Exhibit 10.4
X. XXXX PRICE TRUST COMPANY
QUALIFIED PLAN TRUST AGREEMENT
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This TRUST AGREEMENT is made by and between SUNQUEST
INFORMATION SYSTEMS, INC., hereinafter referred to as the
"Employer," and X. XXXX PRICE TRUST COMPANY, a Maryland limited
trust company, hereinafter referred to as the "Trustee."
WITNESSETH
WHEREAS, the Employer has adopted the SUNQUEST INFORMATION
SYSTEMS, INC. AND AFFILIATES 401(k) PROFIT SHARING PLAN, a defined
contribution plan intended to be a qualified plan under Section
401(a) of the Internal Revenue Code ("Code"), which plan is
hereinafter referred to as the "Plan," for the benefit of all
those individuals eligible to participate under the Plan terms
(including beneficiaries and alternate payees), hereinafter
referred to individually as "Participant" and collectively as
"Participants;" and
WHEREAS, the Plan provides that the assets thereof be held,
in trust, by a trustee or trustees, subject to the provisions of a
trust agreement to be entered into between the Employer and a
trustee or trustees;
NOW THEREFORE, the Employer and the Trustee agree as follows:
ARTICLE I - TRUST FUND
1.1 Trust. The Employer hereby establishes with the Trustee, a
trust account or accounts ("Accounts") consisting of such sums of
U.S. currency and such other property acceptable to the Trustee as
shall from time to time be contributed to, paid or delivered to
the Trustee pursuant to this Trust Agreement at the address
specified by the Trustee. All such money and property, all
investments and reinvestments made therewith and proceeds thereof,
less any payments or distributions made by the Trustee pursuant to
the terms of this Trust Agreement are referred to herein as the
"Trust." The Trust shall be held by the Trustee in accordance
with the express provisions of this instrument and the
requirements of law. To the extent provided for in Section 403(b)
of the Employee Retirement Income Security Act of 1974 ("ERISA"),
this Trust excludes any Plan assets held by an insurance company.
1.2 Custody of Trust Assets. The Trustee is authorized to: (a)
hold property hereunder in bearer form or in its own name or the
name of its nominee; (b) combine certificates representing
investments of the Trust with certificates of the same issue held
by the Trustee or other fiduciaries; (c) hold securities in
definitive form on a segregated or nonsegregated basis or with a
correspondent bank or depository (or nominee of such bank or
depository); and (d) hold obligations of the United States
Government and agencies thereof on a book entry basis at the
appropriate Federal Reserve bank; provided, however, that the
Trustee may not serve as custodian or appoint or terminate a
custodian for any plan assets, as defined in ERISA and the
regulations thereunder, that are managed by an investment manager,
as defined in Section 3(38) of ERISA ("Investment Manager") that
is an affiliate of the Trustee. In all cases, the books and
records of the Trustee
shall, at all times, show that all such property and securities are held
in trust. The Trustee shall not hold any property or securities hereunder
in the same account as any individual property of the Trustee. The Trustee
is also authorized to appoint a subcustodian to perform any of the above
functions.
1.3 Limitations of Trustee's Duties. With respect to its duties
hereunder, the Trustee is a directed trustee and shall have no
duty to: (a) determine or enforce payment of any contribution due
under the Plan; (b) inquire into the accuracy of any contribution;
(c) determine the adequacy of the funding policy adopted by the
Employer to meet its obligations under the Plan; (d) look into the
propriety of any investment or distribution made under the Plan;
or (e) ensure the qualification of the Plan under the Code. The
Trustee shall not be deemed to be the administrator, the Plan
sponsor or a "named fiduciary" of the Plan as defined in Sections
3(16)(A), 3(16)(B) and 402(a)(2), respectively, of ERISA.
ARTICLE II - ACCOUNTS
2.1 Establishing Accounts. The Trustee shall open and maintain
an Account for the Plan.
2.2 Charges Against the Trust. Upon receipt of written
instructions from the Employer or the Retirement Committee of the
Plan ("Retirement Committee"), the Trustee shall charge the Trust
for any withdrawals or distributions made under the Plan and for
any administrative fees or expenses which may be charged against
the Trust assets. Excluding those fees set forth in Section 8.3 of
this Trust Agreement and the Plan's Recordkeeping Agreement, the
Employer or the Retirement Committee shall follow the procedures
in Exhibit A with respect to expenses to be charged to the Trust.
2.3 Custody of Participant Loan Documents. The Trustee shall
retain custody of original executed documents evidencing loans to
Participants made after September 1, 1999. The prior trustee
shall provide the Trustee with original executed documents
evidencing currently outstanding loans which loan documents were
executed prior to September 1, 1999. The Trustee shall retain
custody only for those loan documents which have been provided to
the Trustee by the prior trustee. The Employer, the Retirement
Committee or the prior trustee shall provide the Trustee with a
list of all outstanding loans made to Participants prior to
September 1, 1999.
