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EXHIBIT 4.3
PUBLIX SUPER MARKETS, INC.
401(k) SMART TRUST
NUMBER 2
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PUBLIX SUPER MARKETS, INC.
401(k) SMART TRUST
NUMBER 2
TABLE OF CONTENTS
ARTICLE TITLE PAGE
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I Definitions . . . . . . . . . . . . . . . . . . . . . 2
II Name of the Trust . . . . . . . . . . . . . . . . . . 4
III Establishment of the Publix Stock Trust Fund . . . . 4
IV Trust Administration . . . . . . . . . . . . . . . . 5
V Investment of the Publix Stock Trust Fund . . . . . . 7
VI Investment Managers . . . . . . . . . . . . . . . . . 10
VII Expenses of Administration of the Plan and the
Publix Stock Trust Fund . . . . . . . . . . . . . . . 10
VIII Amendment and Termination . . . . . . . . . . . . . . 11
IX Acceptance of Trust . . . . . . . . . . . . . . . . . 12
X Miscellaneous . . . . . . . . . . . . . . . . . . . . 12
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PUBLIX SUPER MARKETS, INC.
401(k) SMART TRUST
NUMBER 2
THIS AGREEMENT AND DECLARATION OF TRUST (the "Agreement") is made and
entered into this ____ day of October, 1994, but is effective for all purposes
as of January 1, 1995, by and between PUBLIX SUPER MARKETS, INC. (the
"Company") and TINA P. JOHNSON (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company 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 Company and their beneficiaries; and
WHEREAS, the Company will enter into an agreement (hereinafter
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
referred to as "Trust Number 1") to which contributions are to be made by the
Company to be held by the trustee of Trust Number 1 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 as set forth
in the Service Agreement, 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," "Trust Number 2" and the
"Publix Stock Trust Fund," and the terms of which are sometimes referred to as
this "Trust Agreement") to which contributions are to be made by the Company 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 1 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, the Company desires to appoint Tina P. Johnson as Trustee of
the Trust; and
WHEREAS, the officers of the Company have been authorized and directed
by the Board of Directors of the Company to enter into this Trust Agreement.
NOW, THEREFORE, the Company hereby appoints Tina P. Johnson as the
"Trustee" of the Publix Super Markets, Inc. 401(k) SMART Trust Number 2, and
the Company and the Trustee hereby enter into this Trust Agreement, as follows.
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meaning
hereinafter set out:
1.1 "ACCOUNT" or "ACCOUNTS" shall mean a Participant's Savings
Contribution Account, Matching Contribution Account, and/or such other accounts
as may be established by the Plan Administrator pursuant to section 7.2 of the
Plan. A Participant's Matching Contribution Account, and any portion of his
Savings Contribution Account invested in the Publix Stock Fund, may include an
Employer Securities Account and an Other Investments Account, as set forth in
the Plan.
1.2 "ADMINISTRATOR" shall mean the Plan Administrator.
1.3 "AFFILIATE" shall mean, with respect to an Employer, any
corporation other than such Employer that is a member of a controlled group of
corporations, within the meaning of Section 414(b) of the Code, of which such
Employer is a member; all other trades or businesses (whether or not
incorporated) under common control, within the meaning of Section 414(c) of the
Code, with such Employer; any service organization other than such Employer
that is a member of an affiliated service group, within the meaning of Section
414(m) of the Code, of which such Employer is a member; any other organization
that is required to be aggregated with such Employer under Section 414(o) of
the Code.
1.4 "BOARD OF DIRECTORS" and "BOARD" shall mean the board of
directors (or an executive committee of the board of directors) of the Company
or, when required by the context, the board of directors of an Employer other
than the Company.
1.5 "CODE" shall mean the Internal Revenue Code of 1986, as
amended, or any successor statute. Reference to a specific section of the Code
shall include a reference to any successor provision.
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1.6 "COMPANY" shall mean Publix Super Markets, Inc., and its
successors.
1.7 "EMPLOYER SECURITIES ACCOUNT" shall mean an account
established pursuant to section 7.2 of the Plan with respect to Employer
Contributions invested in Employer Securities, and adjustments thereto.
1.8 "EFFECTIVE DATE" of this Agreement shall mean January 1, 1995.
1.9 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute. Reference to a specific section
of ERISA shall include a reference to any successor provision.
1.10 "EMPLOYER" shall mean the Company, as well as any subsidiary,
related corporation, or other entity that adopts the Plan with the consent of
the Company.
