EXHIBIT 10.28
TRUST AGREEMENT
FOR THE
MORRISON HEALTH CARE, INC.
DEFERRED COMPENSATION PLAN
THIS TRUST AGREEMENT is made this 2nd day of October, 1997, by and among
MORRISON HEALTH CARE, INC., a corporation organized under the laws of the State
of Georgia (the "Primary Sponsor"), each related corporation or business
executing this Trust Agreement (the Primary Sponsor and each related corporation
or business being sometimes hereinafter referred to as a "Plan Sponsor"); and
MERRILL LYNCH TRUST COMPANY (FLORIDA) (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Primary Sponsor maintains the Morrison Health Care, Inc.
Deferred Compensation Plan (the "Plan"), which was established by indenture
dated March 7, 1996, to provide benefits in the form of deferred compensation to
a select group of management or highly compensated employees of the Primary
Sponsor or any of its related corporations or businesses; and
WHEREAS, the Primary Sponsor, by agreement dated March 7, 1996 established
an irrevocable grantor trust (the "Trust"), within the meaning of Section 671 of
the Internal Revenue Code of 1986, as amended (the "Code") to assist it and any
of its related corporations or businesses in meeting its obligations under the
Plan; and
WHEREAS, the Primary Sponsor desires to amend and restate the existing
trust agreement originally executed by and between Morrison Health Care, Inc.
and AmSouth Bank of Alabama, which agreement, as amended, contains the existing
terms of the Trust (the "Prior Trust Agreement"); and
WHEREAS, the Board of Directors of the Primary Sponsor has authorized the
amendment and restatement of the Prior Trust Agreement as embodied herein (the
"Trust Agreement");
NOW, THEREFORE, the Primary Sponsor hereby restates the Trust, effective
as of October 1, 1997, as follows:
SECTION 1.
GOVERNING INSTRUMENT
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 affect such rights, duties, responsibilities,
obligations and liabilities. In the event of a conflict between the terms and
provisions of the Trust Agreement and those of the Plan, the terms and
provisions of the Trust Agreement shall govern. However, nothing contained in
the Trust Agreement is intended to diminish the amount of benefits required to
be paid for the benefit of any participant under the terms of the Plan.
SECTION 2.
ESTABLISHMENT OF THE FUND
The Primary Sponsor has established a fund with the Trustee (the "Fund")
to be held and administered in accordance with this Trust. The Fund shall
consist of all assets as may be delivered by a Plan Sponsor to the Trustee and
reasonably accepted by the Trustee, and shall also include all income accruing
thereon, except as otherwise provided in this Trust Agreement. The Trustee shall
not be obligated to receive any assets unless prior thereto the Trustee has
agreed that such assets are reasonably acceptable to it and the Trustee has
received such reconciliation, allocation, investment or other information
concerning, or representations with respect to, such assets as the Trustee may
reasonably require.
SECTION 3.
INVESTMENT OF THE FUND
(a) Subject to the provisions of Subsections (b) and (c) below and Section
4 hereof, the Trustees shall invest the principal and income of the Fund without
distinction between principal and income in securities or in property, real or
personal and wherever situated, as the Trustee shall deem advisable, in its sole
discretion. Without limiting the foregoing, the Trustee may purchase, acquire,
retain, sell, transfer, pledge or encumber common or preferred stocks, including
stock of the Primary Sponsor or any affiliate, shares of mutual funds, including
mutual funds for which the Trustee is an advisor, trust and participation
certificates, bonds and mortgages, other evidences of indebtedness or ownership,
annuity contracts and ordinary and term life insurance contracts of life
insurance companies, savings accounts or plans, including savings accounts or
plans established or to be established by the Trustee, and group trusts or
collective investment funds including group trusts or collective investment
funds operated by the Trustee.
(b) The Fund shall be invested by the Trustee consistent with the overall
investment objectives of the Trust as identified by the Primary Sponsor and
communicated to the Trustee in writing from time to time and in the absence of
such communication, consistent with the objective of preservation of capital
(the "Investment Goals"). The Trustee shall incur no liability merely for a
failure to achieve the Investment Goals for any period; provided that during any
such period the Fund was invested in accordance with applicable fiduciary
standards and with a view towards achieving the Investment Goals.