ARTICLE III - INVESTMENT OF TRUST ASSETS
3.1 Investment of Trust Assets. The Trustee shall not have any
discretion, and is specifically prohibited from having or
exercising any discretion, with respect to the investment of Trust
assets. The Employer, the Retirement Committee, and any other
person so designated pursuant to Article X of the Plan shall be
the named fiduciaries ("Named Fiduciary", singularly); provided,
however that the Trustee shall not be considered a Named Fiduciary
for purposes of this Agreement and the Plan, and except as
provided in Section 3.5 (Participant Directed Investments), the
Employer or other designated Named Fiduciary shall be solely
responsible for giving the Trustee directions as to the investment
and disposition of the Trust assets, including but not limited to
guaranteed investment contracts, bank investment contracts,
synthetic investment contracts, certificates of deposit and
insurance company annuity contracts. The Trustee, unless it has
knowledge that an investment
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direction constitutes a violation of ERISA or any other applicable law, shall
be entitled to rely on such direction, and the Trustee shall not review any
securities or other assets or make suggestions with respect to the investment,
reinvestment, retention or disposition of any Trust assets. The
Trustee shall invest and reinvest the Trust's assets only as
directed and free from any limitations imposed by state law on
investments of trust funds and without distinction between income
and principal in any property, including, but not limited to,
common and preferred stocks, governmental obligations, equipment
trust certificates, participation certificates, investment
companies or trusts (including any investment company or trust
which has an investment management or other agreement with an
affiliate of the Trustee), collateral trust notes, savings and
time deposits, commercial paper (including participation in
variable amount notes), leasebacks, mortgages and other interests
in realty, corporate bonds, debentures, notes and other evidences
of indebtedness, secured or unsecured, non-income producing
securities or property, options and participation in any group or
common trust funds, including any such funds held or maintained by
the Trustee or an affiliate of the Trustee, for commingling assets
of participating trusts and exempt from Federal income tax,
including but not limited to, any group or common trust fund which
is qualified under the provisions of Section 401(a) of the Code or
any successor provisions thereto (the instrument of trust creating
any such qualified group or common trust fund, to the extent of
the Trust's equitable share thereof, being adopted hereby).
Notwithstanding any language in this Agreement to the contrary,
the Trustee will not serve as trustee for Plan assets invested in
the Verde Santa Fe Limited Partnership or the Sedona Diversified
Properties Limited Partnership (collectively, "Limited
Partnerships"). The trustee for the Limited Partnerships will
continue to be Xxxxxx X. Xxxxxxxxx pursuant to a trust agreement
between Sunquest Information Systems, Inc. and Xxxxxx X. Xxxxxxxxx
dated April 3, 1991.
3.2 Investment and Insurance Contracts. In the event that the
Trust holds assets consisting of bank investment contracts,
structured or synthetic investment contracts or insurance
contracts selected by the Employer ("Contracts"), the Trustee
shall not be liable for the refusal or inability of any insurance
company or financial institution to issue, change, pay proceeds or
make payments due under any Contract; for the form, terms,
genuineness, validity or sufficiency of any Contract; or for any
delay in payment or proceeds due under any Contract. The Trustee
shall not be responsible for evaluating or monitoring the
financial condition or status of any financial institution or
insurance company issuing any such Contract which the Trustee is
properly directed to hold or to purchase with assets of the Trust.
3.3 Plan Loans. At the direction of the Employer or Retirement
Committee, the Trustee shall invest assets of the Trust in loans
to Participants in accordance with procedures established by the
Retirement Committee. The Trustee shall accept as collateral for
each Participant loan only the appropriate amount of the
Participant's Plan account designated by the Plan document or
established policies. No asset, other than the Participant's Plan
account, can be pledged as collateral for any such loan. The
Trustee shall process all loan repayments and distributions of
loans in accordance with the directions of the Retirement
Committee.
3.4 Written Instruction. Any action of the Employer pursuant to
any provisions of this Trust Agreement shall be in writing, from
the Employer, and the Trustee shall be fully protected in relying
upon such written notification as actions of the Employer.
