1
Ruby Tuesday, Inc. Deferred Compensation Plan Trust Agreement
WHEREAS, Employer maintains the Ruby Tuesday, Inc. Deferred Compensation
Plan (the "Plan"), which was established by indenture dated December 18, 1989,
to provide benefits in the form of deferred compensation to a select group of
highly compensated employees of the Employer or any of its related corporations
or businesses; and
WHEREAS, Employer desires to amend and restate the trust agreement
originally executed by and between Xxxxxxxx Restaurants, Employer's
predecessor-in-interest, and AmSouth Bank, N.A., dated December 1, 1992, which
agreement, as amended, contains the original terms of the Trust (the "Original
Trust Agreement"); and
WHEREAS, Employer further desires to amend and restate the existing trust
agreement executed by and between Employer and The Prudential Trust Company,
dated July 1, 1997, which agreement, as amended, contains the existing terms of
the Trust (the "Prior Trust Agreement"); and
WHEREAS, the Board of Directors of Employer has approved the amendment and
restatement of the Original and Prior Trust Agreements as embodied herein (the
"Trust");
WHEREAS, the Trust assets that shall be held therein shall be subject to
the claims of Employer's creditors in the event of the Employer's insolvency
until paid to Plan participants and their beneficiaries in such manner and at
such times as specified in the Plan; and
WHEREAS, it is the intention of the parties that the Trust shall constitute
an unfunded arrangement and shall not affect the status of the Plan as an
unfunded plan maintained for the purpose of providing deferred compensation for
a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974;
NOW, THEREFORE, Employer hereby restates the Trust, effective as of June 1,
2001, as follows:
Section 1 Incorporation of Plan
All terms and conditions set forth in the Plan are incorporated by
reference except to the extent that the terms of the Trust indicate to the
contrary. In the event of a conflict between the terms and provisions of
the Trust Agreement and those in the Plan, the terms and provisions of the
Trust Agreement shall be given precedence. However, nothing contained in
the Trust Agreement is intended to diminish the amount of the benefits
required to be paid for the benefit of any participant under the terms of
the Plan. To the extent possible, the terms and provisions of the Plan and
those of the Trust Agreement shall be interpreted as mutually consistent.
Section 2 Establishment of Trust
(a) Employer hereby deposits with Trustee in trust such cash and/or
marketable securities, if any, listed in Appendix A, which shall become the
principal of the Trust to be held, administered and disposed of by Trustee
as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Employer is the
grantor, within the meaning of subpart E, part 1, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of Employer and shall be used
exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. Plan participants and their beneficiaries
shall have no preferred claim on, or any beneficial ownership interest in,
any assets of the Trust. Any rights created under the Plan and this Trust
Agreement shall be mere unsecured contractual rights of Plan participants
and their beneficiaries against Employer. Any assets held by the Trust will
be subject to the claims of Employer's general creditors under federal and
state law in the event of Insolvency, as defined in Section 3(a) herein.
(e) The Employer, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with
Trustee to augment the principal to be held, administered and disposed of
by Trustee as provided in this Trust Agreement. Neither Trustee nor any
Plan participant or beneficiary shall have any right to compel such
additional deposits.
(f) The Trustee shall have no duty or authority to (i) require any deposits
to be made under the Plan or to Trustee; (ii) compute any amount to be
deposited under the Plan to Trustee; or (iii) determine whether amounts
received by Trustee comply with the Plan. Assets of the Trust may be held,
in Trustee's discretion, in an account with an affiliate of Trustee.
Section 3 Trustee Responsibility Regarding Payments to Trust Beneficiary
When Employer is Insolvent
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Employer is Insolvent. Employer shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Employer is unable
to pay its debts as they become due, (ii) Employer is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code; or (iii)
Employer is determined to be insolvent, or incapable of operating as a
going concern by any governmental agency having jurisdiction of the
Employer.
(b) At all times during the continuance of this Trust, as provided in
Section 2(d) hereof, the principal and income of the Trust shall be subject
to claims of general creditors of Employer under federal and state law as
set forth below.
