-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F1uKH4AajzL1AxOQvrdndnTugoetfxTR7vnw7Gfz+aWRTYH7H/ZXJwYezLVP90V8 borvjIgs0BEDq4RctuzX6g== 0000892569-98-001690.txt : 19980603 0000892569-98-001690.hdr.sgml : 19980603 ACCESSION NUMBER: 0000892569-98-001690 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980602 EFFECTIVENESS DATE: 19980602 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: REMEDYTEMP INC CENTRAL INDEX KEY: 0001013467 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 952890471 STATE OF INCORPORATION: CA FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-55823 FILM NUMBER: 98641228 BUSINESS ADDRESS: STREET 1: 32122 CAMINO CAPISTRANO CITY: SAN JUAN CAPISTRANO STATE: CA ZIP: 92675 BUSINESS PHONE: 7146611211 MAIL ADDRESS: STREET 1: 32122 CAMINO CAPISTRANO STREET 2: 32122 CAMINO CAPISTRANO CITY: SAN JUAN CAPISTRANO STATE: CA ZIP: 92675 S-8 1 FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1998 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- REMEDYTEMP, INC. (Exact name of Registrant as specified in its charter) 32122 CAMINO CAPISTRANO SAN JUAN CAPISTRANO, CALIFORNIA 92675 (949) 661-1211 (Address of Principal Executive Offices) CALIFORNIA 95-2890471 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1998 REMEDYTEMP, INC. DEFERRED COMPENSATION AND STOCK OWNERSHIP PLAN FOR OUTSIDE DIRECTORS (Full title of the plan) ------------------------- ALAN M. PURDY WALTER L. SCHINDLER, ESQ. CHIEF FINANCIAL OFFICER GIBSON, DUNN & CRUTCHER LLP 32122 CAMINO CAPISTRANO 4 PARK PLAZA, SUITE 1800 SAN JUAN CAPISTRANO, CALIFORNIA 92675 IRVINE, CALIFORNIA 92614-8557 (949) 661-1211 (949) 451-3987 (Name, address, zip code, and telephone number, (Name, address, zip code, and telephone number including area code, of agent for service) including area code, of agent for service)
------------------------- CALCULATION OF REGISTRATION FEE ================================================================================================== PROPOSED MAXIMUM TITLE OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE - -------------------------------------------------------------------------------------------------- Class A Common Stock, par value $0.01 per share 25,000 $29.25 $731,250.00 $215.72 ==================================================================================================
(1) Estimated solely for purposes of determining the registration fee pursuant to Rule 457(h) and Rule 457(c) based on the average of the high and low prices for the Class A Common Stock of RemedyTemp, Inc. as reported on May 27, 1998 on the Nasdaq National Market. (2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein. - -------------------------------------------------------------------------------- This Registration Statement on Form S-8 contains 7 sequentially numbered pages. The Exhibit Index appears at sequentially numbered page 7. - -------------------------------------------------------------------------------- 2 This Registration Statement on Form S-8 is filed by RemedyTemp, Inc. (the "Company") relating to 25,000 shares of the Company's Class A Common Stock, par value $0.01 per share (the "Common Stock"), issuable to non-employee, non-officer directors ("Outside Directors") of the Company under the 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan for Outside Directors (the "Plan"). PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION.* ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.* *Information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"), and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which previously have been filed by the Company with the Securities and Exchange Commission (the "Commission"), are incorporated herein by reference and made a part hereof: (a) The Company's annual report on Form 10K for the year ended September 28, 1997; (b) The Company's quarterly report on Form 10-Q for the quarters ended December 28, 1997 and March 29, 1998; and (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed with the Commission on June 7, 1996, which incorporates by reference the description of the Company's Common Stock contained in the Company's Registration Statement on Form S-1 (Registration No. 333-4276), including any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment hereto that indicates that all securities offered hereunder have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. For purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated herein by reference modifies or supersedes such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. 