Written instructions shall include the electronic transmission of
information or data as mutually agreed upon by the Trustee
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and the Employer. If written instructions are not received by the
Trustee, or if such instructions are received but are deemed by
the Trustee to be unclear, the Trustee may elect to hold all or
part of any such contribution in cash, without liability for
rising security prices or distributions made, pending prompt
request for and receipt by it from the Employer of written
instructions or other clarification. If any contributions
received by the Trustee from the Employer are less than any
minimum which a directed investment requires, the Trustee may hold
the specified portion of such contributions in cash, without
interest, until such time as the proper amount has been
contributed so that the directed investment may be made. In such
event, the Trustee shall provide prompt notice. The Trustee shall
receive all directions or instructions in writing provided that
the Trustee may accept oral directions for purchases or sales from
the Employer or Participant with subsequent written confirmation.
3.5 Participant Directed Investments. When so instructed by the
Employer or Retirement Committee, the Trustee shall invest all or
any portion of the Trust as directed by Participants. The
Employer or other Named Fiduciary shall have the duty to select
and monitor all investment options made available to Participants
under the Plan. The Retirement Committee shall ensure that all
Participants who are entitled to direct the investment of Trust
assets allocated to their Plan accounts previously received or
receive a copy of all material describing such investment options
that is required by law. Delivery of investment directions by the
Retirement Committee in accordance with the instructions of a
Participant or by the Participant directly to the Trustee shall
entitle the Trustee to assume that the Participant has received
all such descriptive material. Each Participant who directs the
investment of Trust assets allocated to his Plan account shall be
solely and absolutely responsible for the investment, or
reinvestment of any such directed Plan investment held on his
behalf in the Trust, and, except as otherwise provided herein, the
Trustee shall not question any such direction, review any
securities or other such assets, or make suggestions with respect
to the investment, reinvestment, retention or disposition of any
such assets. The Trustee shall not have any liability or
responsibility for diversification of such assets, for any loss to
or depreciation of such assets because of the purchase, retention
or sale of assets in accordance with a Participant's direction,
and the Participant shall have sole responsibility for the overall
diversification, liquidity and prudence of the investments held on
his behalf in the Trust. If a Participant fails to direct the
investments of Trust assets held on his behalf, the Trustee shall
invest such assets in accordance with the written directions of
the Employer or other authorized Named Fiduciary.
3.6 Employer Directed Investments. The Employer, by written
direction to the Trustee, is authorized to designate all or a
portion of the Trust assets of which the Employer will direct
investments, and the Trustee may segregate such assets into one or
more separate Accounts or administer the Trust as one Account.
The Employer may direct the Trustee to invest all or a portion of
the Trust assets in securities which constitute qualifying
employer securities within the meaning of Section 407(d) of ERISA
("Qualifying Employer Securities"). Any such direction shall
include a certification by the Employer that the acquisition and
holding of such Qualifying Employer Securities does not constitute
a prohibited transaction under Section 406 of ERISA or Section
4975 of the Code. In the event the Employer shall employ or
appoint an Investment Manager to direct the Trustee with respect
to all or a portion of the Trust, the Employer will notify the
Trustee in writing of the appointment of an Investment Manager,
including its name and address. Whether or not the Trust is
segregated into separate Accounts, the Trustee shall invest
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such portion of the Trust as directed by the Employer or its duly
appointed Investment Manager. The Trustee shall have no duty to
question any action or direction of the Employer (provided that
such action or direction is signed by one of the individuals
indicated in Schedule A of this Agreement) or Investment Manager
or any failure of the Employer or Investment Manager to give
directions, or to review the securities or other investments which
are held pursuant to the Employer's or Investment Manager's
directions, or to make suggestions to the Employer or Investment
Manager as to the investment, reinvestment, retention or
disposition of any such assets. The Trustee shall not have any
liability or responsibility for diversification of such assets, or
for any loss to or the depreciation of such assets because of the
purchase, retention or sale of assets in accordance with the
Employer's or Investment Manager's direction. The Employer shall
have responsibility for the overall diversification of the Trust.
3.7 Self-Directed Individual Brokerage Accounts. At the
direction of the Employer, the Trustee will add Participant-
directed individual brokerage accounts as an investment in the
Trust available to Plan Participants. The Employer hereby directs
the Trustee that the following incidents of ownership of the
assets in a Participant's self-directed individual brokerage
account shall be exercised solely by the Participant: (a) vote in
person or by proxy, general or special, any such assets; (b)
exercise conversion privileges, subscription rights and other
options; and (c) participate in or dissent from reorganizations,
tender offers or other changes in property rights. Each
Participant shall be a named fiduciary within the meaning of
Section 403(a)(1) of ERISA for the purpose of exercising the above
rights and shall be deemed to have exercised the above rights with
respect to assets in the Participant's self-directed individual
brokerage account. The Trustee shall not have any right to vote,
tender or otherwise exercise any similar incidents of ownership of
investments held in a self-directed individual brokerage account.
