EXHIBIT 10i1
FORTUNE BRANDS, INC.
TRUST AGREEMENT
THIS AGREEMENT, amended and restated as of the day of , ,
among (the "Executive"), FORTUNE BRANDS, INC., a Delaware corporation (the
"Company"), and THE NORTHERN TRUST COMPANY, an Illinois banking corporation
(the "Trustee") and constitutes an amendment, restatement and continuation of
the trust agreement dated among the Executive, the Company and The Chase
Manhattan Bank, as amended, and appoints the Trustee as successor trustee.
W I T N E S S E T H :
WHEREAS, the Executive together with the Company has established a trust
for providing benefits pursuant to the terms of the Company's Supplemental Plan
(including the supplemental profit-sharing provisions therein) as well as
pension benefits under the Severance Agreement between the Company and the
Executive dated as of , , as amended, (the "Severance Agreement"),
the Compensation Agreement between the Company and the Executive as of ,
, as amended, (the "Compensation Agreement") and any other agreements or
arrangements for the payment of additional pension or other deferred
compensation benefits to or on behalf of the Executive (the Supplemental
Plan, the Severance Agreement, the Compensation Agreement and such other
agreements or arrangements are herein collectively referred to as the "Plan");
WHEREAS, the Executive and the Company wish to continue the Trust with the
Trustee as successor trustee subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual and independent
promises herein, the parties hereto covenant and agree as follows:
ARTICLE I
1.1 The Executive and the Company hereby continue with the Trustee the
Trust consisting of such sums of money and such property acceptable to the
Trustee as shall from time to time be transferred, paid or delivered to the
Trustee by the Company and the earnings and profits thereon. All such money and
property, all investments made therewith and proceeds thereof, less the payments
or other distributions which, at the time of reference, shall have been made by
the Trustee, as authorized herein, are referred to herein as the "Fund" and
shall be held by the Trustee, IN TRUST, in accordance with the provisions of
this Agreement. The Trust shall be solely for the purpose of providing benefits
under the Plan with respect to the Executive, and neither the Company nor any
creditors of the Company shall have any interest in the Fund.
1.2 The Trustee shall hold, manage, invest and otherwise administer the
Fund pursuant to the terms of this Agreement. The Trustee shall be responsible
only for amounts actually received by it hereunder and shall have no
responsibility for the correctness of the amount thereof. From time to time
after the establishment of this Trust, the Company may contribute to the Trust,
unless otherwise directed by the Executive to make such contributions to a
segregated account established with the Trustee or other bank, trust company or
other financial institution by or for the benefit of the Executive pursuant to
the Plan ("Segregated Account"), 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. Prior to the making of any contribution to the Trust, the
Company shall have approved the establishment of a Segregated Account of the
Executive, the terms and provisions thereof, and the bank, trust company or
other financial institution with which such Segregated Account may be
established. The Company will make annual contributions to the Trust or
Segregated Account in amounts such
that the amount of the Fund, together with the amount in the Executive's
Segregated Account, at such time will be approximately equal to the present
value of the after tax equivalent of the Executive's accrued benefits under the
Plan at that time, or in such lesser amounts as the Company shall determine. The
Company also may make a final contribution to the Trust as promptly as
practicable after the Executive's termination of employment in an amount such
that the amount of the Fund, together with the amount, if any, in the
Executive's Segregated Account will be equal to (i) the sum of the present value
of the after tax equivalent of (x) the Executive's benefit under the
supplemental retirement provisions of the Plan or, if the termination of
employment is by reason of the death of the Executive, the Executive's benefit
under the supplemental retirement provisions of the Plan immediately prior to
his death, (y) the Executive's supplemental profit-sharing benefit under the
Plan and (z) any other benefits payable to the Executive, reduced by (ii) the
amounts of any actual withdrawals from the Fund or from the Executive's
Segregated Account by the Executive as provided in Section 2.4 plus the income
which would have been earned on such withdrawn amounts from the time of
withdrawal to the time of the Executive's termination of employment, assuming
earnings at an interest rate equal to the after tax equivalent of the average
monthly yield on ten year coupon U.S. Treasury bonds (as published by the
Federal Reserve) for the month of termination of Qualifying Employment and the
prior five months.