(1) The Board of Directors and the Chief Executive Officer of Employer (or,
if there is no Chief Executive Officer, the highest ranking officer) shall
have the duty to inform Trustee in writing of Employer's Insolvency. If a
person claiming to be a creditor of Employer alleges in writing to Trustee
that Employer has become Insolvent, Trustee shall determine whether
Employer is Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Employer's Insolvency, or has
received notice from Employer or a person claiming to be a creditor
alleging that Employer is Insolvent, Trustee shall have no duty to inquire
whether Employer is Insolvent. Trustee may in all events rely on such
evidence concerning Employer's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning Employer's solvency. In determining whether the Employer is
Insolvent for purposes of this Trust, the Trustee may engage the services
of legal, accounting, financial and other advisors, which may be advisors
to the Employer, to assist it in the determination. The Employer agrees to
cooperate fully with any reasonable inquiry of the Trustee or such advisors
in making the determination of Employer's Insolvency. During the
determination of the Employer's Insolvency, the Trustee may, in its
discretion, suspend payment of benefits to the Employer or Participants. To
the extent that the Trustee engages the services of an advisor to the
Employer, the Trustee may rely, without further inquiry, on the written
determination of that advisor as to the solvency or insolvency of the
Employer. All costs reasonably incurred by the Trustee in making the
determination of Employer's Insolvency shall be reimbursed to the Trustee
by the Employer, and if not so reimbursed, shall be chargeable against the
Trust.
(3) If at any time Trustee has determined that Employer is Insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Employer's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Plan participants or their beneficiaries to
pursue their rights as general creditors of Employer with respect to
benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants or
their beneficiaries in accordance with Section 10 of this Trust Agreement
only after Trustee has determined that Employer is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Plan participants or their beneficiaries under the terms of the Plan for
the period of such discontinuance, less the aggregate amount of any
payments made to Plan participants or their beneficiaries by Employer in
lieu of the payments provided for hereunder during any such period of
discontinuance; provided that Employer has given Trustee the information
with respect to such payments made during the period of discontinuance
prior to resumption of payments by Trustee.
Section 4 Payments to Employer
Except as provided in Sections 3 and 10 hereof, Employer shall have no
right or power to direct Trustee to return to Employer or to divert to
others any of the Trust assets before all payment of benefits have been
made to Plan participants and their beneficiaries pursuant to the terms of
the Plan.
Section 5 Investment Authority
(a) Except as otherwise provided in this Agreement, The Trustee shall
administer the Trust as a nondiscretionary Trustee, and the Trustee shall
not have any discretion or authority with regard to the investment of the
assets of the Trust and shall act solely as directed by the Employer. The
Trustee, as may be directed by the Employer (or pursuant to the terms of
the Plan), is authorized and empowered, by way of limitation, with the
following powers, rights and duties, each of which the Trustee shall
exercise in a nondiscretionary manner as directed in accordance with the
direction of the Employer (or pursuant to the terms of the Plan):
(1) To invest and reinvest Trust assets, 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 Trustee), shares of mutual funds, guaranteed investment
contracts, bank investment contracts, other securities, policies 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);
(2) 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
Trustee or any of its affiliates, provided with respect to such deposits
with Trustee or an affiliate the deposits bear a reasonable interest rate;
(3) To hold, manage, improve, repair and control all property, real or
personal, forming part of the Trust; 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;
(4) To hold in cash, without liability for interest, such portion of the
Trust as is pending investment, or payment of expenses, or the distribution
of benefits;
(5) To take such actions as may be necessary or desirable to protect the
Trust from loss due to the default on bonds and 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, to direct such agent or trustee, or to delegate such power to
direct, and to remove such agent or trustee;
(6) To settle, compromise or abandon all claims and demands in favor of or
against the Trust;
(7) The 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 Trustee is incorporated as set forth above, so that the
powers conferred upon Trustee herein shall not be in limitation of any
authority conferred by law, but shall be in addition thereto;
(8) 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; and
(9) To maintain accounts at and execute transactions through any brokerage
or other firm, including any firm which is an affiliate of Trustee.
