Exhibit 10.19.4
AMENDMENT
to the
XXXXXXXXX'X, INC.
EXECUTIVE DEFERRED COMPENSATION TRUST
This Amendment is made by Xxxxxxxxx'x, Inc., a Delaware Corporation (the
"Corporation" or the "Employer").
RECITALS:
A. The Corporation has established the Xxxxxxxxx'x, Inc. Executive
Deferred Compensation Trust, pursuant to a Trust Agreement effective February 1,
1989 (the "Trust Agreement");
B. The Corporation, pursuant to Section 6.01 of the Trust Agreement,
retains the right to amend the Trust Agreement with the express written consent
of the Majority Participants on the date of such amendment;
C. The Corporation hereby certifies that such express written consent of
the Majority Participants to the amendments set forth herein has been obtained;
D. Management Compensation Group, Northwest, LLC, a Delaware limited
liability company and the Recordkeeper as that term is defined in the Trust
Agreement has certified that the amount or time for payment of any benefit under
the Trust Agreement to any Participant or beneficiary of a deceased Participant
will not be reduced or adversely affected by the amendments set forth herein;
and
E. The Corporation has determined that it is advisable to amend the Trust
Agreement in the manner hereinafter set forth.
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AMENDMENT
The Trust Agreement is hereby amended as follows:
1. The definition of the term "Change in Control" contained in Article I of
the Trust Agreement is hereby amended
(i) by replacing the date "February 1, 1989" with the date "March 15, 2000"
and by replacing the date "February 2, 1989" with the date "March 16,
2000,"
(ii) by adding at the end thereof the following sentence:
"Notwithstanding the foregoing, the occurrence of any of the foregoing
events or transactions shall not be deemed to be a Change in Control,
if prior to consummation of such event or transaction the Board of
Directors adopts by vote of a majority of the directors then in office
(including a majority of the Continuing Directors with respect to such
event or transaction) a resolution to the effect that a Change in
Control for the purpose of this Trust shall not be deemed to have
occurred upon consummation of such event or transaction."
Notwithstanding the foregoing, for purposes of the Xxxxxxxxx'x, Inc. Senior
Executive Deferred Compensation Plan and the Xxxxxxxxx'x, Inc. Executive
Deferred Compensation Plan, each originally adopted on December 5, 1983
(collectively the "Plans"), the amendments in this paragraph 1 to the
definition of "Change in Control" shall not apply. The definition of
"Change in Control" in the Trust Agreement in effect immediately before
this Amendment, which definition is incorporated by reference into the
Plans, shall continue to apply to the Plans.
2. Article I of the Trust Agreement is amended by adding thereto immediately
after the definition of the term "Code" the following language:
"Continuing Director" shall mean, with respect to a particular event,
transaction or circumstance, a person who was a member of the Board of
Directors on March 15, 2000, and any successor to such member who was
recommended to succeed such member by a majority of the directors then
in office who either were members of the Board of Directors on
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March 15, 2000, or whose succession was previously so recommended,
provided that no person shall be deemed to be a Continuing Director
with respect to a particular event, transaction or circumstance if
such person is an "affiliate" or "associate" (as such terms are
defined in the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder) of any person (other than the
Employer) who engaged in such event, transaction or circumstance.
3. The definition of the term "Potential Change in Control" set forth in
Article I of the Trust Agreement shall be amended
(i) by replacing the date "February 1, 1989" with the date "March 15, 2000"
and by replacing the date "February 2, 1989" with the date "March 16,
2000,"
(ii) by deleting in its entirety clause (c) of such definition and
inserting in its place the following language:
"(c) filing or the requirement for filing with the Securities and
Exchange Commission by any "person" or "group" (as those terms are
used in Section 13(d) of the Exchange Act) of (i) an initial Schedule
13G reflecting ownership of 10% or more of any class of Voting
Securities outstanding on the date of such filing, (ii) an initial
Schedule 13D, (iii) any amendment to a Schedule 13D reflecting an
increase in ownership of any class of Voting Securities equal to or
greater than 1% of the amount of such class of Voting Securities
outstanding on the date of such filing or (iv) any amendment to a
Schedule 13G reflecting ownership of 10% or more of any class of
Voting Securities outstanding on the date of such filing and an
increase in ownership of such class of Voting Securities equal to or
greater than 2% of the amount of such class of Voting Securities
outstanding on the date of such filing,"
and
(iii) by deleting from such definition the words "the Board of Directors
adopts a resolution to the effect that a Potential Change in Control for
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the purposes of this Trust shall not be deemed to have occurred (but only
if at least a two-thirds majority of the members of the Board of Directors
at the time of adoption of such resolution were members immediately prior
to such event or circumstances)" and inserting in their place the following
words:
"the Board of Directors by vote of a majority of the directors then in
office (including a majority of the Continuing Directors with respect
to such event, transaction or circumstance) adopts a resolution to the
effect that a Potential Change in Control for the purpose of this
Trust shall not be deemed to have occurred as a result of such event,
transaction or circumstance."
Each of the foregoing amendments shall be deemed to be effective as of the
date of the creation of the Trust, with the intention that (i) all such
amendments shall relate back to such date and shall be retroactively effective,
(ii) the Trust Agreement shall be construed as if such amendments had been
included in the document as originally executed and (iii) if, but only to the
extent that, any amendment to the Trust Agreement heretofore effected (a "prior
amendment") is inconsistent with the amendments set forth above, such prior
amendment shall be ineffective and of no force or effect but shall otherwise be
valid and of full force and effect.
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned and has been delivered by facsimile to the Trustee (as that term is
defined in the Trust Agreement) of the Trust on this 31st day of March, 2000.
XXXXXXXXX'X, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Executive Vice President
and General Counsel
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