1.11 "EMPLOYER SECURITIES" shall mean common stock, any other type
of stock or any marketable obligation (as defined in Section 407(e) of ERISA)
issued by the Company or any Affiliate of the Company.
1.12 "INVESTMENT MANAGER" shall mean the individual, individuals,
partnership, corporation or other entity, if any, appointed by the Trustee to
manage all or any portion of the assets of the Plan. Any Investment Manager
shall be (1) registered as an investment advisor under the Investment Advisors
Act of 1940; (2) a bank as defined in such Act; or (3) an insurance company
qualified to perform the services of an investment manager under the laws of
more than one state.
1.13 "MATCHING CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to section 7.2 of the Plan with respect to contributions
to this Plan on behalf of a Participant by an Employer pursuant to section 6.2
of the Plan.
1.14 "METLIFE" shall mean Metropolitan Life Insurance Company.
1.15 "OTHER INVESTMENTS ACCOUNT" shall mean an account established
pursuant to section 7.2 of the Plan with respect to Employer contributions
invested in assets other than Employer Securities and adjustments thereto.
1.16 "PARTICIPANT" shall mean any eligible employee of an Employer
who has become a Participant under the Plan and shall include any former
employee of an Employer who became a Participant under the Plan and who still
has a balance in an Account under the Plan.
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1.17 "PLAN" shall mean the Publix Super Markets, Inc. 401(k) SMART
Plan, as it may be in effect from time to time.
1.18 "PLAN ADMINISTRATOR" shall mean the Company.
1.19 "PLAN YEAR" shall mean the 12-month period ending on December
31.
1.20 "PUBLIX STOCK TRUST FUND" shall mean the trust fund
established under this Agreement.
1.21 "SAVINGS CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to section 7.2 of the Plan with respect to contributions
made under salary reduction arrangements pursuant to section 6.1 of the Plan.
1.22 "SERVICE AGREEMENT" shall mean the agreement entered into
between the Company and Metropolitan Life Insurance Company, simultaneous with
the adoption of Trust Number 1, for the services and products offered by
MetLife in connection with MetLife's service as an agent for the Plan
Administrator.
1.23 "TRUST" shall mean the Publix Super Markets, Inc. 401(k) SMART
Trust Number 2, established by the Company as herein set forth.
1.24 "TRUSTEE" shall mean the individual, individuals or
corporation designated as trustee under this Agreement, or any amendment
hereof.
1.25 "TRUST NUMBER 1" shall mean the Publix Super Markets, Inc.
401(k) SMART Trust Number 1, established by the Company as separately set forth
and as required by the terms of the Plan.
ARTICLE II
NAME OF THE TRUST
The trust established in accordance with the terms hereof shall be
known as the "PUBLIX SUPER MARKETS, INC. 401(k) SMART TRUST NUMBER 2."
ARTICLE III
ESTABLISHMENT OF THE PUBLIX STOCK TRUST FUND
The Company hereby establishes with the Trustee, pursuant to the Plan,
a trust that shall be comprised of the amounts described in Schedule A attached
hereto and contributed by the Company on the date set forth in Schedule A,
hereby delivered to the Trustee, together with such other sums of money and
property as shall from
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time to time be paid or delivered to the Trustee, the earnings and profits
thereon and any assets into which such funds are converted. The Publix Stock
Trust Fund shall be held by the Trustee in trust and dealt with in accordance
with the provisions hereof. Except as otherwise permitted by law, in no event
shall any part of the principal or income of the Publix Stock Trust Fund be
used for or diverted to any purpose whatsoever other than for the exclusive
benefit of the Participants and their beneficiaries.
ARTICLE IV
TRUST ADMINISTRATION
4.1 RECEIPT OF CONTRIBUTIONS AND MERGED ASSETS. The Trustee shall
receive from each Employer the payments made, in cash or Employer Securities,
as its contributions under the Plan and shall perform such duties as are
specified under the Plan and in this Agreement. However, the Trustee shall
have no right or duty to inquire into the amount of any contribution made by an
Employer or the method used in determining the amount of any such contribution,
or to collect the same, but the Trustee shall be accountable only for funds
actually received by it.
4.2 PLAN ADMINISTRATOR'S DIRECTIONS. When directed by the Plan
Administrator, the Trustee shall make transfers, payments, distributions, and
deliveries to or for the account of Participants or their beneficiaries.
