EXHIBIT 10.27
MORRISON HEALTH CARE, INC.
SALARY DEFERRAL PLAN
TRUST AGREEMENT
THIS AGREEMENT has been made as of the 30th day of September, 1997, between
Morrison Health Care, Inc. (the "Company") and Merrill Lynch Trust Company of
(Florida)(the "Trustee") with respect to a trust (the "Trust") forming part of
the Morrison Health Care, Inc. Salary Deferral Plan (the "Plan").
WHEREAS, the Plan qualifies both as an "employee stock ownership plan"
("ESOP") within the meaning of section 4975(e)(7) of the Internal Revenue Code
of 1986 (the "Code") and as a cash or deferred profit sharing plan under
sections 401(a) and 401(k) of the Code; and
WHEREAS, in order to effectuate the purposes of the Plan, the Company
hereby establishes this Trust, designed to meet the applicable requirements of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"); and
WHEREAS, it is a principal purpose of the Trust to maintain assets in the
form of and invest in stock of the Company ("Company Stock") qualifying as
"employer securities" within the meaning of section 409(1) of the Code and
section 407(d)(5) of ERISA;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Trustee do hereby covenant and
agree as follows:
SECTION I
THE TRUST
1.1 Establishment of the Trust. The Company hereby establishes with the
Trustee the Trust, which shall be known as the Morrison Health Care, Inc. Salary
Deferral Plan Trust, for the purposes of holding and administering the Trust
Fund in accordance with this Agreement. Except as provided in section 4.4 and
4.5 below, nothing contained in the Plan, either expressly or by implication,
shall impose any additional powers, duties or responsibilities upon the Trustee.
The Trustee shall not be responsible for the administration of the Plan. The
"Trust Fund" shall at any time mean all property of every kind then held by the
Trustee pursuant to this Trust Agreement, including the contributions of cash or
Company Stock made to the Trust by the Company or any employer participating in
the Plan (an "Employer"), any property into which such contributions may from
time to time be converted, and any appreciation therein or income thereon less
any depreciation therein, any losses thereon and any distributions payments
therefrom. Except as otherwise provided herein, title to the assets of the Trust
Fund shall at all times be vested in the Trustee, subject to the right of the
Trustee to hold title in
bearer form or in the name of a nominee, and the interests of others in the
Trust Fund shall only be the right to have such assets received, held, invested,
administered and distributed in accordance with the provisions of the Trust.
1.2 Appointment of Trustee. The Company represents that all necessary
action has been taken for the appointment of the Trustee as trustee of the Trust
and that the Trust Agreement constitutes a legal, valid and binding obligation
of the Company. The Trustee accepts its appointment as trustee of the Trust.
1.3 Status of Trust. The Trust is intended to be a qualified trust under
section 401(a) of the Code and exempt from taxation pursuant to section 501(a)
of the Code.
1.4 Exclusive Purpose. Notwithstanding anything to the contrary in this
Agreement, or in any amendment thereto, except as otherwise provided under
ERISA, the Named Fiduciaries (as defined in Section 2.1) and the Trustee, as a
directed trustee shall discharge their respective duties with respect to the
Trust Fund for, and the Trust Fund shall be used solely for and not diverted
from, the exclusive purpose of providing benefits for Plan participants and
their beneficiaries and defraying reasonable expenses of administering the Plan.
Notwithstanding the preceding sentence, however, contributions may be returned
by the Trustee at the direction of a Named Fiduciary if the Named Fiduciary
certifies in writing to the Trustee that one or more of the following
circumstances exist.
(a) if a contribution is made by the Company by reason of a mistake of
fact, the contribution or the value thereof, if less, may be returned within one
year after it was paid to the Trustee;
(b) if a contribution is conditioned upon its deductibility under section
404 of the Code, to the extent the deduction is disallowed by the Internal
Revenue Service, the contribution or the value thereof, if less, may be returned
to the Company within one year after the disallowance; or
(c) if a contribution is conditioned upon initial qualification of the
Plan, as amended, under sections 401, 409 and 4975(e)(7) of the Code, the
contribution or the value thereof, if less, may be returned to the Company
within one year after such qualification has been denied.
1.5 Receipt of Contributions and Transfers of Assets. The Trustee shall
receive in cash or Company Stock all contributions paid or delivered to it which
are allocable under the Plan and to the Trust and all transfers paid or
delivered under the Plan to the Trust from a predecessor trustee or another
trust (including a trust forming part of another plan qualified under section
401(a) of the Code), provided that the Trustee shall not be obligated to receive
any such contribution or transfer unless prior thereto or coincident therewith,
as the Trustee may specify, the Trustee has received such reconciliation,
allocation, investment or other information concerning, or such direction,
instruction or representation with respect to, the contribution or transfer or
the source thereof as the Trustee may reasonably require. The Trustee shall have
no duty or authority to (a) require any contributions or transfers to be made
under the Plan or to the Trustee, (b) compute any amount to be contributed or
transferred under the Plan to the Trustee, or (c) determine whether amounts
received by the Trustee comply with the Plan.
1.6 Directed Trustee. The Trustee shall hold the Trust Fund, without
distinction between principal and income, as a nondiscretionary trustee pursuant
to the terms of this Trust Agreement. Assets of the Trust may, absent direction
from the Named Investment Fiduciary (as defined in Section 2.1) to the contrary,
be held in an account maintained with an affiliate of the Trustee. Except as
required by ERISA, the Trustee shall invest the Trust Fund as directed by the
Named Investment Fiduciary, as defined herein, an Investment Manager, as defined
herein, or a Plan participant or beneficiary, as the case may be, and the
Trustee shall have no discretionary control over, nor any other discretion
regarding, the investment or reinvestment of any asset of the Trust Fund.
