EXHIBIT 10a1
AMENDMENT TO TRUST AGREEMENT
THIS AMENDMENT, made as of the first day of January, 2000, among
FORTUNE BRANDS, INC., a Delaware corporation (the "Company"), THE CHASE
MANHATTAN BANK, a New York banking corporation (the "Trustee") and XXXXXX
ASSOCIATES LLC, a limited liability company formed under the laws of Illinois
("Xxxxxx")
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company and the Trustee have entered into a Trust
Agreement made as of January 1, 1999 (the "Trust Agreement") for the purpose of
establishing a trust in order to provide a source of benefits under the terms of
the Company's Supplemental Plan (the "Plan") for the benefit of Xx. Xxxxxx X.
Xxxxxx and Xxxxxx is designated as Trustee's Contractor thereunder; and
WHEREAS, the Company and the Executive entered into an agreement made
as of January 1, 2000 providing for severance benefits and certain supplemental
retirement benefits to the Executive under certain circumstances (the "Severance
and Retirement Agreement"); and
WHEREAS, it is desired that the trust may be used for the purpose of
providing a source of payments under the supplemental retirement provisions of
the Severance and Retirement Agreement as well as under the Plan;
NOW, THEREFORE, in consideration of the premises, the parties agree
that the Trust Agreement is hereby amended as follows:
1. Section 1.2 is hereby amended by changing the third sentence
thereof to read as follows:
"Upon the establishment of this Trust, and from time to time
thereafter, the Company shall contribute to the Trust such amount in
cash as the Company shall determine to be appropriate to provide a
source of the payments required under the terms of the Plan and the
supplemental retirement provisions of the agreement between the
Company and the Executive dated January 1, 2000 providing certain
supplemental severance and retirement benefits to the Executive
(`Severance and Retirement Agreement')."
2. Section 2.2 is hereby amended by changing the first four sentences
thereof to read as follows:
"The Company represents and agrees that the Trust established
under this Agreement does not fund and is not intended to fund the
Plan or benefits which may be payable under the supplemental
retirement provisions of the Severance and Retirement Agreement, or
any other employee benefit plan or program of the Company. Such Trust
is and is intended to be a depository arrangement with the Trustee for
the setting aside of cash and other assets of the Company for the
meeting of part or all of its future obligations to the Executive and
his Beneficiaries under the Plan and the supplemental retirement
provisions of the Severance and Retirement Agreement. Contributions by
the Company to this Trust shall be in respect of only the Executive.
The purpose of this Trust is to provide a fund from which benefits may
be payable under the Plan and the supplemental retirement provisions
of the Severance and Retirement Agreement and as to which the
Executive and his Beneficiaries may, by exercising the procedures set
forth herein, have access to some or all of their benefits as such
become due without having the payment of such benefits subject to the
administrative control of the Company unless the Company becomes
insolvent as defined in Section 2.1."
3. Section 3.2 is hereby amended by changing the first sentence
thereof to read as follows:
"Except for the records dealing solely with the Fund and its
investment, which shall be maintained by the Trustee, the Trustee's
Contractor shall maintain all the Executive's records contemplated by
this Agreement, including records of the Executive's compensation and
benefits from the Company, the amount of his benefits accrued under
the Plan and the supplemental retirement provisions of the Severance
and Retirement Agreement, the Executive's Beneficiary designation, the
Company's contributions to the Fund and such other records as may be
necessary for determining the amount payable to the Executive or his
Beneficiary under the Plan and the supplemental retirement provisions
of the Severance and Retirement Agreement."
4. Section 3.4 is hereby amended by changing the first two sentences
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thereof to read as follows:
"Upon the direction of the Company or upon the application of the
Executive or Beneficiary of a deceased Executive by submission of a
Payment Demand Notice in the form attached hereto as Schedule A, a
copy of which shall be delivered by the Trustee's Contractor to the
Company, the Trustee's Contractor shall prepare and deliver to the
Trustee within thirty days of receipt of such direction or application
a certification to the Trustee that the Executive's benefits under the
Plan and the supplemental retirement provisions of the Severance and
Retirement Agreement have become payable, and shall deliver a copy of
such certification to the Company and to the Executive or Beneficiary.