(b) Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by Employer. All rights associated with assets
of the Trust shall be exercised by Trustee or the person designated by
Trustee, and shall in no event be exercisable by or rest with Plan
Participants, except that voting rights with respect to Trust assets will
be exercised in accordance with the provisions of Section 16(g). Employer
shall have the right at anytime, and from time to time in its sole
discretion, to substitute assets of equal fair market value for any asset
held by the Trust. This right is exercisable by Employer in a nonfiduciary
capacity without the approval or consent of any person in a fiduciary
capacity.
(c) To the extent necessary or which it deems appropriate to implement its
powers under this Section or otherwise to fulfill any of its duties and
responsibilities as Trustee of the Trust, Trustee shall have the following
additional powers and authority:
(1) To register securities, or any other property, in its name or in the
name of any nominee, or to hold securities in bearer form, provided the
books and records of Trustee shall indicate at all times the true ownership
of such property, and to deposit any securities or other property in a
depository or clearing corporation;
(2) To designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel and
accountants as Trustee considers necessary or appropriate, any of whom may
be an affiliate of 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;
(3) To make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or appropriate for the accomplishment of any of the powers listed
in this Trust Agreement; and
(4) Generally, to do all other acts which Trustee deems necessary or
appropriate for the protection of the Trust.
Section 6 Investment Manager
(a) Prior to the date a Change of Control (as defined in Section 16(f)
hereof) occurs, Employer, and on or after the date a Change of Control
occurs, the Trustee, 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 assets
of the Trust for the exclusive benefit of the participants of the Plans and
their beneficiaries. Notwithstanding the foregoing, prior to the date a
Change of Control occurs, the Employer may appoint the Trustee (or any of
its affiliates) as an Investment Manager, if it is otherwise qualified to
serve as an Investment Manager and in such instance, the Trustee shall have
discretion over the investment of the assets of the Trust.
Employer 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
Manger was appointed to act hereunder and setting forth the investment
powers of the Investment Manger and (ii) a written instrument executed by
the Investment Manager in which it acknowledges that it has agreed to act
as such. Any notice of appointment pursuant to this Subsection shall
constitute a representation and warranty by the Employer 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 assets of the Trust for which it was appointed to act,
and shall have full power 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 16(g)). 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, any cash received by the Trustee from time to time shall be invested
by the Trustee in demand and term notes (including those commonly known as
"master notes") maturing not more than three years after the date of
purchase thereof, United States Treasury bills, other government and agency
obligations maturing not more than three years after the date of purchase
thereof, group annuity or other contracts providing a guaranteed rate of
return with a maturity not exceeding three years, certifications of
deposit, commercial paper, government guaranteed paper, common or
collective trust funds, money market mutual funds, other money market
instruments, savings accounts or other deposits with a financial
institution (including the Trustee, if a financial institution is serving
as such) and part interests in any one or more of the foregoing.
Employer 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 assets of the Trust 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 assets of the
Trust 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.
(b) The Trustee shall have no liability or responsibility to Employer or
any persons claiming any interest in the assets of the Trust 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 Trust managed
by an 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 Employer in writing thereof, and the
Trustee, except as required by applicable law, shall thereafter have no
responsibility to remedy such breach.
(c) Employer may, prior to a Change of Control, direct the Trustee in
writing to transfer any portion of the assets of the Trust to a subtrustee
and to enter into an agreement with the subtrustee reflecting the subtrust
arrangement. In the event of a Change of Control, Employer may only direct
the Trustee to transfer a portion of the assets of the Trust to a
subtrustee with the consent of a majority of the participants of the Plan
and the designated beneficiaries of deceased participants. The Trustee may
terminate a subtrust at any time and direct the subtrustee to return the
portion of the assets of the Trust held by the subtrustee; provided that
prior to a Change of Control the subtrust may only be terminated with the
consent of Employer.
Section 7 Investment Funds
(a) The assets of the Trust shall be invested in individual funds (each of
which is sometimes hereinafter referred to as an "Individual Fund"), with
varying investment objectives, as Employer shall from time to time
determine.
