TRUST AGREEMENT
FOR THE
RUBY TUESDAY, INC.
DEFERRED COMPENSATION PLAN
THIS TRUST AGREEMENT is made this 1st day of July, 1997,
between RUBY TUESDAY, INC., a corporation organized under the laws
of the State of Georgia (the "Primary Sponsor"), each related
corporation or business executing this Trust Agreement (the Primary
Sponsor and each related corporation or business being sometimes
hereinafter referred to as a "Plan Sponsor"); and THE PRUDENTIAL
TRUST COMPANY, a Pennsylvania corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Primary Sponsor 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 management or highly
compensated employees of the Primary Sponsor or any of its related
corporations or businesses; and
WHEREAS, ▇▇▇▇▇▇▇▇ Restaurants Inc., as predecessor-in-interest
to the Primary Sponsor, by agreement dated June 16, 1988
established an irrevocable grantor trust (the "Trust"), within the
meaning of Section 671 of the Internal Revenue Code of 1986, as
amended (the "Code") to assist it and any of its related
corporations or businesses in meeting its obligations under the
Plan; and
WHEREAS, the Primary Sponsor desires to amend and restate the
existing trust agreement originally executed by and between
▇▇▇▇▇▇▇▇ Restaurants Inc. and AmSouth Bank N.A., dated December 1,
1992, which agreement, as amended, contains the existing terms of
the Trust (the "Prior Trust Agreement"); and
WHEREAS, the Board of Directors of the Primary Sponsor has
approved the amendment and restatement of the Prior Trust Agreement
as embodied herein (the "Trust Agreement");
NOW, THEREFORE, the Primary Sponsor hereby restates the Trust,
effective as of July 1, 1997, as follows:
SECTION I.
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
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 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 II.
ESTABLISHMENT OF THE FUND
The Primary Sponsor has established a fund with the Trustee
(the "Fund") to be held and administered in accordance with this
Trust. The Trustee shall accept as part of the Fund all assets as
may be delivered by a Plan Sponsor to the Trustee and shall also
include all income accruing thereon, except as otherwise provided
in this Trust Agreement; provided, however, the Trustee shall not
accept interests in real estate or limited partnerships.
SECTION III.
MAINTENANCE OF AND DISTRIBUTIONS FROM ACCOUNTS
A. The Plan Administrator shall maintain Accounts in
accordance with the Plan.
B. The Trustee may rely upon a notice given in accordance
with the Plan. The Trustee shall not be charged with any notice
unless given in accordance with the Plan, including notification of
any changes in the identity or authority of any person acting in
regard to the Plan.
SECTION IV.
INVESTMENT OF THE FUND
A. The Trustee shall have no authority with respect to the
investment and reinvestment of the Fund except upon receipt of
investment directions from the Primary Sponsor or otherwise
pursuant to the provisions of Subsection B below and Section VII,
the Trustee shall invest the principal and income of the Fund
without distinction between principal and income in securities or
in property, real or personal and wherever situated. Without
limiting the foregoing, the Trustee may purchase, acquire, retain,
sell, transfer, pledge or encumber common or preferred stocks,
including stock of the Primary Sponsor or any affiliate, shares of
mutual funds, including mutual funds for which the Trustee is an
advisor, trust and participation certificates, bonds and mortgages,
other evidences of indebtedness or ownership, annuity contracts and
ordinary and term life insurance contracts of life insurance
companies, savings accounts or plans, including savings accounts or
plans established or to be established by the Trustee, and group
trusts or collective investment funds including group trusts or
collective investment funds operated by the Trustee. If the
Trustee holds Fund assets for which it has not received
instructions, the Primary Sponsor hereby directs the Trustee to
invest such assets in the Investment Fund which best preserves
principal.
B. Prior to the date a Change of Control (as defined in
Section XVI.C hereof) occurs, the Primary Sponsor, 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 Fund 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 Primary Sponsor 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 Fund.
The Primary Sponsor shall notify the Trustee of the
appointment of any Investment Manager (other than the Trustee)
under this Subsection by delivering to the Trustee (i) an executed
copy of an instrument under which the Investment Manager was
appointed to act hereunder and setting forth the investment powers
of the Investment Manager and (ii) a written instrument executed by
the Investment Manager in which it acknowledges that it has agreed
to act as such. Any notice of appointment pursuant to this
Subsection shall constitute a representation and warranty by the
Primary Sponsor that the Investment Manager is qualified under and
has been appointed in accordance with the provisions hereof.