The Retirement Committee hereby certifies that the Plan complies
with ERISA Section 404(c) and the regulations issued thereunder
and shall complete Exhibit B on an annual basis. The Trustee is
entitled to rely upon such certification without further
investigation. If, however, the Plan does not in fact meet the
requirements of ERISA Section 404(c) and the regulations issued
thereunder, the Employer shall be responsible for the exercise of
the above incidents of ownership of assets held in a Participant's
self-directed individual brokerage account.
3.8 Trustee's Responsibility with Respect to Directed Accounts.
The Trustee shall not be responsible for, and the Employer will
indemnify and hold harmless the Trustee (including its employees,
affiliates, representatives and agents) from and against, any
liability or expense (including counsel fees) because of: (a) any
investment action taken or omitted by the Trustee in accordance
with any direction of the Employer, an Investment Manager or a
Participant; or (b) any investment inaction in the absence of
investment directions from the Employer, an Investment Manager or
a Participant; or (c) any investment action taken by the Trustee
pursuant to an order to purchase or sell securities placed by the
Employer, an Investment Manager or a Participant directly with a
broker, dealer or issuer.
3.9 Limitations on Investments. Notwithstanding any other
provision of this Trust Agreement to the contrary:
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The Trustee may establish such reasonable rules and
regulations, applied on a uniform basis to all Participants, with
respect to the requirements for, and the form and manner of,
effecting any transaction with respect to Participant directed
investments as the Trustee shall determine to be consistent with
the purposes of the Plan. Any such rules and regulations shall be
binding upon all persons interested in the Trust.
In no event shall the Trustee engage in any transactions that
would be prohibited under ERISA, unless a Named Fiduciary
determines that an exemption is available.
3.10 "Knowledge" of Trustee. It is understood that although, when
the Trustee is subject to the direction of the Employer, the
Retirement Committee, another Named Fiduciary, an Investment
Manager or a Participant, the Trustee will perform certain duties
("Duties") with respect to the portion of the Trust subject to
such direction, subject to applicable law, such duties do not
involve the exercise of any discretionary authority to manage or
control Trust assets. Such Duties will be performed in the normal
course of business by employees of the Trustee, its affiliates or
agents who may be unfamiliar with investment management. It is
agreed that the Trustee is not undertaking any duty or obligation,
express or implied, to review, and will not be deemed to have any
knowledge of or responsibility with respect to, any transaction
involving the investment of the Trust as a result of the
performance of these Duties. Therefore, in the event that
"knowledge" of the Trustee shall be a prerequisite to imposing a
duty upon or determining liability of the Trustee under the Plan,
this Trust Agreement or any law regulating the conduct of directed
trustees with respect to the investment of trust assets, as a
result of any act or omission of the Employer, or any Participant,
or as the result of any transaction engaged in by any of them,
then the receipt and processing of investment orders and other
documents relating to Trust assets by an employee of the Trustee
or its affiliates or agents engaged in the performance of Duties
shall not alone constitute "knowledge" of the Trustee.
ARTICLE IV - DUTIES OF THE TRUSTEE
4.1 Duties of the Trustee. The Trustee is authorized and
empowered with respect to the Trust:
a) To make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted.
b) To register any investment held in the Trust in the name of
the Trustee or in the name of a nominee, and to hold any
investment in bearer form, but the books and records of the
Trustee shall at all times show that all such investments are part
of the Trust.
c) To employ suitable agents and counsel (who may also be agents
and/or counsel for the Employer) and to pay their reasonable
expenses and compensation out of the Trust.
d) The Trustee shall use its best efforts to trade Qualifying
Employer Securities as soon as an order is received and processed
by X. Xxxx Price Retirement Plan Services, Inc. Trade delays may
occur, however, due to stock market constraints or the liquidity
of the Qualifying Employer Securities.
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e) Solely at the written direction of the Employer, to borrow or
raise monies for the purpose of the Trust from any source and, for
any sum borrowed, to issue its promissory note as Trustee and to
secure the repayment thereof by pledging all or any part of the
Trust, but nothing contained herein shall obligate the Trustee to
render itself liable individually for the amount of any such
borrowing; and no person loaning money to the Trustee shall be
bound to see the application of money loaned or to inquire into
the validity or propriety of any such borrowing.
f) Each and all of the foregoing powers may be exercised without
a court order or approval. No one dealing with the Trustee need
inquire concerning the validity or propriety of anything that is
done or need see the application of any money paid or property
transferred to or upon the order of the Trustee.
4.2 Valuation of Trust. The Trustee, as of the valuation date
set forth in the Plan and at such other time or times as is
necessary or as the Trustee and the Employer agree, shall
determine the net worth of the assets of the Trust. The valuation
shall be based, without independent investigation, upon valuations
provided by Investment Managers, trustees of common trust funds,
sponsors of mutual funds and records of securities exchanges.
