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EXHIBIT 4.2
METROPOLITAN LIFE INSURANCE COMPANY
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PUBLIX SUPER MARKETS, INC.
401(k) SMART TRUST
NUMBER 1
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PUBLIX SUPER MARKETS, INC.
401(k) SMART TRUST
NUMBER 1
TABLE OF CONTENTS
ARTICLE
FIRST Name of Trust 2
SECOND Acceptance of Property 2
THIRD Investment of the Trust Fund 2
FOURTH Payments 5
FIFTH Administrative Powers 5
SIXTH Fiduciary Standards and Additional Obligations 7
SEVENTH Expenses of Administration 8
EIGHTH Prohibition of Diversion 8
NINTH Indemnity 9
TENTH Record Keeping, Reporting and Disclosure 9
ELEVENTH Plan Sponsor's Designees 10
TWELFTH Resignation or Removal of Trustee 10
THIRTEENTH Amendment 11
FOURTEENTH Merger or Consolidation 11
FIFTEENTH Termination 11
SIXTEENTH Adopting Employers 12
SEVENTEENTH Alienation 12
EIGHTEENTH Bond 13
NINETEENTH Assignment and Successors 13
TWENTIETH Communications 13
TWENTY-FIRST Defined Terms 13
TWENTY-SECOND Governing Law, Jurisdiction and Venue 14
TWENTY-THIRD Action by Plan Sponsor 14
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PUBLIX SUPER MARKETS, INC.
401(k) SMART TRUST
NUMBER 1
WHEREAS, Publix Super Markets, Inc., as the plan sponsor and the
designated plan administrator of the Publix Super Markets, Inc. 401(k) SMART
Plan (hereinafter referred to as the "Plan Sponsor"), has adopted the Publix
Super Markets, Inc. 401(k) SMART Plan (hereinafter referred to as the "Plan"),
effective as of January 1, 1995, for the purpose of providing retirement and
related benefits to eligible employees of the Plan Sponsor and their
beneficiaries; and
WHEREAS, simultaneously with the execution of this document, the Plan
Sponsor entered into an agreement (hereinafter sometimes referred to as the
"Service Agreement") for the services and products offered by Metropolitan Life
Insurance Company (hereinafter sometimes referred to as "MetLife"), which
services and products are referred to by Metropolitan Life Insurance Company as
the MetLife Savings Plan Program; and
WHEREAS, the Plan provides for the establishment and maintenance of
the Publix Super Markets, Inc. 401(k) SMART Trust Number 1 (hereinafter
sometimes referred to as the "Trust" and the "Trust Fund," and the terms of
which are sometimes referred to as this "Trust Agreement") to which
contributions are to be made by the Plan Sponsor to be held by a trustee and to
be managed, invested and reinvested, to the extent provided in the Plan, in and
among the various investment options offered under the MetLife Savings Plan
Program, for the exclusive benefit of the Plan participants and their
beneficiaries; and
WHEREAS, the Plan further provides for the establishment and
maintenance of the Publix Super Markets, Inc. 401(k) SMART Trust Number 2
(hereinafter sometimes referred to as the "Trust Number 2" and the "Employer
Securities Trust Fund") to which contributions are to be made by the Plan
Sponsor to be held by the trustee of Trust Number 2 and to be managed, invested
and reinvested, to the extent provided in the Plan, in a company stock fund,
for the exclusive benefit of the Plan participants and their beneficiaries; and
WHEREAS, the Plan, this Trust and Trust Number 2 are intended to meet
the applicable requirements of Sections 401(a) and 501(a) of the Internal
Revenue Code (hereinafter referred to as the "Code"); and
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WHEREAS, UNITED STATES TRUST COMPANY OF NEW YORK and Metropolitan Life
Insurance Company have substantial expertise and experience in the area of
retirement plan administrative and trustee services, and have offered to
perform certain trustee functions; and
WHEREAS, the Plan Sponsor desires to appoint UNITED STATES TRUST
COMPANY OF NEW YORK as Trustee of the Trust; and
WHEREAS, United States Trust Company of New York and Metropolitan Life
Insurance Company have previously entered into an agreement whereby
Metropolitan Life Insurance Company serves as the agent for United States Trust
Company of New York with respect to various trustee duties, responsibilities
and functions required to be performed under the MetLife Savings Plan Program;
and
WHEREAS, the officers of the Plan Sponsor have been authorized and
directed by the Board of Directors of the Plan Sponsor to enter into this Trust
Agreement.