4.3 AUTHORIZED ACTIONS. The Trustee is authorized to:
(a) borrow money and pledge any Trust property for the
payment of any such loan;
(b) settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from this Trust, commence
or defend suits or legal or administrative proceedings and represent
the Trust in all suits and legal and administrative proceedings;
(c) employ suitable Investment Managers, agents and
counsel (who may be counsel for an Employer), and pay their reasonable
expenses and compensation; and
(d) make, execute and deliver as Trustee, with provisions
for no individual responsibility, all instruments in writing necessary
or appropriate for the exercise of any of its powers of
administration; provided, that as a matter of convenience, when the
Trustee is two or more persons, any one of such persons may exercise
the powers contained in this section 4.3 without the necessity of the
other person or persons joining therein.
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4.4 DISTRIBUTIONS. In making transfers, payments, distributions
and deliveries to, or for the benefit of, the respective Participants, the
Trustee shall rely entirely on the directions of the Plan Administrator, and,
to the extent permitted by law, the Administrator shall be solely responsible
for such directions. The Trustee shall have no dealings with the beneficiaries
under this Agreement except under the direction of the Plan Administrator to
make payment to them. If and when the Trustee is a corporation, all
directions, papers and communications addressed to it or intended to be filed
with it shall be delivered at its principal office.
4.5 RECORDS AND ACCOUNTS. The Trustee shall keep accurate and
detailed accounts on all investments, receipts, disbursements and other
transactions hereunder. All accounts, books and records relating to this Trust
shall be open to inspection and audit at all reasonable times by any person
designated by the Plan Administrator.
4.6 RESIGNATION AND REMOVAL.
(a) The Company may at any time remove any Trustee acting
hereunder by providing written notice to such Trustee, which removal
shall take effect on the date therein specified; and any Trustee
acting hereunder may at any time resign by providing the Company and
the Plan Administrator with a written resignation, which resignation
shall take effect on the date therein specified, but not less than
thirty (30) days from the date of the giving of such notice unless the
Plan Administrator shall agree to an earlier date. The Company may
appoint a corporation or an individual or individuals to be successor
Trustee hereunder in the place of any removed or resigned Trustee.
Any notice required or permitted by this section 4.6(a) shall be
deemed given upon the mailing thereof to the appropriate person by
certified or registered U.S. mail, return receipt requested, in a
properly addressed envelope, postage prepaid.
(b) After receiving notice of removal or after the
effective date of resignation, the removed or resigning Trustee shall
transfer, pay over and deliver the Publix Stock Trust Fund to the
successor Trustee, or if no successor Trustee be appointed within
thirty (30) days from the Trustee's receipt of notice of removal or
within thirty (30) days from the effective date of the Trustee's
resignation, as the case may be, the removed or resigning Trustee
shall, upon the expiration of such 30-day period, transfer, pay over
and deliver the Publix Stock Trust Fund to the Plan Administrator,
without any responsibility upon the removed or resigning Trustee for
any misapplication or to see to the further application or disposition
of the Publix Stock Trust Fund by any successor Trustee or the Plan
Administrator, as the case may be. Notwithstanding any such transfer,
payment and delivery of the Publix Stock Trust Fund to any successor
Trustee or to the Administrator, as the case may be, the removed or
resigning Trustee may have its entire account judicially settled and
it shall be entitled
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to the payment out of the Publix Stock Trust Fund of any compensation
due to it up to the time of removal or resignation and of any expenses
or other disbursements, whether theretofore or thereafter arising, for
which the removed or resigning Trustee would be entitled to
reimbursement if the Publix Stock Trust Fund had not been so
transferred, paid over and delivered.
4.7 PERIODIC ACCOUNTING.
(a) Within ninety (90) days after the end of each Plan
Year, and within sixty (60) days after removal or resignation, the
Trustee shall value the Publix Stock Trust Fund and furnish the Plan
Administrator with a verified accounting of the Publix Stock Trust
Fund for such Plan Year, or for the portion thereof ending with the
date of such removal or resignation, which accounting shall include a
record of receipts and disbursements, changes in investments and
realized appreciation and depreciation for such year or period, and a
statement of assets (showing both book value and fair market value)
and liabilities on hand as of the end of such year or period.
(b) Except as otherwise permitted by law, all rights of
every Participant and every beneficiary of a Participant under the
Plan or this Agreement with relation to the Publix Stock Trust Fund or
that may arise against or affect the Trustee shall be enforced
exclusively by the Administrator. The Administrator is hereby given
the express power and authority to enforce all such rights as a
representative of every Participant and beneficiary under the Plan.