(c) The Primary Sponsor may appoint one or more investment managers (the
"Investment Managers") which shall be banks, investment advisers registered
under the Investment Advisers Act of 1940, or insurance companies, to direct the
Trustee as to the investment of all or a portion of the Fund for the exclusive
benefit of the participants of the Plan and their beneficiaries. Notwithstanding
the foregoing, the Primary Sponsor may appoint the Trustee (or any of its
affiliates) as an Investment Manager, if the Trustee (or its affiliate) agrees
to such appointment and is otherwise qualified to serve as an Investment Manager
and in such instance, the Trustee (or its affiliate) shall have discretion over
the investment of the Fund, subject to the provisions of Subsection (b) above.
The Primary Sponsor shall notify the Trustee of the appointment of any
Investment Manager (other than the Trustee) under this Subsection by delivering
to the Trustee (i) an executed copy of an instrument under which the Investment
Manager was appointed to act hereunder and setting forth the investment powers
of the Investment Manager and (ii) a written instrument executed by the
Investment Manager in which it acknowledges that it has agreed to act as such
and accepts fiduciary status. Any notice of appointment pursuant to this
Subsection shall constitute a representation and warranty by the Primary Sponsor
that the Investment Manager is qualified under and has been appointed in
accordance with the provisions hereof. Notwithstanding anything herein contained
to the contrary, during the term of its appointment, the Investment Manager
shall have the sole responsibility for the investment and reinvestment of the
portion of the Fund for which it was appointed to act, and, subject to the
limitations on the types of appropriate investments set forth in Subsection (b)
hereof, shall have full power and responsibility in its discretion to direct the
Trustee with respect to the exercise by it of its investment powers, including
the voting of shares (except as otherwise provided by Section 13(d) hereof).
Pending receipt of instructions from any Investment Manager with respect thereto
and subject to any investment guidelines agreed to in writing from time to time
pursuant to Subsection (b) hereof, any cash received by the Trustee from time to
time shall be invested by the Trustee in a money market mutual fund designated
by the Primary Sponsor or the Investment Manager.
The Primary Sponsor may terminate its appointment of an Investment Manager
at any time and shall in writing notify the Trustee of such termination, and may
thereafter appoint a successor Investment Manager in the same manner as provided
above in this Subsection. Any successor Investment Manager shall thereafter,
until its appointment is terminated, be deemed to be an "Investment Manager" for
all purposes of this Agreement. If there shall be more than one Investment
Manager, the portion of the Fund to be invested by each Investment Manager shall
be held in a separate account and the powers and authority of each Investment
Manager shall be divided as set forth in the instruments appointing such
Investment Managers.
So long as an Investment Manager (other than the Trustee or one of its
affiliates) is serving as such, the Trustee shall be under no duty or obligation
to review the assets comprising any portion of the Fund managed by the
Investment Manager, to make any recommendations with respect to the investment
or reinvestment thereof, or to determine whether any direction received from any
Investment Manager is proper or within the terms of this Trust Agreement or to
monitor the activities of any Investment Manager.
(d) The Trustee shall have no liability or responsibility to the Primary
Sponsor or any persons claiming any interest in the Fund for acting without
question on the direction of, or for failing to act in the absence of any
direction from, any Investment Manager, unless the Trustee participated
knowingly in, or knowingly undertook to conceal, an act or omission of any
Investment Manager constituting a breach of its duties hereunder, knowing such
act or omission was a breach of such duties; provided, however, that the Trustee
shall not be deemed to have "participated" in a breach by any Investment Manager
for the purposes of this undertaking solely as a result of the performance by
the Trustee or its officers, employees or agents of any custodial, reporting,
recording, and bookkeeping functions with respect to any assets of the Fund
managed by any Investment Manager or solely as a result of settling purchase and
sale transactions entered into or directed by any Investment Manager, or to have
"knowledge" of any such breach solely as a result of the information received by
the Trustee or its officers, employees or agents in the normal course in
performing such functions or settling such transactions. If the Trustee has
actual knowledge of a breach committed by any Investment Manager, it shall
promptly notify the Primary Sponsor in writing thereof, and the Trustee, except
as required by applicable law, shall thereafter have no responsibility to remedy
such breach.
(e) In accordance with Section 5 below, the Primary Sponsor may from time
to time direct the Trustee in writing as to the specific investments of the Fund
and the Trustee shall invest and reinvest the principal and income of the Fund
in accordance with such directions. The Trustee shall have no liability or
responsibility to the Primary Sponsor or any other person claiming an interest
in the Fund for actions taken in accordance with such directions of the Primary
Sponsor.
SECTION 4.