SECTION II
NAMED FIDUCIARIES
2.1 Named Administrative and Investment Fiduciaries. For purposes of this
Trust Agreement, the term "Named Administrative Fiduciary" refers to the person
or persons named or provided for under the Plan as responsible for the
administration and operation of the Plan, and the term "Named Investment
Fiduciary" refers to the person or persons provided for under the Plan as
responsible for the investment and management of Plan assets to the extent
provided for in this Trust Agreement (together, the "Named Fiduciaries"). The
Named Administrative Fiduciary and the Named Investment Fiduciary may be the
same person or persons. If no such person or persons is named or provided for
under the Plan, or if so named or provided for but not then serving, the Company
shall be the Named Administrative Fiduciary or the Named Investment Fiduciary or
both, as the case may be.
2.2 Identification of Named Fiduciaries and Designees. The Named
Administrative Fiduciary and the Named Investment Fiduciary under the Plan shall
each be identified to the Trustee in writing by the Company, and specimen
signatures of each, or of each member thereof, as appropriate, shall be provided
to the Trustee by the Company. The Company shall promptly give written notice to
the Trustee of a change in the identity either of the Named Administrative
Fiduciary or the Named Investment Fiduciary, or any member thereof, as
appropriate, and until such notice is received by the Trustee, the Trustee shall
be fully protected in assuming that the identity of the Named Administrative
Fiduciary or Named Investment Fiduciary, and the members thereof, as
appropriate, is unchanged. Each person authorized in accordance with the Plan to
give a direction to the Trustee on behalf of the Named Administrative Fiduciary
or the Named Investment Fiduciary shall be identified to the Trustee by written
notice from the Company or the Named Administrative Fiduciary or the Named
Investment Fiduciary, as the case may be, and such notice shall contain a
specimen of the signature. The Trustee shall be entitled to
rely upon each such written notice as evidence of the identity and authority of
the persons appointed until a written cancellation of the appointment, or the
written appointment of a successor, is received by the Trustee from the Company,
the Named Administrative Fiduciary or the Named Investment Fiduciary, as the
case may be.
2.3 Named Fiduciary's Directions. Directions from or on behalf of the Named
Fiduciaries or their designees shall be communicated to the Trustee or the
Trustee's designee only in accordance with procedures acceptable to the Trustee
and the Named Administrative Fiduciary. Neither the Trustee nor the Trustee's
designee shall be empowered to implement any such directions except in
accordance with procedures acceptable to the Trustee and the Named
Administrative Fiduciary. The Trustee shall have no liability for following any
such directions or failing to act in the absence of any such directions. The
Trustee shall have no liability for the acts or omissions of any person making
or failing to make any direction under the Plan or this Trust Agreement nor any
duty or obligation to review any such direction, act or omission, SECTION III
POWERS OF TRUSTEE
3.1 Nondiscretionary Investment Powers. At the direction of the Named
Administrative Fiduciary or the Named Investment Fiduciary or such other person
authorized hereunder to direct such action, and in accordance with the direction
of such person, the Trustee, or the Trustee's designee or a broker/dealer as
referred to in section 4.3, is authorized and empowered:
(a) to invest and reinvest the Trust Fund, together with the income
therefrom, in common stock, preferred stock, convertible preferred stock, bonds,
debentures, convertible debentures and bonds, mortgages, notes, commercial paper
and other evidences of indebtedness (including those issued by the Trustee),
shares of mutual funds (which funds may be sponsored, managed or offered by an
affiliate of the Trustee), guaranteed investment contracts, bank investment
contracts, other securities, polices of life insurance, annuity contracts,
options, options to buy or sell securities or other assets, and all other
property of any type (personal, real or mixed, and tangible or intangible);
(b) to deposit or invest all or any part of the assets of the Trust in
savings accounts or certificates of deposit or other deposits in a bank or
savings and loan association or other depository institution, including the
Trustee or any of its affiliates; provided that, with respect to such deposits
with the Trustee or an affiliate, the deposits bear a reasonable interest rate;
(c) to hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust Fund; to sell, convey, transfer, exchange,
partition, lease for any term, even extending beyond the duration of this Trust,
and otherwise dispose of the same from time to time;
(d) to have, subject to sections 4.4 and 4.5 below, respecting securities,
all the rights, powers and privileges of an owner, including the power to give
proxies, pay assessments and other sums deemed by the Trustee necessary for the
protection of the Trust Fund; to vote, subject to sections 4.4 and 4,5 below,
any corporate stock either in person or by proxy, with or without power of
substitution, for any purpose; to participate in voting trusts, pooling
agreements, foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with or transfer
title to any protective or other committee; to exercise or sell stock
subscriptions or conversion rights; and, regardless of any limitation elsewhere
in this instrument relative to Investments by the Trustee to accept and retain
as an investment any securities or other property received through the exercise
of any of the foregoing powers;
(e) to hold in cash such portion of the Trust Fund which it is directed to
so hold pending investments, or payment of expenses, or the distribution of
benefits;
(f) to take such actions as may be necessary or desirable to protect the
Trust from loss due to the default on mortgages held in the Trust, including the
appointment of agents or trustees in such other jurisdictions as may seem
desirable, to transfer property to such agents or trustees, to grant to such
agents such powers as are necessary or desirable to protect the Trust Fund, to
direct such agent or trustee, or to delegate such power to direct, and to remove
such agent or trustee;
(g) to settle, compromise or abandon all claims and demands in favor of or
against the Trust Fund;
(h) to invest in any common or collective trust fund maintained by the
Trustee or its affiliate;
(i) to exercise all of the further rights, powers, options and privileges
granted, provided for, or vested in trustees generally under the laws of the
state in which the Trustee is incorporated, so that the powers conferred upon
the Trustee herein shall not be in limitation of any authority conferred by law,
but shall be in addition thereto;
(j) to borrow money from any source and to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets as
security, subject to applicable requirements of the Code and ERISA;
(k) to compromise, compound, and settle any debt or obligation owing to or
from it as Trustee; to reduce or increase the rate of interest on, extend or
otherwise modify, foreclose upon default, or otherwise enforce any such
obligation; and
(l) to maintain accounts at, execute transactions through, and lend on an
adequately secured basis stocks, bonds or other securities to, any brokerage or
other firm, including any firm which is an affiliate of the Trustee; and
(m) subject to Section 5, to borrow from any lender (including the Company
or any shareholder of the Company) to acquire shares of Company Stock as
authorized by this Agreement.
