EXHIBIT 10c12
AMENDMENT TO XXXXXX X. XXXX
TRUST AGREEMENT
THIS AMENDMENT, made as of the 24th day of February, 1997, between
XXXXXX X. XXXX (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 have entered into a
Trust Agreement made as of November 1, 1993, 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 the Executive; 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(the "Severance and Retirement Agreement") which superseded a retirement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 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 1.1 is hereby amended by changing the last sentence thereof
to read as follows:
"The Trust shall be solely for the purpose of providing benefits under
the Plan and the supplemental retirement provisions of the Severance
and Retirement Agreement with respect to the Executive, and neither the
Company nor any creditors of the Company shall have any interest in the
Fund."
2. Section 1.2 is hereby amended in its entirety to read as
follows:
"The Trustee shall hold, manage, invest and otherwise administer the
Fund pursuant to the terms of this Agreement. The Trustee shall be
responsible only for contributions actually received by it hereunder
and shall have no responsibility for the correctness of the amount
thereof. Upon the establishment of this Trust, and from time to time
thereafter, the Company may contribute to the Trust, unless otherwise
directed by the Executive to make such contributions to a segregated
account established with the Trustee or other bank, trust company or
other financial institution by or for the benefit of the Executive
pursuant to the Plan ("Segregated Account"), such amount in cash 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. Prior
to the making of any contribution to the Trust, the Company shall have
approved the establishment of a Segregated Account of the Executive,
the terms and provisions thereof, and the bank, trust company or other
financial institution with which such Segregated Account may be
established. The initial contribution by the Company shall be in an
amount approximately equal to the present value of the after tax
equivalent of the aggregate maximum benefits that would be due to the
Executive as of such date under the retirement provisions and the
profit-sharing provisions of the Plan, or such lesser amount as the
Company shall determine. The Company will make additional annual
contributions to the Trust or Segregated Account in amounts such that
the amount of the Fund, together with the amount in the Executive's
Segregated Account, at such time will be approximately equal to the
present value of the after tax equivalent of the Executive's accrued
benefits under the Plan and the supplemental retirement provisions of
the Severance and Retirement Agreement at that time, or in such lesser
amounts as the Company shall determine. The Company also may make a
final contribution to the Trust as promptly as practicable after the
Executive's termination of employment in an amount such that the amount
of the Fund, together with the amount, if any, in the Executive's
Segregated Account will be equal to (i) the sum of the present value of
the after tax equivalent of (x) the Executive's benefit under the
supplemental retirement provisions of the Plan and the Severance and
Retirement Agreement or, if the termination of employment is by reason
of the death of the Executive, the Executive's benefit under the
supplemental retirement provisions of the Plan and the Severance and
Retirement Agreement immediately prior to his death and (y) the
Executive's supplemental profit-sharing benefit under the Plan, reduced
by (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, at a rate equal to the after tax equivalent
of 120% of the applicable monthly immediate annuity interest purchase
rate which would be used by the Pension Benefit Guaranty Corporation
from time to time during such period for the purpose of determining the
present value of a single sum distribution on plan termination."
3. Section 1.3 is hereby amended by changing the first
sentence thereof to read as follows:
"The Company shall certify to the Trustee and the Executive at the time
of each contribution to the Fund the amount of such contribution being
made in respect of the Executive's supplemental retirement benefit
under the Plan and the Severance and Retirement Agreement and the
amount being made in respect of the Executive's supplemental
profit-sharing benefit under the Plan."
4. Section 2.1 is hereby amended by in its entirety to read as
follows:
"The Company shall act as Administrator of the Trust. Except for the
records dealing solely with the Fund and its investment, which shall be
maintained by the Trustee, the Company as Administrator 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
Company's contributions to the Fund, withdrawals from the Fund as
provided in Section 2.4 or from the Executive's Segregated Account, the
Executive's beneficiary designation and such other records as may be
necessary for determining the amount payable to the Executive or his
Surviving Spouse or other beneficiary under the Plan and the
supplemental retirement provisions of the Severance and Retirement
Agreement. All such records shall be made available promptly upon the
request of the Executive. In the event that the Executive's Segregated
Account is not maintained with the Trustee, the Company shall give
written notice to the Trustee as to the identity of the bank, trust
company or other financial institution with which the Segregated
Account is maintained. In such case, the Company also shall give notice
to the Trustee in the event of a withdrawal by the Executive of any or
all of the funds in his Segregated Account. The Company shall give
written notice to the Trustee of the Executive's termination of
employment, and as to whether such termination is by reason of the
death of the Executive. The Company as Administrator shall also prepare
and distribute the Executive's annual estimated benefit statements
specified in Section 2.2 and shall perform such other duties and
responsibilities in connection with the administration of the Trust as
the Company or the Trustee determines is necessary or advisable to
achieve the objectives of this Agreement."
5. Section 3.1 is hereby 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."
6. Section 11.1 is hereby amended in its entirety to read as
follows:
"In consideration of the establishment of the Fund, the Executive
consents to the distribution from time to time of assets of the trust
established pursuant to the Trust Agreement made as of the 1st day of
February, 1989, among American Brands, Inc., The Chase Manhattan Bank
(National Association) and Xxxxxx Associates established to provide a
source of the Executive's benefits under the Plan, in amounts to be
used for the making of contributions to the Trust or Segregated Account
of the Executive as provided in Section 1.2, or the making of payments
to the Executive (or beneficiary) pursuant to the Plan and the
supplemental retirement provisions of the Severance and Retirement
Agreement."
IN WITNESS WHEREOF, the parties have caused this AMENDMENT to be duly
executed as of the day and year first written above.
Attest: AMERICAN BRANDS, INC.
Xxxxx X. Xxxxxxx, Xx. By Xxxxxx X. Xxxxxxxxxx
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Secretary Xxxxxx X. Xxxxxxxxxx
Senior Vice President and
Chief Administrative Officer
Attest: THE CHASE MANHATTAN BANK
Xxxxx X. Xxxxxxxx By Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Vice President
Witness: Xxxxxx X. Xxxx
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XXXXXX X. XXXX
Xxxxx Xxxxx
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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
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Notary Public
STATE OF NEW YORK )
: ss.: New York, NY - April 28, 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 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