1.3 The Company shall certify to the Trustee and the Executive at the time
of each contribution to the Fund the amount of such contribution being made in
respect of the Executive's supplemental retirement benefit under the Plan, the
amount being made in respect of the Executive's supplemental profit-sharing
benefit, and other benefits, under the Plan. The Fund shall be revalued by the
Trustee quarterly as of the last business day of each March, June, September and
December, or at such other times as agreed to by the Company and the Trustee,
at current market values, as determined by the Trustee, which shall deliver as
soon as practicable a copy of such quarterly valuation to the Company and the
Executive.
ARTICLE II
2.1 The Company shall act as Administrator of the Trust. Except for the
records dealing solely with the Fund and its investment, which shall be
maintained by the Trustee, the Company as Administrator 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, the Company's contributions to the Fund,
withdrawals from the Fund as provided in Section 2.4 or from the Executive's
Segregated Account, the Executive's beneficiary designation and such other
records as may be necessary for determining the amount payable to the Executive
or his Surviving Spouse or other beneficiary under the Plan. All such records
shall be made available promptly upon the request of the Executive. The Company
shall give written notice to the Trustee of the Executive's termination of
employment, and as to whether such termination is by reason of the death of the
Executive. The Company as Administrator shall also prepare and distribute the
Executive's annual estimated benefit statements specified in Section 2.2 and
shall perform such other duties and responsibilities in connection with the
administration of the Trust as the Company or the Trustee determines is
necessary or advisable to achieve the objectives of this Agreement.
2.2 The Company as Administrator shall prepare an annual estimated benefits
statement in respect of the Executive and shall furnish a copy of same to the
Executive by no later than May 15 of each year.
2.3 The Company shall have full responsibility for the proper remittance of
all withholding taxes on contributions by the Company to the Trust to the
appropriate taxing authority and shall furnish the Executive with the
appropriate tax information form reporting the amounts of such contributions and
any withholding taxes. The Trustee shall have the responsibility for the
preparation and filing with the appropriate taxing authorities of all tax
returns required to be filed for the Trust.
2.4 Subject to the next to the last sentence of Section 5.2, the Executive
may withdraw all or any portion of the Fund, in cash or, to the extent
practicable, in kind at any time upon written notice of not less than sixty (60)
days to the Company and the Trustee. Prior to any such withdrawal, the Trustee
shall notify the Company in writing of such withdrawal and the amount thereof.
2.5 The Executive may elect to transfer all or any portion of the Fund to
his Segregated Account, in cash or, to the extent practicable, in kind, at any
time upon written notice of not less than sixty (60) days to the Company and the
Trustee and the financial institution with which the Segregated Account is
established. The Executive also may elect to transfer funds, in cash, from his
Segregated Account to the Trust upon written notice of not less than sixty (60)
days to the Company and the Trustee, and funds so transferred shall be held by
the Trustee as part of the Fund.
2.6 The Executive may designate a beneficiary to receive all or any portion
of the Fund in the event of his death. Such designation shall be in writing
filed with the Company as Administrator on a form approved by it and signed by
the Executive. The Company shall promptly notify the Trustee of any such
beneficiary designation and any changes therein.
ARTICLE III
3.1 After the execution of this Agreement, the Company shall promptly file
with the Trustee a certified list of the names and specimen signatures of the
officers of the Company and any delegate authorized to act for it. The Company
shall promptly notify the Trustee of the addition or deletion of any person's
name to or from such list, respectively. Until receipt by the Trustee of notice
that any person is no longer authorized so to act, the Trustee may continue to
rely on the authority of the person. All certifications, notices and directions
by any such person or persons to the Trustee shall be in writing signed by such
person or persons. The Trustee may rely on any such certification, notice or
direction purporting to have been signed by or on behalf of such person or
persons that the Trustee believes to have been signed thereby. The Trustee may
rely on any certification, notice or direction of the Company that the Trustee
believes to have been signed by a duly authorized officer or agent of the
Company. The Trustee shall have no responsibility for acting or not acting in
reliance upon any notification believed by the Trustee to have been so signed by
a duly authorized officer or agent of the Company. 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.
