EXHIBIT 10c7
AMENDMENT TO TRUST AGREEMENT
THIS AMENDMENT, made as of the 24th day of February, 1997, among
AMERICAN 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 February 1, 1989, as amended (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. Xxxx and Xxxxxx is designated as Trustee's Contractor
thereunder; and
WHEREAS, the Company and the Executive entered into an agreement made
as of February 24, 1997 providing for severance benefits and certain
supplemental retirement benefits to the Executive under certain circumstances
(the "Severance and Retirement Agreement") which superseded a retirement
agreement made as of January 1, 1995 between the Company and the Executive; 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 (or other property permitted by Section 3.6) 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 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
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
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 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 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.
AMERICAN BRANDS, INC.
Attest:
Xxxxx X. Xxxxxxx, Xx. By Xxxxxx X. Xxxxxxxxxx
--------------------- ---------------------------
Secretary Xxxxxx X. Xxxxxxxxxx
Senior Vice President and
Chief Administrative Officer
THE CHASE MANHATTAN BANK
Attest:
Xxxxx X. Xxxxxxxx By Xxxx X. Xxxxxxxxxx
----------------- -------------------------
Xxxx X. Xxxxxxxxxx
Vice President
XXXXXX ASSOCIATES LLC
Attest:
Xxxxxxx X. Xxxxxxx By X.X. Xxxxxxxx III
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I hereby consent to the foregoing AMENDMENT.
Witness:
Xxxxxx X. Xxxx
---------------------
Xxxxx Xxxxx Xxxxxx X. Xxxx
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STATE OF CONNECTICUT )
: ss.: Xxx Xxxxxxxxx, XX-Xxxxx 00, 0000
XXXXXX XX XXXXXXXXX )
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.
Xxxx X. Xxxx
----------------------
Notary Public
STATE OF NEW YORK )
: ss.: Xxx Xxxx, XX-Xxxxx 00, 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. Xxxxxxxx
------------------------
Notary Public
STATE OF ILLINOIS )
: ss.: Lincolnshire, IL-June 3, 1997
COUNTY OF LAKE )
Personally appeared X.X. Xxxxxxxx, III, Principal, of XXXXXX ASSOCIATES
LLC, signer and sealer of the foregoing instrument, and acknowledged the same to
be his free act and deed as such Principal and the free act and deed of said
Limited Liability Company, before me.
Xxx X. Xxxxxxxx
-------------------------
Notary Public
STATE OF CONNECTICUT )
: ss.: Xxx Xxxxxxxxx, XX-Xxxxx 00, 0000
XXXXXX XX XXXXXXXXX )
Personally appeared XXXXXX X. XXXX, signer of the foregoing instrument,
and acknowledged the same to be his free act and deed, before me.
Xxxxx X. Xxxxxxx, Xx.
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Notary Public