(b) Employer, in its sole discretion may, from time to time, establish one
or more additional Individual Funds, or may change or terminate the
availability of any then existing Individual Funds for all Members.
(c) The Trustee, to the extent directed, may purchase for an Individual
Fund any property of another Individual Fund which would then be
appropriate for purchase by that Individual Fund and may exchange property
of one Individual Fund for property of another Individual Fund if the
exchanged properties would be appropriate for the purchase by the
respective Individual Funds. Each purchase or exchange shall be made at the
fair market value of the property so purchased or exchanged.
(d) The authority, powers and duties of the Trustee as described in this
Trust Agreement shall be subject to and exercised only in a manner
consistent with any selection of Investment Funds by the Employer.
Section 8 Investment Direction by Members
(a) Subject to any other rules and restrictions as the Employer may
prescribe from time to time, with respect to amounts allocated to Employee
Deferred Accounts only, each Member may (1) direct that a portion or all of
his interest in one or more of the Investment Funds to be transferred to
one or more of the other Investment Funds or (2) change his election as to
the Investment Funds in which future contributions on his behalf to his
Employee Deferred Account shall be invested. The provisions of this Section
are contingent upon the availability of transfers among the Investment
Funds under the terms of the investments made by each Investment Fund. An
investment direction, once given, shall be deemed to be a continuing
direction until changed as otherwise provided herein.
(b) If no investment election is outstanding, all such contributions shall
be allocated to such Investment Fund as the Employer shall, in its sole
discretion, determine.
(c) Investment directions by Members shall be subject to the following:
(1) Investment directions by Members to the Employer shall be made in
the manner and pursuant to the rules established by the Employer
and shall indicate the manner in which contributions are to be
invested in, or the allocation of a Member's Account among, the
available Investment Funds.
(2) Directions provided to the Trustee shall remain in effect until
superseded by subsequent directions.
(d) Each direction under the preceding paragraphs received by the Employer
shall be promptly delivered to the Trustee, and shall be effective as to
the Trustee only when received by the Trustee. If a Member directs that all
or a portion of his Account be invested in a particular Investment Fund,
the Trustee shall use its best efforts to carry out the investment as soon
as practicable. However, the Trustee shall never be held liable for failure
to carry out an investment direction within the terms of the Trust if the
Trustee has made a bona fide effort to follow the direction.
(e) Any distribution to a Member pursuant to the Plan shall be pro rata
from each Investment Fund, except as otherwise directed by the Employer.
Section 9 Valuation and Allocation
(a) For all purposes under the Plan and the Trust, including particularly,
but without limitation, valuing the Trust assets and each Member's Account
and allocating to each member's Account its share of the net income or net
loss of the assets of the Trust, the following rules shall apply:
(1) Transfers or payments of funds or assets and the income, gain, loss, or
expenses attributable thereto between Investment Funds shall be deemed made
as of the Valuation Date coinciding with or immediately following the
actual receipt of transfer or payment instructions in good order, and the
funds or assets shall not be credited or charged after such date with any
earnings or losses of the Investment Fund from which transferred or paid
but shall be credited or charged after such date with any earnings or
losses of the Investment Fund to which transferred or paid.
(2) Transfers or payments from an Investment Fund to a Member or his
Beneficiary between Valuation Dates shall be charged against the interest
of the Member in the Investment Fund as of the Valuation Date coinciding
with or immediately following the actual receipt of transfer or payment
instructions in good order and contributions to an Investment Fund which
are allocated to the Account of a member between Valuation Dates shall be
credited to the interest of such Member in such Investment Fund as of the
Valuation Date coinciding with or immediately following the actual receipt
of transfer or payment instructions in good order.
(3) Fair market value of the assets of each Investment Fund shall be
determined separately and the net income or net loss of each Investment
Fund shall be determined separately.
(4) The value of a Member's Account, to the extent invested in Investment
Funds, shall be the sum of his proportionate interests in each of the
Investment Funds, and the aggregate net income or net loss allocated to a
Member's Account shall be the aggregate of the net income or net loss
allocated to his proportionate interests in each of the Investment Funds.