3 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. As permitted by the California General Corporation Law, the Company's Amended and Restated Articles of Incorporation (the "Articles of Incorporation") and its Amended and Restated Bylaws (the "Bylaws") provide that a director will not be personally liable for monetary damages to the Company or its shareholders for breach of fiduciary duty as a director, except for liability for (i) acts or omissions by the director that involve intentional misconduct or a knowing and culpable violation of law; (ii) acts or omissions that a director believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the director; (iii) transactions from which the director derived an improper benefit; (iv) acts or omissions by the director that show a reckless disregard for the director's duty to the Company or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Company or its shareholders; (v) acts or omissions by the director that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the Company or its shareholders; (vi) unlawful distributions, loans or guarantees as set forth in Section 316 of the California Corporations Code; and (vii) unlawful transactions between the director and the Company, as provided in Section 310 of the California Corporations Code. These provisions do not limit or eliminate the rights of the Company or its shareholders to seek non-monetary relief, such as an injunction or rescission. The Company has entered into individual indemnification agreements governed by California law with each of its directors and certain officers. The indemnification agreements require the Company to pay, subject to certain limitations, all amounts attributable to any claims made against such an officer or director arising out of acts by such officer or director in their capacity as, or solely because of their position as, an officer and/or director of the Company, provided that such persons acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Company and its shareholders, and in the case of a criminal proceeding, had no reasonable cause to believe that his or her conduct was unlawful. In addition, the indemnity agreements provide generally that the Company will advance expenses incurred by directors and executive officers in any action or proceeding as to which they may be entitled to indemnification subject to certain exceptions. The Company carries directors and officers indemnity insurance. The indemnification provisions in the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws and the indemnification agreements entered into between the Company and its non-employee directors may permit indemnification for liabilities arising under the Securities Act. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4.1 Specimen Stock Certificate * 4.2 Shareholder Rights Agreement * 4.3 Amended and Restated Articles of Incorporation of the Company ** 4.4 Amended and Restated Bylaws of the Company *** 5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the securities being registered 10.1 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan for Outside Directors**** 2 4 23.1 Consent of Price Waterhouse LLP, independent accountants 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5 hereto) 24.1 Power of Attorney (contained on signature page hereto) 99.1 Trust Agreement under the 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan for Outside Directors - -------------------------- * Incorporated by reference to the exhibit of the same number to the Company's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. ** Incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. *** Incorporated by reference to the exhibit of the same number to the Company's Registration Statement on Form S-8 (Reg. No. 333-47581). **** Incorporated by reference to Exhibit 10.24 to the Company's Quarterly Report on From 10-Q for the quarter ended March 29, 1998. ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3 5 (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by a final adjudication of such issue. 4 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Juan Capistrano, State of California, on May 29 1998. REMEDYTEMP, INC. By: /s/ Paul W. Mikos -------------------------------- Paul W. Mikos President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Paul W. Mikos and Alan M. Purdy his true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, with full powers and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
NAME TITLE DATE /s/ Paul W. Mikos Director, President and Chief May 29 1998 - --------------------------------- Executive Officer (Principal Paul W. Mikos Executive Officer) /s/ Alan M. Purdy Chief Financial Officer (Principal May 29, 1998 - --------------------------------- Financial Officer and Principal Alan M. Purdy Accounting Officer) /s/ Robert E. McDonough, Sr. Director, Chairman of the Board May 29, 1998 - --------------------------------- Robert E. McDonough, Sr. /s/ Susan McDonough Mikos Director, Secretary May 29, 1998 - --------------------------------- Susan McDonough Mikos /s/ William D. Cvengros Director May 29, 1998 - --------------------------------- William D. Cvengros /s/ James L. Doti Director May 29, 1998 - --------------------------------- James L. Doti /s/ Robert A. Elliot Director May 29, 1998 - --------------------------------- Robert A. Elliott