POWERS OF THE TRUSTEE
In the administration of the Trust, in addition to any powers or authority
of the Trustee under this Trust or which the Trustee may have under applicable
law, the Trustee is authorized and empowered to do the following, without
advertisement, without order of court and without having to post bond or make
any returns or report of its doings to any court:
(a) To purchase or subscribe for any securities or property including,
without limitation, securities of a Plan Sponsor and real property leased to or
used by a Plan Sponsor;
(b) To sell, exchange, convey, transfer, or otherwise dispose of any
securities or property held by it, by private contract or at public auction,
with or without advertising, and no person dealing with the Trustee shall be
bound to see to the application of the purchase money or to inquire into the
validity, expediency or propriety of any disposition;
(c) Except as provided in Section 13(d) hereof, to vote any stocks, bonds
or other securities, including securities of the Plan Sponsor; to give general
or special proxies or powers of attorney with or without power of substitution;
to exercise any conversion privileges, subscription rights or other options, and
to make any payments incidental thereto; to oppose, consent to, or otherwise
participate in corporate reorganizations or other changes affecting corporate
securities, to
delegate discretionary powers, and to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers of an owner
with respect to securities or other property held as part of the Fund;
(d) To register any investment in its own name or in the name of a
nominee, and-to hold any investment in bearer form or through or by a central
clearing corporation maintained by institutions active in the national
securities markets, but the records of the Trustee shall at all times show that
all the investments are part of the Trust;
(e) To employ and act through suitable agents, accountants, appraisers,
actuaries and attorneys (who may be counsel for the Trustee) and to pay their
reasonable expenses and compensation, to consult with counsel (who, without
limitation, may be counsel to the Trustee).and shall be protected to the extent
the law permits in acting upon the advice of counsel in regard to legal
questions, and the Trustee shall periodically review the performance of the
persons to whom these duties have been delegated, but the Trustee shall not be
liable for relying upon the advice and expertise of any such person to the
extent permitted by law, provided the Trustee's decisions in selecting and
retaining such person were prudently made;
(f) To borrow or raise moneys for the purposes of the Trust in the
amounts, and upon the terms and conditions, as the Trustee in its discretion may
deem advisable; and for any sums borrowed to issue its promissory note as
Trustee, and to secure the repayment thereof by pledging all or any part of the
Trust; and no person lending money to the Trustee shall be bound to see to the
application of the money lent or to inquire into the validity, expediency or
propriety of any borrowing;
(g) To make, execute, acknowledge and deliver any documents of transfer
and conveyance and any other instruments or agreements that may be necessary or
appropriate to carry out the powers of the Trustee under the Trust or incidental
thereto;
(h) To settle, compromise or submit to arbitration any claims, debts or
damages due or owing to or from the Trust, to commence or defend any suits or
legal or administrative proceedings arising, necessary or appropriate in
connection with the Trust, the administration and operation thereof or the
powers or authority of the Trustee under the Trust, and to represent the Trust
in all suits and legal and administrative proceedings;
(i) To keep portions of the Trust in cash or cash balances as the Trustee
may deem to be in the best interest of the Trust;
(j) To register any investment in its own name or in the name of a
nominee, and to hold any investment in bearer form or through or by a central
clearing corporation maintained by institutions active in the national
securities markets, but the records of the Trustee shall at all times show that
all the investments are part of the Trust; and
(k) Generally, to do all acts and to execute and deliver all instruments
as in the judgment of the Trustee may be necessary or desirable to carry out any
powers or authority of the
Trustee.
SECTION 5.
INVESTMENT FUNDS
(a) The assets of the Fund shall be invested in mutual funds selected,
from time to time, by the Primary Sponsor and communicated in writing to the
Trustee and in a fund investing primarily in securities of the Primary Sponsor
as directed by the Primary Sponsor (each of which is sometimes hereinafter
referred to as an "Investment Fund"), which Investment Funds shall have varying
investment objectives, as the Primary Sponsor shall determine and communicate in
writing to the Trustee. The Primary Sponsor by written direction to the Trustee
may eliminate the availability of any Investment Fund; provided that on and
after a Change of Control, no Investment Fund in place immediately prior to the
Change of Control may be eliminated although the Primary Sponsor may designate
additional Investment Funds.
(b) Contributions shall be paid to the Trustee within a reasonable period
of time after the date that salary deferrals under the Plan otherwise would have
been paid to participants in an amount equal to said deferral amounts and any
corresponding matching contributions under the Plan shall be paid to the Trustee
at the same time.
