EXHIBIT 10n1
FORTUNE BRANDS, INC.
TRUST AGREEMENT
THIS AGREEMENT, made as of the______day of______,______,______among
FORTUNE BRANDS,INC., a Delaware corporation (the "Company"), THE CHASE
MANHATTAN BANK, a New York banking corporation (the "Trustee"), and XXXXXX
ASSOCIATES LLC, a limited liability company formed under the laws of Illinois
(the "Trustee's Contractor").
W I T N E S S E T H :
WHEREAS, the Company entered an agreement with (the "Executive") as of the
______day of______,______(such agreement being herein referred to as the
"Compensation Agreement") to provide benefits in the event of the termination
of employment of the Executive under certain circumstances following a change
in control of the Company; and
WHEREAS, the Company desires to provide additional assurance to the
Executive and his surviving spouse, if any, beneficiaries or estate under the
Compensation Agreement (collectively, the "Beneficiaries") that their unfunded
rights under the Compensation Agreement will in the future be met or
substantially met by application of the procedures set forth herein; and
WHEREAS, the Company wishes to establish a trust with respect to the
Executive in order to provide a source of payments as such payments are
required under the terms of the Compensation Agreement;
NOW, THEREFORE, in consideration of the premises and mutual and
independent promises herein, the parties hereto covenant and agree as follows:
ARTICLE I
1.1 The Company hereby establishes with the Trustee a Trust
consisting of such sums of money and such property acceptable to the Trustee as
shall from time to time be paid or delivered to the Trustee and the earnings
and profits thereon. All such money and property, all investments made
therewith and proceeds thereof, less the payments or other distributions which,
at the time of reference, shall have been made by the Trustee, as authorized
herein, are referred to herein as the "Fund" and shall be held by the Trustee,
IN TRUST, in accordance with the provisions of this Agreement.
1.2 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.
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Upon the establishment of this Trust, or from time to time thereafter, the
Company shall contribute to the Trust 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 Compensation Agreement. It is contemplated that the initial
contribution by the Company shall be in an amount not less than the amount to
which the Executive or his Beneficiaries would be entitled under Section 2 of
the Compensation Agreement (other than Sections 2(c) and (f) thereof). It is
further contemplated that the Company will make additional contributions to the
Trust upon the furnishing to the Trustee's Contractor of the annual updated
benefit information specified in Section 3.3 in amounts such that the amount of
the Fund at such time is not less than the amount described in the preceding
sentence. However, the amounts and timing of all such contributions shall be at
the discretion of the Company, and the Company shall have no obligation to make
such contributions in any specific amount or at any specific time.
1.3 The Company shall certify to the Trustee, the Trustee's
Contractor and the Executive at the time of each contribution to the Fund the
amount of such contribution being made in respect of the Executive. The Fund
shall be revalued by the Trustee semiannually as of the last business day of
each
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June and December at current market values, as determined by the Trustee, which
shall promptly deliver a copy of such semiannual valuation to the Trustee's
Contractor. The Trustee's Contractor shall deliver to the Company and the
Executive or Beneficiary of the Executive the semiannual statement of the Fund
reflecting such revised valuation.
ARTICLE II
2.1 Notwithstanding any provision in this Agreement to the
contrary, if at any time while the Trust is still in existence the Company
becomes insolvent (as defined herein), the Trustee shall upon written notice
thereof suspend the payment of all benefits from the Fund and shall thereafter
hold the Fund in suspense until it receives a court order directing the
disposition of the Fund; provided, however, the Trustee may deduct or continue
to deduct its fees and expenses and other expenses of the Trust, including
taxes and the Trustee's Contractor's fees and expenses, pending the receipt of
such court order. The Company shall be considered to be insolvent if (a) it is
unable to pay its debts as they fall due or (b) bankruptcy or insolvency
proceedings are initiated by its creditors or the Company or any third party
under the Bankruptcy Act of the United States or the bankruptcy laws of any
state alleging that the Company is insolvent or bankrupt.
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By its approval and execution of this Agreement, the Company represents and
agrees that its Board of Directors and Chief Executive Officer, as from time to
time acting, shall have the responsibility to give to the Trustee prompt
written notice of any event of the Company's insolvency and the Trustee shall
be entitled to rely thereon to the exclusion of all directions or claims to pay
benefits thereafter made. Absent such notice, the Trustee shall have no
responsibility for determining whether the Company has become insolvent. If
after an event of insolvency, the Company later becomes solvent without the
entry of a court order concerning the disposition of the Fund, the Company
shall by written notice so inform the Trustee and the Trustee shall thereupon
resume all its duties and responsibilities under this Agreement without regard
to this Section 2.1 until and unless the Company again becomes insolvent as
such term is defined herein. If the Trustee has suspended payments pursuant to
this Section 2.1 and thereafter resumes payments pursuant to a court order or
notice from the Company as set forth in the preceding sentence, any benefits
payable with respect to the Executive that have not been paid during the period
of suspension shall then immediately be paid together with interest thereon
calculated on the basis of the return earned during such period of suspension
by The Chase
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Market Rate Account (or similar investment vehicle of The Chase Manhattan Bank
if The Chase Market Rate Account is changed).
