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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
--------
Moore Medical Corp.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
6157994103
- --------------------------------------------------------------------------------
(CUSIP Number)
James M. Shelger, Service Corporation International, 1929 Allen Parkway,
Houston, Texas 77019
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
February 9, 1994
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the person has previously filed a statement on Schedule 13G to report the
acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [x]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 6157994103 PAGE 2 OF 19 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Service Corporation International
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) /X/
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
145,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
145,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
0
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 6157994103 PAGE 3 OF 19 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Southwest Guaranty Trust Company
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
0
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
145,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
145,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
0
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 6157994103 PAGE 4 OF 19 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sun Bank, National Association
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
145,000
SHARES -------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
0
PERSON ------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
145,000
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
145,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
0
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
BK
- --------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDED BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND SIGNATURE ATTESTATION.
<PAGE> 5
ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, par value $.01 per share
("Common Stock"), of Moore Medical Corp., a Delaware corporation (the
"Issuer"). The address of the principal executive offices of the Issuer is
P.O. Box 1500, New Britain, Connecticut, 06050.
ITEM 2. IDENTITY AND BACKGROUND
(a) This statement is filed jointly on behalf Service Corporation
International, a Texas corporation ("SCI"), Southwest Guaranty Trust Company, a
Texas trust company (the "Investment Agent"), and Sun Bank, National
Association, a Florida corporation ("Sun Bank"). Sun Bank has recently changed
its name to "SunTrust Bank, Central Florida, N.A." SCI, the Investment Agent
and Sun Bank are collectively referred to herein as the "Reporting Persons".
(b) The address of the principal business and the principal office
of SCI is 1929 Allen Parkway, Houston, Texas 77019. The address of the
principal business and the principal office of the Investment Agent is 2121
Sage Road, Houston, Texas 77056. The address of the principal business and the
principal office of Sun Bank is 200 S. Orange Street, Orlando, Florida 32801.
The names, business addresses, principal occupations and citizenship of the
executive officers and directors of SCI, the Investment Agent and Sun Bank, as
well as the name, principal business and address of the corporation or
organization in which such occupation is conducted, are set forth in Schedule 1
hereto, which is incorporated herein by reference.
(c) The principal business of SCI is providing death care
services. The principal business of the Investment Agent is providing
investment agency and trust services to institutional and other investors. The
principal business of Sun Bank is providing commercial banking services,
including trust services such as those performed pursuant to the Trust
Agreements (discussed below).
(d) During the last five years, neither the Reporting Persons nor,
to the best of the Reporting Persons' knowledge, any of the executive officers
or directors identified in Schedule 1 have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) Except as set forth below, during the last five years, neither
the Reporting Persons nor, to the best of the Reporting Persons' knowledge, any
of the executive officers or directors identified in Schedule 1 have been a
party to a civil proceeding resulting in, or subjecting him to, a judgment,
decree or final order enjoining violation of, or prohibiting or mandating
activities subject to, United States federal or state securities laws or
finding any violation with respect to such laws. However, on September 15,
1995, the Securities and Exchange Commission ("SEC") ordered the institution of
administrative proceedings involving the disclosure by SCI relating to its
change of accountants in its Current Report on Form 8-K, as amended, filed in
April 1993. Simultaneously with the institution of such proceedings, SCI,
without admitting or denying the SEC's facts, conclusions or findings,
consented to the entry of Cease and Desist Order by the SEC ordering SCI not to
violate the provisions of Section 13(a) of the Securities Exchange Act of 1934
and Rules 12b-20 and 13a-11 thereunder.
Page 5 of 19 Pages
<PAGE> 6
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
As stated above, SCI is in the business of providing death care
services which include the ownership and operation of multiple funeral service
locations and cemeteries in a number of metropolitan areas. In connection with
its funeral business, SCI provides prearranged funeral services to its
customers. Funeral prearrangement is a means through which a customer
contractually agrees to the terms of a funeral to be performed in the future.
The funds collected from such prearranged funeral contracts are generally
deposited into trust funds or are used to purchase life insurance or annuity
contracts. Such funds paid for prearranged funeral services may not be
withdrawn until the funeral is performed or until cancellation by the customer.
In connection with its cemetery business, SCI sells cemetery interment
rights (including mausoleum spaces and lawn crypts) and certain merchandise
including stone and bronze memorials and burial vaults. Such cemeteries also
perform interment services and provide management and maintenance of cemetery
grounds. Cemetery sales are often made on a pre-need basis pursuant to
contracts providing for monthly payments. A portion of the proceeds from
cemetery sales is generally required by law to be paid into perpetual care
trust funds. Earnings from such perpetual trust funds are then used to defray
the maintenance costs of cemeteries. In addition, all or a portion of the
proceeds from the sale of preneed cemetery merchandise may be required to be
paid into trust funds until the merchandise is purchased.
On September 27, 1995, SCI entered into an Amended and Restated
Trusteeship/Investment Agency Agreement with the Investment Agent (the
"Investment Agency Agreement"). Pursuant to the Investment Agency Agreement,
the Investment Agent is required to (i) review prearranged funeral trusts,
cemetery perpetual care trusts and merchandise trusts (the "SCI Trust Funds")
periodically, but no less often than quarterly, (ii) give each such fund the
benefit of its review of economic conditions, security markets, industries and
companies and (iii) report to the SCI Investment Committee its investment
recommendation of a general nature and with respect to any property held in such
fund. Upon adoption of investment actions by the SCI Investment Committee, the
Investment Agent communicates the directions to the trustees for the SCI Trust
Funds for which the Investment Agent is investment agent. Pursuant to the
Investment Agency Agreement, based upon the investment policies and direction
given by the SCI Investment Committee, the Investment Agent also communicates to
the trustees for the SCI Trust Funds specific instructions for investment,
disposition or reinvestment of individual securities.
Pursuant to certain Trust Agreements, Sun Bank and its affiliates
(collectively, the "Trustee") were appointed as trustee of certain SCI Trust
Funds. Pursuant to these Trust Agreements, the Trustee has the authority to
vote shares of stock held by the respective SCI Trust Funds, and the Trustee
has certain dispositive powers with respect to such shares. SCI, however, has
the authority to select an advisory or investment committee to direct the
Trustee in the making of any investment. Further, SCI has the right to review
and veto the investments made by the Trustee with respect to any SCI Trust
Fund.
Page 6 of 19 Pages
<PAGE> 7
Under a policy of the SCI Investment Committee, equity securities held
by all SCI Trust Funds should not in the aggregate exceed 5% of the outstanding
common stock of any class of any issuer. The Issuer's Common Stock was
acquired by a broker involved in the investment of certain of the SCI Trust
Funds who inadvertently exceeded the 5% threshold. Because the Issuer's Common
Stock was held by different SCI Trust Funds, the Reporting Persons discovered
only recently that the 5% threshold had been exceeded and filed this Schedule
13D promptly upon ascertaining their filing responsibilities. The Reporting
Persons believe that the relevant acquisitions and dispositions of the Issuer's
Common Stock are as set forth in the following two paragraphs.
Prior to February 9, 1994, SCI Trust Funds held 142,000 shares of
Common Stock of the Issuer, which was less than 5% of the outstanding Common
Stock. On February 9, 1994, the Trustee purchased 2,000 shares of Common
Stock. As a result of such purchase, SCI Trust Funds held 144,000 shares of
Common Stock, which constituted approximately 5.03% of the outstanding Common
Stock. On April 22, 1994, the Trustee purchased 1,000 shares of Common Stock
on behalf of certain SCI Trust Funds. As a result of such purchase, SCI Trust
Funds held 145,000 shares of Common Stock, which constituted approximately
5.07% of the outstanding Common Stock. Subsequently, on July 21, 1994, the
Trustee sold 5,000 shares of Common Stock on behalf of the SCI Trust Funds, and
following such sales, the SCI Trust Funds continued to hold less than 5% of the
outstanding Common Stock until March 23, 1995, as discussed in the paragraph
below.
On March 23, 1995, SCI Trust Funds held 142,000 shares of Common
Stock, which was less than 5% of the outstanding Common Stock. On March 24,
1995, the Trustee purchased 3,000 shares of Common Stock on behalf of certain
SCI Trust Funds. As a result of such purchase, the SCI Trust Funds again held
145,000 shares of Common Stock of the Issuer, which constituted 5.03% of the
outstanding Common Stock. Subsequently, on February 9, 1996, the Trustee sold
1,000 shares of Common Stock on behalf of the SCI Trust Funds, and as a result
of such sale, SCI Trust Funds currently hold less than 5% of the outstanding
Common Stock.
ITEM 4. PURPOSE OF TRANSACTION
The shares of Common Stock were acquired by the Trustee on behalf of
SCI Trust Funds for purposes of investment. Furthermore, none of the Reporting
Persons has plans or proposals which relate to or would result in any of the
items described in Schedule 13D, Item 4, paragraphs (a) through (j).
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) According to Form 10-K filed by the Issuer with the SEC for
the fiscal year ended December 30, 1995, as of March 4, 1996, there were
2,900,011 shares of Common Stock outstanding. As of April 5, 1996, the
Reporting Persons were the beneficial owners of 144,000 shares of Common Stock
of the Issuer, which represented less than 5% of the outstanding shares.
However, based on the Issuer's (i) Form 10-Qs for fiscal 1995, (ii) Form 10-Qs
for fiscal 1994, and (iii) Form 10-K for the fiscal year ended December 30,
1994, at such times and dates set forth in Item 3 of this Schedule 13D, the
Reporting Persons were the beneficial owners
Page 7 of 19 Pages
<PAGE> 8
of more than 5% of the outstanding shares of Common Stock. During such
periods, none of the Reporting Persons ever beneficially held more than 5.07%
of the outstanding shares.
