Exhibit 99d1
SECOND AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
FORTUNE BRANDS, INC.
THIS SECOND AMENDMENT, effective as of the date first signed
below, by and between Fidelity Management Trust Company (the "Trustee") and
Fortune Brands, Inc. (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a
Master Trust Agreement dated October 1, 1999, with regard to the Fortune Brands
Retirement Savings Plan and the Fortune Brands Hourly Employee Retirement
Savings Plan and such other qualified defined contribution plans that Fortune
Brands, Inc. or its other affiliates and subsidiaries may maintain in the future
(collectively and individually, the "Plan"); and
WHEREAS, the Sponsor has directed the Trustee to accept and hold
the assets of the Future Brands LLC Retirement Savings Plan, effective April 1,
2001, in accordance with the terms of this Agreement; and
WHEREAS, the Trustee and the Sponsor now desire to amend said
Trust Agreement as provided for in Section 18 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee
and the Sponsor hereby amend the Trust Agreement by:
(1) Restating Section 6 in its entirety, as follows:
(a) Fortune Common Stock. Trust investments in Fortune Common
Stock shall be made via the Fortune Stock Fund (the "Stock Fund"). Investments
in the Stock Fund shall consist primarily of shares of Fortune Common Stock. The
Stock Fund shall also include cash or short-term liquid investments, in
accordance with this paragraph, in amounts designed to satisfy daily participant
exchange or withdrawal requests. Such holdings will include Colchester Street
Trust: Money Market Portfolio: Class I or such other Mutual Fund or commingled
money market pool as agreed to in writing by the Sponsor and the Trustee. The
Named Fiduciary shall, after consultation with the Trustee, establish and
communicate to the Trustee in writing a target percentage and drift allowance
for such short-term liquid investments. Subject to its ability to execute
open-market trades in Fortune Common Stock or to otherwise trade with the
Sponsor, the Trustee shall be responsible for ensuring that the short-term
investments held in the Stock Fund fall within the agreed-upon range over time.
Each participant's proportional interest in the Stock Fund shall be measured in
units of participation, rather than shares of Fortune Common Stock. Such units
shall represent a proportionate interest in all of the assets of the Stock Fund,
which includes shares of Fortune Common Stock, short-term investments and at
times, receivables and payables (such as receivables and payables arising out of
unsettled stock trades). The Trustee shall determine a daily net asset value
("NAV") for each unit outstanding of the Stock Fund. Valuation of the Stock Fund
shall be based upon: (a) the closing
price of the stock on the principal national securities exchange on which the
Fortune Common Stock is traded or, in the case of stocks traded over the
counter, the last sale price of the day; (b) if unavailable, the latest
available price as reported by the principal national securities exchange on
which the Fortune Common Stock is traded or for an over the counter stock, the
last bid price prior to the close of the New York Stock Exchange (generally 4:00
p.m. Eastern time) (the "Closing Price"); or (c) if neither is available, the
price determined in good faith by the Trustee. The NAV shall be adjusted for
gains or losses realized on sales of Fortune Common Stock, appreciation or
depreciation in the value of those shares owned, dividends paid on Fortune
Common Stock to the extent not used to purchase additional units of the Stock
Fund for affected participants, and interest on the short-term investments held
by the Stock Fund, payables and receivables for pending stock trades,
receivables for dividends not yet distributed, and payables for other expenses
of the Stock Fund, including principal obligations, if any, and expenses Fortune
Common Stock that, pursuant to Sponsor direction, the Trustee accrues or pays
from the Stock Fund.
(i) Acquisition Limit. Pursuant to the Plan, the Trust may be
invested in Sponsor Stock to the extent necessary to comply with
investment directions in accordance with this Agreement. The Sponsor
shall be responsible for providing specific direction on any acquisition
limits required by the Plan or applicable law.
(ii) Fiduciary Duty.
(A) The Named Fiduciary shall continually monitor the
suitability under the fiduciary duty rules of section 404(a)(1)
of ERISA (as modified by section 404(a)(2) of ERISA) of
acquiring and holding Fortune Common Stock. The Trustee shall
not be liable for any loss or expense which arises from the
directions of the Named Fiduciary with respect to the
acquisition and holding of Fortune Common Stock, unless it is
clear on their face that the actions to be taken under those
directions would be prohibited by the foregoing fiduciary duty
rules or would be contrary to the terms of this Agreement.