3.2 The Company (which has the authority to do so under the laws of its
state of incorporation) shall indemnify The Northern Trust Company, and defend
it and hold it harmless from and against any and all liabilities, losses,
claims, suits or expenses (including reasonable attorneys' fees) of whatsoever
kind and nature which may be imposed upon, asserted against or incurred by The
Northern Trust Company at any time (1) by reason of its carrying out its
responsibilities or providing services under this Trust Agreement, or its status
as Trustee, or by reason of any act or failure to act under this Trust
Agreement, except to the extent that any such liability, loss, claim, suit or
expense
arises directly from Trustee's negligence or willful misconduct in the
performance of responsibilities specifically allocated to it under the Trust
Agreement, or (2) by reason of the Trust's failure to qualify as a grantor trust
under the IRS grantor trust rules.
This paragraph shall survive the termination of this Trust Agreement.
ARTICLE IV
4.1 The Trustee shall not be liable in discharging its duties hereunder if
it acts in good faith and in accordance with the terms of this Agreement
including, without limitation, the making of any investment directed by the
Company. The Trustee shall have no liability for following the directions of the
Company, other than negligence in carrying out the directions as given by the
Company, nor shall the Trustee have any responsibility or obligation to review
such directions and determine whether or not such directions comply with Section
4.2.
4.2 The Trustee shall not have any discretion for the investment of the
Fund, but shall invest as directed in writing by the Company, which direction
shall be in accordance with this Section 4.2. The Company shall direct that the
assets of the Fund shall be invested separately as to amounts representing the
Executive's supplemental retirement benefit and any other benefits under the
Plan and amounts representing the Executive's supplemental profit-sharing
benefit.
The Company shall direct the Trustee to invest supplemental retirement
benefit amounts solely in the Northern Institutional Funds Intermediate Bond
Portfolio, to the extent such fund exists or continues to exist, and otherwise
in the Northern Trust Institutional Funds Diversified Asset Portfolio. As soon
as practicable after the Executive's 60th birthday, the Company may direct the
Trustee in writing to invest one-half of the amounts held in the
Northern Institutional Funds Intermediate Bond Portfolio attributable to
supplemental retirement benefits, and as soon as practicable after the
Executive's 63rd birthday, the Company may direct the Trustee to invest the
remainder of the amounts held in the Northern Institutional Funds Intermediate
Bond Portfolio attributable to supplemental retirement benefits, solely in the
Northern Trust Institutional Funds Diversified Asset Portfolio.
The Company shall direct the Trustee to invest the supplemental
profit-sharing benefit amounts only in one or more of the (i) Northern
Institutional Funds Diversified Asset Portfolio, (ii) Fidelity Value Fund,
(iii) Fidelity International Growth and Income Fund, (iv) MFS Institutional
Emerging Equities Fund, (v) PIMCO Total Return Fund, (vi) Fidelity Equity
Income Fund, (vii) Fidelity Equity Income Fund, (viii) Spartan Total Market
Index Fund or (ix) Vanguard Index 500 Fund, in such portions as are elected
by the Executive by written election filed with the Company, all to the
extent such funds exist or continue to exist, and otherwise in the Northern
Trust Institutional Funds Diversified Asset Portfolio, and all without
liability of the Trustee for such election and direction. The Executive may
change such election at any time by filing a new written election with the
Company, which shall promptly direct the Trustee accordingly in writing, and
all without liability of the Trustee for such new election or direction.
If any of the above funds for which The Northern Trust Company or any of
its affiliates serves as investment advisor shall cease to exist, the Trustee
shall notify the Executive in writing, with a copy to the Company.
