EXHIBIT 10.28.3
SECOND AMENDMENT TO XXXXXX-XXXXXX, INC.
MASTER TRUST AGREEMENT
The Xxxxxx-Xxxxxx, Inc. Master Trust Agreement For Executive
Deferral Plans, as heretofore amended (the "Trust"), between Xxxxxx-Xxxxxx,
Inc., a Delaware corporation (the "Company"), and Norwest Bank Minnesota,
N.A. (the "Trustee"), is hereby amended effective as of June ___, 1997, in
the following respects:
1. Section 1.5(c) of the Trust shall be amended and restated in
its entirety to read as follows:
(c) A "Change in Control" of the Company shall occur upon:
(i) any person (as defined in Sections 3(a)(9) and 13(d)(3) of the
'34 Act) ("Person") (other than an Excluded Person (as
hereinafter defined), the Company or any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
subsidiary of the Company) becoming the "beneficial owner" (as
defined in Rule 13d-3 promulgated pursuant to the '34 Act),
directly or indirectly, of 25% or more of combined voting power
of the then outstanding securities entitled to vote generally in
the election of directors ("Voting Securities") of the Company,
other than pursuant to a Business Combination (as hereinafter
defined) that complies with clauses (I), (II), (III) and (IV) of
subsection (iii) of this Section 1.5(c); or
(ii) the occurrence within any twelve-month period during the term of
the Agreement of a change in the Board with the result that the
Incumbent Members do not constitute a majority of the Board; or
(iii) consummation of (A) a reorganization, merger or consolidation of
the Company or any subsidiary of the Company, or (B) a sale or
other disposition of all or substantially all of the assets of
the Company (each, a "Business Combination"), unless, in each
case, immediately following such Business Combination, (I) all or
substantially all of the individuals and entities who were the
beneficial owners of Voting Securities of the Company immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than two-thirds of the then outstanding shares
of common stock and the combined voting power of the then
outstanding Voting Securities of the entity
resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in
substantially the same proportions relative to each other as
their ownership, immediately prior to such Business
Combination, of the Voting Securities of the Company, (II) no
Person (other than an Excluded Person, the Company, such entity
resulting from such Business Combination, or any employee
benefit plan (or related trust) sponsored or maintained by the
Company, any subsidiary or such entity resulting from such
Business Combination), beneficially owns, directly or
indirectly, 25% or more of the then outstanding shares of
Voting Securities of the entity resulting from such Business
Combination, (III) at least a majority of the members of the
Board of Directors of the entity resulting from such Business
Combination were Incumbent Members of the Board at the time of
the execution of the initial agreement and of the action of the
Board providing for such Business Combination, and (IV) the
Chief Executive Officer of the Company immediately prior to the
commencement of discussions (the "Commencement Date") with the
third party that results in the Business Combination remains
the Chief Executive Officer of the Company and the entity
resulting from such Business Combination (unless such Chief
Executive Officer ceases to constitute such by reason of death,
Disability (as defined in such Chief Executive Officer's
Employment Agreement with the Company, as it may be amended and
restated from time to time (the "Employment Agreement")),
termination for Cause (as defined in the Employment Agreement)
or voluntary termination by such Chief Executive Officer under
circumstances that are not treated as an involuntary
termination under the Employment Agreement) during the period
commencing on the Commencement Date and throughout the
twelve-month period following the consummation of the Business
Combination (any Change in Control that may arise from the
failure to satisfy the condition specified in this clause (IV)
to be effective as of the date the Chief Executive Officer
ceases to constitute such); or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination
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that complies with clauses (I), (II), (III)
and (IV) of subsection (iii) of this Section 1.5(c).
"Excluded Person" shall mean (x) Xxxxxxx Xxxxx Capital Partners, Inc.,
Xxxxxxx Xxxxx Capital Appreciation Partnership No. B-XVIII, L.P.,
Xxxxxxx Xxxxx Kecalp L.P. 1994, ML Offshore LBO Partnership No.