Notwithstanding anything herein contained to the contrary, during
the term of its appointment, the Investment Manager shall have the
sole responsibility for the investment and reinvestment of the
portion of the Fund for which it was appointed to act, and 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 XVI.D
hereof). Pending receipt of instructions from any Investment
Manager with respect thereto and subject to any investment
guidelines agreed to in writing from time to time, 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, certificates 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.
The Primary Sponsor may terminate its appointment of an
Investment Manager at any time and shall in writing notify the
Trustee of such termination, and may thereafter appoint a successor
Investment Manager in the same manner as provided above in this
Subsection. Any successor Investment Manager shall thereafter,
until its appointment is terminated, be deemed to be an "Investment
Manager" for all purposes of this Agreement. If there shall be more
than one Investment Manager, the portion of the Fund to be invested
by each Investment Manager shall be held in a separate account and
the powers and authority of each Investment Manager shall be
divided as set forth in the instruments appointing such Investment
Managers.
So long as an Investment Manager (other than the Trustee or
one of its affiliates) is serving as such, the Trustee shall be
under no duty or obligation to review the assets comprising any
portion of the Fund managed by the Investment Manager, to make any
recommendations with respect to the investment or reinvestment
thereof, or to determine whether any direction received from any
Investment Manager is proper or within the terms of this Trust
Agreement or to monitor the activities of any Investment Manager.
C. The Trustee shall have no liability or responsibility to
the Primary Sponsor or any persons claiming any interest in the
Fund for acting without question on the direction of, or for
failing to act in the absence of any direction from, any Investment
Manager unless the Trustee participated knowingly in, or knowingly
undertook to conceal, an act or omission of any Investment Manager
constituting a breach of its duties hereunder, knowing such act or
omission was a breach of such duties; provided, however, that the
Trustee shall not be deemed to have "participated" in a breach by
any Investment Manager for the purposes of this undertaking solely
as a result of the performance by the Trustee or its officers,
employees or agents of any custodial, reporting, recording, and
bookkeeping functions with respect to any assets of the Fund
managed by any Investment Manager or solely as a result of settling
purchase and sale transactions entered into or directed by any
Investment Manager, or to have "knowledge" of any such breach
solely as a result of the information received by the Trustee or
its officers, employees or agents in the normal course in
performing such functions or settling such transactions. If the
Trustee has actual knowledge of a breach committed by any
Investment Manager, it shall promptly notify the Primary Sponsor in
writing thereof, and the Trustee, except as required by applicable
law, shall thereafter have no responsibility to remedy such breach.
D. The Primary Sponsor may, prior to a Change of Control,
direct the Trustee in writing to transfer any portion of the Fund
to a subtrustee and to enter into an agreement with the subtrustee
reflecting the subtrust arrangement. In the event of a Change of
Control, the Primary Sponsor may only direct the Trustee to
transfer a portion of the Fund 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 Fund held by the subtrustee; provided that prior to
a Change of Control the subtrust may only be terminated with the
consent of the Primary Sponsor.
SECTION ▇.