(B) Each participant with an interest in Fortune Common
Stock (or, in the event of the participant's death, his
beneficiary) is, for purposes of this Section 6(a)(ii), hereby
designated as a "named fiduciary" (within the meaning of
section 403(a)(1) of ERISA), with respect to the shares
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allocated to his or her account that were not purchased at his
or her direction, and shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote or
tender such shares, including the right to direct the Trustee's
conduct, in accordance with disclosed rules, by his or her
failure to respond within the required time frame.
(iii) Purchases and Sales of Fortune Common Stock. Unless
otherwise directed by the Sponsor in writing pursuant to directions that
the Trustee can administratively implement, the following provisions
shall govern purchases and sales of Fortune Common Stock:
(A) Open Market Purchases and Sales. Purchases and sales of
Fortune Common Stock shall be made on the open market in accordance
with the Trustee's standard trading guidelines, as they may be amended
by the Trustee from time to time, as necessary to honor exchange and
withdrawal activity and to maintain the target cash percentage and
drift allowance for the Stock Fund, provided that:
(1) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on such
day as a result of market conditions; or
(2) If the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange or principal
exchange on which the Fortune Common Stock is traded, or any
other judicial or regulatory body from purchasing or selling
any or all of the shares required to be purchased or sold on
such day, then the Trustee shall purchase or sell such shares
as soon thereafter as administratively feasible.
(B) Purchases and Sales from or to Sponsor. If directed by the
Sponsor in writing prior to the trading date, the Trustee may purchase
or sell Fortune Common Stock from or to the Sponsor if the purchase or
sale is for adequate consideration (within the meaning of section 3(18)
of ERISA) and no commission is charged. If the Sponsor contributions
(employer) or
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contributions made by the Sponsor on behalf of the participants
(employee) under the Plan are to be invested in Fortune Common Stock,
the Sponsor may transfer Fortune Common Stock in lieu of cash to the
Trust. In either case, the number of shares to be transferred will be
determined by dividing the total amount of Fortune Common Stock to be
purchased or sold by the Closing Price of the Fortune Common Stock on
the trading date.
(C) Use of an Affiliated Broker. The Sponsor hereby directs the
Trustee to use Fidelity Capital Markets, a division of National
Financial Services LLC ("Capital Markets") to provide brokerage services
in connection with any purchase or sale of Fortune Common Stock on the
open market, except in circumstances where the Trustee has determined,
in accordance with its standard trading guidelines or pursuant to
Sponsor direction, to seek expedited settlement of the trades. Capital
Markets shall execute such directions directly or through its
affiliates. The provision of brokerage services shall be subject to the
following:
(1) As consideration for such brokerage services, the
Sponsor agrees that Capital Markets shall be entitled to
remuneration under this direction provision in an amount of no
more than three and one-fifth cents ($.032) commission on each
share of Fortune Common Stock. Any change in such remuneration
may be made only by written agreement between the Sponsor and
the Trustee.
(2) The Trustee will provide the Sponsor with periodic
reports which summarize all securities transaction-related
charges incurred with respect to trades of Fortune Common Stock
for such Plan.
(3) Any successor organization of Capital Markets,
through reorganization, consolidation, merger or similar
transactions, shall, upon consummation of such transaction,
become the successor broker in accordance with the terms of
this direction provision.
(4) The Trustee and Capital Markets shall continue to
rely on
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this direction provision until notified to the contrary. The
Sponsor reserves the right to terminate this direction upon
written notice to Capital Markets (or its successor) and the
Trustee, in accordance with Section 16 of this Agreement.
(iv) Execution of Purchases and Sales of Units. Unless
otherwise directed in writing pursuant to directions that the Trustee
can administratively implement, purchases and sales of units shall be
made as follows:
(A) Subject to subparagraphs (B) and (C) below,
purchases and sales of units in the Stock Fund (other than for
exchanges) shall be made on the date on which the Trustee
receives from the Administrator in good order all information,
documentation, and wire transfers of funds (if applicable),
necessary to accurately effect such transactions. Exchanges of
units in the Stock Fund shall be made in accordance with the
Exchange Guidelines attached hereto as the "Schedule of
Exchange Guidelines."