Notwithstanding the foregoing, the Trustee shall not be
responsible for providing the value of any Contracts, or for any
asset which is not liquid or not publicly traded, the value of
which shall be provided by the Employer. The Trustee may obtain
the opinions of qualified appraisers, as necessary in the
discretion of the Trustee, to determine the fair market value of
Qualifying Employer Securities, the fees of which appraiser shall,
unless paid by the Employer, be paid from the Trust.
4.3 Trust Records. The Trustee shall keep accurate and detailed
records of all receipts, investments, disbursements and other
transactions required to be performed hereunder with respect to
the Trust. The Trustee agrees to treat as confidential all
records and other information relative to the Trust. The Trustee
shall not disclose such records and other information to third
parties except to the extent required by law or as requested in
writing by the Employer.
4.4 Accounting. Within 90 days after the close of the Plan's
fiscal year or such other period as the Employer and the Trustee
may agree, and within 90 days after the resignation or removal of
the Trustee, as provided herein, the Trustee shall file with the
Employer a written account setting forth all investments,
receipts, disbursement and other transactions effected by it
during such fiscal year or during the period from the close of the
last fiscal year to the date of notice of such resignation or
removal. Except as otherwise proscribed by ERISA and except for
willful misconduct, negligence, knowing concealment, fraud, or
lack of good faith on the part of the Trustee, upon expiration of
180 days from the date of receipt of the report by the Employer,
the Trustee shall be released and forever discharged from all
liability or further accountability to the Employer for the
accuracy of such accounting and for the propriety of all acts and
the transactions of the Trustee clearly reflected in said account
to which the Employer has not specified written objections with
the Trustee within such 180 day period.
4.5 Distributions. At the direction of a representative of the
Retirement Committee authorized as designated in Schedule A of
this Agreement, the Trustee shall make distributions from the
Trust to the Participants. The Trustee shall not be liable or
responsible for any errors made by the
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Retirement Committee with respect to distributions. The Trustee shall
be entitled to rely conclusively upon the Retirement Committee directions.
Notwithstanding any other provision of the Trust Agreement, the
Trustee may condition its delivery, transfer or distribution of
any Trust assets upon the Trustee's receiving satisfactory
assurances that the approval of appropriate governmental agencies
or other authorities have been secured and that all notice and
other procedures required by applicable law have been satisfied.
4.6 Duties not Assigned. The duties of the Trustee with respect
to the Trust are limited to those assumed by the Trustee under the terms of
this Trust Agreement. The Trustee shall not be responsible for filing
reports, returns or disclosures with any government agency except as
may otherwise be required by its duties as Trustee under applicable law.
4.7 Standards for the Trustee's Powers. Notwithstanding any
other provision of this Trust Agreement, the Trustee shall
discharge its duties hereunder solely in the interest of the
Participants and for the exclusive purpose of providing benefits
to the Participants and defraying reasonable expenses of
administering the Trust, with the skill, care, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with
like aims. The Trustee shall perform its duties in accordance
with this Trust Agreement insofar as this Trust Agreement is
consistent with the provisions of ERISA. To the extent not
prohibited by ERISA, the Trustee shall not be responsible in any
way for any action or omission of the Employer or another Named
Fiduciary with respect to the performance of its duties and
obligations set forth in this Trust Agreement and in the Plan.
The Trustee may rely upon such information, direction, action or
inaction of the Employer or another Named Fiduciary as being
proper under the Plan or the Trust Agreement and is not required
to inquire into the propriety of any such information, direction,
action or inaction, provided that such information and direction
is from a representative of the Employer or another Named
Fiduciary as authorized in Schedule A of this Agreement. To the
extent not inconsistent with or not prohibited by ERISA, the
Trustee shall not be responsible for any action or omission of any
of its agents, or with respect to reliance upon advice of its
counsel (whether or not such counsel is also counsel to the
Employer), provided that such agents or counsel were prudently
chosen by the Trustee and that the Trustee relied in good faith
upon the action of such agent or the advice of such counsel.
ARTICLE V - DUTIES OF THE EMPLOYER
5.1 Duties of the Employer. It is understood that the Employer
shall be responsible for the performance of the following
functions with respect to the Trust:
a) Transmitting all Trust contributions made by or on behalf of
each Participant in accordance with the instructions of each
Participant to the Trustee at such times and in such manner as is
mutually agreed between the Employer and the Trustee.
b) Providing to the Trustee, on a timely basis, a copy of the
Plan document including all amendments and restatements.