(b) Pursuant to the provisions of the respective Trust Agreements,
the Trustee has the power to vote or direct the vote of the shares of Common
Stock held by SCI Trust Funds. The Reporting Persons share the power to
dispose or direct the disposition of the shares of Common Stock held by the SCI
Trust Funds as described in Item 3.
(c) Not applicable.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale
of, the shares of Common Stock.
(e) The Reporting Persons ceased to be beneficial owners of more
than 5% of the Common Stock of the Issuer on February 9, 1996.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See Item 3 for a discussion of the Amended and Restated
Trusteeship/Investment Agency Agreement between SCI and Southwest Trust, and
the respective Trust Agreements between SCI and the Trustee.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit A Agreement Regarding Joint Filing of Schedule 13D
Exhibit B Amended and Restated Trusteeship/Investment Agency
Agreement
Exhibit C Annual Pre-arranged Direct Disposal or Funeral
Service Trust Agreement/1988, dated February 19,
1988, by and between TNCS, Inc. and Sun Bank,
National Association.
Exhibit D Annual Pre-arranged Direct Disposal or Funeral
Service Trust Agreement/1985, dated October 3, 1984,
by and between TNCS, Inc. and Sun Bank, National
Association.
Exhibit E Annual Trust Agreement/1982, dated April 29, 1981, by
and between Guardian Plans, Inc. and Sun First
National Bank of Orlando.
Page 8 of 19 Pages
<PAGE> 9
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
April 18, 1996 SERVICE CORPORATION INTERNATIONAL
By: /s/ James M. Shelger
--------------------------------------
Name: James M. Shelger
-----------------------------------
Title: Senior Vice President, General
----------------------------------
Counsel and Secretary
----------------------------------
SOUTHWEST GUARANTY TRUST COMPANY
By: /s/ William E. Mercer
-------------------------------------
Name: William E. Mercer
-----------------------------------
Title: Chairman of the Board and CEO
----------------------------------
SUN BANK, NATIONAL ASSOCIATION
By: /s/ Kathryn R. Broecker
-------------------------------------
Name: Kathryn R. Broecker
-----------------------------------
Title: Assistant Vice President
----------------------------------
Page 9 of 19 Pages
<PAGE> 10
SCHEDULE 1
Page 10 of 19 Pages
<PAGE> 11
BOARD OF DIRECTORS OF
SERVICE CORPORATION INTERNATIONAL
Each of the following directors is a citizen of the United States of America.
<TABLE>
<CAPTION>
Name and Address Occupation
---------------- ----------
<S> <C>
Anthony L. Coelho Chairman and Chief Executive
1325 Avenue of the Americas Officer of Coelho Associates, LLC
26th Floor (investment consulting and brokerage),
New York, NY 10019 and Chairman and Chief Executive Officer
of ETC (training and communication firm)
Douglas M. Conway Retired
HCR4 Anchor Point Road
Crosslake, NM 56442
Jack Finkelstein Personal and family trust investments
Suite 635 West
4635 Southwest Freeway
Houston, TX 77027
A. J. Foyt, Jr. President
6415 Toledo A. J. Foyt Enterprises, Inc.
Houston, TX 77008 (designer, manufacturer and exhibitor of high
speed engines, racing vehicles and marketing of
automotive vehicles)
James J. Gavin, Jr. Retired
1616 Thorntree Lane
Winnetka, IL 60093
James H. Greer Chairman
3025 Maxroy Shelton W. Greer Co., Inc. (engineering,
Houston, TX 77008 manufacturing, fabrication and installation of
building speciality products)
L. William Heiligbrodt President and Chief Operating Officer of
1929 Allen Parkway SCI
Houston, TX 77019
</TABLE>
Page 11 of 19 Pages
<PAGE> 12
<TABLE>
<CAPTION>
Name and Address Occupation
---------------- ----------
<S> <C>
B. D. Hunter Chairman of the Board and Chief Executive Officer
14323 South Outer 40 Huntco Inc. (intermediate steel processor)
Suite 6700 North
Chesterfield, MO 63017
Chairman of the Board
John W. Mecom, Jr. The John W. Mecom Company
4544 Post Oak Place Dr. (personal and family investments)
Suite 270
Houston, TX 77027
Chairman, President and Chief
Clifton H. Morris, Jr. Executive Officer
200 Bailey Avenue AmeriCredit Corp. (financing of
Ft. Worth, TX 76107 automotive vehicles)
Attorney
E. H. Thornton, Jr. Thornton & Burnett
1775 St. James Place (attorneys at law)
Suite 120
Houston, TX 77056
Chairman of the Board and Chief Executive Officer
Robert L. Waltrip of SCI
1929 Allen Parkway
Houston, TX 77019
Executive Vice President Operations of SCI
W. Blair Waltrip
1929 Allen Parkway
Houston, TX 77019
Henry Gardiner Symonds
Edward E. Williams Professor and Director of the
13231 Champion Forest Dr. Entrepreneurship Program at the Jesse H. Jones
Suite 110 Graduate School of Administration at Rice
Houston, TX 77069 University
Managing Director of First Texas Venture Capital
(investment company)
</TABLE>
Page 12 of 19 Pages
<PAGE> 13
EXECUTIVE OFFICERS OF
SERVICE CORPORATION INTERNATIONAL
The business address for each of the Executive Officers is 1929 Allen Parkway,
Houston, Texas 77019 and each of the Executive Officers is a citizen of the
United States of America. The occupation of each Executive Officer is being an
officer of SCI with the title set forth below.
Robert L. Waltrip
Chairman of the Board
and Chief Executive Officer
L. William Heiligbrodt
President and Chief Operating
Officer
W. Blair Waltrip
Executive Vice President Operations
John W. Morrow, Jr.
Executive Vice President
Corporate Development
Jerald L. Pullins
Executive Vice President
European Operations
George R. Champagne
Senior Vice President
and Chief Financial Officer
Glenn G. McMillen
Senior Vice President
Operations
Richard T. Sells
Senior Vice President
Prearranged Sales
James M. Shelger
Senior Vice President
General Counsel and Secretary
Jack L. Stoner
Senior Vice President
Administration
Page 13 of 19 Pages
<PAGE> 14
Henry M. Nelly, III
President of
Provident Services, Inc.
a subsidiary of SCI
T. Craig Benson
Vice President Operations of SCI
President of Investment
Capital Corporation
a subsidiary of SCI
Gregory L. Cauthen
Vice President
Treasurer
W. Mark Hamilton
Vice President/Finance
European Operations
Lowell A. Kirkpatrick, Jr.
Vice President
Corporate Development
Vincent L. Visosky
Vice President
Operational Controller
Page 14 of 19 Pages
<PAGE> 15
BOARD OF DIRECTORS OF
SOUTHWEST GUARANTY TRUST COMPANY
Each of the following Directors is a citizen of the United States of America.
<TABLE>
<CAPTION>
Name and Address Occupation
---------------- ----------
<S> <C>
Timothy J. Blair Executive Vice President and Director
2121 Sage Road, Suite 150 of Trust Administration of Southwest
Houston, TX 77056 Guaranty Trust Company
Fred J. Curry, C.L.U. Owner of Fred Curry and Associates
4800 Sugar Grove Blvd., Suite 365 (insurance agency)
Stafford, TX 77477
G. Kyle Guinn Vice Chairman and Chief Investment
2121 Sage Road, Suite 150 Officer of Southwest Guaranty Trust
Houston, TX 77056 Company
William E. Mercer Chairman and Chief Executive Officer
2121 Sage Road, Suite 150 of Southwest Guaranty Trust Company
Houston, TX 77056
Kathleen K. Mercer Shareholder of Southwest Guaranty
11310 Williamsburg Trust Company
Houston, TX 77024
Michael Phillips Attorney
3200 Southwest Freeway Phillips & Akers
Houston, TX 77027 (attorney at law)
Tim N. Throckmorton Chief Financial Officer
12012 Wickchester, Suite 490 Temporary Connection, Inc.
Houston, TX 77079 (temporary personnel placement
services)
James R. Young President and Chief Operating Officer of
2121 Sage Road, Suite 150 Southwest Guaranty Trust Company
Houston, TX 77056
</TABLE>
Page 15 of 19 Pages
<PAGE> 16
EXECUTIVE OFFICERS OF
SOUTHWEST GUARANTY TRUST COMPANY
The business address for each of the Executive Officers is 2121 Sage Road,
Suite 150, Houston, Texas 77056 and each of the Executive Officers is a
citizen of the United States of America. The occupation of each Executive
Officer is being an officer of Southwest Guaranty Trust Company with the title
set forth below.
William E. Mercer
Chairman of the Board
and Chief Executive Officer
G. Kyle Guinn
Vice Chairman and Chief
Investment Officer
James R. Young
President and Chief Operating
Officer
Timothy J. Blair
Executive Vice President and
Director of Trust Administration
Willard B. Wagner, III
Executive Vice President, Secretary/
Treasurer and Director of Marketing
Page 16 of 19 Pages
<PAGE> 17
BOARD OF DIRECTORS OF
SUN BANK, NATIONAL ASSOCIATION
Each of the following Directors is a citizen of the United States of America.
<TABLE>
<CAPTION>
Name, Address and Occupation Name, Address and Occupation
- ---------------------------- ----------------------------
<S> <C>
Joseph D. Antinucci David H. Hughes
President Chairman and CEO
Lockheed Martin Electronics Hughes Supply, Inc.