(B) Aggregate sales of units in the Stock Fund on any
day shall be limited to the Stock Fund's Available Liquidity
for that day. For these purposes, Available Liquidity shall
mean the amount of short-term investments held in the fund
decreased by any outgoing cash for expenses then due, payables
for loan principal, and obligations for pending stock
purchases, and increased by incoming cash (such as
contributions, exchanges in, loan repayments) and to the extent
credit is available and allocable to the Stock Fund,
receivables for pending stock sales. In the event that the
requested sales exceed the Available Liquidity, then
transactions shall be processed giving precedence to the
distributions, loans and withdrawals, and otherwise on a
first-in first-out (FIFO) basis, as provided in the "Schedule
of Available Liquidity Procedures for Unitized Fortune Common
Stock Fund," attached hereto (the "Specified Hierarchy"). So
long as the Stock Fund is open for such transactions, sales of
units that are requested but not processed on a given day due
to insufficient Available Liquidity shall be suspended until
Available Liquidity is sufficient to honor such transactions in
accordance with the Specified Hierarchy.
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(C) The Trustee shall close the Stock Fund to sales or
purchases of units, as applicable, on any date on which trading
in the Fortune Common Stock has been suspended or substantial
purchase or sale orders are outstanding and cannot be executed.
(v) Securities Law Reports. The Named Fiduciary shall be
responsible for filing all reports required under Federal or state
securities laws with respect to the Trust's ownership of Fortune Common
Stock, including, without limitation, any reports required under section
13 or 16 of the Securities Exchange Act of 1934, and shall immediately
notify the Trustee in writing of any requirement to stop purchases or
sales of Fortune Common Stock pending the filing of any report. The
Trustee shall provide to the Named Fiduciary such information on the
Trust's ownership of Fortune Common Stock as the Named Fiduciary may
reasonably request in order to comply with Federal or state securities
laws.
(vi) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement, the provisions of this Section shall
govern the voting and tendering of Fortune Common Stock. The Sponsor
shall provide and pay for all printing, mailing, tabulation and other
costs associated with the voting and tendering of Fortune Common Stock.
The Trustee, after consultation with the Sponsor, shall prepare the
necessary documents associated with the voting and tendering of Fortune
Common Stock.
(b) Voting of Shares in Fortune Stock Fund.
(i) No Trustee Discretion. Notwithstanding any other provision
of the Plans or this Agreement, the Trustee shall have no discretion or
authority to exercise any voting rights with respect to the Fortune
Common Stock held in the Fortune Stock Fund except as provided in this
Section 6.
(ii) Participant Direction. Each Participant in the Plans shall
be entitled to direct the Trustee in writing or by such other means as
agreed to by the Trustee and Fortune, and the Trustee shall solicit the
direction of such Participant, as to the manner in which any voting
rights of shares attributable to the Participant's proportional interest
in the Fortune Stock Fund (vested or unvested) are to be exercised with
respect to any matter on which holders of Fortune Common Stock are
entitled to vote by proxy, consent or otherwise, and the Trustee shall
exercise the voting rights of such shares with respect to such matter in
accordance with the most recent timely direction received by the Trustee
from such Participant. With respect to the voting rights of shares of
Fortune Common Stock held in the Fortune Stock Fund as to
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which timely directions have not been received by the Trustee as
provided in the preceding sentence and any shares of Fortune Common
Stock representing the proportional interest in the Fortune Stock Fund
which are unallocated to accounts of Participants, the Trustee shall
exercise the voting rights of such shares in the same manner and in the
same proportion in which the voting rights of shares as to which such
directions were received by the Trustee are to be exercised as provided
in the preceding sentence. The Trustee shall combine fractional
interests of Participants in shares of Fortune Common Stock held in the
Fortune Stock Fund to the extent possible so that the voting rights with
respect to such matter are exercised in a manner which reflects as
accurately as possible the collective directions given by Participants.
In giving directions to the Trustee as provided herein, each Participant
shall be acting as a named fiduciary with respect to the exercise of
voting rights of shares of Fortune Common Stock in accordance with such
directions.