NOW, THEREFORE, the Plan Sponsor hereby appoints United States Trust
Company of New York as the "Trustee" of the Publix Super Markets, Inc. 401(k)
SMART Trust Number 1, acknowledges and agrees that Metropolitan Life Insurance
Company shall serve as the Trustee's agent ("Agent") thereunder, and the Plan
Sponsor and the Trustee hereby enter into this Trust Agreement, as follows.
FIRST: Name of Trust. The trust established in accordance with the
terms hereof shall be known as the "PUBLIX SUPER MARKETS, INC. 401(k) SMART
TRUST NUMBER 1."
SECOND: Acceptance of Property. The Trustee or its Agent shall accept
such cash and other property as is tendered to the Trust Fund as contributions
hereunder (and as is acceptable to it). Neither the Trustee nor its Agent
shall be under any duty to require the Plan Sponsor or any other adopting
employer to contribute to the Trust Fund or to determine whether the amount of
any contribution has been correctly computed under the terms of the Plan.
Except as otherwise provided within any other written agreement between the
Plan Sponsor and the Trustee or MetLife (or as otherwise required by law), the
Trustee and its Agent shall have only such duties with respect to the Plan as
are set forth in this Trust Agreement.
THIRD: Investment of the Trust Fund.
(a) The Plan is designed to invest one or more of each
participant's Accounts, at the election of the participant, among the
investments options available pursuant to the participant directed investment
provisions of the Plan. As provided under the terms of the Service Agreement,
each participant shall be entitled to direct the investment of his 401(k)
Contribution Account (and, if provided by the Plan, his Matching Contribution
Account) through the telephone access system maintained by the Trustee's Agent.
Each investment option offered with respect to participants' 401(k)
Contribution Accounts (and,
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if provided by the Plan, Matching Contribution Accounts) shall be selected by
the Plan Sponsor. The Trustee shall maintain the investment options identified
in Appendix A/Part 1 as a part of the Trust Fund. Each investment option
identified in Appendix A/Part 1 shall be selected by the Plan Sponsor based on
the information provided by MetLife. The Plan Sponsor may elect to offer
participants other investment options with the approval of MetLife, as provided
within the Service Agreement between the Plan Sponsor and MetLife. The Plan
Sponsor shall provide the Trustee with not less than 90 days prior notice of
its election to offer participants any other investment options.
(b) The Trustee shall transfer to each investment option available
as a part of the Trust Fund such portion of the assets of the Trust
attributable to participants' 401(k) Contribution Accounts (and, if applicable,
participants' Matching Contribution Accounts), and shall invest and reinvest
such assets, as the participants direct in accordance with the specific
provisions of the Plan and the Service Agreement. All interest, dividends and
other income received with respect to, and any proceeds received from the sale
or other disposition of, securities or other property held in an investment
option shall be credited to and reinvested in such investment option, and all
expenses of the Trust which are properly allocable to a particular investment
option shall be so allocated and charged.
(c) The Trustee is the plan fiduciary referred to in Labor
Regulation Section 2550.404c-1(b)(2)(i)(A), to whom participants may give
investment instructions with respect to their 401(k) Contribution Accounts
(and, if applicable, participants' Matching Contribution Accounts) and who
shall be obligated to comply with any such instructions except as otherwise
provided in said section of the Labor Regulation. Neither the Trustee nor its
Agent shall render investment advice to any person in connection with the
selection of such investments. To the extent provided by Section 404(c) of
ERISA, neither the Plan Sponsor, the Trustee, nor MetLife shall be responsible
for the selection of each participant's investments under the Trust. The Plan
Sponsor and the Trustee, as well as its Agent, shall maintain the Trust in a
manner that will minimize potential liability to each fiduciary of the Plan and
the Trust, as permitted under ERISA Section 404(c), and Title 29 of the U.S.
Code of Federal Regulations ("Labor Reg.") Section 2550.404c-1.
