Exhibit 4(j)
Amendment One
to
Harnischfeger Industries, Inc.
Stock Employee Compensation Trust
THIS AMENDMENT (the "Amendment") made
effective as of January 1, 1994, adopted by
Harnischfeger Industries, Inc., a Delaware
corporation, and Xxxxxxxx & Xxxxxx Trust Company,
a Wisconsin corporation.
WHEREAS, pursuant to a trust agreement
(the "Agreement") made effective as of March 23,
1993, Harnischfeger Industries, Inc. (the
"Company") and Xxxxxxxx & Xxxxxx Trust Company
(the "Trustee") established a trust (the "Trust")
known as the Harnischfeger Industries, Inc. Stock
Employee Compensation Trust;
WHEREAS, the Agreement provides that the
Company retains the power to amend the Trust to
correct any errors or clarify any ambiguities or
similar issues of interpretation in the Agreement;
WHEREAS, the Agreement provides for the
voting by the Trustee of shares of the Company's
common stock held in the Trust Fund (as defined in
the Agreement);
WHEREAS, it is the intent of the Company
that, in voting shares of the Company's common
stock in the Trust Fund, the Trustee follow
directions of each Plan Participant (as defined in
the Agreement) and each trustee of any trust
established under a DC Plan (as defined in the
Agreement) in proportion to the number of shares
of the Company's common stock allocated to such
Plan Participant or trust during the Relevant
Period which is defined in the Agreement to be the
period from the beginning of fiscal year 1992
until the end of the close of business on the 30th
day prior to the date of the relevant
stockholders' meeting;
WHEREAS, the Company and Trustee
consider it desirable to correct or clarify any
error or ambiguity that may exist as to the voting
by the Trustee of shares of the Company's common
stock held in the Trust Fund;
NOW, THEREFORE, by virtue and in
exercise of the power reserved to the Company by
Section 8.1 of the Agreement, the
Agreement be and hereby is amended, effective as
of the date first mentioned above, in the
following particulars:
By substituting for Section 5.4 (a) of
the Agreement the following:
(a) Voting of Company Stock. The
Trustee shall follow the directions of each Plan
Participant, or in the case of a DC Plan, each
trustee of any trust established under a DC Plan,
as to the manner in which shares of Company Stock
held by the Trust are to be voted on each matter
brought before an annual or special stockholders'
meeting of the Company or the manner in which any
consent is to be executed, in each case as
provided below. Before each such meeting of
stockholders, the Trustee shall cause to be
furnished to each Plan Participant and to the
trustee of each trust established under each DC
Plan, as the case may be, a copy of the proxy
solicitation material received by the Trustee,
together with a form requesting confidential
instructions as to how to vote the shares of
Company Stock held by the Trustee. Upon timely
receipt of directions from the Plan Participants
and of the DC Plans Trustee Certification, as the
case may be, the Trustee shall on each such matter
vote the number of shares (including fractional
shares) of Company Stock held by the Trust as
follows:
The Trustee shall first divide the
Company Stock held in the Trust Fund into those
shares to be directed by Plan participants other
than with respect to each DC Plan ("Participant
Shares") and those to be directed pursuant to the
DC Plans Trustee Certification ("DC Shares"),
which division shall be in the same ratio as the
cumulative number of shares of Company Stock
allocated to the Plans other than the DC Plans,
whether or not from the Trust, from the beginning
of fiscal year 1992 until the end of the close of
business on the 30th day prior to the date of such
stockholders' meeting (the "Relevant Period")
bears to the number of shares of Company Stock
allocated to the DC Plans, whether or not from the
Trust, with respect to such period.
The Participant Shares shall be voted by
the Trustee as directed by the Plan Participants
with each Plan Participant directing a number of
shares of Company Stock (the "Participant Directed
Amount") equal to the product of (x) the total
number of Participant Shares and (y) a fraction,
the numerator of which is the number of Shares of
Company Stock allocated to such Plan Participant
for the Relevant Period (as reflected in the Plan
Committee Certification) and the denominator of
which is the total number of shares of Company
Stock allocated to all Plan Participants during
the Relevant Period, other than by reason of
allocations to a DC Plan. Any Participant Shares
for which the Trustee does not receive a signed
voting-direction instrument shall be voted for,
against or to abstain in the same proportions as
those Participant Shares for which the Trustee did
receive instructions. Notwithstanding the
foregoing, if more than 15% of the
Company Stock held by the Trust would be
Participant Shares directed by Plan Participants
subject to Section 16(a) of the Securities
Exchange Act of 1934, as amended (the "Section 16
Officers"), who are not otherwise excluded from
voting on the particular matter, shares of Company
Stock in excess of such percentage held by the
Trust which would be voted in accordance with the
instructions of such participants shall instead be
voted in the same proportion as all other Company
Stock held by the Trustee is voted.