(iii) Trustee to Communicate Voting Procedures. When Fortune
prepares for any annual or special meeting, Fortune shall notify the
Trustee at least thirty (30) days in advance of the intended record date
and shall cause a copy of all proxy solicitation materials to be sent to
the Trustee. If requested by the Trustee, Fortune shall certify to the
Trustee that the aforementioned materials represent the same information
that is distributed to shareholders of Fortune Common Stock. The Trustee
will distribute or cause to be distributed as promptly as possible to
all Participants entitled to give directions to the Trustee as to the
exercise of voting rights with respect to any matter all communications
and other materials, if any, that the Trustee may receive from any
person or entity (including Fortune) that are being distributed to the
holders of Fortune Common Stock and either are directed generally to
such holders or relate to any matter on which holders of Fortune Common
Stock are entitled to vote by proxy, consent or otherwise, and Fortune
will promptly furnish to the Trustee all such communications and other
materials, if any, as are being distributed by or on behalf of Fortune.
Fortune will provide the Trustee with such information, documents and
assistance as the Trustee may reasonably request in connection with any
communications or distributions to Participants as aforesaid. This
information will include the names and current addresses of Participants
and the number of shares of Fortune Common Stock representing their
proportional interest in the Fortune Stock Fund upon which the Trustee
may conclusively rely. Based on these materials, the Trustee shall
prepare a voting instruction form and will communicate or cause to be
communicated to all Participants the procedures regarding the exercise
of voting rights of shares of Fortune Common Stock held in the Fortune
Stock Fund. The form shall show the proportional interest in the number
of full and fractional shares of Fortune Common Stock credited to the
Participant's accounts held in the Fortune Stock Fund. Notwithstanding
any other provision of this Section 6, the Plan (as communicated to the
Trustee by Fortune) or the Trust Agreement to the contrary, unless
Fortune or one of its affiliated organizations serves as recordkeeper,
to the extent necessary to provide Fortune or one of its affiliated
organizations as recordkeeper with information necessary accurately to
maintain records of the interest in the Plan of Participants, the
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Trustee will use its best efforts (A) to keep confidential the direction
(or the absence thereof) from each Participant in connection with the
exercise of voting rights of shares of Fortune Common Stock held in the
Fortune Stock Fund and the identity of such Participant and (B) not to
divulge such direction or identity to any person or entity, including,
without limitation, Fortune, its affiliated organizations and any
director, officer, employee or agent thereof. It is the intent of this
Section 6 that Fortune, its affiliated organizations and their
directors, officers, employees and agents not be able to ascertain the
direction given (or not given) by any Participant in connection with the
exercise of voting rights of such shares.
(iv) Invalidity. If a court of competent jurisdiction issues an
opinion, order or decree which, in the opinion of counsel to Fortune or
the Trustee, will, in all or any particular circumstances: (A)
invalidate under ERISA or otherwise any provision or provisions of the
Plan or the Trust Agreement with respect to the exercise of voting
rights of shares of Fortune Common Stock held in the Fortune Stock Fund;
(B) cause any such provision or provisions to conflict with ERISA; or
(C) require the Trustee not to act or such voting rights not to be
exercised in accordance with such provision or provisions; then, upon
written notice thereof to the Trustee (in the case of an opinion of
counsel to Fortune) or to Fortune (in the case of an opinion of counsel
to the Trustee) such provision or provisions will be given no further
force or effect in such circumstances. Except to the extent otherwise
specified in such opinion, order or decree, the Trustee will have no
discretion or authority in such circumstances to exercise voting rights
with respect to shares of Fortune Common Stock held in the Fortune Stock
Fund, but will exercise such voting rights in accordance with the most
recent timely directions received from Participants, to the extent such
directions have not been invalidated. To the extent the Trustee, in
order to comply with ERISA or other applicable law, exercises any
fiduciary responsibility it may have in any circumstances with respect
to any exercise of voting rights of shares of Fortune Common Stock held
in the Fortune Stock Fund, the Trustee in exercising its fiduciary
responsibility, unless pursuant to the requirements of ERISA or
otherwise it is unlawful to do so, will take directions timely received
from Participants as being valid direction with respect to the exercise
of such voting rights. In the event that the Trustee, in its sole
discretion, determines that in exercising its fiduciary responsibility
under this Section 6(b)(iv) any relevant financial factors bearing on
the exercise of voting rights are equal or substantially equal, the
Trustee may take into account such non-financial factors as the Trustee
deems appropriate in its sole discretion.
(c) Tender Offers.