(d) To the extent the investment of the Trust Fund is not
otherwise governed by paragraphs (a), (b), and (c), and unless otherwise
required by ERISA, the regulations promulgated by the Secretary of the
Department of Labor, or the terms of the Plan, the
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Trustee or its Agent may invest and reinvest the principal and income of the
Trust Fund, without distinction between principal and income, in such
securities or other property, real or personal, within or without the United
States, as it in its sole discretion shall deem proper including, without
limitations, interests and part interests in any bond and mortgage or note and
mortgage and interests and part interests in certificates of deposit,
commercial paper and other short-term or demand obligations, secured or
unsecured, whether issued by governmental or quasi-governmental agencies or
corporations or by any firm or corporation, capital, common and preferred,
voting and nonvoting stock (regardless of dividend or earnings record),
including shares of mutual funds and to hold such securities or property in one
or more funds. Subject to the limitations set forth above, the Trustee or its
Agent may, in its sole discretion, keep such portion of the Trust Fund in cash
and cash balances or hold all or any portion of the Trust Fund in savings
accounts, certificates of deposit, and other types of time or demand deposits
with any appropriate financial institution or quasi-financial institution,
either domestic or foreign (including any such institution operated or
maintained by the Trustee in its corporate capacity) as the Trustee may from
time to time determine to be in the best interests of the Trust Fund.
Notwithstanding the foregoing, unless otherwise authorized by ERISA or by
regulations promulgated by the Secretary of the Department of Labor, the
Trustee shall maintain the indicia of ownership of all securities or other
investments within the jurisdiction of the District Courts of the United
States.
(e) If required in connection with the provisions of paragraphs
(a) through (d) above, the Plan Sponsor may appoint one or more "investment
managers," as defined in Section 3(38) of ERISA. Any investment manager so
appointed shall be (i) an investment adviser registered as such under the
Investment Advisers Act of 1940, (ii) a bank, or (iii) an insurance company
qualified to perform investment management services under the laws of more than
one state of the United States. In the event that the investment manager
appointed hereunder is a bank or a trust company, or an affiliate of a bank or
a trust company, the Trustee or its Agent shall, upon the direction of the Plan
Sponsor, transfer funds to such bank, trust company, or affiliate for
investment through the medium of any fund created and administered by such
bank, trust company, or affiliate, acting as trustee therefor, for the
collective investment of the assets of employee benefit trusts, provided that
such fund is qualified under the applicable provisions of the Code and while
any portion of the assets are so invested, such fund shall constitute part of
the applicable Plan or Plans, and the instrument creating such fund shall
constitute part of this Trust. In order to implement the provisions of this
paragraph, the Trustee and its Agent are authorized to enter into any required
ancillary
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trust, agency or other type of agreement with an investment manager, or its
affiliate, as described in the preceding sentence, which ancillary agreement
shall be provided to the Plan Sponsor for approval prior to its execution.
(f) Nothing in this provision shall preclude the Plan Sponsor from
investing Plan assets in mutual funds.
(g) The Plan may be designed to invest, to the extent requested by
each participant, such participant's Matching Contribution Account and 401(k)
Contribution Account, in a company stock fund established and maintained within
the Publix Super Markets, Inc. 401(k) SMART Trust Number 2. Alternatively, the
Plan may be designed to invest all of each participant's Matching Contribution
Account, and, to the extent requested by each participant, such participant's
401(k) Contribution Account, in such company stock fund. As required by the
terms of the Service Agreement, the Trustee, and its Agent, shall from time to
time transfer cash to and from Trust Number 2 in order to facilitate purchases
and sales of units attributable to the company stock fund held within Trust
Number 2.
FOURTH: Payments. Subject to the provisions of Article FIFTEENTH
hereof, the Trustee or its Agent shall from time to time transfer cash or, if
permitted by the terms of the Plan, other property from the Trust Fund to, or
for the account of, participants and such other persons, including a receiving
or paying agent designated by the Plan Sponsor, at such addresses, in such
amounts, for such purposes and in such manner as the Plan Sponsor may direct,
provided that such transfer is administratively feasible, and the Trustee and
its Agent shall incur no liability to the extent that any such payment is made
in accordance with the directions of the Plan Sponsor. Except as otherwise
provided by any separate written agreement between the Plan Sponsor and the
Trustee or MetLife, the Plan Sponsor shall be responsible to insure that any
payment made at its direction conforms with the provisions of the Plan, the
provisions of this Trust Agreement and ERISA, and the Trustee shall have no
duty to determine the rights or benefits of any person in the Trust Fund or
under the Plan or to inquire into the right or power of the Plan Sponsor to
direct any such payment.
FIFTH: Administrative Powers.