& Missiles (building and plumbing
(manufacturer of electronics supply sales)
and missiles) 20 N. Orange Avenue, Suite 200
5600 Sand Lake Road Orlando, Florida 32801
Orlando, Florida 32819-8907
George W. Koehn
E. V. Goings Chairman, President and CEO
President SunTrust Banks, Central Florida, N.A.
Tupperware Worldwide 200 S. Orange Avenue, Tower 6
(manufacturer of plastic Orlando, Florida 32801
container products)
Post Office Box 2353 Robert L. Mellen, III
Orlando, Florida 32802 Attorney
Akerman, Senterfitt & Eidson
Ben Hill Griffin, III Post Office Box 231
Chairman and President Orlando, Florida 32802
Ben Hill Griffin, Inc.
(citrus grower) Mr. Richard A. Nunis
Post Office Box 127 Chairman
Frostproof, Florida 33843 Walt Disney Attractions, Inc.
(theme park)
Marion F. Hatcher Post Office Box 10,000
Chairman of the Board Lake Buena Vista, Florida 32830-1000
J. Rolfe Davis Insurance
(insurance company) Jeffrey J. O'Hara
Post Office Box 538230 President and COO
Orlando, Florida 32853-8230 Darden Restaurants, Inc.
(owner and operator of
Dr. John C. Hitt restaurant chains)
President Post Office Box 593330
University of Central Florida Orlando, Florida 32809
(state university)
Post Office Box 160002 Walter T. Rose, Jr.
Orlando, Florida 32816-0002 Rose and Weller
Attorneys at Law
Theodore J. Hoepner Post Office Box 321255
Chairman and President Cocoa Beach, Florida 32932-1255
SunTrust Banks of Florida, Inc.
200 S. Orange Avenue, Tower 6
Orlando, Florida 32801
</TABLE>
Page 17 of 19 Pages
<PAGE> 18
C. Wayne Schoolfield
President
Schoolfield Properties
(property management)
101 Park Place Blvd., Suite 3
Kissimmee, Florida 34741
Paul Snead, Jr.
District Administrator
HRS District #7 Administrator
(provides aid to families in crisis)
400 W. Robinson St., Suite S1129
Orlando, Florida 32801
Elizabeth A. Sterchi
(philanthropist)
910 Ventrua Avenue
Orlando, Florida 32804
William G. Talley, Jr.
General Manager
Growers Container Cooperative Inc.
(citrus grower)
Post Office Box 491355
Leesburg, Florida 34749-1355
William B. Wilson
President
Maguire, Voorhis & Wells, P.A.
Attorneys at Law
Post Office Box 633
Orlando, Florida 32802
Page 18 of 19 Pages
<PAGE> 19
EXECUTIVE OFFICERS
SUN BANK, NATIONAL ASSOCIATION
The business address for each of the Executive Officers listed below
is 200 South Orange Avenue, Orlando, Florida 32801 and each of the Executive
Officers is a citizen of the United States of America. The occupation of each
Executive Officer is being an officer of Sun Trust Bank, Central Florida, N.A.
with the title set forth below:
George W. Koehn
Chairman, President and CEO
Daniel W. Maturin
Executive Vice President
Community Banking
Jack G. Prevost
Executive Vice President
Corporate Banking
Sandra W. Jansky
Executive Vice President
Credit Administration
Hunting F. Deutsch
Executive Vice President
Trust and Investment Services
John J. McGuire
Executive Vice President
Marketing
Page 19 of 19 Pages
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER IDENTIFICATION OF EXHIBITS
- ------ --------------------------
<S> <C>
A Agreement Regarding Joint Filing of Schedule 13D
B Amended and Restated Trusteeship/Investment Agency
Agreement
C Annual Pre-arranged Direct Disposal or Funeral Service
Trust Agreement/1988, dated February 19, 1988, by and
between TNCS, Inc. and Sun Bank, National Association.
D Annual Pre-arranged Direct Disposal or Funeral Service
Trust Agreement/1985, dated October 3, 1984, by and
between TNCS, Inc. and Sun Bank, National Association.
E Annual Trust Agreement/1982, dated April 29, 1981, by
and between Guardian Plans, Inc. and Sun First National
Bank of Orlando.
</TABLE>
<PAGE> 1
EXHIBIT A
AGREEMENT REGARDING JOINT FILING OF SCHEDULE 13D
The undersigned, in accordance with Rule 13d-1(f)(1)(iii) of the Rules
and Regulations under the Securities and Exchange Act of 1934, as amended,
hereby agree that the attached statement on Schedule 13D is filed on behalf of
each of them.
April 18, 1996 SERVICE CORPORATION INTERNATIONAL
By: /s/ James M. Shelger
--------------------------------------
Name: James M. Shelger
-----------------------------------
Title: Senior Vice President, General
----------------------------------
Counsel and Secretary
----------------------------------
SOUTHWEST GUARANTY TRUST COMPANY
By: /s/ William E. Mercer
-------------------------------------
Name: William E. Mercer
-----------------------------------
Title: Chairman of the Board and CEO
----------------------------------
SUN BANK, NATIONAL ASSOCIATION
By: /s/ Kathryn R. Broecker
-------------------------------------
Name: Kathryn R. Broecker
-----------------------------------
Title: Assistant Vice President
----------------------------------
<PAGE> 1
AMENDED AND RESTATED
TRUSTEESHIP/INVESTMENT AGENCY AGREEMENT
THIS AGREEMENT by and between SOUTHWEST GUARANTY TRUST COMPANY
("SGTC"), a Texas trust company having its principal offices in Houston, Texas,
and SERVICE CORPORATION INTERNATIONAL ("SCI"), a Texas corporation, having its
principal offices in Houston, Texas.
WITNESSETH:
WHEREAS, SGTC has heretofore provided certain trust and
investment services to SCI under an agreement dated December 29, 1989 and such
agreement has expired by its terms; and
WHEREAS, SGTC and SCI desire to set forth the terms of a new
relationship to take effect commencing on December 30, 1994 ("Effective Date");
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
1. Designation as Trustee. SCI will and will cause its
United States Subsidiaries, as Grantors of its or their prearranged funeral
trusts, its or their cemetery perpetual care trusts, and its or their
merchandise trusts to designate, where not prohibited by law or by contractual
agreement, SGTC as Trustee of such trusts.
The term "Subsidiaries" as used herein shall refer to the
subsidiaries of SCI and/or their subsidiaries or affiliates, fifty percent
(50%) or more of each of which is owned or controlled by SCI or one of its
subsidiaries or affiliates, which are currently in existence within the
corporate group and own and operate funeral homes and/or cemeteries. Any newly
established or acquired trust
<PAGE> 2
shall be identified and the investments thereof reviewed by SGTC and presented
to SCI for consideration and approval by SCI for SGTC to act as trustee or
investment agent with respect to said trust.
2. Designation as Investment Agent. SCI will and will
cause its United States Subsidiaries, as Grantors of its or their prearranged
funeral trusts, its or their cemetery perpetual care trusts, and its or their
merchandise trusts, to the extent not prohibited by law or by contractual
agreement, to designate SGTC as its investment agent for such trust funds. SGTC
shall be responsible for the payment of all costs and fees, if any, relating to
the designation of SGTC as its investment agent with respect to such trust
funds. As its investment agent, SGTC shall be required to review each trust
account periodically, but no less often than quarterly and to give each account
the benefit of its review of economic conditions, security markets, industries
and companies and to report to the Investment Committee of the Board of
Directors of SCI its investment recommendations of a general nature and with
respect to any property held in the account. Upon adoption of these investment
actions by the Investment Committee, the specific directions will be
communicated by SGTC to the trustees for the SCI trusts for which SGTC is
acting as investment agent. By acting as investment agent, SGTC in no way
assumes the duties or responsibilities of the Investment Committee as
investment advisor or investment counsel under any trust; it being understood
that SGTC's duties as investment agent shall be limited to the duties and
responsibilities specifically set forth in this Agreement.
2
<PAGE> 3
3. Distribution of Trust Investment Portfolio
Information. SGTC will likewise provide trust investment portfolio information
to SCI for its general investment and accounting purposes. SGTC will provide
this information to the Investment Committee of SCI and to the SCI Corporate
Accounting Department in the form acceptable to SCI.
4. Investment and Trust Services. As a provider of
trust and investment services to SCI, SGTC will, among other duties, (i) meet
on a monthly basis with the Investment Committee of SCI or such other body or
persons designated by SCI and present to such Committee the summary of
transactions for the previous month by categories of trusts and present the
views of SGTC with regard to economic conditions and investment recommendations;
(ii) based upon the investment policies and direction given by the Investment
Committee, SGTC shall select specific securities for investment, disposition or
reinvestment in all of the trust funds for which SGTC is an investment agent;
(iii) prepare monthly trust statements for the trusts for which SGTC is serving
as trustee and review such statements on a monthly basis; (iv) prepare a
quarterly summary of the trust portfolios of all of the trusts for which SGTC
is an investment agent; (v) maintain the portfolios of all trust funds for
which trust investment portfolio information is provided to SCI; (vi) review
trust statements of all SCI trusts at least on a quarterly basis and reconcile
such statements, (vii) review all of the assets, trust instruments and other
documents in connection with trusts acquired by SCI through acquisition for
which SGTC is
3
<PAGE> 4
providing investment management services pursuant to this Agreement; (viii)
prepare monthly reports on all controlled accounts for which SGTC is serving as
investment agent; (ix) assist in the consolidation and merger of any SCI trusts
and/or trustees where such is beneficial to the trusts; (x) direct the
appointment and removal of trustees of all SCI trusts (provided however, that
the President of SCI will give prior approval to any change in relationship
between any SCI trusts trusteed by a national or regional money center bank
and, provided further, that the regional President in charge of the area which
is the situs of an SCI trust may veto any change on those trusts not trusteed
by a bank described above); and (xi) keep an accurate and complete record of
all SCI trusts and supply such information to SCI upon request. In summary, the
intent of this Agreement is that SGTC shall provide to SCI and its Subsidiaries
the investment and trust-related services previously provided to SCI under the
prior agreement with SGTC.