2.2 The Company represents and agrees that the Trust established
under this Agreement does not fund and is not intended to fund the Compensation
Agreement, or any other employee benefit plan or program of the Company. Such
Trust is and is intended to be a depository arrangement with the Trustee for
the setting aside of cash and other assets of the Company for the meeting of
part or all of its future obligations to the Executive and his Beneficiaries
under the Compensation Agreement. Contributions by the Company to this Trust
shall be in respect of only the Executive. The purpose of this Trust is to
provide a fund from which benefits may be payable under the Compensation
Agreement and as to which the Executive and his Beneficiaries may, by
exercising the procedures set forth herein, have access to some or all of their
benefits as such become due without having the payment of such benefits subject
to the administrative control of the Company unless the Company becomes
insolvent as defined in Section 2.1.
ARTICLE III
3.1 By its acceptance of this Trust the Trustee hereby agrees to the
designation by the Company of Xxxxxx Associates LLC as the contractor of the
Trustee ("Trustee's
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Contractor") under this Agreement. It is herein recognized that said Trustee's
Contractor is also acting as the independent consulting actuary of the Company
and that the Trustee shall have no responsibility hereunder for the continued
retention of Xxxxxx Associates LLC or any responsibility assigned to the
Trustee's Contractor or its performance thereof so long as said firm continues
to be the Company's independent consulting actuary. In the event the Company
replaces or no longer uses said firm as its independent consulting actuary, the
Trustee in its sole discretion may, but need not, designate a new Trustee's
Contractor or may continue to use the same Trustee's Contractor; or in the
event said firm does not accept its designation as Trustee's Contractor or
accepts said designation and subsequently resigns, the Trustee shall designate
the Trustee's Contractor or a new Trustee's Contractor; provided, however, any
Trustee's Contractor appointed by the Trustee shall be independent of the
Company. A Trustee's Contractor appointed by the Trustee must be a national
actuarial consulting firm or a "Big 5" accounting firm or other national
accounting firm. In the event any such firm refuses to act as the Trustee's
Contractor, the Trustee shall appoint as the Trustee's Contractor a law firm of
at least l00 lawyers. The Company shall pay to the Trustee's Contractor all
fees and expenses of the Trustee's Contractor and shall
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indemnify and hold the Trustee harmless for any actions or omissions of said
Trustee's Contractor and shall indemnify and hold the Trustee's Contractor
harmless for any actions or omissions of the Trustee. Such fees and expenses
shall be a charge on the Fund and shall constitute a lien in favor of the
Trustee's Contractor until paid by the Company. The Trustee's Contractor shall
be paid for its services at rates comparable to the rates the Trustee's
Contractor charges for comparable services to its other clients.
3.2 Except for the records dealing solely with the Fund and its
investment, which shall be maintained by the Trustee, the Trustee's Contractor
shall maintain all the Executive's records contemplated by this Agreement,
including records of the Executive's compensation and benefits from the
Company, any amounts accrued under the Compensation Agreement, the Executive's
Beneficiary designation, the Company's contributions to the Fund and such other
records as may be necessary for determining the amount payable to the Executive
or his Beneficiary under the Compensation Agreement. All such records shall be
made available promptly upon the request of the Trustee, the Executive or his
Beneficiary or the Company. The Trustee's Contractor shall also prepare and
distribute the Executive's annual estimated statements specified in Section 3.3
and shall be responsible for information with respect to
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payments to the Executive and his Beneficiaries and shall perform such other
duties and responsibilities as the Company or the Trustee determines is
necessary or advisable to achieve the objectives of this Agreement.
3.3 Upon the establishment of this Trust or as soon thereafter as
practicable, the Company shall furnish to the Trustee's Contractor all the
information necessary in order for the Trustee's Contractor to determine the
amounts payable to or with respect to the Executive under the Compensation
Agreement including any amounts payable after the Executive's death and the
recipient of same and the amount of any applicable federal, state or local
withholding taxes with respect thereto. The Company shall regularly, at least
annually by March 3l of each year, furnish revised updated information to the
Trustee's Contractor. Based on the foregoing information the Trustee's
Contractor shall prepare an annual estimated statement in respect of the
Executive and shall furnish a copy of same to the Executive or his Beneficiary
and to the Company by no later than May 15 of each year. In the event the
Company refuses or neglects to provide updated Executive information, as
contemplated herein, the Trustee's Contractor shall be entitled to rely upon
information furnished to it by the Executive.