▇▇▇▇▇▇ OF THE TRUSTEE
In the administration of the Trust, in addition to any powers
or authority of the Trustee under this Trust or which the Trustee
may have under applicable law, the Trustee is authorized and
empowered to do the following, without advertisement, without order
of court and without having to post bond or make any returns or
report of its doings to any court:
A. To purchase or subscribe for any securities or property
including, without limitation, securities of a Plan Sponsor and
real property leased to or used by a Plan Sponsor;
B. To sell, exchange, convey, transfer, or otherwise
dispose of any securities or property held by it, by private
contract or at public auction, with or without advertising, and no
person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency or propriety of any disposition;
C. Except as provided in Section XVI.D hereof, to vote any
stocks, bonds or other securities, including securities of the Plan
Sponsor; to give general or special proxies or powers of attorney
with or without power of substitution; to exercise any conversion
privileges, subscription rights or other options, and to make any
payments incidental thereto; to oppose, consent to, or otherwise
participate in corporate reorganizations or other changes affecting
corporate securities, to delegate discretionary powers, and to-pay
any assessments or charges in connection therewith; and generally
to exercise any of the powers of an owner with respect to
securities or other property held-as part of the Fund;
D. To register any investment in its own name or in the
name of a nominee, and-to hold any investment in bearer form or
through or by a central clearing corporation maintained by
institutions active in the national securities markets, but the
records of the Trustee shall at all times show that all the
investments are part of the Trust;
E. To write covered call options and to purchase or sell
put options and financial futures contracts;
F. To employ and act through suitable agents, accountants,
appraisers, actuaries and attorneys (who may be counsel for the
Trustee) and to pay their reasonable expenses and compensation, to
consult with counsel (who, without limitation, may be counsel to
the Trustee).and shall be protected to the extent the law permits
in acting upon the advice of counsel in regard to legal questions,
and the Trustee shall periodically review the performance of the
persons to whom these duties have been delegated, but the Trustee
shall not be liable for relying upon the advice and expertise of
any such person to the extent permitted by law, provided the
Trustee's decisions in selecting and retaining such person were
prudently made (it is specifically understood that the Trustee may
hire an independent accounting firm to assist in making any
insolvency determination and an independent law firm to assist in
making any Change in Control determination);
G. To borrow or raise moneys for the purposes of the Trust
in the amounts, and upon the terms and conditions, as the Trustee
in its discretion may deem advisable; and for any sums borrowed to
issue its promissory note as Trustee, and to secure the repayment
thereof by pledging all or any part of the Trust; and no person
lending money to the Trustee shall be bound to see to the
application of the money lent or to inquire into the validity,
expediency or propriety of any borrowing;
H. To make, execute, acknowledge and deliver any documents
of transfer and conveyance and any other instruments or agreements
that may be necessary or appropriate to carry out the powers of the
Trustee under the Trust or incidental thereto;
I. To settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust, to
commence or defend any suits or legal or administrative proceedings
arising, necessary or appropriate in connection with the Trust, the
administration and operation thereof or the powers or authority of
the Trustee under the Trust, and to represent the Trust in all
suits and legal and administrative proceedings;
J. To keep portions of the Trust in cash or cash balances
as the Trustee may deem to be in the best interest of the Trust;
K. To register any investment in its own name or in the
name of a nominee, and to hold any investment in bearer form or
through or by a central clearing corporation maintained by
institutions active in the national securities markets, but the
records of the Trustee shall at all times show that all the
investments are part of the Trust; and
L. Generally, to do all acts and to execute and deliver all
instruments as in the judgment of the Trustee may be necessary or
desirable to carry out any powers or authority of the Trustee.
SECTION VI.
INVESTMENT FUNDS
A. The assets of the Fund shall be invested in individual
funds (each of which is sometimes hereinafter referred to as an
"Individual Fund"), with varying investment objectives, as the
Primary Sponsor shall from time to time determine.
B. The Primary Sponsor, 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 Fund or Individual Funds for all Members.
C. Pursuant to directions from the Primary Sponsor, the
Trustee will keep a portion of the Fund in cash or cash balances as
required for the proper administration of Plan contributions and
disbursements, which amounts may be held in a separate suspense
account maintained by an affiliate of the Trustee. The expense of
operating and maintaining such suspense account will be charged
against earnings, if any, of such suspense account but will not
otherwise be charged back to the Fund to the extent expenses exceed
earnings. The Primary Sponsor and Trustee hereby acknowledge that
such earnings are never expected to exceed the expenses allocable
to the suspense account.
D. 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 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.
E. 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 Primary Sponsor.
SECTION VII.
INVESTMENT DIRECTION BY MEMBERS
A. Subject to any other rules and restrictions as the Plan
Administrator 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 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
Plan Administrator shall, in its sole discretion, determine.
C. Investment directions by Members shall be subject to the
following:
1. Investment directions by Members to the Plan
Administrator shall be made in the manner and pursuant to the
rules established by the Plan Administrator 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 Plan Administrator 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 Plan Administrator.
SECTION VIII.