3.2 Additional Powers of Trustee. To the extent necessary or which it deems
appropriate to implement its powers under Section 3.1 or otherwise to fulfill
any of its duties and responsibilities as trustee of the Trust Fund, the Trustee
shall have the following additional powers and authority:
(a) to register securities, or any other property, in its name or in the
name of any nominee, including the name of any affiliate or the nominee name
designated by any affiliate, with or without indication of the capacity in which
property shall be held, or to hold securities in bearer form and to deposit any
securities or other property in a depository or clearing corporation;
(b) to designate and engage the services of and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel and
accountants as the Trustee considers necessary or appropriate, any of whom may
be an affiliate of the Trustee or a person who renders services to such an
affiliate, and, as a part of its expenses under this Trust Agreement, to pay
their reasonable expenses and compensation;
(c) to make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or for the accomplishment of any of the powers listed in this Trust
Agreement;
(d) to determine the market value of any securities or other property held
by the Trustee in the Trust Fund. and where any securities or other property are
determined by the Trustee not to be marketable, to determine their value in
accordance with sound practice and standards for evaluating such property,
including valuation by an independent appraiser selected by the Trustee, for
whose services the Company shall be obligated to pay the fees and expenses;
(e) to employ legal counsel, brokers and other advisors, agents or
employees to perform services for the Trust Fund or to advise it with respect to
its duties and obligations under this Agreement and in connection with the
Trust, and to pay from the Trust Fund such compensation as it deems appropriate;
and
(f) generally to do all other acts which the Trustee deems necessary or
appropriate for the protection of the Trust Fund.
SECTION IV
INVESTMENTS
4.1 Investment in Company Stock. The assets of the ESOP Fund (as defined in
the Plan) shall be invested primarily in Company Stock, although up to 100% of
the
assets of the Trust Fund may be invested in Company Stock. To the extent that
Company contributions are made in Company Stock, the Trustee will be expected to
retain such Company Stock. To the extent Company contributions or dividends are
made in cash and are not used to pay principal or interest on an ESOP Loan (as
defined in Section 5) or to pay expenses of the Fund, the Trustee will, at the
direction of the Named Investment Fiduciary, acquire Company Stock either from
other shareholders or directly from the Company. The Trustee will pay adequate
consideration for all Company Stock it acquires (other than a contribution). If,
at the time of any purchase, Company Stock is not actively traded on an
established securities market, the amount of such consideration will be
determined by the Named Fiduciary, however, the Trustee may also make such
determination or may retain, on the Company's behalf and at the Company's
expense, an independent fiduciary to make such a determination, in either case,
on the basis of the advice provided by an independent appraiser selected by the
Trustee or independent fiduciary, as applicable, and the Company shall be
obligated to pay the fees and expenses of such independent appraiser.
If at the time Company Stock is to be purchased, the Company has
outstanding more than one class of Stock, the Named Investment Fiduciary shall
direct the Trustee as to which class of Stock shall be purchased (which class
shall satisfy Code section 409(e)).
To the extent consistent with the foregoing, at the direction of a Named
Fiduciary, the Fund may hold temporary investments other than Company Stock, may
hold such portion of the Fund in such investments as may be required under the
investment diversification provisions of the Plan, may hold such portion of the
Fund uninvested as a Named Fiduciary directs for making, distributions under the
Plan, may invest assets of the Fund in short-term investments bearing a
reasonable rate of interest, including, without limitation, any common or
collective investment trust (including one established at the institution that
serves as Trustee hereunder or any of its affiliates) which provides for the
pooling of assets of plans described in section 401(a) of the Code and exempt
from tax under section 501(a) of the Code, the terms of which are incorporated
by reference,
4.2 Investment Management. The Named Investment Fiduciary shall manage the
investment of the Trust Fund except insofar as (a) the Named Investment
Fiduciary appoints a person (an "Investment Manager") who meets the requirements
of section 3(38) of ERISA to manage Trust assets, or (b) the Plan provides for,
and the Named Administrative Fiduciary elects to allow, Plan participant or
beneficiary direction of the investment of assets allocable under the Plan to
the accounts of such participants and beneficiaries.
In situation (a) above, the Company or the Named Investment Fiduciary may
appoint one or more Investment Managers, who may be affiliate(s) of the Trustee,
to direct the Trustee in the investment of all or a specified portion of the
assets of the Trust. The Named Investment Fiduciary shall notify the Trustee in
writing before the effective date of the appointment or removal of any
Investment Manager. If there is more than one Investment Manager whose
appointment is effective under the Plan at any one time, the
Trustee shall, upon written instructions from the Company or the Named
Investment Fiduciary, establish separate funds for control by each such
Investment Manager. The funds shall consist of those Trust assets designated by
the Company or the Named Investment Fiduciary.
In situation (b) above, a list of the participants and beneficiaries and
such information concerning them as the Trustee may specify shall be provided by
the Company or the Named Administrative Fiduciary to the Trustee and/or such
other person(s) as are necessary for the implementation of the participants'
directions in accordance with procedures reasonably acceptable to the Trustee
and the Named Administrative Fiduciary.