Subject to such written directions, the Trustee shall have the power and
right:
(a) To receive and hold all contributions made to it by the Company;
(b) To participate in and use a book-entry system for the deposit and
transfer of securities;
(c) To sell or exchange any property held by it at public or private sale,
for cash or on credit, to grant and exercise options for the purchase or
exchange thereof, to exercise all conversion or subscription rights pertaining
to any such property and to enter into any covenant or agreement to purchase any
property in the future;
(d) To participate in any plan of reorganization, consolidation, merger,
combination, liquidation or other similar plan relating to property held by it
and to consent to or oppose any such plan or any action thereunder or any
contract, lease, mortgage, purchase, sale or other action by any person;
(e) To deposit any property held by it with any protective, reorganization
or similar committee, to delegate discretionary power thereto, and to pay part
of the expenses and compensation thereof and any assessments levied with respect
to any such property so deposited;
(f) To extend the time of payment of any obligation held by it;
(g) To hold uninvested any moneys received by it, without liability for
interest thereon, until such moneys shall be invested, reinvested or disbursed;
(h) To exercise all voting or other rights with respect to any property
held by it and to grant proxies, discretionary or otherwise; and
(i) For the purposes of the Trust, to borrow money from others, including
The Northern Trust Company, to issue its promissory note or notes therefor, and
to secure the repayment thereof by pledging any property held by it.
4.3 Solely in its discretion, and in no way as a limitation to the other
rights and powers granted by the law, the Trustee has the following rights and
powers:
(a) To employ suitable agents and counsel, who may be counsel to the
Company or the Trustee, and to pay their reasonable expenses and compensation
from the Fund to the extent not paid by the Company;
(b) To cause any property held by it to be registered and held in the name
of one or more nominees, with or without the addition of words indicating that
such securities are held in a fiduciary capacity, and to hold securities in
bearer form;
(c) To settle, compromise or submit to arbitration any claims, debts or
damages due or owing to or from the Trust, respectively, to commence or defend
suits or legal proceedings to protect any interest of the Trust, and to
represent the Trust in all suits or legal proceedings in any court or before any
other body or tribunal; provided, however, that the Trustee shall not be
required to take any such action unless it shall have been indemnified by the
Company to its reasonable satisfaction against liability or expenses it might
incur therefrom;
(d) To organize under the laws of any state a corporation or trust for the
purpose of acquiring and holding title to any property which it is authorized to
acquire hereunder and to exercise with respect thereto any or all of the powers
set forth herein; and
(e) Generally, to do all acts, whether or not expressly authorized, that
the Trustee may deem necessary or desirable for the protection of the Fund.
4.4 The Trustee shall furnish to the Company and the Executive such
information, in the form maintained by the Trustee in its ordinary course of
business, as may be needed for tax or other purposes.
4.5 No person dealing with the Trustee shall be under any obligation to see
to the proper application of any money paid or property delivered to the Trustee
or to inquire into the Trustee's authority as to any transaction.
4.6 The Trustee shall distribute cash or other assets from the Fund in
accordance with Articles II and VIII hereof.
The Trustee may make any distribution required hereunder by mailing its
check for the specified amount or, if distribution is to be made in kind, by
making other appropriate distribution, to the person to whom such distribution
or payment is to be made, at such address as may be specified pursuant to
Section 10.5, or if no such address shall have been so furnished, to such person
in care of the Company, or (if so directed by the recipient) by crediting the
account of such person or by transferring funds to such person's account by bank
or wire transfer.
4.7 If at any time there is no person authorized to act under this
Agreement on behalf of the Company, the Board of Directors of the Company or its
Executive Committee or Compensation and Stock Option Committee shall have the
authority and responsibility to act hereunder.
ARTICLE V
5.1 The Executive, or in the event of the Executive's death the Executive's
personal representative, shall be responsible for the payment of any federal,
state or local taxes on the Fund, or any part thereof, and on the income
therefrom, subject to the Company's obligation under the Plan to reimburse the
Executive in respect of such taxes.