5 7
NAME TITLE DATE /s/ J. Michael Hagan Director May 29, 1998 - --------------------------------- J. Michael Hagan /s/ John B. Zaepfel Director May 29, 1998 - --------------------------------- John Zaepfel
6 8 INDEX TO EXHIBITS
Sequentially Numbered Exhibit No. Description Page ----------- ----------- ------------- 4.1 Specimen Stock Certificate * 4.2 Shareholder Rights Agreement * 4.3 Amended and Restated Articles of Incorporation of the ** Company 4.4 Amended and Restated Bylaws of the Company *** 5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the securities being registered 10.1 1998 RemedyTemp, Inc. Deferred Compensation and Stock **** Ownership Plan for Outside Directors 23.1 Consent of Price Waterhouse LLP independent accountants 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney (contained on signature page hereof) 99.1 Trust Agreement under the 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan for Outside Directors
- --------------------------- * Incorporated by reference to the exhibit of the same number to the Company's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. ** Incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1 (Reg. No. 333-4276), as amended. *** Incorporated by reference to the exhibit of the same number to the Company's Registration Statement on Form S-8 (Reg. No. 333-47581). **** Incorporated by reference to Exhibit 10.24 to the Company's Quarterly Report on Form 10-Q for the quarter ended March 29, 1998. 7 EX-5.1 2 OPINION OF GIBSON, DUNN & CRUTCHER LLP 1 EXHIBIT 5.1 [LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP] May 29, 1998 WRITER'S DIRECT DIAL NUMBER OUR FILE NUMBER (714) 451-3800 C 75293-00014 RemedyTemp, Inc. 32122 Camino Capistrano San Juan Capistrano, CA 92675 Re: Registration Statement on Form S-8 for 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan for Outside Directors Ladies and Gentlemen: We have acted as your counsel in connection with the preparation of a Registration Statement to be filed with the Securities and Exchange Commission on the date hereof, to register, under the Securities Act of 1933, as amended (the "Act"), 25,000 shares of the Company's Class A Common Stock, par value $0.01 per share (the "Common Stock"), to be paid to non-employee, non-officer directors ("Outside Directors") of the Company pursuant to the Company's 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan (the "Plan"). For purposes of rendering this opinion, we have made such legal and factual examinations as we have deemed necessary under the circumstances and, as part of such examination, we have examined originals and copies, certified or otherwise, identified to our satisfaction, of the Plan, the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, and the records of corporate proceedings and other actions taken by the Company in connection with the Plan and the Common Stock issuable thereunder, and such other documents, corporate records and other instruments as we have deemed necessary or appropriate. Based upon the foregoing and in reliance thereon, and subject to (i) compliance with applicable state securities laws and (ii) the effectiveness of the Registration Statement pursuant to the Act, it is our opinion that the Common Stock, when issued in accordance with the Registration Statement and the Plan, will be validly issued, fully paid and non-assessable. 2 GIBSON, DUNN & CRUTCHER LLP RemedyTemp, Inc. May 29, 1998 Page 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption "Legal Matters" in the Prospectus forming a part of said Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations thereunder. Very truly yours, /s/ GIBSON, DUNN & CRUTCHER LLP ------------------------------------ GIBSON, DUNN & CRUTCHER LLP WLS/JPB EX-23.1 3 CONSENT OF PRICE WATERHOUSE LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated November 14, 1997, which appears on page 29 of the 1997 Annual Report to Shareholders of RemedyTemp, Inc., which is incorporated by reference in RemedyTemp, Inc.'s Annual Report on Form 10-K for the year ended September 28, 1997. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page 15 of such Annual Report on Form 10-K. /s/ PRICE WATERHOUSE LLP - ------------------------------- PRICE WATERHOUSE LLP Costa Mesa, California May 27, 1998 EX-99.1 4 TRUST AGREEMENT 1 EXHIBIT 99.1 TRUST AGREEMENT UNDER THE 1998 REMEDYTEMP, INC. DEFERRED COMPENSATION AND STOCK OWNERSHIP PLAN FOR OUTSIDE DIRECTORS (a) This Agreement made effective as of March 16, 1998 by and among RemedyTemp, Inc. ("Company") and Alan M. Purdy and Jeffrey A. Elias ("Trustees"); (b) WHEREAS, Company has adopted the nonqualified deferred compensation Plan attached hereto as Appendix A. (c) WHEREAS, Company has incurred or expects to incur liability under the terms of such Plan with respect to the individuals participating in such Plan; (d) WHEREAS, Company wishes to establish a trust (hereinafter called "Trust") and to contribute to the Trust assets that shall be held therein, subject to the claims of Company's creditors in the event of Company's Insolvency, as herein defined, until paid to Plan participants and their beneficiaries in such manner and at such times as specified in the Plan; (e) WHEREAS, it is the intention of the parties that this Trust shall constitute an unfunded arrangement and shall not affect the status of the Plan as an unfunded plan maintained for the purpose of providing deferred compensation for a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974; (f) WHEREAS, it is the intention of Company to make contributions to the Trust to provide itself with a source of funds to assist it in the meeting of its liabilities under the Plan; NOW THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows: SECTION 1. ESTABLISHMENT OF TRUST (a) Company shall deposit with Trustee in trust shares of Common Stock of Company, which shall become the principal of the Trust to be held, administered and disposed of by Trustee as provided in this Trust Agreement. (b) The Trust hereby established shall be revocable by Company. (c) The Trust is intended to be a grantor trust, of which company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and shall be construed accordingly. (d) The principal of the Trust, and any earnings thereon shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan participants and general creditors as herein set froth. Plan participants and their beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the Plan and this trust Agreement shall be mere unsecured contractual rights of Plan participants and their beneficiaries against Company. Any assets held by the Trust will be subject to the claims of Company's general creditors under federal and state law in the event of Insolvency, as defined in Section 3(a) herein. (e) Company, in its sole discretion, may at any time, or from time to time, make additional deposits of cash or other property in trust with Trustee to augment the principal to be held, administered and disposed of by Trustee as provided in this Trust Agreement. Neither 2 Trustee nor any Plan participant or beneficiary shall have any right to compel such additional deposits. SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES. (a) Company shall deliver to Trustee a schedule (the "Payment Schedule") that indicates the amounts payable in respect of each Plan participant (and his or her beneficiaries), that provides a formula or other instructions acceptable to Trustee for determining the amounts so payable, the form in which such amount is to be paid (as provided for or available under the Plan), and the time of commencement for payment of such amounts. Except as otherwise provided herein, Trustee shall make payments to the Plan participants and their beneficiaries in accordance with such Payment Schedule. The Trustee shall make provision for the reporting and withholding of any federal, state or local taxes that may be required to be withheld with respect to the payment of benefits pursuant to the terms of the Plan and shall pay amounts withheld to the appropriate taxing authorities or determine that such amounts have been reported, withheld and paid by Company. (b) The entitlement of a Plan participant or his or her beneficiaries to benefits under the Plan shall be determined by Company or such party as it shall designate under the Plan, and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plan. (c) Company may make payment of benefits directly to Plan participants or their beneficiaries as they become due under the terms of the Plan. Company shall notify Trustee of its decision to make payment of benefits directly prior to the time amounts are payable to participants or their beneficiaries. In addition, if the principal of the Trust, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of the Plan, Company shall make the balance of each such payment as it falls due. Trustee shall notify Company where principal and earnings are not sufficient. SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT. (a) Trustee shall cease payment of benefits to Plan participants and their beneficiaries if the Company is Insolvent. Company shall be considered "Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay its debts as they become due, or (ii) Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code. (b) At all times during the continuance of this Trust, as provided in Section 