(i) Tender by Trustee. Notwithstanding any other provision of
the Plan or the Trust Agreement to the contrary, the Trustee will have
no discretion or authority to tender, deposit, sell, exchange or
transfer any shares of Fortune Common Stock (which, for purposes of this
Section 6, will include any rights within the meaning of Section 6(d))
held in the Fortune Stock Fund pursuant to any tender
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offer (as defined herein) except as provided in this Section 6. For
purposes of this Section 6, a "tender offer" will mean any tender or
exchange offer for or request or invitation for tenders or exchanges of
shares of Fortune Common Stock and will include, without limitation, any
such tender offer made by or on behalf of Fortune.
(ii) Participant Direction. Each Participant will be entitled
to direct the Trustee in writing or by such other means as agreed to by
the Trustee and Fortune, and the Trustee will solicit the direction of
such Participant as to the tendering, depositing, selling, exchanging or
transferring of shares of Fortune Common Stock attributable to his
proportionate interest in the Fortune Stock Fund pursuant to any tender
offer, and the Trustee will tender, deposit, sell, exchange or transfer
such shares (or will not tender such shares of Fortune Common Stock)
pursuant to such tender offer in accordance with the most recent timely
direction received by the Trustee from such Participant. With respect to
shares of Fortune Common Stock held in the Fortune Stock Fund as to
which timely directions have not been received by the Trustee from
Participants, such Participants will be deemed to have directed the
Trustee that such shares of Fortune Common Stock, subject to all
provisions of the Plans, the Trust Agreement, and applicable law, not be
tendered, deposited, sold, exchanged or transferred pursuant to such
tender offer, and the Trustee will not tender, deposit, sell, exchange
or transfer any of such shares pursuant thereto. If, under the terms of
such tender offer or otherwise, any shares of Fortune Common Stock
tendered or deposited pursuant thereto may be withdrawn, the Trustee
will (A) use its best efforts to solicit the direction of each
Participant, as to the exercise of withdrawal rights with respect to
shares of Fortune Common Stock that have been tendered or deposited
pursuant to this Section 6, and (B) exercise (or refrain from
exercising) such withdrawal rights in the same manner as will reflect
the most recent timely directions received with respect to the exercise
of such withdrawal rights. The Trustee will not withdraw shares except
pursuant to a timely direction of a Participant. The Trustee will
combine fractional interests of Participants in shares of Fortune Common
Stock held in the Fortune Stock Fund to the extent possible so that such
shares are tendered, deposited, sold, exchanged or transferred, and
withdrawal rights with respect thereto are exercised, in a manner which
reflects as accurately as possible the collective directions given or
deemed to have been given by Participants in accordance with this
Section 6. In giving or being deemed to have given directions to the
Trustee as provided in this Section 6(c), each Participant will be
acting as a named fiduciary with respect to the tender, deposit, sale,
exchange or transfer of shares of Fortune Common Stock (or the retention
of such shares in the Fortune Stock Fund) in accordance with such
directions pursuant to this Section 6(c) and the exercise of (or the
refraining from exercising) withdrawal rights with respect to shares of
Fortune Common Stock tendered or deposited pursuant to the third
sentence of this Section 6(c).
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(iii) Trustee to Communicate Tender Procedures. In the event
that Fortune receives notice of the commencement of a tender offer for
Fortune Common Stock as to which Participants are entitled to give
directions as provided in this Section 6, Fortune shall notify the
Trustee as soon as administratively possible and shall cause a copy of
all materials available to Fortune to be sent to the Trustee. If
requested by the Trustee, Fortune shall certify to the Trustee that the
aforementioned materials represent the same information available to
Fortune. In the event of a tender offer, the Trustee will distribute or
cause to be distributed as promptly as possible to all Participants
entitled to give directions to the Trustee with respect to such tender
offer all communications and other materials, if any, that the Trustee
may receive from any person or entity (including Fortune) that are being
distributed to the holders of the securities to whom such tender offer
is directed and either are directed generally to such holders or relate
to such tender offer, and Fortune will promptly furnish to the Trustee
all such communications and other materials, if any, as are being
distributed by or on behalf of Fortune. Fortune will provide the Trustee
with such information, documents and assistance as the Trustee may
reasonably request in connection with any communications or
distributions to Participants as aforesaid. This information will
include the names and current addresses of Participants and the number
of shares of Fortune Common Stock credited to the accounts of each of
them, upon which the Trustee may conclusively rely. Based on these
materials and after consultation with Fortune, the Trustee shall prepare
a tender instruction form to be sent to each Plan Participant with an
interest in the Fortune Stock Fund containing the procedures relating to
their right to give directions as named fiduciaries to the Trustee. The
tender instruction form shall show the number of full and fractional
shares of Fortune Common Stock that reflect the Participants'
proportional interest in the Fortune Stock Fund. Notwithstanding any
other provision of this Section 6, the Plan (as communicated to the
Trustee by Fortune) or the Trust Agreement to the contrary, except if
Fortune or one of its affiliated organizations serves as recordkeeper,
to the extent necessary to provide Fortune or one of its affiliated
organizations with information necessary accurately to maintain records
of the interest in the Plans of Participants, the Trustee will use it
best efforts (A) to keep confidential the direction (or the absence
thereof) from each Participant with respect to any tender offer and the
identity of such Participant and (B) not to divulge such direction or
identity to any person or entity, including, without limitation,
Fortune, its affiliated organizations and any director, officer,
employee or agent thereof. It is the intent of this Section 6(c) that
Fortune, its affiliated organizations and their directors, officers,
employees and agents not be able to ascertain the direction given (or
not given) or deemed to have been given by any Participant with respect
to any tender offer.