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c) Determining that the contributions made by or on the behalf
of each Participant are in accordance with any applicable Federal
and state law and regulations.
d) Assuring that the Plan maintains qualified status under
applicable provisions of the Code.
e) Providing, or making arrangements to provide, the Trustee
with the value of any Contracts.
f) Determining the suitability of any investment offered as an
option in the Plan, including but not limited to Qualifying
Employer Securities.
g) Determining that loans to Participants are made in accordance
with ERISA section 408(b)(1).
h) Meeting any U.S. securities laws that may apply with respect
to offering Qualifying Employer Securities as an investment option
under the Plan. This includes, but is not limited to, registering
such stock with the Securities and Exchange Commission ("SEC") and
other government agencies, filing reports with the SEC and other
government agencies, and preparing prospectuses, proxy
solicitations and other similar materials.
5.2 Bonding. The Employer agrees to obtain and maintain a
fiduciary bond and to include as those covered by such bond the
employees of the Employer, the Retirement Committee and the
Trustee, including any of the Trustee's employees, officers and
agents required by law to be so covered. The cost of any such
bond shall be paid, to the extent permitted by applicable law, by
the Plan or by the Employer.
5.3 Information and Data to be Furnished to the Trustee. The
Employer shall furnish, or make arrangements to furnish, the
Trustee with such information and data relevant to the Plan as is
necessary for the Trustee to properly perform its duties assumed
hereunder, including but not limited to a copy of the Plan's
qualification letter from the Internal Revenue Service.
5.4 Qualified Domestic Relations Orders. It shall be the
responsibility of the Retirement Committee to determine whether
any domestic relations order is "qualified" in accordance with
Code Section 414(p). The Trustee will act only as directed by the
Retirement Committee with respect to the payment of benefits to an
alternate payee under any qualified domestic relations order.
ARTICLE VI - TERMINATION OF TRUST AGREEMENT
6.1 Resignation or Removal of Trustee. The Trustee may resign at
any time upon 90 days prior written notice to the Employer and may
be removed by the Employer at any time upon 90 days prior written
notice to the Trustee. If mutually agreed upon between the
parties, the advance notice may be waived or reduced. Upon
resignation or removal of the Trustee, the Employer shall appoint
a successor trustee. Upon receipt by the Trustee of written
acceptance of such appointment by the successor trustee, the
Trustee shall transfer and pay over to the successor the assets of
the Trust and
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all records (or copies) pertaining thereto. The Trustee is authorized,
however, to reserve such sum of money or property as it may deem
advisable for payment of all fees, compensation, costs and expenses, or
for payment of any liabilities constituting a charge on or against the
assets of the Trust or on or against the Trustee, with any balance of such
reserve remaining after payment of all such items to be paid over
to the successor trustee. Upon the assignment, transfer and
payment over of the assets of the Trustee, the Trustee shall be
released and discharged from any and all claims, demands, duties
and obligations arising out of the Trust and its management
thereof, excepting claims based only upon the Trustee's willful
misconduct or gross negligence. The successor trustee shall hold
the assets paid over to it under the terms similar to those of
this Trust Agreement under a trust that will qualify under Section
401(a) of the Code. If within 30 days after the Trustee's
resignation or removal, the Employer has not appointed a successor
trustee which has accepted such appointment, the Trustee shall
have the right to apply to a court of competent jurisdiction for
the appointment of such successor and for the determination of any
question of construction or instruction. If the Trustee fails to
receive a judgment or decree with respect to the appointment of a
successor trustee within 60 days of its initial filing with the
court, the Trustee may either terminate the Trust pursuant to
Section 6.2 hereof or appoint such successor trustee itself.
6.2 Termination of the Trust. Subject to the right of the
Trustee to terminate the Trust in accordance with this Section,
this Trust shall continue as to the Employer so long as the Plan
is in full force and effect. If the Plan ceases to be in full
force and effect, this Trust shall thereupon terminate unless
expressly extended by the Employer. Termination of the Trust
shall be effected by distribution of all assets thereof to the
Participants or other persons entitled thereto pursuant to the
directions of the Employer (or, in the absence of such direction,
as determined by the Trustee), subject to the Trustee's right to
reserve funds as provided in Section 6.1 hereof. Upon the
completion of such distribution, the Trustee shall be relieved
from all further liability with respect to all amounts so paid,
other than any liability arising out of the Trustee's willful
misconduct or gross negligence.
ARTICLE VII - PROXY VOTING
7.1 General Provisions. The Employer or another Named Fiduciary
shall direct the Trustee as to the manner in which the Trustee
shall:
a) vote in person or by proxy, general or special, any
securities held in the Trust;
b) exercise conversion privileges, subscription rights and other
options; and
c) participate in or dissent from reorganizations, tender offers
or other changes in property rights.
