Exhibit 10c1
AMENDMENT TO TRUST AGREEMENT
THIS AMENDMENT, made as of the 1st day of January, 1997, among XXXXXXX X.
XXXXXXX, XX (the "Executive"), AMERICAN BRANDS, INC., a Delaware corporation
(the "Company") and THE CHASE MANHATTAN BANK, a New York banking corporation
(the "Trustee")
W I T N E S S E T H :
WHEREAS, the Executive, the Company and the Trustee are parties to a Trust
Agreement (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 the Executive; and
WHEREAS, the parties desire to amend the Trust Agreement as set forth
herein;
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 clause (ii) thereof as
follows:
"(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been earned on such withdrawn amounts from the time of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. For any Executive who
terminates employment between May 1 and December 31, 1997,
however, the interest rate used shall be whichever of the
following results in the greater benefit: (i) 120% of the
applicable monthly immediate annuity purchase rate which
would be used by the Pension Benefit Guaranty Corporation
for the month of termination of employment for the purpose
of determining the present value of a single sum
distribution on plan termination, (ii) 120% of the average
of the applicable monthly annuity purchase rates which would
be used by the Pension Benefit Guaranty Corporation for the
month of termination of employment and the prior five months
and (iii) the average monthly yield on ten year coupon U.S.
Treasury bonds (as published by the Federal Reserve) for the
month of termination of employment and the prior five
months."
2. Section 4.2 is hereby amended in its entirety as follows:
"The Trustee is hereby appointed as the investment
manager of the Fund. In the event that the Trustee cannot
serve as investment manager of the Fund, the Trustee shall
then select Pacific Investment Management Company as
investment manager; provided that if Pacific Investment
Management Company is unwilling or unable to act as
investment manager, the Trustee shall select X.X. Xxxxxx
Investment Management Inc. as investment manager. The
investment manager shall invest the assets of the Fund
separately as to amounts representing the Executive's
supplemental retirement benefit under the Plan and amounts
representing the Executive's supplemental profit-sharing
benefit.
Supplemental retirement benefit amounts shall be
invested solely in the Vista Select Bond Fund to the extent
practicable and otherwise in the Chase Manhattan Personal
Trust Market Rate Account. As soon as practicable after the
Executive's 60th birthday, at the direction of the Company,
the investment manager shall cause one-half of the amounts
held in the Vista Select Bond Fund attributable to
supplemental retirement benefits, and as soon as practicable
after the Executive's 63rd birthday, at the direction of the
Company, the investment manager shall cause the remainder of
the amounts held in the Vista Select Bond Fund attributable
to supplemental retirement benefits, to be invested solely
in the Chase Manhattan Personal Trust Market Rate Account,
provided that supplemental retirement benefit amounts shall
not be transferred from the Vista Select Bond Fund to the
Chase Manhattan Personal Trust Market Rate Account after the
Executive's 60th birthday or the Executive's 63rd birthday
if the amount held in the Vista Select Bond Fund
attributable to supplemental retirement benefits is in a
"loss position". The amount held in the Vista Select Bond
Fund attributable to supplemental retirement benefits shall
be in a "loss position" on the Executive's 60th birthday if
the current market value thereof at the Executive's 60th
birthday is less than 95% of the actuarial present value of
the Executive's supplemental retirement benefit calculated
as of the end of the prior calendar year. The amount held in
the Vista Select Bond Fund attributable to supplemental
retirement benefits shall be in a "loss position" on the
Executive's 63rd birthday if the current market value
thereof at the Executive's 63rd birthday is less than 50% of
95% of the actuarial present value of the Executive's
supplemental retirement benefit calculated as of the end of
the prior calendar year. The Company shall notify the
Trustee promptly after the end of each calendar year of the
actuarial present value of the Executive's supplemental
retirement benefit. In the event that transfers cannot be
made as soon as practicable after the Executive's 60th or
63rd birthday because the amount held in the Vista Select
Bond Fund attributable to supplemental retirement benefits
is then in a "loss position", the amounts attributable to
supplemental retirement benefits shall be transferred as
soon as practicable after such Fund is no longer in such
"loss position".
Supplemental profit-sharing benefit amounts shall be
invested in one or more of the (i) Vista Balanced Fund, (ii)
Chase Manhattan Personal Trust Market Rate Account, (iii)
Dodge & Xxx Stock Fund, (iv) MFS Institutional Emerging
Equities Fund, (v) Vanguard International Growth Portfolio
or (vi) PIMCO Total Return Fund, in such portions as are
elected by the Executive by written election filed with the
Company and notified to the Trustee by the Company, all to
the extent practicable and otherwise in the Chase Manhattan
Personal Trust Market Rate Account, and all without
liability of the Trustee for such election. The Executive
may change such election at any time by filing a new written
election with the Company, which shall promptly notify the
Trustee thereof, and all without liability of the Trustee
for such new election. Subject to such investment
restrictions, 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;
(i) For the purposes of the Trust, to borrow money from
others, including The Chase Manhattan Bank, to issue its
promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by it;
(j) To furnish the Company and the Executive with such
information as may be needed for tax or other purposes;
(k) 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;
(l) 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;
(m) 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;
(n) 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
(o) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable
for the protection of the Fund."
3. The Trust Agreement is hereby further amended to reflect the change of
the Company's name so that references to "American Brands, Inc." and the
"Company" shall be deemed to be references to "Fortune Brands, Inc.", subject to
approval of such change of name by the Company's stockholders.
IN WITNESS WHEREOF, the parties have caused this AMENDMENT to be duly
executed as of the day and year first written above.
AMERICAN BRANDS, INC.
Attest: By Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Senior Vice President and
Xxxx X. Xxxx Chief Administrative Officer
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THE CHASE MANHATTAN BANK
Attest: By Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Vice President
Xxxxx X. Xxxxxxxx
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I hereby consent to the foregoing AMENDMENT.
Witness:
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx, XX
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XXXXXXX X. XXXXXXX, XX
STATE OF CONNECTICUT )
: ss.: Old Greenwich, CT- July 7, 1997
COUNTY OF FAIRFIELD )
Personally appeared XXXXXX X. XXXXXXXXXX, Senior Vice President and Chief
Administrative Officer of AMERICAN BRANDS, INC., signer and sealer of the
foregoing instrument, and acknowledged the same to be his free act and deed as
such Senior Vice President and Chief Administrative Officer and the free act and
deed of said Corporation, before me.
Xxxxxx Xxxxxx
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Notary Public
STATE OF NEW YORK )
: ss.: New York, NY- July 14, 0000
XXXXXX XX XXX XXXX )
Personally appeared XXXX X. XXXXXXXXXX, Vice President of THE CHASE
MANHATTAN BANK, signer and sealer of the foregoing instrument, and acknowledged
the same to be his free act and deed as such Vice President and the free act and
deed of said Company, before me.
Xxxxxx X. Xxxxx
-----------------------
Notary Public
STATE OF CONNECTICUT )
: ss.: Old Greenwich, CT- July 7, 1997
COUNTY OF FAIRFIELD )
Personally appeared XXXXXXX X. XXXXXXX, XX, signer of the foregoing
instrument, and acknowledged the same to be his free act and deed, before me.
Xxxxxx Xxxxxx
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Notary Public