5. Loss in Value. SGPC shall not be liable for any
decrease in the value of the assets for which it serves as trustee except if
such decrease is the result of SGTC's negligence or a breach of SGTC's
fiduciary duties with respect to the trust, the terms of this Agreement, or a
violation of applicable law.
6. Certification. SGTC shall from time to time certify
in writing to the trustees with respect to which it acts as investment agent
the name or names of the person or persons authorized to act on its behalf. Any
individual as certified shall be SGTC's authorized representative. Where an
individual so certified shall
4
<PAGE> 5
cease to have authority to act on its behalf, SGTC shall promptly give notice
of that fact to the trustees; but until such notice is received by the trustee,
such individual shall continue to be an authorized representative.
7. Access to Records. SCI agrees that it will allow
SGTC reasonable access during business hours to its trust records provided such
access does not interfere with the operations of SCI. SCI agrees to cooperate
with SGTC in supplying documents and information so that the terms of this
Agreement may be carried out. SGTC shall provide to SCI during the period of
this Agreement on at least a quarterly basis financial statements and such
other records as SCI may reasonably request evidencing the financial condition
of SGTC. In addition, in the event that SGTC is notified by the Texas
Department of Banking of any violations, deficiencies, failures, or the
Department's intent to take disciplinary or corrective action against SGTC,
then SGTC shall within five (5) days of the receipt of such notification inform
SCI of same in writing and, to the extent permitted by law, furnish SCI with
any pertinent documents, notices, correspondence, orders, or other materials
received from the Department of Banking.
8. Compensation for Services. As compensation for the
services described above, SCI will cause to be paid from the trust funds, to
SGTC, aggregate fees equal to twelve basis points per quarter on the first
$600,000,000 of market value of SCI trust funds for which SGTC serves as
investment agent or trustee as of the end of the previous calendar quarter, and
aggregate fees on
5
<PAGE> 6
trust amounts in excess of $600,000,000 equal to 11 basis points for the quarter
ending March 31, 1995, 10 basis points for the quarter ending June 30, 1995, 9
basis points for the quarter ending September 30, 1995, and 8 basis points for
any calendar quarter thereafter. SGTC shall not receive any compensation with
regard to any SCI trust for which it does not serve as trustee or investment
agent but, if requested by SCI, will maintain portfolio data on such accounts
and supply such data as needed by SCI on those accounts. The compensation
described above shall be offset and reduced by the following costs applicable to
the respective trusts: (i) trustees' fees, and (ii) the cost of tax return
preparation (excluding the cost of K-1s or 1099s of the type presently provided
by SCI's internal systems and personnel.) Such costs shall be paid directly by
the respective trusts to said trustees and other third parties. SGTC shall
within thirty (30) days after the end of each quarter furnish to SCI a report
identifying the consultants, brokers, and other third parties during said
quarter with respect to the trusts for which SGTC is acting as trustee or
investment agent pursuant to this Agreement. SCI shall have the right to approve
or disapprove the future use of any consultants, brokers, or other third parties
engaged with respect to the trusts, which are the subject of this Agreement.
9. No Authorization. Under this Agreement, SGTC is not
authorized to hold property or to collect income payable on property except in
connection with its activities as trustee under
6
<PAGE> 7
the trust agreements established by the grantors which are Subsidiaries of SCI.
10. Bond. SGTC shall obtain and maintain fiduciary
insurance coverage within the recommended limits for state banks as set forth
in Section 11.26 of Chapter 11 of the Rules and Regulations of the Banking
Department of Texas.
11. Term of Agreement. This Agreement shall be in
existence for a term of one (1) year from the Effective Date and shall be
extended beyond such term until ninety (90) days after SGTC has received
written notification from SCI of the termination of this Agreement.
12. Breach of Duties. In the event of SGTS's negligence,
material breach of the terms of this Agreement, material breach of SGTC's
fiduciary duties with respect to the performance of its services under this
Agreement, material violation by SGTC of applicable law, rule or regulation, or
failure by SGTC to maintain a sound and solvent financial condition which shall
be deemed to mean a financial condition consistent with that of companies of
comparable size and nature, SCI shall have the option to terminate this
Agreement and be relieved of any further obligations hereunder.
13. Bankruptcy, Insolvency or Liquidation. In the event
of the bankruptcy, either voluntary or involuntary, or the appointment of any
receiver to take charge of the assets of SGTC or in the event that SGTC is
closed by the Banking Commissioner of the State of Texas and placed in
liquidation proceedings under the Texas
7
<PAGE> 8
Banking Code, then in such event SCI shall have the right and option to
terminate this Agreement and be relieved of any further obligations hereunder.
If SCI exercises the option to terminate this Agreement described in this
paragraph 13, it shall not be held to have waived any other causes of action or
remedies it may have against SGTC.
14. Indemnification. SGTC agrees to indemnify, hold
harmless and defend SCI, its subsidiaries and affiliates and their directors,
officers, employees, and agents against any and all losses, damages, claims,
liabilities, penalties, and expenses (including costs and attorneys' fees)
suffered or paid, directly or indirectly, as a result of or arising out of or
incident to SGTC's violation of any law, rule, or regulation, order, or SGTC's
breach of the terms of this Agreement, or SGTC's negligence relating to the
performance of SGTC's services set forth herein.
15. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or on the date mailed,
postage prepaid, by certified mail, return receipt requested, to the respective
parties as follows:
If to SGTC: Southwest Guaranty Trust Company
2121 Sage Road, Suite 150
Houston, Texas 77056
Attn: Mr. William E. Mercer
If to SCI: Service Corporation International
1929 Allen Parkway
Houston, Texas 77019
Attn: Mr. George R. Champagne
8
<PAGE> 9
With copy to: Service Corporation International
1929 Allen Parkway
Houston, Texas 77019
Attn: General Counsel
Either party hereto may designate a different address by
providing written notice of such new address to the other party hereto.
16. Modification; Termination; Assignment. Except as
provided herein, this Agreement may be modified or terminated prior to the
expiration of its term only by the written consent of parties. This Agreement
shall not be assignable by either party without the prior written consent of
the other party.
17. Governing Law. This Agreement shall be governed by
the laws of the State of Texas.
18. Prior Agreement. This Agreement is in substitution
and replacement of that certain Trusteeship/Advisory Agreement dated February
22, 1995 by and between SGTC and SCI and to the extent that this Agreement is in
conflict with the Prior Agreement, the provisions of this Agreement shall
control.
IN WITNESS WHEREOF, SGTC and SCI have executed this Agreement
on the 27th day of September, 1995.
SOUTHWEST GUARANTY TRUST COMPANY
By: /s/ WILLIAM E. MERCER
----------------------------------------
William E. Mercer
Chairman of the Board, Chief Executive
Officer
SERVICE CORPORATION INTERNATIONAL
By: /s/ JAMES M. SHELGER
----------------------------------------
James M. Shelger
Senior Vice President and General
Counsel
<PAGE> 1
FIRST AMENDMENT TO PREARRANGED DIRECT DISPOSAL
OR FUNERAL SERVICE TRUST AGREEMENT/1988
The parties hereto, TNCS, INC., a Florida corporation doing business
as National Cremation Society (hereinafter called "Settlor"), and the SUN BANK,
NATIONAL ASSOCIATION, (hereinafter called "Trustee"), pursuant to Section 5 of
the Prearranged Direct Disposal or Funeral Service Trust Agreement/1988
(hereinafter called "Trust Agreement"), dated February 19, 1988, by and between
the Settlor and Trustee, do hereby amend said Trust Agreement in the following
manner:
Section 3(a) of the Trust Agreement is hereby amended by deleting the
second sentence of said section in its entirety and substituting the following
sentence in lieu thereof:
"The Settlor shall be entitled to withdraw appreciation in the value
of the trust, i.e., excess of asset value over the total funds deposited in
trust, upon written request to the Trustee therefor and the Settlor shall
restore forthwith to the Trust Estate any deficit in such asset value upon
written notice to it of such deficit; except that where the Settlor withdraws
none of the appreciation in the value of said assets, other than the pro rata
portion of such appreciation which may be withdrawn upon the death of a
contract beneficiary or upon cancellation or default of a Preneed Service
Contract, it shall not be required to make additional deposits from its own
funds to restore values which decline."
All other terms and conditions of the aforesaid Trust Agreement shall
remain the same and in full force and effect.
IN WITNESS WHEREOF, the parties hereto each have caused this Agreement
to be executed in its corporate name, by its officers lawfully and duly
authorized, and its corporate seal to be affixed, on this 5th day of April,
1988.
TNCS, INC.