(a) The Trustee or its Agent is authorized to exercise from time
to time, in its sole discretion (unless otherwise provided), the following
powers with respect to any property, real or personal, of the Trust Fund, it
being intended that these powers be construed in the broadest possible manner,
consistent with the requirements of ERISA:
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(1) the power to engage legal counsel, including counsel
to the Plan Sponsor or the Trustee or its Agent, and any other
suitable agents, in each case upon the written direction or consent of
the Plan Sponsor, and to consult with such counsel or agents with
respect to the construction of this Trust Agreement, the
administration of the Trust Fund, and the duties of the Trustee or
its Agent hereunder;
(2) the power to commence or defend suits or legal
proceedings and to represent the Trust Fund in all suits or legal
proceedings; to settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust Fund,
provided that the Trustee or its Agent shall notify the Plan Sponsor
of all such suits, legal proceedings and claims and, except in the
case of a suit, legal proceeding or claim involving solely the
Trustee's or its Agent's actions or omissions to act, shall obtain the
written consent of the Plan Sponsor before settling, compromising or
submitting to binding arbitration any claim, suit or legal proceeding
of any nature whatsoever;
(3) the power to vote upon any securities of any
corporation or other issuer held in the Trust Fund, to otherwise
consent to or request any action on the part of such corporation or
other issuer, to give general or special proxies or powers of
attorneys with or without power of substitution, and to distribute
proxy materials received on each participant directed investment to
the appropriate participant and to follow instructions received from
the participant; and
(4) the power to make, execute and deliver, as Trustee,
any and all deeds, leases, notes, bonds, guarantees, mortgages,
conveyances, contracts, waivers, releases or other instruments in
writing necessary or proper for the accomplishment of any of the
foregoing powers;
(5) the power to transfer assets of the Trust Fund to the
Employer Securities Trust Fund or to a successor trustee of this Trust
Fund as provided in Article TWELFTH;
(6) the power to borrow money and pledge any property of
the Trust Fund for the payment of such loan, in each case upon the
written direction of the Plan Sponsor; and lastly
(7) the power to exercise, generally, any of the powers
which an individual owner might exercise in connection with property
either real, personal or mixed held by the Trust Fund, and to do all
other acts that the Trustee or its Agent may deem necessary or proper
to carry out any of the powers set forth
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in this Article FIFTH or otherwise in the best interests of the Trust
Fund.
(b) Notwithstanding the foregoing, in the event that an investment
manager is appointed pursuant to Article THIRD hereof, such investment manager
shall exercise such of the powers enumerated in this Article FIFTH and
otherwise contained in this Trust Agreement with respect to the portion of the
Trust Fund subject to its control as may be specified in the instrument under
which the investment manager was appointed and to hold and retain any
securities or other property which it may so acquire.
SIXTH: Fiduciary Standards and Additional Obligations. The Trustee
or its Agent (or any investment manager, agent, or trustee, appointed pursuant
to Article THIRD or FIFTH hereof) shall (i) discharge its duties hereunder with
the care, skill, prudence and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims; (ii) subject to the investment funds specified in the Plan, if any, and
to the extent required by ERISA, diversify the investments of the Trust Fund so
as to minimize the risk of large losses, unless under the circumstances it is
clearly prudent not to do so; and (iii) perform such duties as are specified in
the Plan and this Trust Agreement, and which are specified and/or contemplated
in the Service Agreement, insofar as such provisions are consistent with ERISA.
The Trustee or its Agent (or any investment manager, agent or trustee
appointed pursuant to Article THIRD or FIFTH hereof) shall not engage in any
transaction which it knows or should know violates Section 406 of ERISA.
Notwithstanding the foregoing, the Trustee or its Agent (or any investment
manager, agent or trustee appointed pursuant to Article THIRD or FIFTH hereof)
may, in accordance with any appropriate exemption provided under ERISA or upon
the approval of the Secretary of the Department of Labor, enter into any
transaction otherwise prohibited under Section 406 of ERISA.
Except as otherwise provided herein, or in the Plan or the Service
Agreement, the Trustee or its Agent shall not be responsible for the
administration of the Plan, for determining the funding policy of the Plan or
the adequacy of the Trust Fund to meet and discharge liabilities under the
Plan. Except as otherwise provided in Article NINTH or in the Plan or the
Service Agreement, the Trustee or its Agent shall not be responsible for any
failure of the Plan Sponsor to discharge any of its responsibilities with
respect to the Plan nor be required to enforce payment of any contributions to
the Trust Fund.