In any action or proceeding with relation to the Publix Stock Trust
Fund or brought by or against the Trustee, the Plan Administrator
shall be deemed to represent every interested Participant and
beneficiary.
ARTICLE V
INVESTMENT OF THE PUBLIX STOCK TRUST FUND
5.1 INVESTMENT IN EMPLOYER SECURITIES.
(a) The Publix Stock Trust Fund is designed to invest
each Participant's Matching Contribution Account (and, at the election
of the Participant, his Savings Contribution Account) primarily in,
and hold, Employer Securities, as provided in the Plan, for the
benefit of the Participants and their beneficiaries. Accordingly, the
Trustee may invest all of the assets of the Publix Stock Trust Fund in
Employer Securities.
(b) Employer Securities may be purchased or otherwise
acquired from any source, including any party that might be a party in
interest (within the meaning of Section 3(14) of
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ERISA) or a disqualified person (within the meaning of Section 4975(e)
(2) of the Code); provided, however, that if Employer Securities are
purchased or acquired from such a party in interest or disqualified
person, the Trustee shall neither pay more than adequate consideration
(within the meaning of Section 3(18) of ERISA), nor shall pay any
commission to any person in connection with such acquisition.
(c) As required by the terms of Appendix E of the Service
Agreement and as directed by the Plan Administrator (or by MetLife as
its agent), the Trustee shall from time to time transfer cash to and
from Trust Number 1 in connection with purchases and sales of units of
Employer Securities.
5.2 INVESTMENT IN OTHER ASSETS.
(a) The Plan Administrator, at its discretion, may
establish in writing a funding policy and method for the Plan and this
Trust, if it determines that the Trustee should invest a substantial
portion of the Trust assets in investments other than Employer
Securities. Any such funding policy shall be reviewed at least once
each year. All actions taken with respect to such funding policy and
the reasons therefor shall be recorded in writing by the Plan
Administrator.
(b) The responsibility for all investments in assets
other than Employer Securities held as part of the Publix Stock Trust
Fund shall be that of the Trustee, unless one or more Investment
Managers have been appointed, in which event the responsibility for
such investments shall be allocated between the Trustee and the
Investment Managers in accordance with the written direction of the
Trustee and the Trustee and each Investment Manager shall have no
responsibility for each other's investment decisions.
(c) Investment decisions made by any Investment Manager
shall be communicated to the Trustee, and shall be carried out
forthwith either by the Investment Manager or its agent or by the
Trustee acting upon the direction of the Investment Manager.
5.3 POWERS. To the extent that it is not inconsistent with the
investment of the assets of the Publix Stock Trust Fund primarily in Employer
Securities and the provisions of sections 5.1 and 5.2, in carrying out their
duties hereunder, each Investment Manager, if any, (with respect to making and
carrying out its investment decisions) and the Trustee (with respect to
carrying out the decisions of an Investment Manager or, to the extent there is
none, with respect to making and carrying out investment decisions) are
authorized and empowered to:
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(a) sell, redeem or otherwise realize the value of any
assets of the Publix Stock Trust Fund;
(b) invest and reinvest all or any part of the Publix
Stock Trust Fund, the income therefrom and the increment thereof in
any common or preferred stocks, bonds, mortgages, secured or unsecured
notes, secured or unsecured debentures, mutual funds, other
securities, or commodities; any common trust fund operated by the
Trustee (provided that as long as the Trust has any investments in a
common fund available only to pension trusts and profit sharing trusts
that meet the requirements of Section 401(a) of the Code, then such
common trust fund shall constitute an integral part of this Trust and
of the Plan); any guaranteed annuity contracts or segregated
investments with insurance companies; or property of any kind or
nature whatsoever, real, personal or mixed, including mortgaged real
property, without regard to any rule of law or statute designating
securities to be held for trust funds; and to hold cash uninvested (or
in deposits bearing a reasonable rate of interest, in a bank or other
similar institution supervised by the United States or a state,
including, if applicable, the Trustee) at any time and from time to
time;
(c) without limitation on the foregoing, buy and sell
listed options and/or sell covered options and repurchase the same;
(d) vote upon any stocks, bonds or other securities of
any corporation or other issuer held in the Trust (including Employer
Securities held pursuant to section 5.1), and otherwise consent to or
request any action on the part of such corporation or other issuer,
and give general or special proxies or powers of attorneys with or
without power of substitution; and
(e) become a party to the reorganization, consolidation
or merger of any corporation, and for such purposes execute any
agreements or consents, or participate in or take any steps to
effectuate the same, whether or not any specific plans have been
formulated therefor and in connection therewith, deposit any such
securities with creditors or stockholders' committees, bodies or other
protective groups, and surrender or exchange any such securities for
such debentures, certificates, receipts, agreements or proceeds as may
be issued or paid by such committees, bodies or groups, or
reorganized, consolidated or merged corporations, and generally
exercise all the rights and powers, whether herein enumerated or not,
as may be lawfully exercised by persons holding similar property in
their own right.