(CORPORATE SEAL) TNCS, INC./SETTLOR
(FLORIDA)
By: /s/ BEN B. DEES
----------------------------------
Ben B. Dees
Vice President
<PAGE> 2
ATTEST:
By: /s/ E. KEITH PAYNE
---------------------
Secretary
- -------------------------
as to Settlor
(CORPORATE SEAL) SUN BANK, NATIONAL ASSOCIATION/
TRUSTEE
By: /s/ TIM POWELL
----------------------------------
Vice President and
Trust Officer
ATTEST:
By: /s/ CHERYL M. HUTSELL
---------------------
Trust Officer
As to Trustee
STATE OF TEXAS
COUNTY OF HARRIS
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, Ben B. Dees, Vice President, and E. Keith Payne, as
Secretary, of TNCS, INC. (Florida), as Settlor, to me known to be the person
described in and who executed the foregoing instrument and he acknowledged
before me that he executed the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 5th day of April, 1988.
/s/ JOHN S. SMITH, JR.
---------------------------------------
Notary Public
My Commission Expires:
JOHN S. SMITH, JR.
Notary Public in and for Harris County, Texas
My Commission Expires 3-31-89
<PAGE> 3
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, Tim Powell, as Vice President and Trust officer, and
Cheryl Hutsell, as Trust Officer, of the SUN BANK, NATIONAL ASSOCIATION, as
Trustee, to me known to be the person described in and who executed the
foregoing instrument and he acknowledged before me that he executed the same.
WITNESS my hand and seal in the County and State last aforesaid this
15th day of April, 1988.
[ILLEGIBLE]
------------------------------
Notary Public
My Commission Expires:
NOTARY PUBLIC, STATE OF FLORIDA AT LARGE
MY COMMISSION EXPIRES JUNE 11, 1989
BONDED THROUGH MUROSKI-ASHTON, INC.
<PAGE> 4
PREARRANGED DIRECT DISPOSAL
OR FUNERAL SERVICE TRUST AGREEMENT/1988
THIS AGREEMENT, made this 19th day of February, 1988, by and between
TNCS, INC., a Florida corporation doing business as National Cremation Society
(hereinafter called "Settlor"), and the SUN BANK, NATIONAL ASSOCIATION, a
national bank with business offices in Orlando, Florida (hereinafter called the
"Trustee"),
W I T N E S S E T H:
WHEREAS, Settlor is engaged in the business of selling direct disposal
or funeral service and/or burial supply contracts to be performed at a future
time ("Preneed Service Contracts"), and
WHEREAS, with respect to Preneed Service Contracts executed on or
after January 29, 1988, Settlor desires to deposit funds received from the sale
of such Preneed Service Contracts with the Trustee to be held by the Trustee in
accordance with Chapters 518 and 639, Florida Statutes, as amended, the
provisions of this Trust Agreement and a Preneed Funeral and Direct Disposal
Service Master Trust Agreement;
NOW, THEREFORE, in consideration of One Dollar in hand paid by the
Settlor to the Trustee and the mutual covenants and agreements of the parties
hereto, IT IS AGREED AS FOLLOWS:
1. The Settlor hereby agrees to deliver to the Trustee, not
absolutely but in trust, within thirty (30) days after the receipt thereof, all
amounts received from the sale of Preneed Service Contracts (excluding all
amounts collected by National Cremation Society as registration fees)
which have been executed on or after January 29, 1988. The Trustee shall
receive and hold all amounts transferred to it pursuant to this paragraph in
trust, all of such amounts together with any
<PAGE> 5
income, dividends or appreciation thereon to be referred to herein as the
"Trust Estate".
2. The Trustee shall collect and receive the income earned upon
the amounts held in trust and shall pay therefrom the expenses of
administration of this trust, including a reasonable fee for acting as Trustee
hereunder, and thereafter, the Trustee shall distribute the net income and
principal of the Trust Estate in the following manner:
(a) The Trustee shall distribute the net income of the
Trust Estate to the Settlor monthly.
(b) The Trustee shall distribute the amounts of principal
of the Trust Estate to the Settlor from time to time upon the receipt from the
Settlor of a certified photostatic copy of the death certificate of the
contract beneficiary and evidence satisfactory to the Trustee that one or more
Preneed Service Contracts have been fully performed or upon receipt of written
request for distribution due to one or more contract purchasers terminating by
cancellation or default of their contracts and stating the principal amount
attributable to any such contract, whether the same has been fully performed,
canceled or defaulted. Such written request, statement or evidence shall be
signed by those officers or employees of the Settlor who are authorized to do
so. The Settlor shall certify to the Trustee from time to time, those officers
or employees who are authorized to sign.
(c) Upon termination by cancellation or default of a
Preneed Service Contract by a contract purchaser, such purchaser may demand a
refund pursuant to Section 639.13 Florida Statutes, as amended, from the
Settlor, who, upon written request to the Trustee, shall receive from the
Trustee, the purchaser's entire amount actually paid on such contract exclusive
of any such amounts allocable to National Cremation Society membership
registration fees.
3. (a) The Trustee shall render to the Settlor monthly
reports of income cash and principal cash, i.e., a listing of
-2-
<PAGE> 6
all journal transactions occurring in the account of the Trust Estate on a
monthly basis, and an unvalued list or schedule of the assets held, and shall
make regular asset valuations not less often than quarter-annually giving
values as is customary according to the nature of the assets held, and shall
determine the amount of appreciation or depreciation in the value of said
assets and the amount by which such assets are greater or less than the total
funds deposited under this Trust Agreement, but excluding from funds deposited,
those funds paid out on Preneed Service Contracts which have been fully
performed or otherwise terminated. The Settlor shall be entitled to withdraw
appreciation in the value of the trust, i.e., excess of asset value over the
total funds deposited in trust, upon written request to the Trustee therefor.
It is expressly understood and agreed by the parties hereto that in the event
that Settlor withdraws appreciation in asset value as provided herein, the
Trustee shall not be liable, either individually or as a fiduciary, for the
restoration of any deficit in asset value should such value decline. The
Settlor shall advise the Trustee, whenever requested by the Trustee, of the
total of its liabilities under all outstanding Preneed Service Contracts.
(b) The Settlor shall maintain, in accordance with
Chapter 639, Florida Statutes, as amended, all accounting and other business
records required for each and every contract purchaser and/or beneficiary whose
funds are held by the Trustee pursuant to the terms of this Trust Agreement.
4. The Trustee shall have, except as otherwise restricted by the
terms of this Trust Agreement and the provisions of Chapters 518 and 639,
Florida Statutes, full and unrestricted discretionary power and authority,
without order of Court, and without any duty upon any person dealing with it to
see to the application of any money or other property delivered to it, to hold,
manage, control, invest, reinvest, sell (upon contract or otherwise), exchange,
grant, convey, assign, transfer, deliver,
-3-
<PAGE> 7
lease, option, mortgage, pledge, borrow upon the credit of, contract with
respect to, or otherwise deal with or dispose of, the property of the Trust
Estate in the manner in which men of prudence, discretion and intelligence
exercise in the management of their own affairs, not in regard to speculation,
but in regard to the permanent disposition of their funds, considering the
probable income as well as the probable safety of their capital. Within the
limitation of the foregoing standard, the Trustee is authorized to enter into a
pooled fund with like purpose trusts executed by the Settlor, to write (sell)
covered call options on common stock held in the Trust portfolio, to acquire
and retain every kind of property, real, personal and mixed, and every kind of
investment, specifically including, but not by way of limitation, bonds,
debentures, and other corporate obligations, savings accounts in insured
savings and loan associations, stocks, preferred or common, securities of any
open-end or closed-end management type investment company or investment trust,
and participations in common trust funds, which men of prudence, discretion and
intelligence would acquire or retain for their own account.
Authority is hereby reserved in the Settlor to select an
advisory or investment committee or an investment counsel to direct the Trustee
in the making or retention of any investment and the Trustee shall not be
liable, either individually or as a fiduciary, for any loss resulting from the
making or retention of any investment pursuant to such direction. Said advisory
or investment committee or investment counsel, in directing the Trustee to deal
with and dispose of property of the Trust, shall use the prudent man standard
as contained in Section 518.11, Florida Statutes. Settlor shall designate in
writing the name of the advisory or investment committee or investment counsel
selected and shall submit the same to the Trustee. Such notice shall be
effective until revoked by Settlor upon written notice thereof to the Trustee.
-4-
<PAGE> 8
5. The Settlor hereby reserves the following powers:
(a) To have the full and absolute right to review and
veto the investments of the Trustee, except however, any investment or
retention thereof pursuant to direction of any advisory or investment committee
or investment counsel selected by Settlor shall not be subject to veto by
Settlor unless the Trustee is notified in writing of the revocation of any such
instruction issued by said advisory or investment committee or investment
counsel.
(b) To alter or amend this Trust Agreement, either wholly
or in part, at any time or to designate a Successor Trustee; provided, however,
that no such alteration or amendment shall be contrary to the provisions of
Chapter 639, Florida Statutes, as amended.
(c) To revoke this trust with the approval of the Florida
State Insurance Commissioner or other Florida state official having supervisory
authority over this trust at the time of revocation. In the event of such
revocation, the Settlor shall give the Trustee at least thirty (30) days prior
written notice thereof and at the end of such thirty (30) day period, or as
soon thereafter as it is possible to do so, the Trustee, after deducting its
reasonable costs, charges and expenses, shall deliver all of the trust property
then in its hands to the Settlor or Successor Trustee and upon obtaining the
Settlor's receipt, or receipt of the Successor Trustee therefor, the Trustee
shall thereupon be discharged. In such event the Trustee shall have no duty or
liability to convert the trust assets to cash but may deliver the same in kind
or in their then existing form or in whatever form it may deem advisable in its
sole discretion.