(c) The Trustee shall be responsible for assets actually received by it as
Trustee and shall have no duty or authority to compute amounts to be contributed
or to review the computation of amounts to be contributed pursuant to this
Section.
SECTION 6.
DUTIES OF THE TRUSTEE
(a) Except for records dealing solely with the Trust and its investments
and disbursements, which shall be maintained by the Trustee, the Primary Sponsor
shall maintain all records contemplated by the Plan. The Trustee shall have no
responsibility to determine whether the Fund is sufficient to meet liabilities
under the Plan, and shall not be liable for payments or Plan liabilities in
excess of the assets held in the Fund.
(b) The Primary Sponsor shall furnish to the Trustee, in a form reasonably
acceptable to the Trustee, all the information necessary to determine the
benefits payable to or with respect to each participant in the Plan, including
any benefits payable after a participant's death. The Primary Sponsor shall from
time to time, and at least annually, and promptly upon the request of the
Trustee furnish updated information to the Trustee. In the event the Primary
Sponsor refuses or neglects to provide any updated information as contemplated
herein, the Trustee shall rely upon the most recent information furnished to it
by the Primary Sponsor; provided, however, that on or after a Change of Control,
where the Trustee does not have updated information or in the event the Trustee
is aware of a dispute between the Primary Sponsor and any participant or
beneficiary as to the amount or timing of benefits payable to the participant or
beneficiary, the Trustee shall rely upon a direction from the Designated
Accounting Firm (as defined below) to resolve the dispute. For purposes of this
Agreement, the term "Designated Accounting Firm" shall mean Ernst & Young
LLP or any other accounting firm subsequently communicated in writing to the
Trustee; provided, however, that no subsequent designation of an accounting firm
shall be given effect by the Trustee if the designation occurs after the
effective date of a Change of Control. The Trustee has no responsibility to
verify information provided to it by the Primary Sponsor or the Designated
Accounting Firm.
(c) When, in the opinion of the Primary Sponsor or Designated Accounting
Firm, as applicable, a participant's benefits under the Plan have become
payable, the Trustee shall be notified by the Primary Sponsor or the Designated
Accounting Firm, as applicable. Such notice shall include the amount of such
benefits, the terms of payment, the amount of any taxes required to be withheld
from such amount, and the name, address and social security number of the
recipient. Upon the receipt of a notification, the Trustee shall commence
distributions from the Fund in accordance therewith to the person or persons so
indicated and shall forward a check to the Primary Sponsor in the amount of the
applicable withholdings.
(d) The Primary Sponsor shall have full responsibility for the payment of
all taxes of any nature levied, assessed or imposed upon the Fund, including the
payment of all withholding taxes to the appropriate taxing authority and shall
provide the Trustee with such information as necessary to allow it to furnish
each participant or beneficiary with the appropriate tax information form
evidencing such payment and the amount thereof.
(e) Prior to a Change of Control, the Trustee shall have no responsibility
for determining whether any participant or beneficiary has died or whether a
participant's rights under the terms of the Plan have been forfeited and shall
be entitled to rely upon information and direction received from the Primary
Sponsor; provided, that on or after a Change of Control, in the event of a
dispute or lack of information, the Trustee shall rely on directions received
from the Designated Accounting Firm in accordance with Subsection (b) hereof.
(f) Nothing provided in this Trust Agreement shall relieve the Primary
Sponsor or any Plan Sponsor of its liabilities to pay the benefits provided
under the Plan except to the extent such liabilities are met by application of
Fund assets.
(g) Arbitration is final and binding on the parties. The parties waive
their right to seek remedies in court, including the right to jury trial. In
that regard, the parties acknowledge the following: (i) pre-arbitration
discovery is generally more limited than and different from court proceedings;
(ii) the arbitrators' award is not required to include factual findings or legal
reasoning and any party's right to appeal or seek modification of rulings by the
arbitrators is strictly limited; and (iii) the panel of arbitrators will
typically include a minority of arbitrators who were or are affiliated with the
securities industry.
