EXHIBIT 10.20
FIRST AMENDMENT TO
TRUST AGREEMENT FOR
THE XXXXXXXXX X. XXXXX RETIREMENT TRUST
This Amendment ("Amendment") is made this 30 day of October, 1996, by The
Xxxxxxx Xxxxxx Company, a Massachusetts corporation (the "Company"), with the
approval of Xxxxxxxxx X. Xxxxx, XX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and Wachovia Bank of Georgia, N.A. ("Trustee") entered
into a Trust Agreement ("Agreement") as of August 1, 1994, for the purpose of
funding benefits for Executive under the Amended and Restated Supplemental
Executive Retirement Agreement dated as of November 1, 1993 ("SER Agreement");
and
WHEREAS, in connection with the pending acquisition of the Company (and/or
Xxxxxx Holdings Corp., a Massachusetts corporation ("Holdings")) pursuant to the
Agreement and Plan of Merger dated as of September 18, 1996 by and between TWCC
Acquisition Corporation and the Company ("Merger"), the Company desires to amend
the Agreement to delete all provisions relating to a current or future Change of
Control, and the Executive has consented to such amendment; and
WHEREAS, pursuant to Section 9.1 of the Agreement, the Company may
unilaterally amend the Agreement with the consent of the Executive, provided
that such amendment does not adversely affect the Trustee without the Trustee's
consent; and
WHEREAS, this Amendment does not adversely affect the Trustee;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Agreement is hereby amended as follows, effective as of the
day and year first written above.
1. DEFINITIONS. Unless expressly defined in this Amendment, the
capitalized terms used herein have the definitions attributed to them in the
Agreement, and the definitions of these terms in the Agreement are incorporated
herein by reference.
2. NO CHANGE OF CONTROL. The acquisition of the Company (and/or Holdings)
to be effected pursuant to the Merger will not trigger any additional rights,
vesting, benefits, or funding under the Agreement (or the SER Agreement),
notwithstanding any provision of the Agreement or the SER Agreement to the
contrary.
3. CHANGE OF CONTROL FUNDING AMOUNT. The definition of "Change of Control
Funding Amount" in Section 1.1 of the Agreement is hereby deleted in its
entirety.
4. CONTRIBUTION UPON CHANGE OF CONTROL. Section 3.3 of the Agreement,
entitled "Contribution Upon Change of Control," is hereby deleted in its
entirety.
5. DETERMINATION OF CONTRIBUTION. Section 3.5 of the Agreement is amended
to delete all Change of Control references, and, as amended, shall read as
follows:
3.5 DETERMINATION OF CONTRIBUTION. The amount of any contribution
to be made to the Trust under Section 3.2 shall be determined by an Independent
Consultant, which shall be retained by the Company and shall report its
determination in writing to the Company and Executive not later than fifteen
(15) days prior to the date by which the Annual Contribution is to be made, and
which determination shall be final and binding upon the Company and the
Executive. To the extent the Independent Consultant determines that at any time
or for any period for which the Company would otherwise be required to make a
contribution to the Trust, no contribution is required based on such actuarial
determination, the Company shall not, subject to the terms below, be required to
make a contribution to the Trust at such time or for such period. Not later than
fifteen(15) days prior to the date by which the Annual Contribution is to be
made, the Company shall cause the Independent Consultant to give the Trustee
written notice setting forth the Independent Consultant's determination of the
amount of the contribution required by Section 3.2 upon the date of the Annual
Contribution.
6. SECURITY FOR MANDATORY CONTRIBUTIONS. Section 3.6(a) of the Agreement
is amended to delete the reference to "the Change of Control Funding Amount,"
and Section 3.6(b) of the Agreement is amended to delete all references to "a
Change of Control." As amended, Sections 3.6(a) and (b) shall read as follows:
3.6 SECURITY FOR MANDATORY CONTRIBUTIONS.
(a) Beginning on the Effective Date and ending on the LC Expiry
Date, the Company shall continuously maintain an irrevocable letter of credit in
favor of the Trust (the "Letter of Credit") substantially in the form of EXHIBIT
A attached hereto and initially drawable by the Trustee for an amount net less
than an amount (the "Letter of Credit Amount") equal to the result of (i) the
Full Funding Amount as of the date of issuance of such Letter of Credit PLUS
(ii) the aggregate amount of all contributions actually made by the Company to
the Trust during the preceding twelve months MINUS (iii) the amount or fair
value of the assets comprising the Trust Fund as of the date of issuance of such
Letter of Credit. The Company shall cause an Independent Consultant to determine
the Letter of Credit Amount with respect to any such Letter of Credit which
Independent Consultant shall report its determination in writing to the Company
and the Executive at least 30 days prior to the expiration of any existing
Letter of Credit. In the event that the Independence Consultant fails to report
its determination prior to such date, the then existing Letter of Credit shall
continue to be renewed at the then existing Letter of Credit Amount until such
time as such determination is made and a replacement Letter of Credit is issued.
(b) The Company shall notify the Trustee promptly of the
occurrence of an Insolvency Event. Upon receipt of written notice of an
Insolvency Event from the Company prior to the LC Expiry Date, the Trustee shall
promptly draw against the Letter of Credit the undrawn portion of the Letter of
Credit Amount (or such lesser amount to which the Executive may consent, in
writing) and apply such amount as provided in Article IV hereto.
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7. CONTINUED EFFECTIVENESS. Except as provided by this Amendment, the
Agreement continues in full force and effect.
IN WITNESS WHEREOF, the Company has executed this Amendment and the
Executive has consented thereto effective as of the day and year first written
above.
THE XXXXXXX XXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxx
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Its: Sr.V.P. - Secretary
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AGREED AS TO FORM AND CONTENT:
EXECUTIVE:
/s/ Xxxxxxxxx X. Xxxxx
---------------------------------
XXXXXXXXX X. XXXXX, XX
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