-----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, Qh4U/dc43DutSy77Yb//l/KuOcgS+c6gUtDJ1smjj8mL5ghzcfWWT5+7wxDil0z+ DPUYsb+wzvqBhBC+Lq/+wg== 0000950129-96-000665.txt : 19960425 0000950129-96-000665.hdr.sgml : 19960425 ACCESSION NUMBER: 0000950129-96-000665 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960424 SROS: AMEX SROS: NYSE GROUP MEMBERS: SERVICE CORPORATION INTERNATIONAL GROUP MEMBERS: SOUTHWEST GUARANTY TRUST COMPANY GROUP MEMBERS: SUN BANK, NATIONAL ASSOCIATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MOORE MEDICAL CORP CENTRAL INDEX KEY: 0000074691 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 221897821 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-07421 FILM NUMBER: 96549947 BUSINESS ADDRESS: STREET 1: PO BOX 1500 STREET 2: 389 JOHN DOWNEY DR CITY: NEW BRITAIN STATE: CT ZIP: 06050 BUSINESS PHONE: 2038263600 MAIL ADDRESS: STREET 1: 389 JOHN DOWNEY DRIVE STREET 2: 389 JOHN DOWNEY DRIVE CITY: NEW BRITAIN STATE: CT ZIP: 06050 FORMER COMPANY: FORMER CONFORMED NAME: OPTEL CORP DATE OF NAME CHANGE: 19850611 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SERVICE CORPORATION INTERNATIONAL CENTRAL INDEX KEY: 0000089089 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PERSONAL SERVICES [7200] IRS NUMBER: 741488375 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1929 ALLEN PKWY STREET 2: P O BOX 130548 CITY: HOUSTON STATE: TX ZIP: 77219 BUSINESS PHONE: 7135225141 MAIL ADDRESS: STREET 1: P O BOX 130548 CITY: HOUSTON STATE: TX ZIP: 77219-0548 SC 13D 1 MOORE MEDICAL CORP. - ISSUER - SCHEDULE 13D 1 ------------------------------ OMB APPROVAL ------------------------------ OMB Number 3235-0145 expires: October 31, 1997 Estimated average burden hours per response. . . .14.90 ------------------------------ 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). 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. 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. 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. 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 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 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 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 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 10 SCHEDULE 1 Page 10 of 19 Pages 11 BOARD OF DIRECTORS OF SERVICE CORPORATION INTERNATIONAL Each of the following directors is a citizen of the United States of America.
Name and Address Occupation ---------------- ---------- 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
Page 11 of 19 Pages 12
Name and Address Occupation ---------------- ---------- 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)
Page 12 of 19 Pages 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 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 15 BOARD OF DIRECTORS OF SOUTHWEST GUARANTY TRUST COMPANY Each of the following Directors is a citizen of the United States of America.
Name and Address Occupation ---------------- ---------- 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
Page 15 of 19 Pages 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 17 BOARD OF DIRECTORS OF SUN BANK, NATIONAL ASSOCIATION Each of the following Directors is a citizen of the United States of America.
Name, Address and Occupation Name, Address and Occupation - ---------------------------- ---------------------------- 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
Page 17 of 19 Pages 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 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 20 INDEX TO EXHIBITS
EXHIBIT NUMBER IDENTIFICATION OF EXHIBITS - ------ -------------------------- 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.
EX-99.A 2 AGREEMENT REGARDING JOINT FILING OF SCHEDULE 13D 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 ---------------------------------- EX-99.B 3 AMENDED & RESTATED TRUSTEESHIP/INVESTMENT AGREEMNT 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 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 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 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 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 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 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 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 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 EX-99.C 4 PRE-ARRANGED DIRECT DISPOSAL AGREEMENT - 1988 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 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 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. 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 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- 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- 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- 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- 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- 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- 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- EX-99.D 5 PRE-ARRANGED DIRECT DISPOSAL AGREEMENT - 1985 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 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- 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- 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- 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- 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- 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- 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- 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- EX-99.E 6 ANNUAL TRUST AGREEMENT - 1982 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- 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- 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- 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- 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- 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- 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- 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- 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- -----END PRIVACY-ENHANCED MESSAGE-----