4.3 Investment Directions. Directions for the investment or reinvestment of
Trust Fund assets from the Named Investment Fiduciary, an Investment Manager or
a Plan participant or beneficiary, as the case may be, shall, in a manner and in
accordance with procedures reasonably acceptable to the Trustee and the Named
Administrative Fiduciary, be communicated to and implemented by, as the case may
be, the Trustee, the Trustee's designee or, with the Trustee's consent, the
broker/dealer designated for the purpose by the Company or the Named Investment
Fiduciary. Communication of any such direction to such a designee or
broker/dealer shall conclusively be deemed an authorization to the designee or
broker/dealer to implement the direction even though coming from a person other
than the Trustee.
If the Trustee does not receive written directions with respect to any part
of the Trust Fund subject to the Named Fiduciaries' direction (including,
without limitation, income, sale proceeds, or contributions), the Trustee shall,
pending receipt of such directions, be deemed to be directed to hold and invest
such amount in short-term securities or other such short-term investments that
the Trustee deems appropriate.
Except as required by ERISA, the Trustee shall have no duty to determine or
inquire into whether any directions received from the Named Fiduciaries in
accordance with the terms of this Agreement represent proper and lawful
decisions or result in prohibited transactions as defined in section 406 of
ERISA. The Trustee shall have no duty to review any investment to be acquired,
held or disposed of pursuant to such instructions from the Named Fiduciaries.
Except as required by ERISA, the Trustee shall have no liability for following
or any other person's following such directions or failing to act in the absence
of any such directions. The Trustee shall have no liability for the acts or
omissions of any person directing the investment or reinvestment of Trust Fund
assets or making or failing to make any direction referred to in section 4.4.
Neither shall the Trustee have any duty or obligation to review any such
investment or other direction, act or omission or, except upon receipt of a
proper direction, to invest or otherwise manage any asset of the Trust which is
subject to the control of any such person or to exercise any voting or other
right referred to in Section 4.4.
4.4 Voting Rights
(a) With respect to Company Stock, each participant (or beneficiary) is,
for purposes of this Section 4.4(a), hereby designated a "named fiduciary"
(within the meaning of section 403(a)(l) of ERISA) with respect to the shares of
Company Stock allocated to his account and shall have the right to direct the
Trustee with respect to the vote of the shares of Company Stock allocated to his
or her account on each matter brought before any meeting of the stockholders of
the Company. Upon timely receipt of such directions from each participant (or
beneficiary), the Trustee shall on each such matter vote as directed by the
participant (or beneficiary) the number of shares (including fractional shares)
of Company Stock allocated to each participant's (or beneficiary's) account, and
except as otherwise required by ERISA, the Trustee shall have no discretion in
the matter
(b) With respect to all Trust Fund assets not described in section 4.4(a)
above, including shares of Company Stock not allocated to the accounts of
participants or beneficiaries, and, with respect to shares of Company Stock
where the Company (or any Employer) does not have a "registration-type class of
securities" (as described in Section 409(e)(4) of the Code), for matters that
the Plan does not pass through to participants (or beneficiaries), the voting
and other rights in Company Stock, securities or other assets held a the Trust
shall be exercised by the Trustee solely as directed by the Named Investment
Fiduciary, Investment Manager or other person who at the time has the right to
direct the investment or reinvestment of the Company Stock, security or other
asset involved.
(c) The Company or Named Administrative Fiduciary shall establish a
procedure reasonably acceptable to the Trustee for the timely dissemination to
each person entitled to direct the Trustee or its designee as to voting or other
decision called for thereby or referred to therein of all proxy and other
materials hearing on the decision and a form requesting confidential directions
to the Trustee as to how the Trustee should vote or otherwise decide. In the
case of Company Stock, at such time as proxy or other materials bearing thereon
are disseminated generally to owners of Company Stock in accordance with
applicable law, the Company shall cause a copy of such proxy or other materials
to be delivered directly to the Trustee and, thereafter, shall promptly deliver
to the Trustee such number of additional copies of the proxy or other materials
as the Trustee may request.
(d) In the event a Plan participant or beneficiary or an Investment Manager
with the right to direct a voting or other decision with respect to any security
or other asset held in the Trust does not communicate any decision on the matter
to the Trustee or the Trustee's designee by the time prescribed by the Trustee
or the Trustee's designee for that purpose, or if the Trustee notifies the Named
Investment Fiduciary either that it does not have precise information as to the
securities or other assets involved allocated on the applicable record date to
the accounts of all participants and beneficiaries, or that time constraints
make it unlikely that participant, beneficiary or Investment
Manager direction, as the case may be, can be received on a timely basis, the
decision shall be the responsibility of the Named Investment Fiduciary and shall
be communicated to the Trustee on a timelv basis. In the event the Named
Investment Fiduciary with any right or responsibility under the Plan or
hereunder to direct a voting or other decision with respect to any security or
other asset held in the Trust does not, or is unable in accordance with ERISA,
communicate any decision on the matter to the Trustee or the Trustee's designee
by the time prescribed by the Trustee for that purpose or to the extent the
Trustee determines that the Trustee must exercise discretion with respect to any
decision, the Trustee may retain an independent fiduciary, on behalf of the
Company, to direct it as to the voting of Company Stock or other assets of the
Trust Fund, and the Company shall be obligated to pay the fees and expenses of
such fiduciary, including fees of any advisor to the independent fiduciary.
Except as required by ERISA, the Trustee shall follow all directions referred to
above in this section and shall have no duty to exercise voting or other rights
relating to any such Company Stock, security or other asset.
4.5 Tender and Exchange Offers. The provisions of this section 4.5 shall
apply in the event of a tender or exchange offer including, but not limited to,
a tender offer or exchange offer within the meaning of the Securities Exchange
Act of 1934, as from time to time amended and in effect, (hereinafter, a "tender
offer") for Company Stock is commenced by a person or persons.
