given effect without first providing notice of
same to the Trustee. The Trustee and Primary Sponsor or, if
applicable, a majority of the participants of the Plan and the
designated beneficiaries of deceased participants may amend the
Trust Agreement in any manner not otherwise specifically
precluded by this Subsection, including any amendment regarding
the removal of an existing Trustee or the appointment of a
successor Trustee.
(b) Notwithstanding any other provisions of the Trust
Agreement to the contrary, the Trust shall terminate and all Fund
assets shall be distributed (i) on the complete distribution of
the Fund in accordance with the terms and provisions of the Plan;
(ii) upon the delivery to the Trustee of a writing terminating
the Trust signed by the Primary Sponsor, all participants of the
Plan and the designated beneficiaries of deceased participants;
or (iii) in the event the Internal Revenue Service makes a final
determination that the assets of the Fund constitute compensation
currently taxable as income to participants. Any assets
remaining in the Fund after satisfaction of all liabilities and
expenses of the Plan shall be returned to the Plan Sponsors.
SECTION 13.
MISCELLANEOUS
(a) The Trustee shall under no circumstances be required to
recognize any conveyance, transfer, assignment, mortgage, pledge
or encumbrance by any participant or any person entitled to
receive benefits under the Plan, any part of it, or any interest
in it, or to pay any money or thing of value to any creditor or
assignee of any participant or person for any cause whatsoever;
provided, however, this Subsection (a) does not affect the
provisions of Section 8 of the Trust Agreement.
(b) The Primary Sponsor hereby agrees to indemnify and hold
harmless the Trustee from and against any and all losses, claims,
damages, liabilities, costs and expenses, including but not
limited to, liability for any judgments or settlements consented
to in writing by the Trustee, as applicable, which consents will
not be unreasonably withheld, and reasonable attorneys' fees
arising out of or in connection with or as a direct or indirect
result of its serving, respectively, as the trustee (including
but not limited to the Trustee's acts or omissions with respect
to (i) the voting of any share of stock held as part of the
assets of the Trust; (ii) establishing or maintaining investment
funds or effecting investments therein in accordance with the
terms and provisions of the Trust; (iii) the determinations by
the Trustee of insolvency or of a Change of Control (including
acts or omissions in accordance with the terms and provisions of
the Trust following any determination of insolvency or a Change
of Control); or (iv) the determination by the Trustee of Surplus
Amounts or benefits payable to participants or their
beneficiaries), except those losses, claims, damages,
liabilities, costs and expenses, if any, arising out of or in
connection with or as a direct or indirect result of the
Trustee's bad faith, gross negligence or willful neglect or
breach of trust. In amplification of and without limiting the
foregoing, the Primary Sponsor specifically agrees to indemnify
and hold the Trustee harmless from and against any and all
liability, loss, damage, cost or expense arising out of or in
connection with (A) the transfer of any portion of the Fund to a
subtrustee at the direction of the Primary Sponsor; (B) any act
or omission of a subtrustee, provided the Trustee had no
knowledge of such act or omission acquired through its normal
course of dealings with the subtrustee, or if the Trustee did
have such knowledge either the Trustee timely notified the
Primary Sponsor in writing or the Primary Sponsor otherwise
received timely notice of such act or omission; or (C) any
decision by the Trustee to terminate a subtrust following a
Change of Control. Nothing in the immediately preceding sentence
shall require the Primary Sponsor to indemnify and hold the
Trustee harmless from and against any liability, loss, damage,
cost or expense attributable to regulatory action taken by any
Federal or state agency having jurisdiction over the Trustee, as
a banking institution, with regard to the establishment or
maintenance of a subtrust. The Trustee shall promptly notify the
Primary Sponsor of any claim, action or proceeding for which it
may seek indemnity. This indemnity is a continuing obligation
and shall be binding on the Primary Sponsor and its successors,
whether by merger or otherwise, and assigns. In addition, this
indemnity shall survive the resignation or removal of the
Trustee, the liquidation of the Trust, or both events.
(c) As used in this Trust Agreement, the term "Change of
Control" means any event that pursuant to the requirements of
Article X of the Primary Sponsor's Certificate of Incorporation,
as amended from time to time, requires the affirmative vote of
the holders of not less than eighty percent (80%) of the Voting
Stock (as defined therein); provided, however, that no event
shall constitute a Change of Control if approved by the Board of
Directors of the Primary Sponsor a majority of whom are "present
directors" and "new directors." For purposes of the preceding
sentence, "present directors" shall mean individuals who as of
the date of this Trust Agreement were members of the Board of
Directors of the Primary Sponsor and "new directors" shall mean
any director whose election by the Board of Directors of the
Primary Sponsor (in the event of vacancy) or whose nomination for
election by the Primary Sponsor's stockholders was approved by a
vote of at least three-fourths of the directors then still in
office who are present directors and new directors; provided that
any director elected to the Board of Directors of the Primary
Sponsor solely to settle a threatened or actual proxy contest
shall in no event be deemed to be a new director. The board of
directors of the Primary Sponsor shall immediately notify the
Trustee of the occurrence of a Change of Control. Upon receipt
of such written notice or in the event the Trustee has actual
knowledge that a Change of Control has occurred, the Trustee
shall take no action nor facilitate the taking of any action
contemplated by the Trust Agreement as being taken prior to a
Change of Control if (i) an alternative procedure for taking such
action is prescribed on or after a Change of Control, or (ii) any
action of the type described is expressly limited to the period
prior to a Change of Control. If the Trustee should receive any
written allegation to the effect that a Change of Control has
occurred, the Trustee shall take no action nor facilitate the
taking of any action described in the immediately preceding
sentence until making an independent determination as to whether
a Change of Control has occurred. The Trustee shall make this
determination within a period of thirty (30) days after the
receipt of the written allegation. Following the determination,
the Trustee shall discharge its duties under the Trust Agreement
in a manner consistent with that determination.
(d) Prior to a Change of Control, authority and
responsibility with regard to the voting of and control over any
securities of a Plan Sponsor held in the Trust shall be exercised
as follows: (i) the Primary Sponsor shall direct the Trustee in
writing as to the manner in which such securities are to be
voted; and (ii) all other decisions affecting such securities,
including, without limitation, decisions to oppose or consent to
tender or exchange offers, shall be similarly directed by the
Primary Sponsor. The Trustee shall take such steps as may be
necessary or appropriate to carry out the directions of the
Primary Sponsor given pursuant to this Subsection. On or after
a Change of Control, voting and all other decisions relating to
the securities of a Plan Sponsor shall be made by the Trustee or,
if such securities are subject to the investment authority of an
Investment Manager by that Investment Manager.
(e) The Trustee shall be required to take any and all
reasonable legal action to enforce the obligations of each Plan
Sponsor under the Trust Agreement.
(f) Whenever the context requires, words of the masculine
gender used herein shall include the feminine and the neuter, and
the words used in the singular shall include the plural.
(g) Each provision of the Trust Agreement is severable and
if any provision is found to be void as against public policy it
shall not affect the validity of any other provision hereof.
(h) The Trust Agreement shall be binding upon the
successors and assigns of each Plan Sponsor and the Trustee.
(i) The provisions of the Trust shall be construed
according to the laws of the State of Alabama and, to the extent
applicable, according to the laws of the United States.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals 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: Vice President and Trust
Officer
ATTEST:
/s/ Cheryl A. Davidson
Title: Vice President and Trust
Officer
[SEAL]