VALUATION AND ALLOCATION
A. For all purposes under the Plan and the Trust, including
particularly, but without limitation, valuing the Fund and each
Member's Account and allocating to each Member's Account its share
of the net income or net loss of the Fund, 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 the Primary Sponsor may in writing direct, determine the
net income or net loss and the fair market value of the assets in
the Fund 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
Fund or Investment Fund, as applicable, since the last
Valuation Date, any gain or loss on the sale or exchange of
assets of the Fund 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 Fund 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 that
an Investment Manager is designated by the Primary Sponsor, 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 Fund, 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
the Plan Sponsor, 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 Fund, 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 IX.
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, each Plan Sponsor shall maintain all records contemplated
by the Plan.
B. Each Plan Sponsor 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. Each Plan Sponsor shall from time to time,
and at least annually, and promptly upon the request of the Trustee
furnish updated information to the Trustee. In the event the Plan
Sponsor refuses or neglects to provide any updated information as
contemplated herein, the Trustee shall rely upon the most recent
information furnished to it by the Plan Sponsor; 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 Plan Sponsor
prior to a Change of Control, (2) information furnished to it by
the Plan Sponsor 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 no responsibility to verify information
provided to them by the Plan Sponsor or any Member or designated
beneficiary.
C. Upon proper notification from the Plan Sponsor 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 the Plan Sponsor 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, the Plan Sponsor 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 Fund in accordance
therewith to the person or persons so indicated.
D. The Plan Sponsors shall have full responsibility for the
payment of all taxes of any nature levied, assessed or imposed upon
the Fund, including the payment of all withholding taxes to the
appropriate taxing authority and shall provide the Trustee with
such information as necessary to allow it to furnish each 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 the Plan Sponsor. 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 a
Plan Sponsor of its liabilities to pay the benefits provided under
the Plan except to the extent such liabilities are met by
application of Fund assets.
G. Each Plan Sponsor agrees that by the establishment of
this Trust it hereby forgoes any judicial review of any independent
determination by the Trustee as to the benefit payable to any
persons hereunder. If a dispute arises as to the amounts or timing
of any such benefits or the persons entitled thereto under the
Plans or this Trust Agreement, the Plan Sponsor agrees that such
dispute shall be resolved by binding arbitration proceedings
convened in Atlanta, Georgia and conducted in accordance with the
rules of the American Arbitration Association and that the results
of such proceedings shall be conclusive and shall not be subject to
judicial review. It is expressly understood that pending the
resolution of any such dispute, payment of benefits shall be made
and continued by the Trustee in accordance with its independent
determination and that the Trustee shall have no liability with
respect to such payments. The Plan Sponsor also agrees to pay the
entire cost of any arbitration or legal proceeding initiated by it
or by the Trustee or by any Member or beneficiary, including the
legal fees of the Trustee and the Member or other claimant
regardless of the outcome of any such proceeding.
SECTION X.
DISTRIBUTIONS FROM THE FUND
A. Consistent with the provisions of Section XII hereof,
the Trustee is authorized to pay from the Fund reasonable expenses
of the Trustee, including fees of accountants and legal counsel to
the Trust, and the Trustee's compensation.
B. The Trustee shall make any distribution required
pursuant to this Trust Agreement by mailing its check or other
evidence of payment to the person to whom such distribution or
payment is to be made at such address as was last furnished to the
Trustee or, if agreeable to the Plan Sponsor and the affected
Member and so directed in a written notice to the Trustee by those
parties, by crediting the account of such person or by transferring
funds to such person's account by bank or wire transfer. The
Trustee shall not be required to make any investigation to
determine the whereabouts or mailing address of any person. If the
person to receive a distribution can not be found, the Trustee
shall hold payment or deposit same in a bank (including the
Trustee, if a financial institution is serving as such) for the
credit of that person without liability for interest thereon. If a
check or other evidence of payment of the benefit hereunder has
been mailed to the last address of the person furnished the Trustee
and is returned unclaimed, the Trustee shall notify the Plan
Sponsor and shall discontinue further payments to the payee until
it receives instructions from the Plan Sponsor.