5.4 WRITTEN INSTRUMENTS. The Trustee and each Investment Manager
shall make, execute and deliver, as Trustee or Investment Manager, as the case
may be, with provisions for no individual liability, all instruments in writing
necessary for the exercise of any of the foregoing powers.
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ARTICLE VI
INVESTMENT MANAGERS
6.1 APPOINTMENT. The Trustee may appoint one or more Investment
Managers to manage all or part of the assets of the Publix Stock Trust Fund
that are not invested in Employer Securities; each such appointment shall
specify the particular assets of the Publix Stock Trust Fund to be managed by
such Investment Manager.
6.2 WRITTEN ACCEPTANCE. Before any such appointment becomes
effective, any Investment Manager so appointed shall accept such designation in
writing and, as part of such acceptance, shall acknowledge that it is a
fiduciary with respect to the Plan.
6.3 RESIGNATION AND REMOVAL. The Trustee may at any time remove an
Investment Manager acting hereunder, and any Investment Manager acting
hereunder may at any time resign, in each case in such manner as may be or may
have been agreed by the Trustee and the Investment Manager. The Trustee may
appoint any individual, individuals, partnership, corporation or other entity
to be a successor Investment Manager hereunder in the place of any removed or
resigned Investment Manager.
ARTICLE VII
EXPENSES OF ADMINISTRATION OF THE PLAN
AND THE PUBLIX STOCK TRUST FUND
The Company shall bear all expenses of implementing the Plan and this
Trust. For its services, any corporate trustee shall be entitled to receive
reasonable compensation for the handling of a retirement trust as set forth in
a separate agreement with the Company. Any individual Trustee shall be
entitled to such compensation as shall be arranged between the Company and such
individual Trustee by separate instrument; provided, however, that no person
who is already receiving full-time pay from any Employer or any Affiliate shall
receive compensation from the Publix Stock Trust Fund (except for the
reimbursement of expenses properly and actually incurred). The Company may pay
all expenses of the administration of the Publix Stock Trust Fund, including
the Trustee's compensation, the compensation of any Investment Manager, the
expense 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 Publix Stock Trust
Fund, and any interest that may be payable on money borrowed by the Trustee for
the purpose of the Trust and any Employer may pay such expenses as relate to
Participants employed by such Employer. Any such payment by the Company or an
Employer shall not be deemed a contribution to the Plan. Such expenses shall
be paid out of the assets of the Publix Stock Trust Fund unless paid or
provided for by the Company or another Employer. Notwithstanding
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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.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 LIMITATIONS ON AMENDMENTS. The Plan and this Trust may be
amended or terminated by the Company in accordance with the terms of the Plan
and this Trust; provided, however, that no such amendment:
(a) shall have the effect of vesting in any Employer,
directly or indirectly, any interest, ownership or control in any of
the present or subsequent funds held subject to the terms of this
Trust;
(b) shall cause or permit any property held subject to
the terms of this Trust to be diverted to purposes other than the
exclusive benefit of the Participants and their beneficiaries or for
the administration expenses of the Plan Administrator and this Trust;
(c) shall reduce any vested interest of a Participant on
the later of the date the amendment is adopted or the date the
amendment is effective, except as permitted by law;
(d) shall reduce the Accounts of any Participant;
(e) shall amend any vesting schedule with respect to any
Participant who has at least three (3) Years of Service at the end of
the election period described below, except as permitted by law,
unless each such Participant shall have the right to elect to have the
vesting schedule in effect prior to such amendment apply with respect
to him, such election, if any, to be made during the period beginning
not later than the date the amendment is adopted and ending no earlier
than sixty (60) days after the latest of the date the amendment is
adopted, the amendment becomes effective or the Participant is issued
written notice of the amendment by his Employer or the Plan
Administrator; or
(f) shall increase the duties or liabilities of the
Trustee without its written consent.
8.2 TERMINATION OR DISCONTINUANCE. Any Employer, in its sole and
absolute discretion, may permanently discontinue making contributions under the
Plan or may terminate the Plan and this Trust
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(with respect to all Employers if it is the Company, or with respect to itself
alone if it is an Employer other than the Company), completely or partially, at
any time without any liability whatsoever for such permanent discontinuance or
complete or partial termination.