Notwithstanding the foregoing, the Trustee shall follow any
directions of the Employer or Participants in the performance of
these functions only to the extent that following such directions
would not violate the provisions of ERISA.
7.2 Receipt of Notices. Upon receipt, the Trustee shall transmit
to the Employer all notices of conversion, redemption, tender,
exchange, subscription, class action, claim in insolvency
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proceedings or other rights or powers relating to any investment
in the Trust, which notices are received by the Trustee from its
agents or custodian, from issuers of securities in question and
from the party (or its agents) extending such rights. The Trustee
shall have no obligation to determine the existence of any
conversion, redemption, tender, exchange, subscription, class
action, claim in insolvency proceedings or other right or power
relating to any investments in the Trust.
ARTICLE VIII - MISCELLANEOUS
8.1 Purpose. This Trust has been established for the exclusive
benefit of the Plan's Participants. Except as provided herein, it
shall be impossible at any time prior to the satisfaction of all
liabilities to the Participants for any part of the principal or
income of the Trust, other than such part as is required to pay
taxes, administrative expenses or refund contributions as provided
herein, to be paid or diverted to the Employer or to be used for
any purpose whatsoever other than for the exclusive benefit of the
Participants.
8.2 Indemnification and Hold Harmless. The Employer shall
indemnify and hold harmless the Trustee (including its affiliates,
employees, representatives and agents) from and against any
penalty, liability, cost or other expense, including, but not
limited to, the payment of attorneys' fees which the Trustee may
incur in connection with this Trust Agreement or the Plan, unless
such liability, cost or expense arises out of the Trustee's own
willful misconduct or negligence. The Trustee shall not be
obligated or expected to commence or defend any legal action or
proceeding in connection with this Trust Agreement unless agreed
upon in writing by the Trustee and Employer and unless the Trustee
is fully indemnified to its satisfaction for doing so.
8.3 Trustee's Fees. The Trustee's fees for performing its duties
hereunder shall be $2000.00 annually. The Trustee shall give 60
days advance written notice to the Employer whenever its fees are
changed or revised. Such fees, any taxes of any kind whatsoever
which may be levied or assessed upon the Trust, and any expenses
incurred by the Trustee in the performance of its duties,
including fees for legal services rendered to the Trustee, shall,
unless paid by the Employer, be paid from the Trust.
8.4 Conflict with the Plan Document. In the event of any
conflict between the provisions of the Plan document and this
Trust Agreement, the provisions of this Trust Agreement shall
prevail.
8.5 Construction. Whenever used in this Trust Agreement, unless
the context indicates otherwise, the singular shall include the
plural, the plural shall include the singular, and the male gender
shall include the female gender.
8.6 Headings. Headings in this Trust Agreement are inserted
solely for convenience of reference and shall neither constitute a
part of this Trust Agreement, nor affect its meaning, construction
or intent.
8.7 Severability. If any provision of this Trust Agreement is
held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision, and this Trust Agreement
shall be construed and enforced as if such provision had not been
included.
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8.8 Return of Contributions. Contributions are conditioned on
initial qualification of the Plan under Section 401(a) of the
Code, and if the Plan and Trust do not qualify, the Trustee shall
return such contributions to the Employer upon the Employer's
written direction. The Trustee shall also return amounts to the
Employer upon the Employer's written direction due to a "mistake
of fact" as described in Section 403(c) of ERISA. Contributions
made by the Employer by "mistake of fact" shall revert and be paid
to the Employer within one year after the payment of such mistaken
contributions, if the Employer so directs the Trustee in writing.
In making such a return of assets to the Employer, the Trustee
shall accept the Employer's written direction as its warranty that
such return is provided for in the Plan and complies with the Plan
document and ERISA Section 403(c), and the Trustee need make no
further investigation.
8.9 Nonalienation of Benefits. No rights or claims to any of the
monies or other assets of the Trust shall be assignable, nor shall
such rights or claims be subject to garnishment, attachment,
execution or levy of any kind; and any attempt to transfer, assign
or pledge the same, except as specifically permitted by law, shall
not be recognized by the Trustee.
8.10 Amendments. The Employer and the Trustee may amend this
Trust Agreement at any time by a written agreement between them;
provided, however, that no such amendment shall make it possible
for any part of the corpus or income of the Fund to be used or
diverted to purposes other than the exclusive benefit of
Participants and defraying reasonable expenses of administering
the Plan and Trust.
8.11 Surviving Sections. Notwithstanding any Sections of this
Trust Agreement to the contrary, Sections 4.7, 6.1, 6.2 and 8.2
shall survive the termination of this Trust Agreement.