(d) To revoke this trust in the event the statute
requiring the funds of Preneed Service Contracts to be placed in trust is ever
declared unconstitutional by the Florida Supreme Court, or any other court of
last resort, or in the
-5-
<PAGE> 9
event such statute shall ever be repealed or amended so that such funds are not
required to be placed in trust.
Any amendment or revocation of this trust shall be by an instrument in
writing executed by the Settlor and delivered to the Trustee; provided,
however, that no amendment which increases or alters the duties and obligations
of the Trustee may be made without its written consent thereto.
6. The Trustee may resign at any time by giving at least thirty
(30) days prior written notice thereof to the Settlor. In the event of such
resignation, or for any other reason there is no Trustee of this trust, the
Settlor shall designate a Successor Trustee in writing, and upon the acceptance
of such trust by the Successor Trustee, the Trustee shall transfer all property
of the Trust Estate to the Successor Trustee. No Successor Trustee shall be
required to examine the accounts, records and acts of any previous Trustee or
Trustees, nor shall such Successor Trustee in any way or manner be responsible
for any act or omission to act on the part of any previous Trustee or Trustees.
7. The Trustee acknowledges its responsibility for preparing and
timely filing a Form 1041. U.S. Fiduciary Income Tax Return each taxable year
ending December 31, and in the preparation of such returns, the Trust will be
treated as a "Grantor Trust". The Trustee shall furnish Settlor with copies of
all such tax returns as they are filed. Any other tax return for taxes
required by any taxing authority, with the exception of Florida Intangible Tax,
shall be the responsibility of Settlor.
8. The records of the Trustee with respect to the trust shall be
open at all reasonable times to the inspection of the Settlor.
9. The Settlor agrees not to use the name of Sun First National
Bank of Orlando, as Trustee or individually, or Sun
-6-
<PAGE> 10
Banks of Florida, Inc., or any of its affiliates, in any manner including, but
not limited to, the sale of Preneed Service Contract.
10. This Trust is established and accepted by the Trustee under
the laws of the State of Florida and all questions concerning its validity,
construction and administration shall be determined under the laws of the said
State of Florida.
11. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto each have caused this Agreement
to be executed in its corporate name, by its officers lawfully and duly
authorized, and its corporate seal to be affixed, on the day and year first
above written.
(Corporate Seal) TNCS, INC./SETTLOR (FLORIDA)
By: /s/ BEN B. DEES
--------------------------------
Ben B. Dees
Vice President
ATTEST:
By: /s/ E. KEITH PAYNE
-------------------------
Secretary
Secretary
- -----------------------------
as to Settlor
(Corporate Seal) SUN BANK, NATIONAL ASSOCIATION
/TRUSTEE
By: /s/ TIM POWELL
--------------------------------
Vice President and
Trust Officer
ATTEST:
By: /s/ NAOMI H. HODGES
-------------------------
Trust Officer
- -----------------------------
as to Trustee
-7-
<PAGE> 11
STATE OF TEXAS
COUNTY OF HARRIS
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, BEN B. DEES, as VICE PRESIDENT, and E. KEITH PAYNE, as
SECRETARY, of TNCS, INC. (Florida), as Settlor, to me known to be the persons
described in and who executed the foregoing instrument and they each
acknowledged before me that they executed the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 19th day of February, 1988.
/s/ JANET S. KEY
--------------------------------------
JANET S. KEY, Notary Public
MY COMMISSION EXPIRES: 10-25-88
My Commission Expires: 10-25-88
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, T.W. Powell, as VICE PRESIDENT AND TRUST OFFICER, and
Naomi H. Hodges, as TRUST OFFICER, of the SUN BANK, NATIONAL ASSOCIATION, as
Trustee, to me known to be the persons described in and who executed the
foregoing instrument and they each acknowledged before me that they executed
the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 24th day of February, 1988.
/s/ ELIZABETH A. ELLWOOD
--------------------------------------
Elizabeth A. Ellwood, Notary Public
My Commission Expires:
NOTARY PUBLIC STATE OF FLORIDA AT LARGE
My COMMISSION EXPIRES 6/26/90.
-8-
<PAGE> 1
ANNUAL PRE-ARRANGED DIRECT DISPOSAL
OR FUNERAL SERVICE TRUST AGREEMENT/1985
THIS AGREEMENT, made this 3rd day of October, 1984, by and between
TNCS, INC., a Florida corporation doing business as National Cremation Society
(hereinafter called "Settlor"), and the SUN BANK, NATIONAL ASSOCIATION, a
national bank with business offices in Orlando, Florida (hereinafter called the
"Trustee"),
W I T N E S S E T H:
WHEREAS, Settlor is engaged in the business of selling direct disposal
or funeral service and/or burial supply contracts to be performed at a future
time ("Preneed Service Contracts"), and
WHEREAS, Settlor desires to deposit funds received from the sale of
such Preneed Service Contracts with the Trustee to be held by the Trustee in
accordance with Chapters 518 and 639, Florida Statutes, as amended, the
provisions of this Trust Agreement and a Preneed Funeral and Direct Disposal
Service Master Trust Agreement:
NOW, THEREFORE, in consideration of One Dollar in hand paid by the
Settlor to the Trustee and the mutual covenants and agreements of the parties
hereto, IT IS AGREED AS FOLLOWS:
1. The Settlor hereby agrees to deliver to the Trustee, not
absolutely but in trust, within thirty (30) days after the receipt thereof, all
amounts received from the sale of Preneed Service Contracts (excluding all
amounts collected for National Cremation Society membership registration fees)
which have been executed by the Settlor from and after the date it receives a
Chapter 639, Florida Statutes, Certificate of Authority through the end of its
fiscal year ending on April 30, 1985. The Trustee shall receive and hold all
<PAGE> 2
amounts transferred to it pursuant to this paragraph in trust, all of such
amounts together with any income, dividends or appreciation thereon to be
referred to herein as the "Trust Estate".
2. The Trustee shall collect and receive the income earned upon
the amounts held in trust and shall pay therefrom the expenses of
administration of this trust, including a reasonable fee for acting as Trustee
hereunder, and thereafter, the Trustee shall distribute the net income and
principal of the Trust Estate in the following manner:
(a) The Trustee shall distribute the net income of the
Trust Estate to the Settlor quarter-annually.
(b) The Trustee shall distribute the amounts of principal
of the Trust Estate to the Settlor from time to time upon the receipt from the
Settlor of a certified photo-static copy of the death certificate of the
contract beneficiary and evidence satisfactory to the Trustee that one or more
Preneed Service Contracts have been fully performed or upon receipt of written
request for distribution due to one or more contract purchasers terminating by
cancellation or default of their contracts and stating the principal amount
attributable to any such contract, whether the same has been fully performed,
canceled or defaulted. Such written request, statement or evidence shall be
signed by those officers or employees of the Settlor who are authorized to do
so. The Settlor shall certify to the Trustee from time to time, those officers
or employees who are authorized to sign.
(c) Upon termination by cancellation or default of a
Preneed Service Contract by a contract purchaser, such purchaser may demand a
refund pursuant to Section 639.13 Florida Statutes, as amended, from the
Settlor, who, upon written request to the Trustee, shall receive from the
Trustee, payable to the Settlor, the purchaser's entire amount actually paid on
such contract exclusive of any such
-2-
<PAGE> 3
amounts allocable to National Cremation Society membership registration fees.
3. (a) The Trustee shall render to the Settlor monthly
reports of income cash and principal cash, i.e., a listing of all journal
transactions occurring in the account of the Trust Estate on a monthly basis,
and an unvalued list or schedule of the assets held, and shall make regular
asset valuations not less often than quarter-annually giving values as is
customary according to the nature of the assets held, and shall determine the
amount of appreciation or depreciation in the value of said assets and the
amount by which such assets are greater or less than the total funds deposited
under this Trust Agreement, but excluding from funds deposited, those funds
paid out on Preneed Service Contracts which have been fully performed or
otherwise terminated. The Settlor shall be entitled to withdraw appreciation in
the value of the trust, i.e., excess of asset value over the total funds
deposited in trust, upon written request to the Trustee therefor and the
Settlor shall restore forthwith to the Trust Estate any deficit in such asset
value upon written notice to it of such deficit; except that where the Settlor
withdraws none of the appreciation in the value of said assets, other than the
pro rata portion of such appreciation which may be withdrawn upon the death of
a contract beneficiary or upon cancellation or default of a Preneed Service
Contract, it shall not be required to make additional deposits from its own
funds to restore values which decline. It is expressly understood and agreed by
the parties hereto that in the event the Settlor withdraws appreciation in
asset value as provided herein, the Trustee shall not be liable, either
individually or as a fiduciary, for the restoration of any deficit in asset
value should such value decline. The Settlor shall advise the Trustee, whenever
requested by the Trustee, of the total of its liabilities under all
-3-
<PAGE> 4
outstanding Preneed Service Contracts.
(b) The Settlor shall maintain, in accordance with
Chapter 639, Florida Statutes, as amended, all accounting and other business
records required for each and every contract purchaser and/or beneficiary whose
funds are held by the Trustee pursuant to the terms of this Trust Agreement.