For purposes of this Section 5.4, the
Trustee shall, with respect to each DC Plan,
assign to each DC Participant, a number of shares
(the "DC Participant Directed Amount") equal to
the product of (x) the total number of DC Shares,
and (y) a fraction, the numerator of which is the
number of shares of Company Stock allocated to
such DC Participant's account in any DC Plan for
the Relevant Period, whether or not from the
Trust, and the denominator of which is the total
number of shares of Company Stock contributed to
the trustees of the trusts established under all
the DC Plans with respect to the Relevant Period,
whether or not from the Trust, in each case, as
reflected in the DC Plans Trustee Certification.
Each share assigned to each DC Participant in
accordance with the previous sentence shall be
voted in accordance with such participant's
direction to the trustee of the DC Plan in which
he participates with respect to shares of Company
Stock allocated to his account in such DC Plan, as
reflected in the DC Plans Trustee Certification.
Any DC Shares which remain undirected pursuant to
the foregoing provisions shall be voted for,
against or to abstain in the same proportions as
the DC Shares for which the Trustee is directed as
provided above.
Similar provisions shall apply in the
case of any action by shareholder consent without
a meeting.
IN WITNESS WHEREOF, the Company has
caused this amendment to be executed on its behalf
by the undersigned duly authorized officer this 31
day of January, 1994.
HARNISCHFEGER INDUSTRIES, INC.
Xxxxxxx X. Grade
By: \s\Xxxxxxx X. Grade
------------------
Its: Chairman and Chief
Executive Officer
ATTEST: \s\ Xxxxxxx X. Xxxxx
-------------------
Xxxxxxx X. Xxxxx
Assistant Treasurer
The Trustee hereby consents to the foregoing
amendment.
XXXXXXXX & XXXXXX TRUST COMPANY
------------------------------
By: /s/Xxxxx X. Xxxxxxxx
-------------------------
Its: Vice President
-------------------------
Date: 3/24/94
ATTEST /s/Xxxxxxx Xxxxx
----------------------
ITS Vice President
----------------------
Exhibit 4(k)
Amendment Two
to
Harnischfeger Industries, Inc.
Stock Employee Compensation Trust
THIS AMENDMENT (the "Amendment") made
effective as of May 6, 1995, adopted by
Harnischfeger Industries, Inc., a Delaware
corporation, and Xxxxxxxx & Xxxxxx Trust Company,
a Wisconsin corporation.
WHEREAS, pursuant to a trust agreement
(the "Agreement") made effective as of March 23,
1993, Harnischfeger Industries, Inc. (the
"Company") and Xxxxxxxx & Xxxxxx Trust Company
(the "Trustee") established a trust (the "Trust")
known as the Harnischfeger Industries, Inc. Stock
Employee Compensation Trust;
WHEREAS, the Company deems it desirable
to amend the Agreement to provide for more
efficient administration of the Trust.
NOW, THEREFORE, by virtue and in
exercise of the power reserved to the Company by
Section 8.1 of the Agreement, the Agreement be and
hereby is amended, effective as of the date first
mentioned above, in the following particulars:
I. By substituting for Section 2.1 of
the Agreement the following:
2.1 Contributions. The Company shall
contribute to the Trust in cash such amount, which
together with dividends, as provided in Section
2.2, and any other earnings of the Trust, shall
enable the Trustee to make all payments of
principal and interest due during an Allocation
Cycle under the Loan on a timely basis. Unless
otherwise expressly provided herein, the Trustee
shall apply all such contributions, dividends and
earnings to the payment of principal and interest
due under the Loan. If, at the end of any
Allocation Cycle, no such contribution has been
made in cash, such contribution shall be deemed to
have been made in the form of forgiveness of
principal and interest on the Loan to the extent
of the Company s failure to make contributions as
required by this Section 2.1. All contributions
made under the Trust shall be delivered to the
Trustee. The Trustee shall be accountable for all
contributions received by it, but shall have no
duty to require any contributions to be made to
it.
II. By substituting for Section 6.2 of
the Agreement the following:
6.2 Fiscal Year. The fiscal year of
the Trust shall be the twelve month period
beginning on November 1 and ending on October 31
of each calendar year.
IN WITNESS WHEREOF, the Company has
caused this amendment to be executed on its behalf
by the undersigned duly authorized officer this
18th day of October, 1995.
HARNISCHFEGER INDUSTRIES, INC.
/s/Xxxxxxx X. Grade
-----------------------
By: Xxxxxxx X. Grade
Its: Chairman and Chief
Executive Officer
The Trustee hereby consents to the foregoing
amendment.
XXXXXXXX & XXXXXX TRUST COMPANY
/s/Xxxxxxxx Xxxxxxxx
------------------------
By: Xxxxxxxx Xxxxxxxx
Its: Vice President
Date: 11/21/95
/s/Xxxxxx X. Xxxxxx
------------------------
By: Xxxxxx X. Xxxxxx
Its: Vice President
Date: 11/22/95