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SEVENTH: Expenses of Administration. Except as otherwise
provided by this Trust Agreement and the Service Agreement, the Plan Sponsor
shall bear all expenses of implementing the Plan and this Trust. For its
services, the Trustee and its Agent shall be entitled to receive compensation
in accordance with the terms of "Appendix F" of the Service Agreement (and, as
between the Trustee and its Agent, in accordance with any separate agreement
between the Trustee and MetLife). To the extent consistent with the foregoing,
the Plan Sponsor may pay all direct expenses of the administration of the Trust
Fund, including any Trustee's compensation, the expenses incurred by the plan
administrator in discharging its duties, all income or other taxes of any kind
whatsoever that may be levied or assessed under existing or future laws upon or
in respect of the Trust Fund, and any interest that may be payable on money
borrowed by the Trustee for the purpose of the Trust Fund; and any adopting
employer may pay such expenses as relate to participants employed by such
employer. Any such payment by the Plan Sponsor or an adopting employer shall
not be deemed a contribution to the Plan. With the written consent of the Plan
Sponsor, such expenses may be paid out of the assets of the Trust Fund.
Notwithstanding anything contained herein to the contrary, no excise tax or
other liability imposed upon the Trustee, the plan administrator or anyone else
for failure to comply with the provisions of any federal law shall be subject
to payment or reimbursement from the assets of the Trust Fund.
EIGHTH: Prohibition of Diversion.
(a) At no time prior to the satisfaction of all liabilities with
respect to participants in the Plan and their beneficiaries shall any part of
the corpus or income of the Trust Fund be used for, or diverted to, purposes
other than for the exclusive benefit of such participants and their
beneficiaries. Except as provided in paragraphs (b) and (c) below, and Article
THIRTEENTH, the assets of the Trust Fund shall never inure to the benefit of
the Plan Sponsor and shall be held for the exclusive purpose of providing
benefits to participants in the Plan and their beneficiaries and defraying the
reasonable expenses of administering the Plan.
(b) In the case of a contribution that is made by the Plan Sponsor
by a mistake of fact, paragraph (a) above shall not prohibit the return to the
Plan Sponsor of such contribution at the direction of the Plan Sponsor within
one year after the payment of the contribution.
(c) If a contribution by the Plan Sponsor is expressly conditioned
upon the deductibility of the contribution under Section 404 of the Code, then
to the extent such deduction is disallowed, paragraph (a) above shall not
prohibit the return to the Plan Sponsor of such contribution at the direction
of the Plan Sponsor,
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to the extent disallowed, within one year after the date of such disallowance.
Contributions which are not deductible in the taxable year in which made but
are deductible in subsequent taxable years shall not be considered to be
disallowed for purposes of this paragraph (c).
NINTH: Indemnity.
(a) To the extent permitted under ERISA and other applicable law,
the Plan Sponsor shall indemnify and hold harmless the Trustee and its Agent,
their directors, officers, and employees with respect to any and all claims,
liabilities, lawsuits, actions, judgments, settlements, penalties, expenses,
and costs of any kind, including attorneys' fees, resulting from or arising out
of or in connection with the Plan Sponsor's activities hereunder, except to the
extent that it is determined that such claim, liability, lawsuit, action,
judgment, settlement, penalty, expense, or cost was caused by or resulted from
the negligence or willful misconduct of the Trustee or its Agent, their
directors, officers, trustees, employees or agents.
(b) To the extent permitted under ERISA and other applicable law,
the Trustee and its Agent shall indemnify and hold harmless the Plan Sponsor,
its directors, officers, trustees, employees or agents with respect to any and
all claims, liabilities, lawsuits, actions, judgments, settlements, penalties,
expenses, and costs of any kind, including attorneys' fees, resulting from or
arising out of or in connection with the Trustee's, and/or its Agent's,
provision of services or failure to provide services pursuant to this Trust
Agreement, except to the extent that it is determined that such claim,
liability, lawsuit, action, judgment, settlement, penalty, expense, or cost was
caused by or resulted from the negligence or willful misconduct of the Plan
Sponsor, its directors, officers, trustees, employees or agents.
TENTH: Record Keeping, Reporting and Disclosure.