(b) Subject to the provisions of Subsections (c) and (d) below, the Trustee
shall as of each Valuation Date, and at such additional times as Employer
may in writing direct, determine the net income or net loss and the fair
market value of the assets in the Trust and each Investment Fund,
respectively, as determined below:
(1) To the cash income, if any, since the last Valuation Date, there shall
be added or subtracted, as the case may be, any net increase or decrease,
since the last Valuation Date, in the fair market value of the assets of
the Trust or Investment Fund, as applicable, since the last Valuation Date,
any gain or loss on the sale or exchange of the assets of the Trust or
Investment Fund, as applicable, since the last Valuation Date, accrued
interest since the last Valuation Date with respect to any interest-bearing
security as to which the purchaser would be required to pay the accrued
interest in addition to the quoted price, the amount of any dividend which
shall have been declared since the last Valuation Date but not paid on
shares of stock owned by the Trustee if the market quotation used in
determining the value of such shares is ex-dividend, and the amount of any
other assets of the Trust or Investment Fund determined by the Trustee to
be income since the last Valuation Date:
(2) From the sum thereof there shall be deducted all charges, expenses, and
liabilities accrued since the last Valuation Date which are proper under
the provisions of the Plan and the Trust and which in the discretion of the
Trustee are properly chargeable against income for the period.
(c) Notwithstanding Subsection (b) hereof, in the event than an Investment
Manager is designated by Employer, or the Trustee after a Change of
Control, and if the Investment Manager either directs the investment of or
itself invests any assets of the Trust, and if any of such assets are
non-listed securities or are not publicly traded or if the fair market
value of any of such assets cannot be readily determined, then the
Investment Manager shall determine the net income or net loss and the fair
market value of such assets and the Trustee shall be entitled to rely upon
such determination.
(d) In the event that an Investment Manager is designated by Employer, or
the Trustee after a Change of Control, and if the Trustee gives the
Investment Manager possession of any portion of the assets of the Trust,
then the Investment Manager shall determine the net income or net loss and
the fair market value of those assets and the Trustee shall be entitled to
rely upon the determination.
Section 10 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, Employer shall
maintain all records contemplated by the Plan.
(b) Employer shall furnish to the Trustee all the information necessary to
determine the benefits payable to or with respect to each Member in the
Plan, including any benefits payable after a Member's death. Employer 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
Employer refuses or neglects to provide any updated information as
contemplated herein, the Trustee shall rely upon the most recent
information furnished to it by Employer; provided, however, that on or
after a Change of Control, the Trustee shall rely in its discretion upon
(1) information furnished to it by the Employer prior to a Change of
Control, (2) information furnished to it by Employer on or after a Change
of Control and/or (3) any information received by it from a Member or
designated beneficiary unless the recipient actually knows that any such
information is false. The Trustee has not responsibility to verify
information provided to them by Employer or any Member or designated
beneficiary.
(c) Upon proper notification from Employer prior to a Change of Control or
upon an independent determination by the Trustee on or after a Change of
Control (based on such information as the Trustee shall be entitled to rely
upon pursuant to Subsection (b) above), when, in the opinion of Employer
prior to a Change of Control or Trustee on or after a Change of Control, as
applicable, a Member's benefits under the Plan have become payable,
Employer or Trustee, as applicable, shall notify the Member or the
beneficiary of a deceased Member and, if applicable, the Trustee. 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 or after making its determination, as applicable, the Trustee
shall commence distributions from the assets of the Trust in accordance
therewith to the person or persons so indicated.
(d) Employer shall have full responsibility for the payment of all taxes of
any nature levied, assessed or imposed upon the Assets of the Trust,
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 Member 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 Member or beneficiary has died or whether a
Member's rights under the terms of the Plan have been forfeited and shall
be entitled to rely upon information furnished by Employer. On or after a
Change of Control, the Trustee shall determine whether a Member's benefit
shall be deemed forfeited or whether a Member or beneficiary has died based
on information supplied under Subsection (b) hereof; provided, however,
that a certified death certificate received by the Trustee shall be
conclusive evidence of the death of any person regardless of the source of
such certificate.