1(d) hereof, the principal and income of the Trust shall be subject to claims of general creditors of Company under federal and state law as set forth below. (1) The Board of Directors and the Chief Executive Officer of Company shall have the duty to inform Trustee in writing of Company's Insolvency. If a person claiming to be a creditor of Company alleges in writing to Trustee that Company has become Insolvent, Trustee shall determine whether Company is Insolvent and, pending such determination, Trustee shall discontinue payment of benefits to Plan participants or their beneficiaries. (2) Unless Trustee has actual knowledge of Company's Insolvency, or has received notice from Company or a person claiming to be a creditor alleging that Company is Insolvent, Trustee shall have no duty to inquire whether Company is Insolvent. Trustee may in all events rely 2 3 on such evidence concerning Company's solvency as may be furnished to Trustee and that provides Trustee with a reasonable basis for making a determination concerning Company's solvency. (3) If at any time Trustee has determined that Company is Insolvent, Trustee shall discontinue payments to Plan participants or their beneficiaries and shall hold the assets of the Trust for the benefit of Company's general creditors. Nothing in this Trust Agreement shall in any way diminish any rights of Plan participants or their beneficiaries to pursue their rights as general creditors of Company with respect to benefits due under the Plan or otherwise. (4) Trustee shall resume the payment of benefits to Plan participants or their beneficiaries in accordance with Section 2 of this Trust Agreement only after Trustee has determined that Company is not Insolvent (or is no longer Insolvent). (c) Provided that there are sufficient assets, if Trustee discontinues the payment of benefits from the Trust pursuant to Section 3(b) hereof and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Plan participants or their beneficiaries under the terms of the Plan for the period of such discontinuance, less the aggregate amount of any payments made to Plan participants or their beneficiaries by Company in lieu of the payments provided for hereunder during any such period of discontinuance. SECTION 4. INVESTMENT AUTHORITY. (a) Trustee may invest in securities (including stock or rights to acquire stock) or obligations issued by Company. All rights associated with assets of the Trust shall be exercised by Trustee or the person designated by Trustee, and shall in no event be exercisable by or rest with Plan participants; except that Trustee may but shall not be obligated to consult with participants as to the manner of voting with respect to the assets of the Trust and to vote in accordance with directions received from such participants. SECTION 5. DISPOSITION OF INCOME. (a) During the term of this Trust, all of the income received by the Trust, net of expenses and taxes, shall be credited to the account of the applicable participant SECTION 6. ACCOUNTING BY TRUSTEE. Trustee or designee shall keep accurate and detailed records of all investments, receipts, disbursements, and all other transactions required to be made, including such specific records as shall be agreed upon in writing between Company and Trustee. Within five (5) days following the close of each calendar year and within five (5) days after the removal or resignation of Trustee, Trustee shall deliver to Company a written account of its administration of the Trust during such year or during the period from the close of the last preceding year to the date of such removal or resignation, setting forth all investments, receipts, disbursements and other transactions effected by it, including a description of all securities and investments purchased and sold with the cost or net proceeds of such purchases or sales (accrued interest paid or receivable being shown separately), and showing all cash, securities and other property held in the Trust at the end of such year or as of the date of such removal or resignation as the case may be. 3 4 SECTION 7. RESPONSIBILITY OF TRUSTEE. (a) Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, provided, however, that Trustee shall incur no liability to any person for any action taken pursuant to a direction, request or approval given by Company which is contemplated by, and in conformity with, the terms of the Plan or this Trust and is given in writing by Company. In the event of a dispute between Company and a party, Trustee may apply to a court of competent jurisdiction to resolve the dispute. (b) If Trustee undertakes or defends any litigation arising in connection with this Trust, Company agrees to indemnify Trustee against Trustee's costs, expenses and liabilities (including, without limitation, attorneys' fees and expenses) relating thereto and to be