(a) The Trustee or its Agent shall keep accurate, detailed records
of all investments, receipts, disbursements and other transactions relating to
the Trust Fund, which shall be made available at all reasonable times to
persons designated by the Plan Sponsor or as may be required by law. The
Trustee or its Agent shall value the assets of the Trust Fund and render
accountings to the Plan Sponsor annually (and at such additional times required
by the Service Agreement). The Plan Sponsor may approve such accounting at
such times and in such manner, and the liability of the Trustee and its Agent
shall be limited, as provided by the Service Agreement. The Trustee or its
Agent shall render to the Plan Sponsor, at least quarterly, a statement of the
Trust Fund assets and their values and, whenever a contribution is made to the
Trust Fund other than in cash, a statement of the value of such property
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on the date it is received by the Trustee or its Agent. The Trustee or its
Agent shall prepare all additional reports required in order for MetLife to
comply with the terms of the Service Agreement.
(b) Except to the extent otherwise permitted by ERISA or other
applicable law, no person, other than the Plan Sponsor, may require an
accounting or bring any action against the Trustee or its Agent with respect to
the Trust Fund.
(c) Proxy materials received for each participant directed mutual
fund investment sponsored by MetLife or State Street Research & Management
Company, or any other affiliate of MetLife or State Street Research &
Management Company, will be promptly mailed to the appropriate participant by
the Trustee or its Agent, and the Trustee or its Agent will follow instructions
received from the participant with respect to the mutual fund. For any other
separate account investments, the Trustee shall be solely responsible for
exercising any voting rights as authorized by Article FIFTH.
ELEVENTH: Plan Sponsor's Designees. The Treasurer of the Plan
Sponsor shall certify to the Trustee and its Agent the names of the persons
from time to time authorized to act on behalf of the Plan Sponsor as agents
thereof. All directions to the Trustee or its Agent by the persons authorized
to act on behalf of the Plan Sponsor shall be in writing. The Trustee and its
Agent shall be entitled to rely, without further inquiry, upon all such written
directions received from the persons authorized to act on behalf of the Plan
Sponsor.
TWELFTH: Resignation or Removal of Trustee. This Trust
Agreement may be terminated at any time without cause, by the Plan Sponsor upon
at least ninety (90) days prior written notice, and by the Trustee upon at
least one hundred eighty (180) days prior written notice. In the case of the
resignation or removal of the Trustee and its Agent, the Plan Sponsor shall
appoint a successor trustee who shall have the same powers and duties as those
conferred upon the Trustee and its Agent. Upon the resignation or removal of
the Trustee and its Agent and the appointment of a successor trustee, the
Trustee or its Agent shall account for the administration of the Trust Fund up
to the date of its resignation or removal in the manner provided in Article
TENTH hereof and, upon the approval or deemed approval of such account, the
Trustee or its Agent shall transfer to the successor trustee all of the assets
then constituting the Trust Fund. The Trustee or its Agent may transfer such
assets prior to the completion of such accounting if the Plan Sponsor agrees
thereto in writing. The term "Trustee" as used in this Trust Agreement shall
be deemed to apply to any successor trustee acting hereunder. The successor
trustee, and any successor to the trust business of the Trustee by merger,
consolidation or otherwise, shall have all the powers given the originally
named Trustee and its Agent.
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THIRTEENTH: Amendment.
(a) The Board of Directors of the Plan Sponsor may amend all or
any part of this Trust Agreement at any time through the adoption of
appropriate resolutions provided, however, that any amendment shall not be
effective until the instrument of amendment has been agreed to and executed by
the Trustee or its Agent. Any such amendment or modification of this Trust
Agreement may be retroactive if necessary or appropriate to qualify or maintain
the Trust Fund as a part of a plan and trust exempt from Federal income
taxation under Sections 401(a) and 501(a) of the Code, the provisions of ERISA,
or any other applicable provisions of Federal or state law, as now in effect or
hereafter amended or adopted, and any regulations issued thereunder, including,
without limitation, any regulations issued by the United States Treasury
Department or the United States Department of Labor.
(b) Notwithstanding anything contained in this Article THIRTEENTH
to the contrary, no amendment shall divert any part of the Trust Fund to, and
no part of the Trust Fund shall be used for any purpose other than the
exclusive benefit of the participants and their beneficiaries or for the
administration expenses of the plan administrator and this Trust.
FOURTEENTH: Merger or Consolidation. The Plan and this Trust may
not be merged or consolidated with, and the assets or liabilities of the Plan
and this Trust may not be transferred to, any other plan or trust unless each
participant would receive a benefit immediately after the merger, consolidation
or transfer of the plan and trust then terminated that is equal to or greater
than the benefit the participant would have received immediately before the
merger, consolidation or transfer of the Plan and this Trust had then
terminated.