B-XVIII, ML IBK Positions, Inc., MLCP Associates L.P. No. II, MLCP
Associates L.P. No. IV, Xxxxxxx Xxxxx Kecalp L.P. 1991, Xxxxxxx Xxxxx
Capital Appreciation Partnership No. XIII, L.P., ML Offshore LBO
Partnership No. XIII, ML Employees LBO Partnership No. I, L.P.,
Xxxxxxx Xxxxx Kecalp L.P. 1987, and Merchant Banking L.P. No. II
(each, an "ML Entity" and collectively the "ML Entities"), if the ML
Entities shall have executed a written agreement with the Company (and
approved by the Company's Board of Directors) on or prior to the date
on which the ML Entities (together with its Affiliates) became the
beneficial owner of 25% or more of the shares of Voting Securities
then outstanding (the "Standstill Agreement"), which Standstill
Agreement imposes one or more limitations on the amount of the ML
Entities' beneficial ownership of shares of Common Stock, and if, and
so long as, such Standstill Agreement (or any amendment thereto
approved by the Company's Board of Directors by the vote of a majority
of the Present Directors) continues to be in effect and binding on the
ML Entities and the ML Entities are in compliance (as determined by
the Company's Board of Directors in its discretion by the vote of a
majority of the Present Directors) with the terms of such Standstill
Agreement (including any such amendment); or (y) any other Person
acquiring Voting Securities from an ML Entity if (i) such Voting
Securities were acquired by an ML Entity pursuant to the transactions
contemplated by the Letter of Intent dated December 5, 1995 ("Letter
of Intent") from the Company to US Foodservice Inc. ("Excluded
Shares") and (ii) if, prior to such acquisition by such other Person,
a majority of the Present Directors has expressly determined in good
faith that such acquisition is not a "Change in Control" for purposes
of this Agreement ("ML Successor"); PROVIDED, HOWEVER, that a Change
in Control shall occur if, prior to July 17, 1997, either (A) the
Chief Executive Officer of the Company immediately prior to the
execution of the Letter of Intent ceases to constitute the Chief
Executive Officer of the Company (or any successor to the Company)
("CEO Termination") (unless such Chief Executive Officer ceases to
constitute the Chief Executive Officer of the Company by reason of
death, Disability (as defined in the Employment Agreement),
termination for Cause (as defined in the Employment Agreement) or
voluntary termination by such Chief Executive Officer under
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circumstances that are not treated as an involuntary termination under
the Employment Agreement), or (B) the directors of the Company in
office immediately prior to the execution of the Letter of Intent,
together with any successors of such directors (provided that any such
successors qualify as Present Directors), cease to constitute at least
a majority of the Board ("Board Change"), such Change in Control to be
effective as of the date of the CEO Termination or Board Change, as
the case may be.
"Present Director" shall mean a member of the Board who (1) is not
designated as a member of the Board by any ML Entity or ML Successor,
(2) does not otherwise have any agreement, arrangement or understanding
with any ML Entity or ML Successor for the purpose of serving as a
member of the Board, and (3) is not an Affiliate or an Associate (as
hereinafter defined) of any ML Entity or ML Successor.
"Affiliate" and "Associate" shall have the meanings set forth in
Rule 12b-2 of the '34 Act.
The Board shall have the power to determine, for purposes of this
Agreement, on the basis of information known to the Board by a vote
taken in good faith by a majority of Present Directors, (1) whether
any Person is an Excluded Person, (2) the percentage of the Company's
Voting Securities beneficially owned by an Excluded Person, and
(3) any determination to be made pursuant to clause (x) of the
definition of Excluded Person. Any such determination shall be
conclusive and binding for all purposes of this Agreement.
IN WITNESS WHEREOF, the Company and the Trustee have executed this
Second Amendment to the Trust as of the date and year first above written.
XXXXXX-XXXXXX, INC.
By: _____________________________________
Xxxx Xxx Xxxxxxxxxxxx
Chief Executive Officer and Chairman
of the Board
NORWEST BANK MINNESOTA, N.A.,
as TRUSTEE
By:_______________________________
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