The Primary Sponsor agrees that all controversies which may arise between
it and the Trustee (or any of its affiliates) with respect to obligations
arising under the Trust Agreement, including, but not limited to, those
involving any transactions, or the construction, performance, or breach of this
Agreement shall be determined by arbitration. Any arbitration under this
Agreement shall be conducted only before the New York Stock Exchange, Inc., the
American Stock Exchange,
Inc., or arbitration facility provided by any other exchange of which any
affiliate of the Trustee is a member, the National Association of Securities
Dealers, Inc, or the Municipal Securities Rulemaking Board, and in accordance
with the arbitration rules then in force. The Primary Sponsor may elect in the
first instance whether arbitration shall be conducted before the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., other exchange of which any
affiliate of the Trustee is a member, the National Association of Securities
Dealers, Inc. or the Municipal Securities Rulemaking Board, but if the Primary
Sponsor fails to make such election, by registered letter or telegram addressed
to Merrill Lynch Trust Companies, Employee Benefit Trust Operations, P.O. Box
30532, New Brunswick, New Jersey 08989-0532, before the expiration of five days
after receipt of a written request from the Trustee to make such election, then
the Trustee may make such election. Judgment upon the award of arbitrators may
be entered in any court, state or federal, having jurisdiction. No person shall
bring a putative or certified class action to arbitration, nor seek to enforce
any pre-dispute arbitration agreement against any person who has initiated in
court a putative class action, who is a member of the putative class who has not
opted out of the class with respect to any claims encompassed by the putative
class action until: (i) the class certification is denied; (ii) the class is
decertified; or (iii) the customer is excluded from the class by the court. Such
forebearance to enforce an agreement to arbitrate shall not constitute a waiver
of any rights under this Agreement except to the extent stated herein.
SECTION 7.
DISTRIBUTIONS FROM THE FUND
(a) Consistent with the provisions of Section 9 hereof, the Trustee is
authorized to pay from the Fund reasonable expenses of the Trustee, including
fees of accountants and legal counsel to the Trust, and the Trustee's
compensation.
(b) The Trustee shall make any distribution required pursuant to this
Trust Agreement by mailing its check or other evidence of payment (less
applicable withholdings) to the person to whom such distribution or payment is
to be made at such address as was last furnished to the Trustee or, if agreeable
to the Trustee and the Primary Sponsor and the affected participant and so
directed in a written notice to the Trustee by the Primary Sponsor or affected
participants, by crediting the account of such person or by transferring funds
to such person's account by bank or wire transfer. The Trustee shall not be
required to make any investigation to determine the whereabouts or mailing
address of any person. If the person to receive a distribution can not be found,
the Trustee shall hold payment or deposit same in a bank (including the Trustee,
if a financial institution is serving as such) for the credit of that person
without liability for interest thereon. If a check or other evidence of payment
of the benefit hereunder has been mailed to the last address of the person
furnished the Trustee and is returned unclaimed, the Trustee shall notify the
Primary Sponsor and shall discontinue further payments to the payee until it
receives instructions from the Primary Sponsor.
(c) The Trustee shall not be bound by any instruction, direction or notice
unless and until it has been received in writing by the Trustee and may rely
upon any instruction, direction or notice of a continuing nature until the
Trustee receives a writing which revokes that instruction, direction or notice.
The Trustee may without liability assume that any such
instruction, direction or notice is genuine unless it has actual knowledge
or, after receiving notification of a problem, has reasonably determined that
the instruction, direction or notice is not genuine.
(d) The Trustee shall not be responsible for the application of any assets
held as part of the Fund which have been distributed pursuant to the Plan and
the Trust Agreement.
SECTION 8.
CLAIMS OF CREDITORS
(a) The Fund assets shall be treated as general assets of the Plan Sponsor
and shall remain subject to claims of the general creditors of the Plan Sponsor
under applicable state and federal law. Nothing in the Trust Agreement shall
affect the rights of any participant as general creditor of the Plan Sponsor. No
participant shall have a preferred claim on or any beneficial ownership in the
Fund prior to the time for distribution to the participant under the terms of a
Plan or the terms of this Trust Agreement. In the event that the Plan Sponsor
becomes insolvent as described in Subsection (c) below, each participant shall
be deemed to waive any priority the participant may have under law as an
employee with respect to any claim against the Plan Sponsor and the Trust beyond
the rights the participant would have as a general creditor of the Plan Sponsor.
(b) Except as otherwise provided by Subsection (c) below, no benefit which
shall be payable under the Trust to any person shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of the same shall be void. No benefit
shall in any manner be subject to the debts, contracts, liabilities, engagements
or torts of any person, nor shall it be subject to attachment or legal process
for or against any person, except to the extent provided by Subsection C below
and as may otherwise be required by law.