5.2 For all periods prior to the Executive's termination of employment, and
for a period of sixty (60) days thereafter and for any further period as may be
authorized by the Company, the Company shall pay to the Trustee its reasonable
expenses for the management and administration of the Fund, including without
limitation advances for or prompt reimbursement of reasonable expenses of
counsel and other agents employed by the Trustee, and reasonable compensation
for its services as Trustee hereunder, the amount of which shall be agreed upon
from time to time by the Company and the Trustee in writing; provided,
however, that if the Trustee forwards an amended fee schedule to the Company
requesting its agreement thereto and the Company fails to object thereto within
thirty (30) days of its receipt, the amended fee schedule shall be deemed to be
agreed upon by the Company and the Trustee. Such expenses and compensation shall
be paid from the Fund unless paid by the Company. The Company and the Executive
acknowledge that the Trustee, or an affiliate thereof, will, in addition to the
compensation provided by this Article 5.2, receive compensation with regard to
the administration and investment of certain funds referred to in Article 4.2
hereof, and the Company and the Executive agree that the Trustee, or any
affiliate thereof, shall receive such compensation in addition to the
compensation provided by this Article 5.2.
ARTICLE VI
6.1 The Trustee shall maintain records with respect to the Fund that show
all its receipts and disbursements hereunder. The records of the Trustee with
respect to the Fund shall be open to inspection by the Company or its
representatives and by the Executive at all reasonable times during normal
business hours of the Trustee and may be audited not more frequently than once
each fiscal year by an independent certified public accountant engaged by the
Company; provided, however, the Trustee shall be entitled to additional
compensation from the Company in respect of audits or auditors' requests which
the Trustee determines to exceed the ordinary course of the usual scope of such
examinations of its records.
6.2 Within a reasonable time after the close of each fiscal year of the
Company (or, in the Trustee's discretion, at more frequent intervals), or of any
termination of the duties of the Trustee hereunder, the Trustee shall prepare
and deliver to the Company and the Executive a statement of transactions
reflecting its acts and transactions as Trustee during such fiscal year, portion
thereof or during such period from the close of the last fiscal year or last
statement period to the termination of the Trustee's duties, respectively,
including a
statement of the then current value of the Fund. Any such statement shall be
deemed an account stated and accepted and approved by the Company and the
Executive, and the Trustee shall be relieved and discharged, as if such account
had been settled and allowed by a judgment or decree of a court of competent
jurisdiction, unless protested by written notice to the Trustee within sixty
(60) days of receipt thereof by the Company or the Executive.
The Trustee shall have the right to apply at any time to a court of
competent jurisdiction for judicial settlement of any account of the Trustee not
previously settled as herein provided or for the determination of any question
of construction or for instructions. In any such action or proceeding it shall
be necessary to join as parties only the Trustee, the Company and the Executive
(although the Trustee may also join such other parties as it may deem
appropriate), and any judgment or decree entered therein shall be conclusive.
ARTICLE VII
7.1 The Trustee may resign at any time by delivering written notice thereof
to the Company and the Executive; provided, however, that no such resignation
shall take effect until the earlier of (i) sixty (60) days from the date of
delivery of such notice to the Company and the Executive or (ii) the appointment
of a successor trustee.
7.2 The Trustee may be removed at any time by the Company, pursuant to a
resolution of the Board of Directors of the Company or its Executive Committee
or Compensation and Stock Option Committee, upon delivery to the Trustee of a
certified copy of such resolution and sixty (60) days' written notice to the
Trustee and the Executive of (i) such removal and (ii) the appointment of a
successor trustee, unless such notice period is waived in whole or in part by
the Trustee and the Executive.
7.3 Upon the resignation or removal of the Trustee, a successor trustee
shall be appointed by the Company. Such successor trustee shall be a bank or
trust company established under the laws of the United States or a state within
the United States and having either total assets of at least $15 billion or
trust assets of at least $25 billion. Such appointment shall take effect upon
the delivery to the Trustee and the Executive of (a) a written appointment of
such successor trustee, duly executed, by the Company and (b) a written
acceptance by such successor trustee, duly executed thereby. Any successor
trustee shall have all the rights, powers and duties granted the Trustee
hereunder.
7.4 If, within sixty (60) days of the delivery of the Trustee's written
notice of resignation, a successor trustee shall not have been appointed, the
Trustee shall apply to any court of competent jurisdiction for the appointment
of a successor trustee.