The Trustee shall have no discretion or authority to sell, exchange or
transfer any of such shares pursuant to such tender offer except to the extent,
and only to the extent, provided in this Agreement. Each participant (or
beneficiary) is hereby designated a named fiduciary within the meaning of
section 403(a)(l) of ERISA with respect to the shares of Company Stock allocated
to his account. and shall have the right, to the extent of the number of whole
shares of Company Stock allocated to his account, to direct the Trustee as to
the manner in which to respond to a tender offer with respect to shares of
Company Stock.
The Company shall use its best efforts to timely distribute or cause to be
distributed to each participant (or beneficiary) such information as will be
distributed to stockholders of the Company in connection with any such tender
offer. The Trustee shall solicit confidentially from each participant (or
beneficiary) the directions described in this section as to whether shares are
to be tendered. The Trustee shall respond as instructed by each participant (or
beneficiary) with respect to such shares of Company Stock. The instructions
received by the Trustee from participants (or beneficiaries) shall be held by
the Trustee in confidence and shall not be divulged or released to any person,
including the Named Administrative Fiduciary or officers or employees of the
Company or any affiliated company.
With respect to (1) any shares of Company Stock allocated to a participant
or beneficiary's account for which the Trustee has not received timely
instructions from the participant (or beneficiary) as to the manner in which to
respond to such a tender offer. (2) unallocated shares of Company Stock, and (3)
fractional shares of Company Stock
allocated to participants' (or beneficiaries') accounts, such shares shall be
tendered or exchanged by the Trustee as directed by the Named Investment
Fiduciary. If the Named Investment Fiduciary fails, or is unable in accordance
with ERISA, to give such direction, or to the extent the Trustee determines that
the Trustee must exercise discretion with respect to any decision, the Trustee
may retain an independent fiduciary to direct it as to whether to tender or
exchange Company Stock, and the Company shall be obligated to pay the fees and
expenses of such fiduciary, including fees of any advisor to the fiduciary.
SECTION V
LEVERAGED ACQUISITIONS OF STOCK
The Named Fiduciary may from time to time direct the Trustee to incur
indebtedness (including indebtedness to the company) to purchase Company Stock
(an "ESOP Loan") on such terms and conditions as the Named Fiduciary shall
determine. Any such ESOP Loan shall meet all of the requirements necessary to
constitute an "exempt loan" within the meaning of section 4975(d)(3) of the code
and Treasury Regulation section 54.4975-7(b)(1)(iii) and shall be used primarily
for the benefit of the Plan participants and their beneficiaries.
Payments of principal and interest on any such ESOP Loan shall be made by
the Trustee (as directed by a Named Fiduciary) only from (1) Company
contributions made under the Plan for the purpose of satisfying such ESOP Loan
obligation, earnings on such contributions and earnings on shares of Stock
acquired with the proceeds of such ESOP Loan, (2) the proceeds of a subsequent
ESOP Loan made to repay a prior ESOP Loan, and/or (3) the proceeds of the sale
of collateralized shares of Company Stock acquired with the proceeds of such
ESOP Loan.
In the event of a default under an ESOP Loan, the value of Trust assets
transferred to the lender shall not exceed the amount of the default, provided
further that if the lender is a "party in interest" within the meaning of ERISA
section 3(14), a transfer of Trust assets upon default shall be made only if;
and to the extent of, the Trust's failure to meet the ESOP Loan's payment
schedule.
To the extent that the Trustee determines that the Trustee must exercise
discretion with respect to acts contemplated by this Section V, the Trustee may
retain an independent fiduciary, on behalf of the Company, to direct it as to
those acts, and the Company shall be obligated to pay the fees and expenses of
such fiduciary, including fees of any advisor to the fiduciary.
SECTION VI
PAYMENT OF BENEFITS, TRUSTEE'S COMPENSATION AND EXPENSES
6.1 Payments by Trustee. The Trustee shall pay benefits unde the Plan only
when it receives (and in accordance with) written instructions of the Named
Administrative Fiduciary, indicating the amount of the payment and the name and
address of the recipient. The Trustee shall have no duty to inquire into whether
any payment the Named Administrative Fiduciary instructs it to make is
consistent with the terms of the Plan or applicable law or otherwise proper. If
the Named Administrative Fiduciary advises the Trustee that benefits have become
payable respecting a participant's (or beneficiary's) interest in the Trust
Fund, but does not instruct the Trustee as to the manner of payment, the Trustee
shall hold the participant's (or beneficiary's) interest in the Trust until it
receives written instructions from the Named Administrative Fiduciary as to the
manner of payment. The Trustee shall not pay benefits from the Trust Fund
without such instructions, even though it may be informed from other sources,
including, without limitation, a participant (or beneficiary), that benefits are
payable under the Plan. The Trustee shall have no responsibility to determine
when, to whom, or in what amounts benefits are payable under the Plan,
The Trustee may pay any benefit or expense under the Plan by mailing
certificates representing shares of Company Stock and/or its check, as the case
may be, for the amount thereof to the person designated by the Named
Administrative Fiduciary as entitled to receive such payment to such address as
may have last been furnished to the Trustee by the Named Administrative
Fiduciary. If no such address has been so furnished, benefits or expenses may be
mailed by the Trustee to such person in care of the Company.
The Trustee is authorized to make any payments directed by court order in
any action in which the Trustee is a party or pursuant to a "qualified domestic
relations order" under section 414(p) of the Code or pursuant to a court order
pertaining to the enforcement of a federal tax levy or the collection by the
United States on a judgment resulting from an unpaid tax assessment. The
determination of whether a court order constitutes a "qualified domestic
relations order" shall be determined by the Named Administrative Fiduciary and
the Trustee shall have no authority to make such a determination. Except as may
otherwise be required by ERISA, the Trustee is not obligated to defend actions
in which the Trustee is named but shall notify the Company or Named
Administrative Fiduciary of any such action and may tender defense of the action
to the Company, the Named Administrative Fiduciary or the participant or
beneficiary whose interest is affected. The Trustee may in its discretion defend
any action in which the Trustee is named and any expenses, including reasonable
attorneys' fees, incurred by the Trustee in that connection shall be paid or
reimbursed from the Trust Fund to the extent permitted under ERISA.