4. The Trustee shall have, except as otherwise restricted by the
terms of this Trust Agreement and the provisions of Chapters 518 and 639,
Florida Statutes, full and unrestricted discretionary power and authority,
without order of Court, and without any duty upon any person dealing with it to
see to the application of any money or other property delivered to it, to hold,
manage, control, invest, reinvest, sell (upon contract or otherwise), exchange,
grant, convey, assign, transfer, deliver, lease, option, mortgage, pledge,
borrow upon the credit of, contract with respect to, or otherwise deal with or
dispose of, the property of the Trust Estate in the manner in which men of
prudence, discretion and intelligence exercise in the management of their own
affairs, not in regard to speculation, but in regard to the permanent
disposition of their funds, considering the probable income as well as the
probable safety of their capital. Within the limitation of the foregoing
standard, the Trustee is authorized to enter into a pooled fund with like
purpose trusts executed by the Settlor, to write (sell) covered call options on
common stock held in the Trust portfolio, to acquire and retain every kind of
property, real, personal and mixed, and every kind of investment, specifically
including, but not by way of limitation, bonds, debentures, and other corporate
obligations, savings accounts in insured savings and loan associations, stocks,
preferred or common, securities of any open-end or closed-end management type
investment company or investment trust, and participations in common trust
funds, which men of prudence, discretion and intelligence would
-4-
<PAGE> 5
acquire or retain for their own account.
Authority is hereby reserved in the Settlor to select an
advisory or investment committee or an investment counsel to direct the Trustee
in the making or retention of any investment and the Trustee shall not be
liable, either individually or as a fiduciary, for any loss resulting from the
making or retention of any investment pursuant to such direction. Said advisory
or investment committee or investment counsel, in directing the Trustee to deal
with and dispose of property of the Trust, shall use the prudent man standard
as contained in Sec. 518.11, Florida Statutes. Settlor shall designate in
writing the name of the advisory or investment committee or investment counsel
selected and shall submit the same to the Trustee. Such notice shall be
effective until revoked by Settlor upon written notice thereof to the Trustee.
5. The Settlor hereby reserves the following powers:
(a) To have the full and absolute right to review and
veto the investments of the Trustee, except however, any investment or
retention thereof pursuant to direction of any advisory or investment committee
or investment counsel selected by Settlor shall not be subject to veto by
Settlor unless the Trustee is notified in writing of the revocation of any such
instruction issued by said advisory or investment committee or investment
counsel.
(b) To alter or amend this Trust Agreement, either wholly
or in part, at any time or to designate a Successor Trustee; provided, however,
that no such alteration or amendment shall be contrary to the provisions of
Chapter 639, Florida Statutes, as amended.
(c) To revoke this trust with the approval of the Florida
State Insurance Commissioner or other Florida state official having supervisory
authority over this trust at the time of revocation. In the event of such
revocation, the
-5-
<PAGE> 6
Settlor shall give the Trustee at least thirty (30) days prior written notice
thereof and at the end of such thirty (30) day period, or as soon thereafter as
it is possible to do so, the Trustee, after deducting its reasonable costs,
charges and expenses, shall deliver all of the trust property then in its hands
to the Settlor or Successor Trustee and upon obtaining the Settlor's receipt,
or receipt of the Successor Trustee therefor, the Trustee shall thereupon be
discharged. In such event the Trustee shall have no duty or liability to
convert the trust assets to cash but may deliver the same in kind or in their
then existing form or in whatever form it may deem advisable in its sole
discretion.
(d) To revoke this trust in the event the statute
requiring the funds of Preneed Service Contracts to be placed in trust is ever
declared unconstitutional by the Florida Supreme Court, or any other court of
last resort, or in the event such statute shall ever be repealed or amended so
that such funds are not required to be placed in trust.
Any amendment or revocation of this trust shall be by an
instrument in writing executed by the Settlor and delivered to the Trustee;
provided, however, that no amendment which increases or alters the duties and
obligations of the Trustee may be made without its written consent thereto.
6. The Trustee may resign at any time by giving at least thirty
(30) days prior written notice thereof to the Settlor. In the event of such
resignation, or for any other reason there is no Trustee of this trust, the
Settlor shall designate a Successor Trustee in writing, and upon the acceptance
of such trust by the Successor Trustee, the Trustee shall transfer all property
of the Trust Estate to the Successor Trustee. No Successor Trustee shall be
required to examine the accounts, records and acts of any previous Trustee or
Trustees, nor shall such Successor Trustee in any way or manner be responsible
for any act or omission
-6-
<PAGE> 7
to act on the part of any previous Trustee or Trustees.
7. The Trustee acknowledges its responsibility for preparing and
timely filing a Form 1041 U. S. Fiduciary Income Tax return each taxable year
ending April 30, and in the preparation of such returns, the Trust will be
treated as a "Grantor Trust". The Trustee shall furnish Settlor with copies of
all such tax returns as they are filed. Any other tax return for taxes required
by any taxing authority, with the exception of Florida Intangible Tax, shall be
the responsibility of Settlor.
8. The records of the Trustee with respect to the trust shall be
open at all reasonable times to the inspection of the Settlor.
9. The Settlor agrees not to use the name of Sun First National
Bank of Orlando, as Trustee or individually, or Sun Banks of Florida, Inc., or
any of its affiliates, in any manner including, but not limited to, the sale of
Preneed Service Contract.
10. This Trust is established and accepted by the Trustee under
the laws of the State of Florida and all questions concerning its validity,
construction and administration shall be determined under the laws of the said
State of Florida.
11. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto each have caused this Agreement
to be executed in its corporate name, by its officers lawfully and duly
authorized, and its corporate seal to be affixed, on the day and year first
above written.
-7-
<PAGE> 8
(CORPORATE SEAL) TNCS, INC./SETTLOR (FLORIDA)
By: /s/ PAUL PAGE, JR.
----------------------------------
Paul Page, Jr.
Vice President
ATTEST
BY: [ILLEGIBLE]
-----------------------
Ass't Secretary
- ---------------------------
as to Settlor
(CORPORATE SEAL) SUN BANK, NATIONAL ASSOCIATION/TRUSTEE
By: /s/ TIM POWELL
----------------------------------
Vice President &
Trust Officer
ATTEST
By: /s/ NAOMI H. HODGES
-----------------------
Trust Officer
- ---------------------------
as to Trustee
-8-
<PAGE> 9
STATE OF TEXAS
COUNTY OF HARRIS
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, PAUL PAGE, JR., VICE PRESIDENT of TNCS, INC., (Florida) as
Settlor, to me known to be the person described in and who executed the
foregoing instrument and he acknowledged before me that he executed the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 3rd day of October, 1984.
/s/ NANCY L. CLARK
---------------------------------------
Notary Public
My commission expires: 6/7/86
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, T. W. Powell, as Vice President and Trust Officer, and
Naomi H Hodges, as Trust Officer, of the SUN BANK, NATIONAL ASSOCIATION, as
Trustee, to me known to be the persons described in and who executed the
foregoing instrument and they each acknowledged before me that they executed
the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 11th day of October, 1984.
[ILLEGIBLE]
---------------------------------------
Notary Public
My commission expires: Notary Public, State of Florida
My Commission expires [ILLEGIBLE]
[ILLEGIBLE]
-9-
<PAGE> 1
ANNUAL TRUST AGREEMENT/l982
THIS AGREEMENT, made this 29th day of April, 1981, by and between
GUARDIAN PLANS, INC., a Florida corporation (hereinafter called "Settlor"), and
the SUN FIRST NATIONAL BANK OF ORLANDO, a Florida corporation (hereinafter
called the "Trustee"),
W I T N E S S E T H:
WHEREAS, Settlor is engaged in the business of selling funeral service
and/or burial supply contracts to be performed at a future time ("Preneed
Funeral Service Contracts"), and
WHEREAS, Settlor desires to deposit funds received from the sale of
such Preneed Funeral Service Contracts with the Trustee to be held by the
Trustee in accordance with Chapters 518 and 639, Florida Statutes, as amended,
the provisions of this Trust Agreement and a Preneed Funeral Service Master
Trust Agreement:
NOW THEREFORE, in consideration of One Dollar in hand paid by the
Settlor to the Trustee and the mutual covenants and agreements of the parties
hereto, IT IS AGREED as follows:
1. The Settlor hereby agrees to deliver to the Trustee, not
absolutely but in trust, within thirty (30) days after the receipt thereof, all
amounts received from the sale of Preneed Funeral Service Contracts executed
during the Settlor's fiscal year ending April 30, 1982. The Trustee shall
receive and hold all amounts transferred to it pursuant to this paragraph in
trust, all of such amounts together with any income, dividends or appreciation
thereon to be referred to herein as the "Trust Estate".
2. The Trustee shall collect and receive the income earned upon
the amounts held in trust and shall pay therefrom the expenses of administration
of this trust, in-
<PAGE> 2
fcluding a reasonable fee for acting as Trustee hereunder, and thereafter, the
Trustee shall distribute the net income and principal of the Trust Estate in
the following manner:
(a) The Trustee shall distribute the net income of the
Trust Estate to the Settlor quarter-annually.
(b) The Trustee shall distribute the amounts of principal
of the Trust Estate to the Settlor from time to time upon the receipt from the
Settlor of a certified photostatic copy of the death certificate of the
contract beneficiary and evidence satisfactory to the Trustee that one or more
Preneed Funeral Service Contracts have been fully performed or upon receipt of
written request for distribution due to one or more contract purchasers
terminating by cancellation or default of their contracts and stating the
principal amount attributable to any such contract, whether the same has been
fully performed, cancelled or defaulted. Such written request, statement or
evidence shall be signed by those officers or employees of the Settlor who are
authorized to do so. The Settlor shall certify to the Trustee from time to
time, those officers or employees who are authorized to sign.
(c) Upon termination by cancellation or default of a
Preneed Funeral Service Contract by a contract purchaser, such purchaser may
demand a refund pursuant to Section 639.13 Florida Statutes, as amended, from
the Settlor, who upon written request to the Trustee shall receive from the
Trustee, payable to the Settlor, the purchaser's entire amount actually paid
on such contract.