7.5 Upon the resignation or removal of the Trustee and the appointment of a
successor trustee, and after the acceptance and approval of its account, the
Trustee shall transfer and deliver the Fund to such successor trustee. The
Trustee shall not transfer or deliver the Fund to any successor trustee unless
and until such successor trustee provides the Trustee with a written
certification that it is a bank or trust company having either total assets of
at least $15 billion or trust assets of at least $25 billion. The Trustee may
conclusively rely on such written certification from the successor trustee that
it meets the criteria specified in the immediately preceding sentence.
ARTICLE VIII
8.1 The Trust shall terminate upon the later of (1) receipt by the Trustee
of written notice from the Company of the Executive's termination and reason for
such termination, and (2) upon the expiration of sixty (60) days following the
Executive's date of
termination of employment (by retirement or otherwise). Subject to Section 10.3,
the Trust shall also terminate if the Company ceases to exist. Nevertheless, the
Trustee and the Executive may agree to continue the Trust thereafter upon such
terms as they may agree in writing, but in the event of such continuation the
Company shall have no further obligations under this Agreement with respect to
matters relating to such continuation, including expenses and compensation of
the Trustee, as provided in Section 5.2, and indemnification of the Trustee as
provided in Section 3.2.
8.2 Upon the termination of the Trust, the Trustee shall distribute the
Fund as directed by the Executive or, in the absence of such direction, shall
distribute all of the Fund to the Executive's Segregated Account established
with the Trustee, if any, or if there is no such Segregated Account to the
Executive, or in the event of the Executive's death his personal representative,
after deducting therefrom any amounts owing to the Trustee under this Agreement
which have not been paid by the Company. Upon any termination of the Trust in
accordance with Article VIII, the Trustee shall, after the acceptance and
approval of its account, in accordance with Section 6.2, be relieved and
discharged. The powers of the Trustee as provided in Section 5.2, shall continue
as long as any part of the Fund remains in its possession.
ARTICLE IX
9.1 This Agreement may be amended, in whole or in part, at any time and
from time to time, by the Company with the written consent of the Executive and
the Trustee. Any such amendment by the Company shall be pursuant to a resolution
of the Board of Directors of the Company or its Executive Committee or
Compensation and Stock Option Committee by delivery to the Trustee of a
certified copy of such resolution and a written
instrument duly executed and acknowledged by the Company and the Executive in
the same form as this Agreement.
ARTICLE X
10.1 This Agreement shall be construed and interpreted under, and the Trust
hereby created shall be governed by, the laws of the State of Illinois insofar
as such laws do not contravene any applicable federal laws, rules or
regulations.
10.2 Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different gender
or number would be appropriate.
10.3 This Agreement shall be binding upon and inure to the benefit of the
Executive, his estate, personal representative, beneficiary, heirs and assigns.
This Agreement also shall be binding upon and inure to the benefit of any
successor to the Company or its business as the result of merger, consolidation,
reorganization, transfer of assets or otherwise and any subsequent successor
thereto. In the event of any such merger, consolidation, reorganization,
transfer of assets or other similar transaction, the successor to the Company or
its business or any subsequent successor thereto shall promptly notify the
Trustee in writing of its successorship and furnish the Trustee with the
information specified in Section 3.1 of this Agreement. In no event shall any
such transaction described herein suspend or delay the rights of the Executive
to receive benefits hereunder.
10.4 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which shall together
constitute only one Agreement.
10.5 All notices and other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when actually
delivered to the respective addresses set forth below:
Company: Fortune Brands, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Trustee: The Northern Trust Company
Attn: Xxxxxx Xxxxxxxx (or current
RM for Fortune Brands, Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Executive:
or at such other address as such person may specify in writing by notice as set
forth above to the other persons listed above.
10.6 The Executive agrees that there shall be transferred to the Fund the
assets held by the trust established by the Trust Agreement dated December 15,
1996, as amended, among the Executive, the Company and The Chase Manhattan Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day of , .
Attest: FORTUNE BRANDS, INC.
By_________________________________________________
Print Name_________________________________________
Title______________________________________________
Attest: The Northern Trust Company
By_________________________________________________
Print Name_________________________________________
Title______________________________________________
Witness: ___________________________________________________