6.2 Disputed Payment. If a dispute arises over the propriety of the
Trustee's making any payment from the Trust Fund, the Trustee may withhold the
payment until the dispute has been resolved by a court of competent jurisdiction
or settled by the parties to the dispute. The Trustee may consult legal counsel
and rely upon the advice of counsel.
6.3 Trustee's Compensation and Expenses. Except to the extent specifically
provided otherwise herein, the Trustee's compensation for its services under
this Trust Agreement shall be paid in accordance with the Trustee's fee schedule
currently in effect.
Without the written consent of the Company, the Trustee's fee schedule may not
be modified more than once every twelve months. Any compensation or expenses
incurred by the Trustee in connection with or relating to the performance of its
duties under this Trust Agreement or its status as Trustee, including reasonable
attorneys' fees shall be paid from the Trust Fund, unless the Company elects to
pay any of such compensation and expenses. If the Company does not so elect,
such compensation and expenses shall be charged against and withdrawn from the
Trust Fund as provided below.
The Trustee is authorized to charge the Trust Fund for and withdraw from
the Trust Fund, without direction from the Named Administrative Fiduciary or any
other person, the amount of any such fees or expenses 30 days after presentation
of a statement for such amount to the Company, except to the extent the Company
pays such amounts before such date. Trust Fund assets shall be applied to pay
such fees and expenses in the following priority by asset category to the extent
thereof held at the time of withdrawal in the Trust Fund subfund or account to
which the fee or expense is allocated: (i) uninvested cash balances; (ii) shares
of any money market fund or funds held in the Trust Fund; and (iii) any other
Trust Fund assets. The Trustee is authorized to allocate its fees and expenses
among these subfunds or accounts to which the fees or expenses pertain in such
manner as the Trustee deems appropriate under the circumstances unless prior to
such allocation the Company or the Named Administrative Fiduciary specifies the
manner in which the allocation is to be made. The Trustee is also authorized but
not required to sell any shares or other assets referred to above to the extent
necessary for the purpose.
By signing this Trust Agreement, the Company authorizes the Trustee and/or
its affiliates to receive payments from certain mutual funds (and/or collective
trusts) for which no affiliate of the Trustee acts as investment manager or
adviser (or from the principal distributors and/or advisors of those funds or
trusts), in connection with the performance of reasonable and necessary services
(including recordkeeping, subaccounting, account maintenance. administrative and
other shareholder services); provided such payments are properly made in
accordance with applicable law. Because different mutual funds (or collective
trusts) may be subject to different fee arrangements, the Company should contact
the Trustee or its designee to obtain further details on any specific fee
arrangements that may be applicable to investments under the Plan, and the
Trustee or its designee shall provide such information upon request.
6.4 Other Expenses.The Trustee is authorized upon direction from the Named
Administrative Fiduciary or any other person, to withdraw from the Trust Fund
and pay any federal, state or local taxes, charges or assessments of any kind
levied or assessed against the Trust or assets thereof. Until paid, such taxes
shall be a lien against the Trust Fund. The Trustee shall give notice to the
Named Administrative Fiduciary of its receipt of a demand for any such taxes,
charges or assessments. The Trustee shall not be personally liable for any such
taxes, charges or assessments.
Expenses incurred by the Company, the Named Administrative Fiduciary, the
Named Investment Fiduciary, any Investment Manager or any other persons
designated to act on behalf of the Company, the Named Administrative Fiduciary
or the Named Investment Fiduciary, including reimbursement for expenses incurred
in the performance of their respective duties, may be paid from the Trust Fund
upon the written direction to the Trustee by the Named Administrative Fiduciary.
SECTION VII
LIABILITY AND INDEMNITY
7.1 Trustee's Reliance. Unless the Trustee has actual knowledge to the
contrary, the Trustee shall have no duty to inquire whether directions by the
Company, the Named Administrative Fiduciary, the Named Investment Fiduciary or
any other person conform to the Plan, and the Trustee shall be fully protected
in relying on any such direction, communicated in accordance with procedures
acceptable to the Trustee and the Named Administrative Fiduciary, from any
person who is a proper person to give the direction. The Trustee shall be fully
protected in acting upon any instrument, certificate, or paper delivered by the
Company, the Named Administrative Fiduciary, any participant or beneficiary
(acting as a named fiduciary) and reasonably believed by the Trustee to be
genuine and to be signed or presented by the proper person or persons, and the
Trustee shall be under no duty to make investigation or inquiry as to any
statement contained in any such writing, but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein contained.
The Trustee shall have no liability to any participant, any beneficiary or
any other person for payments made, any failure to make payments, or any
discontinuance of payments, on direction of the Named Administrative Fiduciary,
the Named Investment Fiduciary or any designee of either of them or for any
failure to make payments in the absence of directions from the Named
Administrative Fiduciary or any person responsible for or purporting to be
responsible for directing the investment of Trust assets. The Trustee shall have
no obligation to request proper directions from any person. The Trustee may
request instructions from the Named Administrative Fiduciary or the Named
Investment Fiduciary and shall have no duty to act or liability for failure to
act if such instructions are not forthcoming. The Trustee shall have no
responsibility to determine whether the Trust Fund is sufficient to meet the
liabilities under the Plan, and shall not be liable for payments or Plan
liabilities in excess of the Trust Fund. The Trustee in its corporate capacity
shall not be liable for claims of any persons arising under the Plan.
7.2 Advice of Counsel The Trustee may consult with legal counsel with
respect to the meaning and construction of this Agreement or its powers, duties
and conduct hereunder.