3. (a) The Trustee shall render to the Settlor monthly
reports of income cash and principal cash, i.e., a listing of all journal
transactions occurring in the account of the Trust Estate on a monthly basis,
and an unvalued list or schedule of the assets held, and shall make regular
asset valuations not less often than quarter-annually giving values
-2-
<PAGE> 3
as is customary according to the nature of the assets held, and shall determine
the amount of appreciation or depreciation in the value of said assets and the
amount by which such assets are greater or less than the total funds deposited
under this Trust Agreement, but excluding from funds deposited, those funds paid
out on Preneed Funeral Service Contracts which have been fully performed or
otherwise terminated. The Settlor shall be entitled to withdraw appreciation in
the value of the trust, i.e., excess of asset value over the total funds
deposited in trust, upon written request to the Trustee therefor and the Settlor
shall restore forthwith to the Trust Estate any deficit in such asset value upon
written notice to it of such deficit; except that where the Settlor withdraws
none of the appreciation in the value of said assets, other than the pro rata
portion of such appreciation which may be withdrawn upon the death of a contract
beneficiary or upon cancellation or default of a Preneed Funeral Service
Contract, it shall not be required to make additional deposits from its own
funds to restore values which decline. It is expressly understood and agreed by
the parties hereto that in the event the settlor withdraws appreciation in asset
value as provided herein, the Trustee shall not be liable, either individually
or as a fiduciary, for the restoration of any deficit in asset value should such
value decline. The Settlor shall advise the Trustee, whenever requested by the
Trustee, of the total of its liabilities under all outstanding Preneed Funeral
Service Contracts.
(b) The Settlor shall maintain, in accordance with
Chapter 639, Florida Statutes, as amended, all accounting and other business
records required for each and every contract purchaser and/or beneficiary whose
funds are held by the Trustee pursuant to the terms of this Trust Agreement.
-3-
<PAGE> 4
4. The Trustee shall have, except as otherwise restricted by the
terms of this Trust Agreement and the provisions of Chapters 518 and 639,
Florida Statutes, full and unrestricted discretionary power and authority,
without order of Court, and without any duty upon any person dealing with it to
see to the application of any money or other property delivered to it, to hold,
manage, control, invest, reinvest, sell (upon contract or otherwise), exchange,
grant, convey, assign, transfer, deliver, lease, option, mortgage, pledge,
borrow upon the credit of, contract with respect to, or otherwise deal with or
dispose of, the property of the Trust Estate in the manner in which men of
prudence, discretion and intelligence exercise in the management of their own
affairs, not in regard to speculation, but in regard to the permanent
disposition of their funds, considering the probable income as well as the
probable safety of their capital. Within the limitation of the foregoing
standard, the Trustee is authorized to enter into a pooled fund with like
purpose trusts executed by the Settlor, to write (sell) covered call options on
common stock held in the Trust portfolio, to acquire and retain every kind of
property, real, personal and mixed, and every kind of investment, specifically
including, but not by way of limitation, bonds, debentures, and other corporate
obligations, savings accounts in insured savings and loan associations, stocks,
preferred or common, securities of any open-end or closed-end management type
investment company or investment trust, and participations in common trust
funds, which men of prudence, discretion and intelligence would acquire or
retain for their own account.
Authority is hereby reserved in the Settlor to select an advisory or
investment committee or an investment counsel to direct the Trustee in the
making or retention of any investment and the Trustee shall not be liable,
either
-4-
<PAGE> 5
individually or as a fiduciary, for any loss resulting from the making or
retention of any investment pursuant to such direction. Said advisory or
investment committee or investment counsel, in directing the Trustee to deal
with and dispose of property of the Trust, shall use the prudent man standard
as contained in Sec. 518.11, Florida Statutes. Settlor shall designate in
writing the name of the advisory or investment committee or investment counsel
selected and shall submit the same to the Trustee. Such notice shall be
effective until revoked by Settlor upon written notice thereof to the Trustee.
5. The Settlor hereby reserves the following powers:
(a) To have the full and absolute right to review and
veto the investments of the Trustee, except however, any investment or
retention thereof pursuant to direction of any advisory or investment committee
or investment counsel selected by Settlor shall not be subject to veto by
Settlor unless the Trustee is notified in writing of the revocation of any such
instruction issued by said advisory or investment committee or investment
counsel.
(b) To alter or amend this Trust Agreement, either wholly
or in part, at any time or to designate a Successor Trustee; provided, however,
that no such alteration or amendment shall be contrary to the provisions of
Chapter 639, Florida Statutes, as amended.
(c) To revoke this trust with the approval of the Florida
State Insurance Commissioner or other Florida state official having supervisory
authority over this trust at the time of revocation. In the event of such
revocation, the Settlor shall give the Trustee at least thirty (30) days prior
written notice thereof and at the end of such thirty (30) day period, or as
soon thereafter as it is possible to do so, the Trustee, after deducting its
reasonable costs, charges and expenses, shall deliver all of the trust property
-5-
<PAGE> 6
then in its hands to the Settlor or Successor Trustee and upon obtaining the
settlor's receipt, or receipt of the Successor Trustee therefor, the Trustee
shall thereupon be discharged. In such event the Trustee shall have no duty or
liability to convert the trust assets to cash but may deliver the same in kind
or in their then existing form or in whatever form it may deem advisable in its
sole discretion.
(d) To revoke this trust in the event the statute
requiring the funds of Preneed Funeral Service Contracts to be placed in trust
is ever declared unconstitutional by the Florida Supreme Court, or any other
court of last resort, or in the event such statute shall ever be repealed or
amended so that such funds are not required to be placed in trust.
Any amendment or revocation of this trust shall be by an instrument in
writing executed by the Settlor and delivered to the Trustee; provided,
however, that no amendment which increases or alters the duties and obligations
of the Trustee may be made without its written consent thereto.
6. The Trustee may resign at any time by giving at least thirty
(30) days prior written notice thereof to the Settlor. In the event of such
resignation, or for any other reason there is no Trustee of this trust, the
Settlor shall designate a Successor Trustee in writing, and upon the acceptance
of such trust by the Successor Trustee, the Trustee shall transfer all property
of the Trust Estate to the Successor Trustee. No Successor Trustee shall be
required to examine the accounts, records and acts of any previous Trustee or
Trustees, nor shall such Successor Trustee in any way or manner be responsible
for any act or omission to act on the part of any previous Trustee or Trustees.
-6-
<PAGE> 7
7. The Trustee acknowledges its responsibility for preparing and
timely filing a Form 1041 U.S. Fiduciary Income Tax return each taxable year
ending April 30, and in the preparation of such returns, the Trust will be
treated as a "Grantor Trust". The Trustee shall furnish Settlor with copies of
all such tax returns as they are filed. Any other tax return for taxes required
by any taxing authority, with the exception of Florida Intangible Tax, shall be
the responsibility of Settlor.
8. The records of the Trustee with respect to the trust shall be
open at all reasonable times to the inspection of the Settlor.
9. The Settlor agrees not to use the name of Sun First National
Bank of Orlando, as Trustee or individually, or Sun Banks of Florida, Inc., or
any of its affiliates, in any manner including, but not limited to, the sale of
Preneed Funeral Service Contracts.
10. This Trust is established and accepted by the Trustee under
the laws of the State of Florida and all questions concerning its validity,
construction and administration shall be determined under the laws of the said
State of Florida.
11. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto each have caused this Agreement
to be executed in its corporate name, by its officers lawfully and duly
authorized, and its corporate seal to be affixed, on the day and year first
above written.
-7-
<PAGE> 8
GUARDIAN PLANS, INC.
(CORPORATE SEAL) GUARDIAN PLANS, INC./SETTLOR
(FLORIDA)
By: /s/ PAUL PAGE, JR.
-----------------------------------
Paul Page, Jr.
Vice President
ATTEST
BY: [ILLEGIBLE]
------------------------
Ass't Secretary
- ----------------------------
as to Settlor
SUN FIRST NATIONAL BANK OF
ORLANDO/TRUSTEE
(CORPORATE SEAL)
By: /s/ THOMAS D. PURDY
-----------------------------------
Vice President & Trust Officer
ATTEST
By: /s/ WILLIAM F. KING, JR.
------------------------
Trust Officer
TRUST OFFICER
- ----------------------------
as to Trustee
-8-
<PAGE> 9
STATE OF TEXAS
COUNTY OF HARRIS
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, PAUL PAGE, JR., VICE PRESIDENT OF GUARDIAN PLANS, INC.,
(Florida) as Settlor, to me known to be the person described in and who
executed the foregoing instrument and he acknowledged before me that he
executed the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 29th day of April, 1981.
[ILLEGIBLE]
----------------------------------------
Notary Public
My commission expires: 12-15-84.
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, the undersigned officer,
personally appeared, THOMAS D. PURDY, as Vice President and Trust Officer, and
WILLIAM F. KING, as Trust Officer, of the SUN FIRST NATIONAL BANK OF ORLANDO, as
Trustee, to me known to be the persons described in and executed the foregoing
instrument and they each acknowledged before me that they executed the same.
WITNESS my hand and official seal in the County and State last
aforesaid this 6th day of May, 1981.
[ILLEGIBLE]
----------------------------------------
Notary Public
My commission expires: Notary Public, State of Florida
My Commission Expires Oct. 1, 1984
Bonded Thru Troy Fain Insurance Inc.
-9-