FIFTEENTH: Termination. This Trust Agreement, the Trust Fund
hereby created, and the Plan may be terminated at any time by the Plan
Sponsor. In the event the Plan Sponsor decides to terminate this Trust, such
decision shall be evidenced by an appropriate resolution of its Board of
Directors and a certified copy of such resolution shall be delivered to the
Trustee together with a notice of termination. Upon receipt of such notice of
termination, the Trustee or its Agent shall, after payment by the Plan Sponsor
of all expenses reasonably incurred in the administration of the Trust Fund,
including such compensation as the Trustee or its Agent may be entitled to, and
upon approval of the appropriate governmental or quasi-governmental authorities
(if such approval shall be required under applicable law), then distribute the
Trust Fund to such persons or entities, including the Plan Sponsor, at such
time, in such manner, and in such amounts as the Plan Sponsor shall direct,
which direction shall be in conformity with the provisions of the Plan and
ERISA.
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SIXTEENTH: Adopting Employers.
(a) An affiliated corporation of the Plan Sponsor which has
adopted the Plan in accordance with its terms shall become a party to this
Trust Agreement by delivering to the Plan Sponsor and the Trustee or its Agent
a certified copy of a resolution of its Board of Directors to the effect that
it agrees to adopt the Plan, to become a party to this Trust Agreement, and to
be bound by all the terms and conditions of the Plan and this Trust Agreement.
The Plan Sponsor shall have the sole authority to enforce this Trust Agreement
on behalf of any such affiliated corporation and the Trustee or its Agent shall
in no event be required to deal with any such affiliated corporation except by
dealing with the Plan Sponsor, acting as agent for such affiliated corporation.
Irrespective of the number of affiliated corporations which may become parties
to this Trust Agreement, the Trustee or its Agent shall in all respects invest
and administer the Trust Fund as a single fund for investment and accounting
purposes without allocation of any part of the Trust Fund as between the Plan
Sponsor and any such affiliated corporation.
(b) An affiliated corporation which has adopted the Plan shall
cease to be a party to this Trust Agreement as of the date established by the
affiliated corporation; provided, however, that prior to such termination date
the Plan Sponsor shall deliver to the Trustee or its Agent a certified copy of
a resolution of such affiliated corporation's Board of Directors terminating
its participation in the Plan. In such event, or in the event of the merger,
consolidation, sale of property or stock, separation, reorganization or
liquidation of the Plan Sponsor or of any such affiliated corporation, or in
the event of the establishment, modification or continuance of any other
retirement plan which separately or in conjunction with this Plan qualifies
under Section 401(a) of the Code, the Trustee or its Agent shall continue to
hold the portion of the Trust Fund which is attributable to the participation
in the Plan of the employees and their beneficiaries affected by such
termination or by such transaction, and this Trust Agreement shall continue in
force with respect to such portion, until otherwise directed by the Plan
Sponsor, in accordance with the provisions of the Plan and ERISA.
SEVENTEENTH: Alienation. No interest in the Trust Fund shall be
assignable or subject to anticipation, sale, transfer, mortgage, pledge,
charge, garnishment, attachment, bankruptcy or encumbrance or levy of any kind,
and the Trustee or its Agent shall not recognize any attempt to assign, sell,
transfer, mortgage, pledge, charge, garnish, attach or otherwise encumber the
same except to the extent that such attempt is made (1) pursuant to a court
order determined by the Plan Sponsor to be a Qualified Domestic Relations
Order, as defined in Section 414 of the Code and Section 206 of ERISA, or (2)
in connection with any loan made to a participant by
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the Trustee or its Agent pursuant to the terms of the Plan and this Trust as
permitted by Section 4975 of the Code and Section 408 of ERISA.
EIGHTEENTH: Bond. The Trustee or its Agent shall not be required
to give any bond or any other security for the faithful performance of its
duties under this Trust Agreement except as required by law.
NINETEENTH: Assignment and Successors. Except as otherwise
provided in this Article, neither party shall assign its rights or continuing
obligations under this Trust Agreement without the prior written consent of the
other party. Any corporation which shall, by merger, consolidation, purchase
or otherwise, succeed to substantially all the trust business of the Trustee
shall, upon such succession, and without any appointment or other action by any
person, be and become successor trustee hereunder. This Trust Agreement shall
be binding upon the respective successors and assigns of the Plan Sponsor and
the Trustee.