(iv) Invalidity. If a court of competent jurisdiction issues an
opinion, order or decree which, in the opinion of counsel to Fortune or
the Trustee, will, in all or any particular circumstances: (A)
invalidate under ERISA or otherwise any provision or provisions of the
Plan or the Trust Agreement with respect to the tendering, depositing,
sale, exchange or transfer of shares of Fortune Common Stock held
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in the Fortune Stock Fund or the exercise of any withdrawal rights with
respect to shares tendered or deposited pursuant to a tender offer; (B)
cause any such provision or provisions to conflict with ERISA; or (C)
require the Trustee not to act or such shares not to be tendered,
deposited, sold, exchanged or transferred or such withdrawal rights not
to be exercised in accordance with such provision or provisions; then,
upon written notice thereof to the Trustee (in the case of an opinion of
counsel to Fortune) or to Fortune (in the case of an opinion of counsel
to the Trustee) such provision or provisions will be given no further
force or effect in such circumstances. Except to the extent otherwise
specified in such opinion, order or decree, the Trustee will have no
discretion or authority in such circumstances to tender, deposit, sell,
transfer or exchange shares of Fortune Common Stock held in the Fortune
Stock Fund (or the retention of such shares in the Fortune Stock Fund)
pursuant to a tender offer or with respect to the exercise of (or
refraining from exercising) any withdrawal rights with respect to shares
tendered or deposited pursuant to a tender offer, but will act in
accordance with the most recent timely directions received from
Participants to the extent such directions have not been invalidated. To
the extent the Trustee, in order to comply with ERISA or other
applicable law, exercises any fiduciary responsibility it may have in
any circumstances with respect to the tendering, depositing, sale,
exchange or transfer of shares of Fortune Common Stock held in the
Fortune Stock Fund or the exercise of any withdrawal rights with respect
to shares tendered or deposited pursuant to a tender offer, the Trustee
in exercising its fiduciary responsibility, unless pursuant to the
requirements of ERISA or otherwise it is unlawful to do so will take
directions timely received from Participants as being valid direction
with respect to a tender offer. In the event that the Trustee, in its
sole discretion, determines that in exercising its fiduciary
responsibility under this Section 6(c)(iv) any relevant financial
factors bearing on the exercise of tender rights are equal or
substantially equal, the Trustee may take into account such
non-financial factors as the Trustee deems appropriate in its sole
discretion.
(v) Proceeds of Tender. A direction by a Participant to the
Trustee to tender shares of Fortune Common Stock reflecting the
Participant's proportional interest in the Fortune Stock Fund shall not
be considered a written election under the Plan by the Participant to
withdraw, or have distributed, any or all of his withdrawable shares.
The Trustee shall credit to each proportional interest of the
Participant from which the tendered shares were taken the proceeds
received by the Trustee in exchange for the shares of Fortune Common
Stock tendered from that interest. Pending receipt of directions from
the Participant or the Named Fiduciary, as provided in the Plan, as to
which of the remaining investment options the proceeds should be
invested in, the Trustee shall invest the proceeds in the investment
option described in the Schedule of Investment Options provided by the
Trustee and signed by Fortune and the Trustee.