(c) The board of directors of a Plan Sponsor shall immediately notify the
Trustee in writing of the insolvency of the Plan Sponsor. For purposes of this
Subsection (c), the term "insolvency" shall mean the inability of the Plan
Sponsor to pay its debts as they become due in the usual course of its business
or that the liabilities of the Plan Sponsor are in excess of its assets or the
Plan Sponsor becomes subject to a proceeding as a debtor under the United States
Bankruptcy Code. Upon receipt of the written notice, the Trustee shall suspend
all further payments to participants or their beneficiaries and shall hold the
assets of the Trust for the benefit of the creditors of the Plan Sponsor in the
manner directed by a court of competent jurisdiction. If the Trustee should
receive any written allegation of the insolvency of the Plan Sponsor, the
Trustee shall suspend payments to participants and hold the assets of the Trust
for the benefit of the creditors of the Plan Sponsor and, within a period of
sixty (60) days after the receipt of the written allegation, determine whether
the Plan Sponsor is insolvent. If the Trustee determines that the Plan Sponsor
is solvent, it shall immediately resume payments to the participants or their
beneficiaries. In the event that the Trustee has actual knowledge of the
insolvency of the Plan Sponsor, the Trustee shall hold the assets of the Trust
for the benefit of the creditors of the Plan Sponsor in the manner directed by a
court of competent jurisdiction. Unless the Trustee (i) has been notified in
writing by the board of directors of a Plan Sponsor of the insolvency of a Plan
Sponsor, (ii) has
received any written allegation of the insolvency of a Plan Sponsor or (iii) has
actual knowledge of the insolvency of a Plan Sponsor, the Trustee shall have no
duty to inquire whether a Plan Sponsor is insolvent.
SECTION 9.
FEES AND EXPENSES
The compensation and expenses of the Trustee shall be paid from the assets
of the Fund. Expenses of the Trustee shall include the reasonable expenses and
compensation of third parties employed by the Trustee pursuant to Section 4(f)
hereof. However, the expenses and compensation of the Designated Accounting Firm
shall not be payable from the Fund.
SECTION 10.
ACCOUNTS
(a) The Trustee shall keep such records as the Trustee considers necessary
for the management of the Trust. The Trustee's books and records of the Fund
shall be open to inspection by the Primary Sponsor and Designated Accounting
Firm during regular business hours of the Trustee.
(b) The Plan Sponsors shall maintain or cause to be maintained accounting
records for the Plan sufficient to allow the determination of the portion of the
Fund which is allocable to each of the Plan Sponsors. Irrespective of the
commingling of assets of the Plan for investment in the Fund, no portion of the
Fund which is allocable to any one of the Plan Sponsors shall be used to pay
benefits or discharge liabilities or obligations specifically allocable or
attributable, respectively, to any other Plan or any other Plan Sponsor.
(c) Within ninety (90) days after the close of each calendar year, the
date of the removal or resignation of the Trustee, or the termination of the
Trust, the Trustee shall render to the Primary Sponsor a written account and
report of its management of the Fund covering the period (or relevant portion
thereof if the written account and report becomes due on account of the removal
or resignation of the Trustee) since the previous such written account and
report. The written approval of that accounting and report by the Primary
Sponsor or the failure of the Primary Sponsor to notify the Trustee of its
disapproval of such accounting within ten (10) months after the end of the
relevant period shall be final and binding as to the Trustee's administration of
the Trust for the period upon the Primary Sponsor and all persons who have or
may thereafter have an interest in the Fund. The Trustee may satisfy its
obligation under this Subsection (c) by rendering to the Primary Sponsor monthly
statements setting forth the information required by this Subsection separately
for the month covered by the statement.
SECTION 11.
RESIGNATION, REMOVAL AND SUCCESSION
(a) The Trustee may resign at any time upon giving sixty (60) days' prior
written notice to the Primary Sponsor.
(b) The Trustee may be removed by the Primary Sponsor at any time upon
giving sixty (60) days' prior written notice to the Trustee; provided, however,
that in the event of a Change of Control, the Trustee may thereafter be removed
only after securing the written consent of a majority of the participants of the
Plan and the designated beneficiaries of deceased participants.