8.3 METHOD OF DISCONTINUANCE. In the event an Employer decides to
permanently discontinue making contributions, such decision shall be evidenced
by an appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and the Trustee. All
of the assets in the Publix Stock Trust Fund belonging to the affected
Participants on the date of discontinuance specified in such resolutions shall
be held, administered and distributed by the Trustee in the manner provided
under the Plan and this agreement.
8.4 METHOD OF TERMINATION. In the event an Employer decides to
terminate the Plan and this Trust, such decision shall be evidenced by an
appropriate resolution of its Board and a certified copy of such resolution
shall be delivered to the Plan Administrator and the Trustee. After payment of
all expenses and proportional adjustments of individual accounts to reflect
such expenses and other changes in the value of the Publix Stock Trust Fund as
of the date of termination, each affected Participant or the beneficiary of any
such Participant shall be entitled to receive, in a lump sum, any amount then
credited to his Account.
ARTICLE IX
ACCEPTANCE OF TRUST
The Trustee hereby accepts this trust and agrees to hold all the
property now or hereafter constituting the Publix Stock Trust Fund hereunder,
subject to all the terms and conditions of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 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 if the Plan and this Trust had then
terminated.
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10.2 ALIENATION.
(a) Except as provided in section 10.2(b) and Article XI
of the Plan, no Participant or beneficiary of a Participant shall have
any right to assign, transfer, appropriate, encumber, commute,
anticipate or otherwise alienate his interest in the Plan or this
Trust or any payments to be made hereunder; no benefits, payments,
rights or interests of a Participant or a beneficiary of a Participant
of any kind or nature shall be in any way subject to legal process to
levy upon, garnish or attach the same for payment of any claim against
the Participant or beneficiary of a Participant; and no Participant or
beneficiary of a Participant shall have any right of any kind
whatsoever with respect to this Trust, or any estate or interest
therein, or with respect to any other property or right, other than
the right to receive such distributions as are lawfully made out of
this Trust, as and when the same respectively are due and payable
under the terms of the Plan and this Agreement.
(b) Notwithstanding the provisions of section 10.2(a),
the Plan Administrator shall direct the Trustee to make payments
pursuant to a Qualified Domestic Relations Order as defined in Section
414(p) of the Code.
10.3 GOVERNING LAW. This Agreement and Declaration of Trust shall
be administered, construed and enforced according to the laws of the state of
Florida, except to the extent such laws have been expressly preempted by
federal law.
10.4 ACTION BY EMPLOYER. Whenever the Company or another Employer
under the terms of this Agreement is permitted or required to do or perform any
act, it shall be done and performed by the Board of Directors of the Company or
such other Employer and shall be evidenced by proper resolution of such Board
of Directors certified by the Secretary or Assistant Secretary of the Company
or such other Employer.
10.5 ALTERNATIVE ACTIONS. In the event it becomes impossible for
the Company, another Employer, the Plan Administrator or the Trustee to perform
any act required by this Agreement, then the Company, such other Employer, the
Plan Administrator or the Trustee, as the case may be, may perform such
alternative act that most nearly carries out the intent and purpose of this
Agreement.
10.6 GENDER. Throughout this Agreement, and whenever appropriate,
the masculine gender shall be deemed to include the feminine and neuter; the
singular, the plural; and vice versa.
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IN WITNESS WHEREOF, the parties have executed this Agreement this
_____ day of October, 1994.
ATTEST: PUBLIX SUPER MARKETS, INC.
(CORPORATE SEAL)
By:
- ------------------------------ ---------------------------
Secretary President
"COMPANY"
WITNESSES:
- ------------------------------ ------------------------------
TINA P. JOHNSON
- ------------------------------
As to Tina P. Johnson "TRUSTEE"
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SCHEDULE A
SCHEDULE OF PROPERTY INITIALLY TRANSFERRED PURSUANT TO THE FOREGOING AGREEMENT
AND DECLARATION OF TRUST BETWEEN PUBLIX SUPER MARKETS, INC., AS THE COMPANY,
AND TINA P. JOHNSON, AS TRUSTEE
One share of common stock
of Publix Super Markets, Inc.
DATED this _____ day of _______________, 1994.
PUBLIX SUPER MARKETS, INC.
By:
---------------------------
President
"COMPANY"
------------------------------
TINA P. JOHNSON
"TRUSTEE"