8.12 Inspection of Plan Records by Employer. The Trustee agrees
to permit the Employer to inspect the records of the Trust
maintained by the Trustee during regular business hours and to
permit the Employer to audit the same upon the giving of
reasonable notice to the Trustee. The Trustee further agrees that
it will provide the Employer with information and records that the
Employer may reasonably require in order to perform audits of said
records.
8.13 Law Governing. This Trust Agreement shall be administered,
construed and enforced according to the laws of the State of
Maryland and applicable Federal law.
8.14 Merger, Consolidation or Transfer. In the event of the
merger, consolidation or transfer of any portion of the Trust to a
trust fund held under any other plan, the Trustee shall dispose of
all or part, as the case may be, of the Trust, in accordance with
the written directions of the Employer, subject to the right of
the Trustee to reserve funds as provided in Section 6.1 hereof.
8.15 Trustee as Successor Trustee. If the Trustee is acting as a
successor trustee with respect to the Trust, the Employer shall
indemnify and hold harmless the Trustee against all penalties,
liabilities, taxes, claims, cost or expense with respect to the
Trust arising prior to the appointment of the Trustee and its
acceptance thereof.
8.16 Successors and Assigns. This Trust Agreement shall be
binding upon the successor and assigns of the parties hereto.
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8.17 Effective Date. This Trust Agreement shall be effective as
of the date of September 1,1999.
8.18 Signature Authority and Conformity with the Plan. The person
executing this Trust Agreement on behalf of the Employer certifies
that he or she is duly authorized by the Employer consistent with
the terms of the Plan to do so. The Employer represents that
copies of all Plan documents as in effect on the date of this
Trust Agreement have been delivered to the Trustee.
IN WITNESS WHEREOF, the Employer and the Trustee have caused
their duly authorized officers to execute this Trust Agreement.
SUNQUEST INFORMATION SYSTEMS,
INC.
ATTEST:
/s/ Xxxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxx
---------------- -------------------
Exec VP
-----------------------
Title
8-31-99
-----------------------
Date:
X. XXXX PRICE TRUST COMPANY
ATTEST:
/s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
------------------- -------------------
Vice President
-----------------------
Title:
9-2-99
-----------------------
Date:
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EXHIBIT A TO
THE TRUST AGREEMENT BETWEEN
THE X. XXXX PRICE TRUST COMPANY AND
SUNQUEST INFORMATION SYSTEMS, INC.
Payment of Plan Expenses by the Plan Trust
Excluding Plan recordkeeping and Trustee fees, the Employer
shall submit to the Trustee all expenses to be charged to the Trust. Each
submission also shall include the following certification executed by
the appropriate Named Fiduciary:
I hereby certify that these expenditures reflect
administrative expenses solely for the SUNQUEST INFORMATION
SYSTEMS, INC. AND AFFILIATES 401(k) PROFIT SHARING PLAN ("Plan")
for the time period of __________ and that such expenses are
proper and reasonable.
Each submission shall also include an explanation of the
purpose of the expenditure (e.g. copying costs for the Summary
Plan Description) and an invoice, if possible.
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EXHIBIT B TO
THE TRUST AGREEMENT BETWEEN
THE X. XXXX PRICE TRUST COMPANY AND
SUNQUEST INFORMATION SYSTEMS, INC.
Certification of Compliance with ERISA Section 404(c)
and Applicable Regulations
The Retirement Committee shall certify the following in
writing at the beginning of each plan year:
I represent that I am a Named Fiduciary of the Sunquest
Information Systems, Inc. and Affiliates 401(k) Profit
Sharing Plan ("Plan"). In such capacity, I hereby certify that
the Plan is in compliance with ERISA Section 404(c) and the
Regulations issued thereunder.
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Schedule A
X. XXXX PRICE TRUST COMPANY
QUALIFIED PLAN TRUST AGREEMENT
between Sunquest Information Systems, Inc.
and X. Xxxx Price Trust Company
Re: Authorized Representatives
The following individuals shall be the exclusive Authorized
Representatives for purposes of providing directions on behalf of
the Employer and the Retirement Committee, respectively:
On behalf of the Employer:
--------------------------
Xx. Xxxxxx X. Xxxxxxxxx,
Chief Executive Officer
Xxxx X. Xxxxxxx
Chief Financial Officer
Executive Vice President,
Secretary and Treasurer
On behalf of the Retirement Committee:
--------------------------------------
Xxxx X. Xxxxxxx
Chief Financial Officer
Executive Vice President
Secretary and Treasurer
Xxxxx X. Xxxxx
Vice President of Finance
Xxxxxxx X. Xxxxxxxxx
AVP Finance
Xxxxx X. Xxxxxx
Senior Accountant
Sunquest Information Systems, Inc.
By: /s/ Xxxx X. Xxxxxxx Title: Exec VP
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Date: 8-31-1999
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