C. The Trustee shall not be bound by any instruction,
direction or notice unless and until it has been received in
writing by the Trustee and may rely upon any instruction, direction
or notice of a continuing nature until the Trustee receives a
writing which revokes that instruction, direction or notice. The
Trustee may without liability assume that any such instruction,
direction or notice is genuine unless it has actual knowledge or,
after receiving notification of a problem, has reasonably
determined that the instruction, direction or notice is not
genuine.
D. The Trustee shall not be responsible for the application
of any assets held as part of the Fund which have been distributed
pursuant to the Plan and the Trust Agreement.
E. If any dispute arises as to the persons to whom the
payment of any funds or delivery of any assets shall be made by the
Trustee, the Trustee may withhold payment or delivery until the
dispute has been determined by a court of competent jurisdiction or
has been settled by the parties concerned and may, in its sole
discretion, submit the dispute to a court of competent
jurisdiction.
SECTION XI.
CLAIMS OF CREDITORS
A. The Fund assets shall be treated as general assets of
the Plan Sponsor and shall remain subject to claims of the general
creditors of the Plan Sponsor under applicable state and federal
law. Nothing in the Trust Agreement shall affect the rights of any
Member as general creditor of the Plan Sponsor. No Member shall
have a preferred claim on or any beneficial ownership in the Fund
prior to the time for distribution to the Member under the terms of
a Plan or the terms of this Trust Agreement. In the event that the
Plan Sponsor becomes insolvent as described in Subsection C below,
each Member shall be deemed to waive any priority the Member may
have under law as an employee with respect to any claim against the
Plan Sponsor and the Trust beyond the rights the Member would have
as a general creditor of the Plan Sponsor.
B. Except as otherwise provided by Subsection C below, no
benefit which shall be payable under the Trust to any person shall
be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any
attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of the same shall be void. No
benefit shall in any manner be subject to the debts, contracts,
liabilities, engagements or torts of any person, nor shall it be
subject to attachment or legal process for or against any person,
except to the extent provided by Subsection C below and as may
otherwise be required by law.
C. The board of directors of a Plan Sponsor shall
immediately notify the Trustee in writing of the insolvency of the
Plan Sponsor. For purposes of this Subsection C, the term
"insolvency" shall mean the inability of the Plan Sponsor to pay
its debts as they become due in the usual course of its business or
that the liabilities of the Plan Sponsor are in excess of its
assets. Upon receipt of the written notice, the Trustee shall
suspend all further payments to Members or their beneficiaries and
shall hold the assets of the Trust for the benefit of the creditors
of the Plan Sponsor in the manner directed by a court of competent
jurisdiction. If the Trustee should receive any written allegation
of the insolvency of the Plan Sponsor, the Trustee shall suspend
payments to Members and hold the assets of the Trust for the
benefit of the creditors of the Plan Sponsor and, within a period
of sixty (60) days after the receipt of the written allegation,
determine whether the Plan Sponsor is insolvent. If the Trustee
determines that the Plan Sponsor is solvent, it shall immediately
resume payments to the Members or their beneficiaries. In the
event that the Trustee has actual knowledge of the insolvency of
the Plan Sponsor, the Trustee shall hold the assets of the Trust
for the benefit of the creditors of the Plan Sponsor in the manner
directed by a court of competent jurisdiction. Unless the Trustee
(1) has been notified in writing by the board of directors of a
Plan Sponsor of the insolvency of a Plan Sponsor, (2) has received
any written allegation of the insolvency of a Plan Sponsor or (3)
has actual knowledge of the insolvency of a Plan Sponsor, the
Trustee shall have no duty to inquire whether a Plan Sponsor is
insolvent. The Trustee is hereby authorized to request and rely on
a letter from the Primary Sponsor's independent auditors as to the
Primary Sponsor's financial status. The Primary Sponsor agrees to
exert its best efforts to promote the production of such letter
within thirty (30) days after receipt of a request from the
Trustee.
SECTION XII.
FEES AND EXPENSES
The compensation and expenses of the Trustee shall be paid
from the assets of the Fund. Expenses of the Trustee shall include
the reasonable expenses and compensation of third parties employed
by the Trustee pursuant to Section IV.F hereof. The Trustee shall
be authorized to deduct its compensation and expenses from the Fund
no earlier than thirty (30) days after it delivers an invoice for
same to the Primary Sponsor.
SECTION XIII.