3.4 Upon the direction of the Company or upon the application of the
Executive or Beneficiary of a deceased
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Executive by submission of a Payment Demand Notice in the form attached hereto
as Schedule A, a copy of which shall be delivered by the Trustee's Contractor
to the Company, the Trustee's Contractor shall prepare and deliver to the
Trustee within thirty days of receipt of such direction or application a
certification to the Trustee that the Executive's benefits under the
Compensation Agreement have become payable, and shall deliver a copy of such
certification to the Company and to the Executive or Beneficiary. In preparing
such certification, the Trustee's Contractor shall obtain updated information
from the Company for calculating amounts payable under the Compensation
Agreement. In the event the Company refuses or neglects to provide updated
information, the Trustee's Contractor shall be entitled to rely upon
information furnished to it by the Executive. Such certification shall include
the amount of such payments to be made under the Compensation Agreement, the
manner of payment and the name, address and social security number of the
recipient. No later than five days after the receipt of such certification from
the Trustee's Contractor and appropriate federal, state and local tax
withholding information provided by the Company, the Trustee shall commence
cash distributions from the Fund in accordance therewith to the person or
persons so indicated and shall distribute to the Company for remittance to the
appropriate taxing authority the
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amounts of any taxes required to be withheld, and the Trustee's Contractor
shall charge the Fund therefor. The Company shall have full responsibility for
the proper remittance of all withholding taxes to the appropriate taxing
authority and shall furnish the Executive or his Beneficiary, the Trustee's
Contractor and the Trustee with the appropriate tax information form reporting
the amounts of such distributions and any withholding taxes. The certification
by the Trustee's Contractor shall also be updated annually upon receipt by the
Trustee's Contractor of updated compensation and service information from the
Company (or the Executive in the event of the failure of the Company to provide
such information) and the annual updated certification shall be delivered to
the Company and the Executive or his Beneficiary. The amounts payable in
respect of the updated certificate shall be adjusted to the extent, if any, set
forth in the certificate.
3.5 Upon the payment of all Company liabilities under the
Compensation Agreement to the Executive and Beneficiaries, the Trustee's
Contractor shall prepare a certification to the Trustee, the Executive or his
Beneficiary and to the Company, and the Trustee shall thereupon hold or
distribute the Fund in accordance with the written instructions of the Company.
At no time prior to the Company's insolvency, as defined in Section 2.1, or the
payment of all liabilities of
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the Company under the Compensation Agreement in respect of the Executive and
his Beneficiaries shall any part of the Fund revert to the Company. The Trustee
and the Trustee's Contractor shall have no responsibility for determining
whether the Executive or his Beneficiary has died and shall be entitled to rely
upon information furnished by the Company or, in the absence of such
information from the Company, from the Beneficiary.
3.6 Nothing provided in this Agreement shall relieve the Company of
its liabilities to pay the benefits provided under the Compensation Agreement
except to the extent such liabilities are met by application of Fund assets.
The Company, therefore, agrees that all income, deductions and credits of the
Fund belong to it as owner for income tax purposes and will be included on the
Company's income tax returns.
ARTICLE IV
4.1 The Company shall provide the Trustee's Contractor with a
complete copy of the Compensation Agreement and all amendments thereto and of
the resolutions of the Board of Directors of the Company or its Compensation
and Stock Option Committee approving the Compensation Agreement and all
amendments thereto, promptly upon their adoption. After the
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execution of this Agreement, the Company shall promptly file with the Trustee
and the Trustee's Contractor a certified list of the names and specimen
signatures of the officers of the Company and any delegee authorized to act for
it. The Company shall promptly notify the Trustee and the Trustee's Contractor
of the addition or deletion of any person's name to or from such list,
respectively. Until receipt by the Trustee or the Trustee's Contractor of
notice that any person is no longer authorized so to act, the Trustee or the
Trustee's Contractor may continue to rely on the authority of the person. All
certifications, notices and directions by any such person or persons to the
Trustee or the Trustee's Contractor shall be in writing signed by such person
or persons. The Trustee and the Trustee's Contractor may rely on any such
certification, notice or direction purporting to have been signed by or on
behalf of such person or persons that the Trustee or the Trustee's Contractor
believes to have been signed thereby. The Trustee and the Trustee's Contractor
may rely on any certification, notice or direction of the Company that the
Trustee or the Trustee's Contractor believes to have been signed by a duly
authorized officer or agent of the Company. The Trustee and the Trustee's
Contractor shall have no responsibility for acting or not acting in reliance
upon any notification believed by the Trustee or the Trustee's Contractor to
have been so
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signed by a duly authorized officer or agent of the Company. 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 Compensation Agreement.
