EXHIBIT 99.5
AMENDMENT TO TRUST AGREEMENT
AMENDMENT, dated April 11, 1997, to the Trust Agreement, dated
December 31, 1996, by and between Dynamics Corporation of America (the
"Company") and Bank of Boston Connecticut (the "Trustee").
WHEREAS, the Company, as of December 31, 1996, established, pursuant
to the Trust Agreement, a "rabbi" trust (the "Trust") for the purpose of
securing benefits payable under three individual nonqualified deferred
compensations plans with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
which are incorporated in subparagraph SECOND G. of the employment agreements
with each of such officers dated February 1, 1996 (the "Employment Agreements");
and
WHEREAS, the Board of Directors of the Company (the "Board"), on the
date first written above, approved the amendment of the Trust Agreement to
secure the benefits payable under the Employment Agreements, the Severance
Agreements and the Severance Policy; to require a majority vote of nonemployee
members of the Board to authorize the contribution of funds to the Trust with
respect to the aforementioned benefits; and to make certain other changes; and
WHEREAS, the Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company;
NOW, THEREFORE, the Trust Agreement is hereby amended as set forth
below, effective as of the date hereof:
1. Section 1(e) of the Trust Agreement is amended by adding the
following at the end thereof:
"Notwithstanding the foregoing, no such additional deposits shall
be made except upon the vote of a majority of those members of the
Board who are not officers or employees of the Company.
2. Section 1 of the Trust Agreement is amended by adding at the end
of such section a new paragraph (h) to read as follows:
Notwithstanding anything in this Trust Agreement to the contrary,
as of April 11, 1997, the term "Plans" shall mean (i) the three
individual nonqualified deferred compensations plans with ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, which are
incorporated in subparagraph SECOND G. of the employment agreements
with each of such officers dated February 1, 1996 (the "Employment
Agreements"), (ii) the severance arrangements incorporated as Article
FOURTH of the Employment Agreements, (iii) the severance agreements
entered into as of such date with certain of the Company's employees
and (iv) the severance policy adopted as of such date for certain other
employees of the Company.
3. Section 5 of the Trust Agreement is amended by adding thereto a
new paragraph (d) to read as follows:
Notwithstanding anything to the contrary contained in paragraphs
(b) and (c) of this Section 5, upon and following a Change in Control,
the Company (i) shall no longer have the right to change the persons or
entities serving as an investment manager with the power and authority
to direct the investment of any portion of the assets of the Trust,
(ii) may not itself serve as such investment manager, and (iii) shall
no longer have the right to substitute assets of equal fair market
value for any asset held by the Trust.
4. Section 13 of the Trust is amended by changing parapraph (d)
thereof to read in its entirety as follows:
For purposes of this Trust Agreement, a "Change in Control" shall be deemed
to have occurred if the event set forth in any one of the following
paragraphs shall have occurred:
2
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities
acquired directly from the Company or its Affiliates) representing
25% or more of the combined voting power of the Company's then
outstanding securities, excluding any Person who becomes such a
Beneficial Owner in connection with a transaction described in
clause (i) of paragraph (III) below; or
(II) the following individuals cease for any reason to constitute a
majority of the number of directors then serving on the Board of
Directors of the Company (the "Board"): individuals who, on the
date hereof, constitute the Board and any new director (other than
a director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of
the Company) whose appointment or election by the Board or
nomination for election by the Company's stockholders was approved
or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on the
date hereof or whose appointment, election or nomination for
election was previously so approved or recommended; or
(III) there is consummated a merger or consolidation of the Company or
any direct or indirect subsidiary of the Company with any other
corporation, other than (i) a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof) at least 60% of the combined voting power of the
securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation,
or (ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which
no Person is or becomes the Beneficial Owner, directly or indi-
3
rectly, of securities of the Company (not including in the
securities Beneficially Owned by such Person any securities
acquired directly from the Company or its Affiliates other than in
connection with the acquisition by the Company or its Affiliates of
a business) representing 25% or more of the combined voting power
of the Company's then outstanding securities; or
(IV) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated
an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the
Company's assets to an entity, at least 60% of the combined voting
power of the voting securities of which are owned by stockholders
of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
For purposes of this Section 13(d), the following definitions
shall apply: "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company. "Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act. "Affiliate" shall have
the meaning set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act. "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
Except as set forth above, the Trust Agreement is hereby ratified
and confirmed in all respects.
4
IN WITNESS WHEREOF, the parties hereto have executed this amendment
as of the date first written above.
DYNAMICS CORPORATION OF AMERICA
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANK OF BOSTON CONNECTICUT
.
By:
----------------------------------
Name:
Title:
5