In preparing such certification, the Trustee's Contractor shall obtain
updated information from the Company for calculating benefits under
the Plan and the supplemental retirement provisions of the Severance
and Retirement Agreement."
5. Section 3.5 is hereby amended by changing the first two sentences
thereof as follows:
"Upon the payment of all Company liabilities under the Plan and
the supplemental retirement provisions of the Severance and Retirement
Agreement to the Executive and Beneficiaries, the Trustee's Contractor
shall prepare a certification to the Trustee, the Executive or his
Beneficiary and to the Company, and the Trustee shall thereupon hold
or distribute the Fund in accordance with the written instructions of
the Company. At no time prior to the Company's insolvency, as defined
in Section 2.1, or the payment of all liabilities of the Company under
the Plan and the supplemental retirement provisions of the Severance
and Retirement Agreement in respect of the Executive and his
Beneficiaries shall any part of the Fund revert to the Company."
6. Section 3.6 is hereby amended by changing the first sentence
thereof to read as follows:
"Nothing provided in this Agreement shall relieve the Company of
its liabilities to pay the benefits provided under the Plan and the
supplemental retirement provisions of the Severance and Retirement
Agreement except to the extent such liabilities are met by application
of Fund assets."
7. Section 4.1 is hereby amended by changing the first sentence
thereof
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to read as follows:
"The Company shall provide the Trustee's Contractor with a
complete copy of the Plan and the Severance and Retirement Agreement
and all amendments thereto and of the resolutions of the Board of
Directors of the Company or its Compensation and Stock Option
Committee approving the Plan and the Severance and Retirement
Agreement and all amendments thereto, promptly upon their adoption."
8. Section 4.1 is hereby further amended by changing the last
sentence thereof to read as follows:
"The Company shall be responsible for keeping accurate books and
records with respect to the Executive, his compensation and his rights
and interests in the Fund under the Plan and the supplemental
retirement provisions of the Severance and Retirement Agreement."
9. Section 9.1 is hereby amended by changing the second sentence
thereof to read as follows:
"Upon receipt by the Company and the Executive or his Beneficiaries of
a written certification from the Trustee's Contractor that all
liabilities have been paid with respect to the Executive or his
Beneficiaries under the Plan and the supplemental retirement
provisions of the Severance and Retirement Agreement, the Company
pursuant to a resolution of its Board of Directors of the Company or
its Executive Committee or Compensation and Stock Option Committee may
terminate the Trust upon delivery to the Trustee and the Executive or
his Beneficiaries of (a) a certified copy of such resolution, (b) an
original certification of the Trustee's Contractor that all such
liabilities have been paid and (c) a written instrument of termination
duly executed and acknowledged in the same form as this Agreement."
10. Section 11.3 is hereby amended by changing the first sentence
thereof to read as follows:
"No right or interest of the Executive or his Beneficiary under
the Plan, under the supplemental retirement provisions of the
Severance and Retirement Agreement or in the Fund shall be
transferable or assignable or shall be subject to alienation,
anticipation or encumbrance, and no right or interest of the Executive
or Beneficiary in
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the Plan or in the Fund shall be subject to any garnishment,
attachment or execution."
IN WITNESS WHEREOF, the parties have caused this AMENDMENT to be duly
executed as of the day and year first written above.
FORTUNE BRANDS, INC.
Attest:
/s/ Xxxx Xxxxxxxx By /s/ Xxxx X. Xxxxxxx
-------------------- ------------------------------
Xxxx X. Xxxxxxx
Vice President-Human Resources
THE CHASE MANHATTAN BANK
Attest:
/s/ Xxx X. Xxxxxxx By /s/ Xxxx X. Xxxxxxxxxx
-------------------- ------------------------------
Xxxx X. Xxxxxxxxxx
Vice President
XXXXXX ASSOCIATES LLC
Attest:
/s/ Xxxxxxx Checkin By: /s/ X.X. Xxxxxxxx, III
-------------------- -----------------------------
X.X. Xxxxxxxx, III
I hereby consent to the foregoing AMENDMENT.
Witness:
/s/ Xxxx Xxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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