Notwithstanding any other provision of this Agreement, the Trustee shall
not be required to take any action or refrain from taking any action that
violates ERISA, and for this purpose, the determination of whether such action
or inaction violates ERISA shall be determined by (a) a written opinion or
advice of counsel based upon such
counsel's interpretation of any statute or final regulation, or (b) an opinion
or order of a court of competent jurisdiction issued to the Plan, the Company or
the Trustee.
7.3 Other Fiduciaries. Each fiduciary of the Plan and the Trust shall be
solely responsible for its own acts or omissions. The Trustee shall have no duty
to question any other Plan fiduciary's performance of fiduciary duties allocated
to such other fiduciary pursuant to the Plan. The Trustee shall not be
responsible for the breach of responsibility by any other Plan fiduciary except
as provided under ERISA.
7.4 Indemnification. The Company hereby indemnifies the Trustee against,
and shall hold the Trustee harmless from, any and all loss, claims, liability,
and expense, including reasonable attorneys' fees, imposed upon the Trustee or
incurred by the Trustee as a result of any acts taken in accordance with the
directions from the Named Administrative Fiduciary, Named Investment Fiduciary,
Investment Manager or any other person specified herein, or any designee of any
such person, or by the failure to act due to a lack of direction from such
parties or by reason of the Trustee's execution of its duties with respect to
the Trust, including, but not limited to, its holding of assets of the Trust,
the Company's obligations in the foregoing regard to be satisfied promptly on
request by the Trustee, unless the loss, claim, liability or expense involved
resulted from the negligence or willful misconduct of the Trustee.
7.5 Protection of Designees. To the extent that any designee of the Trustee
is performing a function of the Trustee under this Trust Agreement, the designee
shall have the benefit of all of the applicable limitations on the scope of the
Trustee's duties and liabilities, all applicable rights of indemnification
granted hereunder to the Trustee and all other applicable protections of any
nature afforded to the Trustee, except as provided under ERISA.
SECTION VIII
ADMINISTRATION
8.1 Records. The Trustee shall maintain books of account and records with
respect to the Trust Fund. Except to the extent required by applicable law, the
Trustee shall not be required to maintain any separate records or accounts with
respect to any participant, and any records or accounts required to be
maintained pursuant to the Plan or to comply with ERISA shall be the
responsibility of the Named Administrative Fiduciary or its designee.
8.2 Accounting. Within 90 days following the close of each fiscal year of
the Plan or the effective date of the removal or resignation of the Trustee, the
Trustee shall file with the Named Administrative Fiduciary a written accounting
setting forth all transactions since the end of the period covered by the last
previous accounting. The accounting shall include a listing of the assets of the
Trust showing the value of such assets at the close of the period covered by the
accounting. On direction of the Named Administrative Fiduciary, and if
previously agreed to by the Trustee, the Trustee shall
submit to the Named Administrative Fiduciary interim valuations reports or other
information pertaining to the Trust.
The Named Administrative Fiduciary may approve the accounting by written
approval delivered to the Trustee. Any such affirmative approval shall be
binding on the Company, the Named Administrative Fiduciary, the Named Investment
Fiduciary and, to the extent permitted by ERISA, all other persons, and such
approval shall release and discharge the Trustee from any liability or
accountability to the Company and the Named Administrative Fiduciary with
respect to the transactions shown or reflected on the account.
8.3 Valuation. The assets of the Trust shall be valued a of each valuation
date under the Plan at fair market value as determined by the Trustee based upon
such sources of information as it may deem reliable, including, but not limited
to, stock market quotations, statistical evaluation services, newspapers of
general circulation, financial publications, advice from investment counselors
or brokerage firms, or any combination of sources. The Trustee may retain, on
the Company's behalf and at the Company's expense, an independent fiduciary to
make such a determination, in either case, on the basis of the advice provided
by an Independent Appraiser" (as described in section 401(a)(28)(C) of the Code)
selected by the Trustee or the independent fiduciary, as applicable, and the
reasonable costs incurred in establishing values of the Trust Fund shall be a
charge against the Trust Fund, unless paid by the Company. If there is no
generally recognized market (as described in section 3(l8)(A) of ERISA) for
shares of Company Stock, all valuations of shares of company stock shall be made
by an Independent Appraiser in accordance with section 3(l8)(B) of ERISA. If the
Department of Labor issues final regulations under ERISA regarding the valuation
of securities or other assets for purposes of the reports required by ERISA, the
Trustee shall use such valuation methods.
SECTION IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.1 Manner of Resignation or Removal. The Trustee may resign as Trustee
under this Agreement at any time by a written statement delivered to the Company
giving notice of such resignation, which shall be effective 60 days after
receipt or at such other time as is agreed by the Company and the Trustee. The
Trustee may be removed at any time by the Company by an instrument in writing
and delivered to the Trustee, which shall be effective 60 days after receipt or
at such other time as is agreed between the Company and the Trustee.
9.2 Appointment of Successor. Upon resignation or removal of the Trustee,
the Company shall appoint a successor trustee and shall deliver to the Trustee
copies of (a) a written instrument executed by the Company appointing such
successor, and (b) a written instrument executed by the successor in which it
accepts such appointment. Such instruments shall indicate their effective date.
9.3 Settlement of Account. Upon resignation or removal of the Trustee, the
Trustee shall have the right to a settlement of its account, which settlement
shall be made, at the Trustee's option, either by an agreement of settlement
between the Trustee and the Company or by a judicial settlement in an action
instituted by the Trustee. The Trustee shall not be obligated to transfer Trust
assets until the Trustee is provided written assurance by the Company that all
fees and expenses reasonably anticipated will be paid.
9.4 Termination of Responsibility and Liability. Upon settlement of the
account and transfer of the Trust Fund to the successor trustee, all rights and
privileges under this Trust Agreement shall vest in the successor trustee and
all responsibility and liability of the Trustee with respect to the Trust and
assets thereof shall, except as otherwise required by ERISA, terminate subject
only to the requirement that the Trustee execute all necessary documents to
transfer the Trust assets to the successor trustee.