TWENTIETH: Communications. Communications to the Plan Sponsor
shall be addressed to the Plan Sponsor or to its designated agents in care of
the Plan Sponsor, as the case may be, at:
Publix Super Markets, Inc.
1936 George Jenkins Road
Lakeland, FL 33801
Attention: Janet Deal
provided, however, that upon the Plan Sponsor's written request such
communications shall be sent to such other address as the Plan Sponsor may
specify.
Communications to the Trustee or its Agent shall be addressed to:
Metropolitan Life Insurance Company
72 Eagle Rock Avenue
East Hanover, NJ 07936
Attention: Chet Wydrinski
provided; however, that upon the Trustee's or its Agent's written request, such
communications shall be sent to such other address as the Trustee or its Agent
may specify. No communication shall be binding on the Plan Sponsor or the
Trustee or its Agent until it is received by the Plan Sponsor or the Trustee or
its Agent.
TWENTY-FIRST: Defined Terms. Any capitalized term used in this
Trust Agreement that is not defined herein shall have the meaning defined in
the applicable provisions of the Plan or the Service Agreement.
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TWENTY-SECOND: Governing Law, Jurisdiction and Venue. This Trust
Agreement shall be construed in accordance with ERISA and, to the extent not
preempted by ERISA, the laws of the State of Florida. The Trustee and the Plan
Sponsor agree that jurisdiction and venue in any action brought pursuant to
this Trust Agreement to enforce its terms or otherwise with respect to the
relationships between the parties shall properly lie in the Circuit Court of
the Tenth Judicial Circuit of the State of Florida in and for Polk County or in
the United States District Court for the Middle District of Florida, Tampa
Division. Such jurisdiction and venue are merely permissive; jurisdiction and
venue shall also continue to lie in any court where jurisdiction and venue
would otherwise be proper. The parties agree that they will not object that
any action commenced in Lakeland, Florida or Tampa, Florida is commenced in a
forum non conveniens. The Trustee further agrees that it will not remove to
federal court any action in which the Plan Sponsor has brought one or more
claims against the Trustee, unless such action is initially filed by one or
more participants who have made a claim for breach of fiduciary duty against
the Plan Sponsor or any other fiduciary. The parties further agree that the
mailing by certified or registered mail, return receipt requested, of any
process required by any such court shall constitute valid and lawful service of
process against them without the necessity for service by any other means
provided by statute or rule of court.
TWENTY-THIRD: Action by Plan Sponsor. Whenever the Plan Sponsor
under the terms of this Trust Agreement is permitted or required to do or
perform any act, it shall be done and performed by the Board of Directors (or
an Executive Committee of the Board of Directors) of the Plan Sponsor and shall
be evidenced by proper resolution of such Board of Directors certified by the
Secretary or Assistant Secretary of the Plan Sponsor.
IN WITNESS WHEREOF, the Plan Sponsor and the Trustee or its Agent have
executed this instrument this _____ day of _______________, 1994.
UNITED STATES TRUST PUBLIX SUPER MARKETS, INC.
COMPANY OF NEW YORK
By:___________________________ By:___________________________
Title:________________________ Title:________________________
of Metropolitan Life Insurance
Company, its Agent
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ATTEST: ATTEST:
By:___________________________ By:___________________________
Title:________________________ Title:________________________
of Metropolitan Life Insurance
Company, its Agent
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APPENDIX A
FUNDING VEHICLES OFFERED PURSUANT TO
THE SERVICE AGREEMENT BETWEEN
PUBLIX SUPER MARKETS, INC. AND
METROPOLITAN LIFE INSURANCE COMPANY
1. PROGRAM FUNDING VEHICLES
MetLife Guaranteed Fixed Income Account
State Street Research Strategic Portfolios: Moderate
MetLife Stock Market Index Guarantee Account
2. OTHER FUNDING VEHICLES
Publix Stock Fund
Fidelity Contrafund
As required by the terms of the Service Agreement, the Trustee, and its Agent,
shall also maintain a Publix Stock Cash Fund comprised of one or more money
market accounts, as described in Appendix E of the Service Agreement in order
to facilitate purchases and sales of units attributable to the Publix Stock
Fund held within Trust Number 2.
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