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(d) Certain Rights Held in Fortune Stock Fund.
(i) Sale or Exchange of Preferred Share Purchase Rights. If any
Preferred Share Purchase Rights of Fortune (or any rights issued by
Fortune in substitution or replacement therefor) held in the Fortune
Stock Fund ("rights") become transferable separately from the shares of
Fortune Common Stock held in the Fortune Stock Fund as provided in the
Plan or the Trust Agreement, Fortune agrees to purchase the rights from
the Trustee as soon as practicable. As soon as administratively feasible
after the rights become separately transferable from the shares of
Fortune Common Stock, the Trustee shall, in its sole discretion, appoint
an independent financial advisor as specifically permitted under Section
9 of this Trust Agreement. The independent financial advisor shall be
retained at Fortune's expense for the purpose of determining a price at
which the rights shall be sold to Fortune by the Trustee.
Notwithstanding the forgoing, if prior to the sale of the rights by the
Trustee to Fortune, Fortune determines to exchange one right for a share
of Fortune, the Trustee will surrender each right that it holds in
exchange for a share of Fortune Common Stock.
(ii) Invalidity. If a court of competent jurisdiction issues an
opinion, order or decree which, in the opinion of counsel to Fortune or
the Trustee, will, in all or any particular circumstances, (A)
invalidate under ERISA or otherwise any provision or provisions of the
Plans or the Trust Agreement with respect to the sale of rights by the
Trustee to Fortune or the exchange of rights; (B) cause any such
provision or provisions to conflict with ERISA; or (C) require the
Trustee not to sell to Fortune or exchange the rights; then, upon
written notice thereof to the Trustee (in the case of an opinion of
counsel to Fortune) or to Fortune (in the case of an opinion of counsel
to the Trustee) such provision or provisions will be given no further
force or effect in such circumstances. In the event such opinion, order
or decree invalidates the sale or exchange of rights to Fortune on the
basis that the price at which the rights are valued by the independent
financial advisor does not constitute adequate consideration under
ERISA, Fortune shall purchase the rights from the Trustee for adequate
consideration as set forth in or determined pursuant to such opinion,
order or decree. In the event such opinion, order or decree invalidates
the sale or exchange of rights to Fortune for any other reason, the
Trustee shall sell the rights to a person or persons not affiliated with
Fortune. If the Trustee is unable to sell the rights to a person or
persons unaffiliated with Fortune, the Trustee shall then follow the
directions of Fortune as Named Fiduciary with respect to the disposition
of the rights unless it is clear on the direction's face that the
actions to be taken under the direction would be prohibited by the
fiduciary duty rules of section 404(a) of ERISA or would be contrary to
the terms of the Plan (as communicated by Fortune to the Trustee in
writing) or this Agreement. It is agreed that the Trustee shall in no
event be required to retain the rights.
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(iii) Allocation of Proceeds. Pending receipt of directions
from the Named Fiduciary or the Participant as provided in the Plan, as
to which of the remaining investment options the proceeds of the rights
should be invested in, the Trustee shall invest the proceeds in the
investment option described in the Schedule of Investment Options
provided by the Trustee and signed by Fortune and the Trustee.
(iv) General. With respect to all rights other than the right
to vote, the right to tender, and the right to withdraw shares
previously tendered, in the case of Fortune Common Stock credited to a
participant's proportional interest in the Stock Fund, the Trustee shall
follow the directions of the participant and if no such directions are
received, the directions of the Named Fiduciary. The Trustee shall have
no duty to solicit directions from participants. With respect to all
rights other than the right to vote and the right to tender, in the case
of Fortune Common Stock not credited to participants' accounts, the
Trustee shall follow the directions of the Named Fiduciary.
(v) Conversion. All provisions in this Section 6 shall also
apply to any securities received as a result of a conversion of Fortune
Common Stock.
(2) Restating the Schedule of Exchange Guidelines in its
entirety as attached hereto.
(3) Adding the Schedule of Available Liquidity Procedures for
Unitized Fortune Common Stock Fund as attached hereto.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this
Amendment to be executed by their duly authorized officers effective as of the
day and year first signed below.