ACCOUNTS
A. The Trustee shall keep such records as the Trustee
considers necessary for the management of the Trust. The Trustee's
books and records of the Fund shall be open to inspection by the
Plan Sponsor and Members during regular business hours of the
Trustee.
B. The Trustee may establish separate accounts within the
Fund for any group or category of the Plan as it determines
appropriate to maintain its books of accounts and other records in
accordance with the provisions of the Plan and the Trust Agreement.
The Plan Sponsors shall maintain or cause to be maintained
accounting records for the Plan sufficient to allow the
determination of the portion of the Fund which is allocable both to
each of the Plan Sponsors. Irrespective of the commingling of
assets of the Plan for investment in the Fund, no portion of the
Fund which is allocable to any one of the Plan Sponsors shall be
used to pay benefits or discharge liabilities or obligations
specifically allocable or attributable, respectively, to any other
Plan or any other Plan Sponsor.
C. Within ninety (90) days after the close of each calendar
year, the date of the removal or resignation of the Trustee, or the
termination of the Trust, the Trustee shall render to the Primary
Sponsor a written account of its management of the Fund covering
the period since the previous account and report. The written
approval of that accounting and report by the Primary Sponsor or
the failure of the Primary Sponsor to notify the Trustee of its
disapproval of such accounting within one hundred and eighty (180)
days after its receipt shall be final and binding as to the
Trustee's administration of the Trust for the period upon the
Primary Sponsor and all persons who have or may thereafter have an
interest in the Trust.
SECTION XIV.
RESIGNATION, REMOVAL AND SUCCESSION
A. The Trustee may resign at any time upon giving sixty
(60) days' prior written notice to the Primary Sponsor.
B. The Trustee may be removed by the Primary Sponsor at any
time; provided, however, that in the event of a Change of Control,
the Trustee may thereafter be removed only after securing the
written consent of a majority of the Members of the Plan and the
designated beneficiaries of deceased Members.
C. Upon the removal or resignation of the Trustee, any
successor appointed shall have the same powers and duties as those
conferred upon the Trustee under this Trust. Prior to a Change of
Control, the appointment of any successor Trustee shall be in the
sole discretion of the Primary Sponsor. On or after a Change of
Control, the appointment of any successor Trustee shall be made
only with the consent of a majority of the Members of the Plans and
the designated beneficiaries of 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
Primary Sponsor shall have failed to appoint a successor Trustee or
the Trustee shall not have received a written acceptance from a
successor Trustee, then the Trustee may file an appropriate action
in a court of competent jurisdiction and transfer to the custody of
the court the assets then held by the Trustee constituting the
Trust. Upon transfer to a successor Trustee or to the court, as
the case may be, the Trustee shall be relieved of all further
responsibilities and liabilities in connection with the Trust. The
Trustee is authorized, however, to reserve therefrom any assets as
it may deem advisable for payment of its fees and expenses in
connection with the settlement of its account or otherwise, and any
balance of the reserve remaining after the payment of the Trustee's
fees and expenses shall be paid over to the successor Trustee or to
the court.
SECTION XV.
AMENDMENT AND TERMINATION
A. Prior to a Change of Control, the Trust Agreement may be
amended any time and to any extent by a written instrument executed
by the Primary Sponsor, provided, however, that no such amendment
shall be effective to the extent that it purports to make the Trust
revocable. 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 a Plan Sponsor or any other person
to receive distributions of the assets of the Fund not then
permitted under the terms of the Trust Agreement. 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 Primary Sponsor 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 provisions 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 Primary Sponsor, 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 Plan Sponsors.
SECTION XVI.
MISCELLANEOUS
A. The Trustee shall under no circumstances be required to
recognize any conveyance, transfer, assignment, mortgage, pledge or
encumbrance by any Member or any person entitled to receive
benefits under the Plan, any part of it, or any interest in it, or
to pay any money or thing of value to any creditor or assignee of
any Member or person for any cause whatsoever; provided, however,
this Subsection A does not affect the provisions of Section VIII of
the Trust Agreement.