(c) Upon the removal or resignation of the Trustee, any successor
appointed shall have the same powers and duties as those conferred upon the
Trustee under this Trust. Prior to a Change of Control, the appointment of any
successor Trustee shall be in the sole discretion of the Primary Sponsor. On or
after a Change of Control, any successor Trustee shall be a bank or trust
company having assets under management (including assets under management by
affiliates) of not less than $1,000,000,000. Upon receipt by the Trustee of a
written acceptance of the appointment by the successor Trustee, the Trustee
shall transfer to the successor Trustee the assets constituting the Trust;
provided, however, the Trustee shall not be required to pay over assets to a
successor Trustee unless the Trustee shall be discharged from all liability for
any taxes which may be due and owing by the Trust, or unless the successor
Trustee, who must be acceptable to the Trustee, indemnifies the Trustee and the
Trustee in its sole discretion agrees to accept indemnification. In the event
that within ninety (90) days after the removal or resignation of the Trustee the
Primary Sponsor shall have failed to appoint a successor Trustee or the Trustee
shall not have received a written acceptance from a successor Trustee, then the
Trustee may file an appropriate action in a court of competent jurisdiction and
transfer to the custody of the court the assets then held by the Trustee
constituting the Trust. Upon transfer to a successor Trustee or to the court, as
the case may be, the Trustee shall be relieved of all further responsibilities
and liabilities in connection with the Trust. The Trustee is authorized,
however, to reserve therefrom any assets as it may deem advisable for payment of
its fees and expenses in connection with the settlement of its account or
otherwise, and any balance of the reserve remaining after the payment of the
Trustee's fees and expenses shall be paid over to the successor Trustee or to
the court.
SECTION 12.
AMENDMENT AND TERMINATION
(a) Prior to a Change of Control, the Trust Agreement may be amended any
time and to any extent by a written instrument executed by the Primary Sponsor,
provided, however, that no such amendment shall be effective to the extent that
it purports to make the Trust revocable. On or after a Change of Control, this
Trust Agreement may be amended any time and to any extent by a written
instrument executed by the Primary Sponsor, provided, however, no such amendment
shall diminish the authority of the Designated Accounting Firm, diminish the
obligation of the Trustee to follow the directions of the Designated Accounting
Firm or provide for the elimination of any Investment Fund. In addition, whether
before or after a Change of Control, no such amendment shall have the effect of
reducing benefits accrued by participants under the Plan, delaying the times at
which distributions are made from the Fund to participants and their
beneficiaries or allowing a Plan Sponsor or any other person to receive
distributions of the assets of the Fund not then permitted under the terms of
the Trust Agreement. No amendment that purports to increase the duties or
responsibilities of the Trustee or to alter materially the manner in which the
Trustee is to discharge any continuing duties or responsibilities shall be given
effect without the consent of the Trustee and no other amendment shall be given
effect without first providing notice of same to the Trustee. The Trustee and
Primary Sponsor may amend the Trust Agreement in any manner not otherwise
specifically precluded by this Subsection, including any amendment regarding the
removal of an existing Trustee or the appointment of a successor Trustee.
(b) Notwithstanding any other provisions of the Trust Agreement to the
contrary, the Trust shall terminate and all Fund assets shall be distributed (i)
on the complete distribution of the Fund in accordance with the terms and
provisions of the Plan; (ii) upon the delivery to the Trustee of a writing
terminating the Trust signed by the Primary Sponsor, all participants of the
Plan and the designated beneficiaries of deceased participants; or (iii) in the
event the Internal Revenue Service makes a final determination that the assets
of the Fund constitute compensation currently taxable as income to participants.
Any assets remaining in the Fund after satisfaction of all liabilities and
expenses of the Plan shall be returned to the Plan Sponsors.
SECTION 13.
MISCELLANEOUS
(a) The Trustee shall under no circumstances be required to recognize any
conveyance, transfer, assignment, mortgage, pledge or encumbrance by any
participant or any person entitled to receive benefits under the Plan, any part
of it, or any interest in it, or to pay any money or thing of value to any
creditor or assignee of any participant or person for any cause whatsoever;
provided, however, this Subsection (a) does not affect the provisions of Section
8 of the Trust Agreement.