FORTUNE BRANDS, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Xxxxxxx X. Rakosnick By: /s/ Xxxxxxx Xxxxxx
------------------------------ ------------------------------
Date: 7/16/01 Vice President Date: 8/10/01
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SCHEDULE OF EXCHANGE GUIDELINES
The following exchange guidelines are currently employed by Fidelity Investments
Institutional Operations Company, Inc. (FIIOC).
Exchange hours, via a Fidelity participant service representative, are 8:30 a.m.
(ET) to 8:00 p.m. (ET) on each business day. A "business day" is any day on
which the New York Stock Exchange (NYSE) is open.
Exchanges via Voice Response System ("VRS") and the internet (Netbenefits) may
be made virtually 24 hours a day.
FIIOC reserves the right to change these exchange guidelines at its discretion.
Note: The NYSE's normal closing time is 4:00 p.m. (ET); in the event the NYSE
alters its closing time, all references below to 4:00 p.m. (ET) shall mean the
NYSE closing time as altered.
Investment Options
------------------
Exchanges Between Mutual Funds
------------------------------
Participants may call on any business day to exchange between the
mutual funds. If the request is confirmed before 4:00 p.m. (ET), it will receive
that day's trade date. Requests confirmed after 4:00 p.m. (ET) will be processed
on a next business day basis.
Stock Funds
-----------
Provided that the Stock Funds are open for purchases and sales of units, the
following rules will govern exchanges:
Exchanges From Mutual Funds to Stock Funds
------------------------------------------
Except as otherwise noted herein, Participants may contact Fidelity on any day
to exchange from mutual funds into the Stock Funds. If the request is confirmed
before the close of the market (generally, 4:00 p.m. ET) on a business day, it
will receive that day's trade date. Requests confirmed after the close of the
market on a business day (or on any day other than a business day) will be
processed on a next business day basis.
Exchanges From Fortune Common Stock Fund to Mutual Funds
--------------------------------------------------------
Participants may contact Fidelity on any day to exchange from the Fortune Common
Stock Fund to mutual funds. If Fidelity receives the request before the close of
the market (generally 4:00 p.m. ET) on any business day and Available Liquidity
is sufficient to honor the trade after Specified Hierarchy rules are applied, it
will receive that day's trade date. Requests received by Fidelity after the
close of
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the market on any business day (or on any day other than a business day) will be
processed on a next business day basis, subject to Available Liquidity for such
day after application of Specified Hierarchy rules. If Available Liquidity on
any day is insufficient to honor the trade after application of Specified
Hierarchy rules, it will be suspended until Available Liquidity is sufficient,
after application of Specified Hierarchy rules, to honor such trade, and it will
receive the trade date and Closing Price of the date on which it was processed.
Exchange Restrictions
---------------------
Exchanges into the Xxxxxxxx Fund are prohibited.
FORTUNE BRANDS, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Xxxxxxx X. Rakosnick By: /s/ Xxxxxxx Xxxxxx
----------------------------- ------------------------------
Date: 7/16/01 Vice President Date: 8/10/01
15
SCHEDULE OF AVAILABLE LIQUIDITY PROCEDURES FOR UNITIZED
FORTUNE COMMON STOCK FUND
The following procedures shall govern sales of the Fortune Common
Stock Fund requested for a day on which Available Liquidity is insufficient:
Loans, withdrawals and distributions will be aggregated and placed
first in the hierarchy. If Available Liquidity is sufficient for the aggregate
of such transactions, all such loans, withdrawals and distributions will be
honored. If Available Liquidity is not sufficient for the aggregate of such
transactions, then such transactions will be suspended, and no transactions
requiring a sale of Fortune Common Stock Fund units shall be honored for that
day.
If Available Liquidity has not been exhausted by the aggregate of
loans, withdrawals and distributions, then all remaining transactions involving
a sale of units in the Fortune Common Stock Fund (exchanges out) shall be
grouped on the basis of when such requests were received, in accordance with
standard procedures maintained by the Trustee for such grouping, as they may be
amended from time to time. To the extent of Available Liquidity, groups of
exchanges out of the Fortune Common Stock Fund shall be honored, by group, on a
"first in, first out" basis. If Available Liquidity is insufficient to honor all
exchanges out within a group, then none of the exchanges out in such group shall
be honored, and no exchanges out in a later group shall be honored.
Transactions not honored on a particular day due to insufficient
Available Liquidity shall be honored, using the hierarchy specified above, on
the next business day on which there is Available Liquidity.
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