(f) Nothing provided in this Trust Agreement shall relieve Employer of its
liabilities to pay the benefits provided under the Plan except to the
extent such liabilities are met by application of the assets of the Trust.
(g) In discharging its duties and responsibilities under this Section 10,
the Employer acknowledges that the Trustee may delegate such obligations to
one or more independent third parties. The fees and expenses incurred by
reason of any delegation effected by the Trustee pursuant to this
Subsection (g) shall be paid by the Employer, but, if not so paid, may be
paid by the Trustee from the Trust. The provisions of this Subsection (g)
are supplemental to, and are in no way in derogation of, any other
provisions of this Agreement concerning any authority of the Trustee to
delegate the performance of its other duties and responsibilities or any
other authority of the Trustee to pay fees and expenses from the Trust.
Section 11 Responsibility and Indemnity of Trustee
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by Employer which is
contemplated by, and in conformity with, the terms of the Plan or this
Trust and is given in writing by Employer. Trustee shall also incur no
liability to any person for any failure to act in the absence of direction,
request or approval from Employer which is contemplated by, and in
conformity with, the terms of this Trust. In the event of a dispute between
Employer and a party, Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) Employer agrees to indemnify and save harmless the Trustee against any
and all claims, losses, damages, expenses and liabilities the Trustee may
incur in the exercise and performance of the Trustee's powers and duties
hereunder, unless the same are determined to be due to negligence or
willful misconduct. If Trustee undertakes or defends any litigation arising
in connection with this Trust, Employer agrees to indemnify Trustee against
Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable
for such payments. If Employer does not pay such costs, expenses and
liabilities in a reasonably timely manner, Trustee may obtain payment from
the Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Employer generally) with respect to any of its duties or obligations
hereunder. Trustee may hire any agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
(d) Trustee shall have, without exclusion, all powers conferred on Trustees
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy
to a different form) other than to a successor Trustee, or to loan to any
person the proceeds of any borrowing against such policy.
(e) However, notwithstanding the provisions of Section 11(d) above, Trustee
may loan to Employer the proceeds of any borrowing against an insurance
policy held as an asset of the Trust.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure
and Administrative Regulations promulgated pursuant to the Internal Revenue
Code.
Section 12 Compensation and Expenses of Trustee
The compensation and expenses of the Trustee and the administrative
expenses of the Plan shall be paid from the assets of the Trust. Expenses
of the Trustee shall include the reasonable expenses and compensation of
third parties employed by the Trustee pursuant to Sections 6 and 11 hereof.
The Trustee shall be authorized to deduct its compensation and expenses
from the Trust and to deduct and pay other expenses no earlier than thirty
(30) days after it delivers an invoice for same to Employer.
Section 13 Resignation and Removal of Trustee
(a) Trustee may resign at any time by written notice to Employer, which
shall be effective 90 days after receipt of such notice unless Employer and
Trustee agree otherwise.
(b) Trustee may be removed by Employer on 90 days notice or upon shorter
notice accepted by Trustee
(c) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed as soon as practical after
expiration of the notice period described above.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with this Trust, by the effective date of resignation or removal
under Subsections (a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses
of the Trust.
(e) Upon settlement of the account and transfer of the Trust assets to the
successor Trustee, all rights and privileges under this Trust Agreement
shall vest in the successor Trustee and all responsibility and liability of
Trustee with respect to the Trust and assets thereof shall terminate
subject only to the requirement that Trustee execute all necessary
documents to transfer the Trust assets to the successor Trustee.