(b) The Primary Sponsor hereby agrees to indemnify and hold harmless the
Trustee from and against any and all losses, claims, damages, liabilities, costs
and expenses, including but not limited to, liability for any judgments or
settlements consented to in writing by the Trustee, as applicable, which
consents will not be unreasonably withheld, and reasonable attorneys' fees
arising
out of or in connection with or as a direct or indirect result of its serving,
respectively, as the trustee (including but not limited to the Trustee's acts or
omissions with respect to (i) the voting of any share of stock held as part of
the assets of the Trust; (ii) establishing or maintaining investment funds or
effecting investments therein in accordance with the terms and provisions of the
Trust; or (iii) the determinations by the Trustee of insolvency or of a Change
of Control (including acts or omissions in accordance with the terms and
provisions of the Trust following any determination of insolvency or a Change of
Control); except those losses, claims, damages, liabilities, costs and expenses,
if any, arising out of or in connection with or as a direct or indirect result
of the Trustee's gross negligence or willful misconduct. The Trustee shall
promptly notify the Primary Sponsor of any claim, action or proceeding for which
it may seek indemnity. This indemnity is a continuing obligation and shall be
binding on the Primary Sponsor and its successors, whether by merger or
otherwise, and assigns. In addition, this indemnity shall survive the
resignation or removal of the Trustee, the liquidation of the Trust, or both
events. For purposes of this Subsection (b), all references to the Trustee shall
be deemed to include a reference to all affiliates of the Trustee and any
officer, director or employee of the Trustee or any of its affiliates.
(c) As used in this Trust Agreement, the term "Change of Control" means
any event that pursuant to the requirements of Article X of the Primary
Sponsor's Certificate of Incorporation, as amended from time to time, requires
the affirmative vote of the holders of not less than eighty percent (80%) of the
Voting Stock (as defined therein); provided, however, that no event shall
constitute a Change of Control if approved by the Board of Directors of the
Primary Sponsor a majority of whom are "present directors" and "new directors."
For purposes of the preceding sentence, "present directors" shall mean
individuals who as of the date of this Trust Agreement were members of the Board
of Directors of the Primary Sponsor and "new directors" shall mean any director
whose election by the Board of Directors of the Primary Sponsor (in the event of
vacancy) or whose nomination for election by the Primary Sponsor's stockholders
was approved by a vote of at least three-fourths of the directors then still in
office who are present directors and new directors; provided that any director
elected to the Board of Directors of the Primary Sponsor solely to settle a
threatened or actual proxy contest shall in no event be deemed to be a new
director. The board of directors of the Primary Sponsor shall immediately notify
the Trustee of the occurrence of a Change of Control. Upon receipt of such
written notice or in the event the Trustee has actual knowledge that a Change of
Control has occurred, the Trustee shall take no action nor facilitate the taking
of any action contemplated by the Trust Agreement as being taken prior to a
Change of Control if (i) an alternative procedure for taking such action is
prescribed on or after a Change of Control, or (ii) any action of the type
described is expressly limited to the period prior to a Change of Control. If
the Trustee should receive any written allegation to the effect that a Change of
Control has occurred, the Trustee shall take no action nor facilitate the taking
of any action described: in the immediately preceding sentence until making an
independent determination as to whether a Change of Control has occurred. The
Trustee shall make this determination within a period of thirty (30) days after
the receipt of the written allegation. Following the determination, the Trustee
shall discharge its duties under the Trust Agreement in a manner consistent with
that determination.
(d) The authority and responsibility with regard to the voting of and
control over any securities of a Plan Sponsor held in the Trust shall be
exercised by the Trustee pursuant to
directions in writing provided by the Primary Sponsor or Investment Manager. All
other decisions affecting such securities, including, without limitation,
decisions to oppose or consent to tender or exchange offers, shall be similarly
directed by the Primary Sponsor or the Investment Manager. The Trustee shall
take such steps as may be necessary or appropriate to carry out the directions
of the Primary Sponsor or Investment Manager, as applicable, given pursuant to
this Subsection.
(e) Whenever the context requires, words of the masculine gender used
herein shall include the feminine and the neuter, and the words used in the
singular shall include the plural.
(f) Each provision of the Trust Agreement is severable and if any
provision is found to be void as against public policy it shall not affect the
validity of any other provision hereof.
(g) The Trust Agreement shall be binding upon the successors and assigns
of each Plan Sponsor and the Trustee.
(h) The provisions of the Trust shall be construed according to the laws
of the State of Florida and, to the extent applicable, according to the laws of
the United States.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
PRIMARY SPONSOR:
MORRISON HEALTH CARE, INC.
By: /s/ John E. Fountain
------------------------------------------
Title:V.P., Secretary and General Counsel
ATTEST:
By: /s/ Henry Page
---------------------
Title: Director of Finance
[CORPORATE SEAL]
TRUSTEE:
MERRILL LYNCH COMPANY (FLORIDA)
By: /s/ Melanie Madeira
-------------------------------------
Title: New Account Trust Officer
ATTEST:
By: _____________________________
Title:_____________________________
[SEAL]