SECTION X
AMENDMENT AND TERMINATION OF TRUST
10.1 Amendment. The Company reserves the right to amend this Trust
Agreement, provided that no amendment of this Trust Agreement or the Plan shall
be effective which would (a) cause any assets of the Trust Fund to be used for,
or diverted to, purposes other than the exclusive benefit of Plan participants
or their beneficiaries other than an amendment permissible under the Code and
ERISA, or (b) affect the rights duties, responsibilities, obligations or
liabilities of the Trustee without notice to the Trustee and the Trustee's prior
written consent. Subject to approval by the legal counsel of the Company, the
Company shall amend this Trust Agreement as requested by the Trustee to reflect
changes in law which counsel for the Trustee advises the Trustee require such
changes. Amendments to the Trust Agreement or a certified copy of the amendments
shall be delivered to the Trustee promptly after adoption, and if practicable
under the circumstances, any proposed amendment under consideration by the
Company shall be communicated to the Trustee to permit the Trustee to review and
comment thereon in due course before the Company acts on the proposed amendment.
10.2 Termination. The Trust may be terminated by the Company in accordance
with the Plan. Upon such termination, the Trust Fund shall be distributed by the
Named Administrative Fiduciary in accordance with the terms of the Plan.
SECTION XI
MISCELLANEOUS
11.1 Restriction on Alienation. Except as provided in section 6.1 or under
section 401(a)(13) of the Code, the interest of any Plan participant or
beneficiary in the Trust Fund shall not be subject to the claims of such
person's creditors and may not be assigned, sold, transferred, alienated or
encumbered. Any attempt to do so shall be void; and the Trustee shall disregard
any attempt. Trust assets shall not in any manner be liable
for or subject to debts, contracts, liabilities, engagement or tons of any Plan
participant or beneficiary, and benefits shall not be considered an asset of any
such a person in the event of the person's insolvency or bankruptcy.
11.2 Successors and Assigns. This Agreement shall be binding upon, and the
powers granted to the Company and the Trustee, respectively, shall be exercised
by the respective successors and assigns of the Company and the Trustee. Any
corporation which shall, by merger, consolidate, 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 the Company, be and
become successor trustee hereunder, upon notification to the Company.
11.3 Governing Law and Construction. This Trust Agreement and the Trust
shall be construed, administered and governed under ERISA and other pertinent
federal law, and to the extent that federal law is inapplicable, under the laws
of the state in which the Trustee is incorporated. If any provision of this
Trust Agreement is susceptible to more than one interpretation, the
interpretation to be given is that which is consistent with the Trust being a
qualified trust under section 401(a) of the Code. If any provision of this Trust
Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions shall continue to be fully effective to
the extent possible under the circumstances.
11.4 Equity Interest. Neither the creation of the Trust nor anything
contained in the Trust shall be considered as giving any person any equity
interest in the assets, business or affairs or the Company except to the extent
that the Trust Fund is invested in Company Stock.
11.5 Refunds to Company. The Trustee shall, upon the written direction of
the Named Administrative Fiduciary which shall include a certification that such
action is proper under the Plan, ERISA and the Code specifying any relevant
sections thereof, return to the Company any amount referred to in section
403(c)(2) of ERISA.
11.6 Authorized Action. Any action to be taken under this Trust Agreement
by a company or other person which is: (a) a corporation shall be taken by the
board of directors of the corporation or any person or persons duly empowered by
the board of directors to take the action involved, (b) a partnership shall be
taken by an authorized general partner of the partnership, and (c) a sole
proprietorship by the sole proprietor.
11.7 Text of Plan. The Company represents that, prior to the execution of
this Trust Agreement by both parties, it delivered to the Trustee's designee the
text of the Plan as in effect as of the date of this Trust Agreement. The
Company shall deliver to the Trustee promptly after adoption thereof a certified
copy of any amendment of the Plan.
11.8 Conflict with Plan. The rights, duties, responsibilities, obligations
and liabilities of the Trustee are as set forth in this Trust Agreement, and no
provision of the
Plan or any other document shall be deemed to affect such rights, duties,
responsibilities, obligations and liabilities, except as otherwise provided
herein. If there is a conflict between provisions of the Plan and this Trust
Agreement with respect to any subject involving the Trustee, including but not
limited to the responsibility, authority or powers of the Trustee, the
provisions of this Trust Agreement shall be controlling, except as otherwise
provided herein.
11.9 Failure to Maintain Qualification. If the Trust fails to qualify as a
qualified trust under section 401(a) of the Code, or loses its status as such a
qualified trust, the Company shall immediately so notify the Trustee, and the
Trustee shall, without further notice or direction, remove the Trust assets from
any common or collective trust fund maintained by the Trustee or its affiliate
for investments by qualified trusts.
11.10 Gender. As used in this Trust Agreement, the masculine gender shall
include the feminine and the neuter genders and the singular shall include the
plural and the plural the singular, as the context requires.
11.11 Headings. Headings and subheadings in this Trust Agreement are for
convenience of reference only and are not to be considered in the construction
of the provisions of the Trust Agreement.
11.12 Counterparts. This Trust Agreement may be executed in several
counterparts, each of which shall be deemed an original, and these counterparts
shall constitute one and the same instrument which may be sufficiently evidenced
by any one counterpart.
IN WITNESS WHEREOF, the Company and the Trustee have executed this Trust
Agreement each by action of a duly authorized person.
MERRILL LYNCH TRUST MORRISON HEALTH CARE, INC.
COMPANY (FLORIDA)
By: /s/ Melanie Madeira By: /s/ K. W. Engwall
---------------------- -----------------------
Name: Melanie Madeira Name: K. W. Engwall
Title: New Account Trust Officer Title: Senior Vice President, Finance