B. The Primary Sponsor hereby agrees to indemnify and hold
harmless the Trustee from and against any and all losses, claims,
damages, liabilities, costs and expenses, including but not limited
to, liability for any judgments or settlements consented to in
writing by the Trustee, as applicable, which consents will not be
unreasonably withheld, and reasonable attorneys' fees arising out
of or in connection with or as a direct or indirect result of its
serving, respectively, as the trustee (including but not limited to
the Trustee's acts or omissions with respect to (1) the voting of
any share of stock held as part of the assets of the Trust; (2)
establishing or maintaining investment funds or effecting
investments therein in accordance with the terms and provisions of
the Trust; or (3) the determinations by the Trustee of insolvency
or of a Change of Control (including acts or omissions in
accordance with the terms and provisions of the Trust following any
determination of insolvency or a Change of Control); except those
losses, claims, damages, liabilities, costs and expenses, if any,
arising out of or in connection with or as a direct or indirect
result of the Trustee's gross negligence or willful neglect. The
Trustee shall promptly notify the Primary Sponsor of any claim,
action or proceeding for which it may seek indemnity. This
indemnity is a continuing obligation and shall be binding on the
Primary Sponsor and its successors, whether by merger or otherwise,
and assigns. In addition, this indemnity shall survive the
resignation or removal of the Trustee, the liquidation of the
Trust, or both events.
C. As used in this Trust Agreement, the term "Change of
Control" means any event that pursuant to the requirements of
Article X of the Primary Sponsor's Certificate of Incorporation, as
amended from time to time, requires the affirmative vote of the
holders of not less than eighty percent (80%) of the Voting Stock
(as defined therein); provided, however, that no event shall
constitute a Change of Control if approved by the Board of
Directors of the Primary Sponsor a majority of whom are "present
directors" and "new directors." For purposes of the preceding
sentence, "present directors" shall mean individuals who as of the
date of this Trust Agreement were members of the Board of Directors
of the Primary Sponsor and "new directors" shall mean any director
whose election by the Board of Directors of the Primary Sponsor (in
the event of vacancy) or whose nomination for election by the
Primary Sponsor's stockholders was approved by a vote of at least
three-fourths of the directors then still in office who are present
directors and new directors; provided that any director elected to
the Board of Directors of the Primary Sponsor solely to settle a
threatened or actual proxy contest shall in no event be deemed to
be a new director. The board of directors of the Primary Sponsor
shall immediately notify the Trustee of the occurrence of a Change
of Control. Upon receipt of such written notice or in the event the
Trustee has actual knowledge that a Change of Control has occurred,
the Trustee shall take no action nor facilitate the taking of any
action contemplated by the Trust Agreement as being taken-prior to
a Change-of Control if (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 nor facilitate the
taking of any action described: in the immediately preceding
sentence until making an independent determination as to whether a
Change of Control has occurred. The Trustee shall make this
determination within a period of 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.
D. Prior to a Change of Control, authority and
responsibility with regard to the voting of and control over any
securities of a Plan Sponsor held in the Trust shall be exercised
as follows: (1) the Primary Sponsor 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 the Primary Sponsor. The
Trustee shall take such steps as may be necessary or appropriate to
carry out the directions of the Primary Sponsor given pursuant to
this Subsection. On or after a Change of Control, voting and all
other decisions relating to the securities of a Plan Sponsor shall
be made by the Trustee or, if such securities are subject to the
investment authority of an Investment Manager, by that Investment
Manager.
E. The Trustee shall be required to take any and all
reasonable legal action to enforce the obligations of each Plan
Sponsor under the Trust Agreement.
F. Whenever the context requires, words of the masculine
gender used herein shall include the feminine and the neuter, and
the words used in the singular shall include the plural.
G. Each provision of the Trust Agreement is severable and
if any provision is found to be void as against public policy it
shall not affect the validity of any other provision hereof.
H. The Trust Agreement shall be binding upon the successors
and assigns of each Plan Sponsor and the Trustee.
I. The provisions of the Trust shall be construed according
to the laws of the Commonwealth of Pennsylvania and, to the extent
applicable, according to the laws of the United States.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals the day and year first above written.
PRIMARY SPONSOR:
RUBY TUESDAY, INC.
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and Controller
ATTEST:
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Secretary
[CORPORATE SEAL]
TRUSTEE:
THE PRUDENTIAL TRUST COMPANY
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
ATTEST:
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Comptroller
[SEAL]