primarily liable for such payments. If Company does not pay such costs, expenses and liabilities in a reasonably timely manner, Trustee may obtain payment from the Trust. (c) Trustee may consult with legal counsel (who may also be counsel for Company generally) with respect to any of its duties or obligations hereunder. (d) Trustee shall have, without exclusion, all powers conferred on Trustees by applicable law, unless expressly provided otherwise herein, provided, however, that if an insurance policy is held as an asset of the Trust, Trustee shall have no power to name a beneficiary of the policy other than the Trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor Trustee, or to loan to any person the proceeds of any borrowing against such policy. (e) Notwithstanding any powers granted to Trustee pursuant to this Trust Agreement or to applicable law, Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom, within the meaning of section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code. SECTION 8. COMPENSATION AND EXPENSES OF TRUSTEE. Company shall pay all administrative and Trustee's fees and expenses. If not so paid, the fees and expenses shall be paid from the Trust. SECTION 9. RESIGNATION AND REMOVAL OF TRUSTEE. (a) Trustee may resign at any time by written notice to Company, which shall be effective five (5) days after receipt of such notice unless Company and Trustee agree otherwise. (b) Trustee may be removed by Company on five (5) days notice or upon shorter notice accepted by Trustee. (c) Upon resignation or removal of Trustee and appointment of a successor Trustee, all assets shall subsequently be transferred to the successor Trustee. The transfer shall be completed within 30 days after receipt of notice of resignation, removal or transfer, unless Company extends the time limit. (d) If Trustee resigns or is removed, a successor shall be appointed, in accordance with Section 10 hereof, by the effective date of resignation or removal under paragraph(s) (a) 4 5 of this section. If no such appointment has been made, Trustee may apply to a court of competent jurisdiction for appointment of a successor or for instructions. All expenses of Trustee in connection with the proceeding shall be allowed as administrative expenses of the Trust. SECTION 10. APPOINTMENT OF SUCCESSOR. (a) If Trustee resigns or is removed in accordance with Section 9 (a) or (b) hereof, Company may appoint any third party, such as a bank trust department or other party that may be granted corporate trustee powers under state law. The appointment of a successor shall be effective when accepted in writing by the new Trustee, who shall have all of the rights and powers of the former Trustee, including ownership rights in the Trust assets. The former Trustee shall execute any instrument necessary or reasonably requested by Company or the successor Trustee to evidence the transfer. (b) The successor Trustee need not examine the records and acts of any prior Trustee and may retain or dispose of existing Trust assets, subject to Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and Company shall indemnify, and defend the successor Trustee from any claim or liability resulting from any action or inaction of any prior Trustee or from any other past event or any condition existing at the time it becomes successor Trustee. SECTION 11. AMENDMENT OR TERMINATION. (a) This Trust Agreement may be amended by a written instrument executed by Trustee and Company. (b) The Trust shall not terminate until the date on which Plan participants and their beneficiaries are no longer entitled to benefits pursuant to the terms of the Plan. Upon termination of the Trust any assets remaining in the Trust shall be returned to Company. (c) Upon written approval of Participants or beneficiaries entitled to payment of benefits pursuant to the terms of the Plan, Company may terminate this Trust prior to the time all benefit payments under the Plan have been made. All assets in the Trust at termination shall be returned to Company. SECTION 12. MISCELLANEOUS. (a) Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof. (b) Benefits payable to Plan participants and their beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or subjected to attachment, garnishment levy, execution or other legal or equitable process. (c) This Trust Agreement shall be governed by and construed in accordance with the laws of the State of California. 5 6 SECTION 13. EFFECTIVE DATE. The effective date of this Trust Agreement shall be March 16, 1998. COMPANY RemedyTemp, Inc. By: ---------------------------------------- Its: --------------------------------------- TRUSTEES ------------------------------------------- Alan M. Purdy, Trustee ------------------------------------------- Jeffrey A. Elias, Trustee 6 -----END PRIVACY-ENHANCED MESSAGE-----