Section 14 Appointment of Successor
(a) If Trustee resigns or is removed in accordance with Section 13(a) or
(b) hereof, Employer may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers
under state law, as a successor to replace Trustee upon resignation or
removal. The appointment shall be effective when accepted in writing by the
new Trustee, who shall have all of the rights and powers of the former
Trustee, including ownership rights in the Trust assets. The former Trustee
shall execute any instrument necessary or reasonably requested by Employer
or the successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject
to Sections 8 and 9 hereof. The successor Trustee shall not be responsible
for and Employer shall indemnify and defend the successor Trustee from any
claim or liability resulting from any action or inaction of any prior
Trustee or from any other past event, or any condition existing at the time
it becomes successor Trustee.
(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 Employer. On or
after a Change of Control, the appointment of any successor Trustee shall
be made only with the consent of a majority of the Members of the Plan and
the designated beneficiaries of the deceased Members. 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 Employer 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 15 Amendment or 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 Employer,
provided, however, that no such amendment shall be effective to the extent
that it purports to make the Trust revocable. In addition, no such
amendment shall have the effect of reducing benefits accrued by Members
under the Plan, delaying the times at which distributions are made from the
Fund to Members and their beneficiaries or allowing the Employer or any
other person to receive distributions of the assets of the Fund not then
permitted under the terms of the Trust Agreement. On or after a Change of
Control, this Trust Agreement may only be amended with the consent of a
majority of the Members of the Plan and the designated beneficiaries of
deceased Members. 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 Employer or, if applicable, a majority of the
Members of the Plan and the designated beneficiaries of deceased Members
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 provision of the Trust Agreement to the
contrary, the Trust shall terminate and all Fund assets shall be
distributed (1) on the complete distribution of the Fund in accordance with
the terms and provisions of the Plan; (2) upon the delivery to the Trustee
of a writing terminating the Trust signed by the Employer, all Members of
the Plan and the designated beneficiaries of deceased Members; or (3) in
the event the Internal Revenue Service makes a final determination that the
assets of the Fund constitute compensation currently taxable as income to
Members. Any assets remaining in the Fund after satisfaction of all
liabilities and expenses of the Plan shall be returned to the Employer.
Section 16 Miscellaneous
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the state in which Trustee is incorporated as set forth
above.
(d) The provisions of Sections 2(d), 3(b)(3) and 10(b) of this Agreement
shall survive termination of this Agreement.
(e) The rights, duties, responsibilities, obligations and liabilities of
Trustee are as set forth in this Trust Agreement and no provision of the
Plan or any other documents shall affect such rights, responsibilities,
obligations and liabilities. If there is a conflict between provisions of
the Plan and this Trust Agreement with respect to any subject involving
Trustee, including but not limited to the responsibility, authority or
powers of Trustee, the provisions of this Trust Agreement shall be
controlling.
(f) As used in this Trust Agreement, the term "Change of Control" means any
event that pursuant to the requirements of Article X of Employer'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 Employer 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 Employer and "new directors" shall mean any director
whose election by the Board of Directors of Employer (in the event of
vacancy) or whose nomination for election by Employer'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 Employer to settle a
threatened or actual proxy contest shall in no event be deemed to be a new
director. The board of directors of Employer 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 (1) an alternative procedure
for taking such action is prescribed on or after a Change of Control, or
(2) 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 or 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 sixty (60) 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.
(g) Prior to a Change of Control, authority and responsibility with regard
to the voting of and control over any securities of Employer held in the
Trust shall be exercised as follows: (1) Employer shall direct the Trustee
in writing as to the manner in which such securities are to be voted; and
(2) all other decisions affecting such securities, including, limitation,
decisions to oppose or consent to tender or exchange offers, shall be
similarly directed by Employer. The Trustee shall take such steps as may be
necessary or appropriate to carry out the directions of Employer given
pursuant to this Subsection. On or after a Change of Control, voting and
all other decisions relating to the securities of Employer shall be made by
the Trustee, or if such securities are subject to the investment authority
of an Investment Manager, by that Investment Manager.
IN WITNESS WHEREOF, the parties have hereunto caused this Trust Agreement
to be duly executed.
Employer: Trustee:
Ruby Tuesday, Inc. UMB Bank, N.A.
By: /s/Xxxxxxxx X. Xxxxxxxx By: /s/ Xxx Xxxxxxx