4.2 The Company shall indemnify and hold harmless the Trustee for
any liability or expenses, including without limitation advances for or prompt
reimbursement of reasonable fees and expenses of counsel and other agents
retained by it, incurred by the Trustee with respect to holding, managing,
investing or otherwise administering the Fund, other than by its negligence or
willful misconduct.
4.3 The Company shall indemnify and hold harmless the Trustee's
Contractor for any liability or expenses, including without limitation advances
for or prompt reimbursement of reasonable fees and expenses of counsel and
other agents retained by it, incurred by the Trustee's Contractor with respect
to keeping the records for the Executive's benefit calculations, reporting
thereon to the Executive, certifying benefit information to the Trustee,
determining the status of the Fund and benefits hereunder and otherwise
carrying out its obligations under this Agreement, other than those resulting
from the Trustee's Contractor's negligence or willful misconduct.
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ARTICLE V
5.1 The Trustee shall not be liable in discharging its duties
hereunder, including without limitation its duty to invest and reinvest the
Fund, if it acts in good faith and in accordance with the terms of this
Agreement and any applicable federal or state laws, rules or regulations.
5.2 The Trustee is hereby appointed as the investment manager of the
Fund. In the event that the Trustee cannot serve as investment manager of the
Fund, the Trustee shall then select Pacific Investment Management Company as
investment manager; provided that if Pacific Investment Management Company is
unwilling or unable to act as investment manager, the Trustee shall select X.X.
Xxxxxx Investment Management Inc. as investment manager. The investment manager
shall invest the assets of the Fund solely in the Vista Select Bond Fund to the
extent practicable and otherwise in The Chase Manhattan Bank Personal Trust
Market Rate Account. Subject to such investment restrictions, the Trustee shall
have the power and right:
(a) To receive and hold all contributions made to it by the Company;
(b) To participate in and use a book-entry system for the deposit
and transfer of securities;
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(c) To sell or exchange any property held by it at public or private
sale, for cash or on credit, to grant and exercise options for the
purchase or exchange thereof, to exercise all conversion or subscription
rights pertaining to any such property and to enter into any covenant or
agreement to purchase any property in the future;
(d) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan relating to
property held by it and to consent to or oppose any such plan or any
action thereunder or any contract, lease, mortgage, purchase, sale or
other action by any person;
(e) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary power
thereto, and to pay part of the expenses and compensation thereof and any
assessments levied with respect to any such property so deposited;
(f) To extend the time of payment of any obligation held by it;
(g) To hold uninvested any moneys received by it, without liability
for interest thereon, until such moneys shall be invested, reinvested or
disbursed;
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(h) To exercise all voting or other rights with respect to any
property held by it and to grant proxies, discretionary or otherwise;
(i) For the purposes of the Trust, to borrow money from others,
including The Chase Manhattan Bank, to issue its promissory note or notes
therefor, and to secure the repayment thereof by pledging any property
held by it;
(j) To furnish the Company, the Trustee's Contractor and the
Executive or his Beneficiaries with such information as may be needed for
tax or other purposes;
(k) To employ suitable agents and counsel, who may be counsel to the
Company or the Trustee, including, without limitation, Xxxxxx Associates
LLC and PricewaterhouseCoopers LLP, and to pay their reasonable expenses
and compensation from the Fund to the extent not paid by the Company;
(l) To cause any property held by it to be registered and held in
the name of one or more nominees, with or without the addition of words
indicating that such securities are held in a fiduciary capacity, and to
hold securities in bearer form;
(m) To settle, compromise or submit to arbitration any claims, debts
or damages due or owing to or from the
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Trust, respectively, to commence or defend suits or legal proceedings to
protect any interest of the Trust, and to represent the Trust in all
suits or legal proceedings in any court or before any other body or
tribunal; provided, however, that the Trustee shall not be required to
take any such action unless it shall have been indemnified by the Company
to its reasonable satisfaction against liability or expenses it might
incur therefrom;
(n) To organize under the laws of any state a corporation or trust
for the purpose of acquiring and holding title to any property which it is
authorized to acquire hereunder and to exercise with respect thereto any
or all of the powers set forth herein; and
(o) Generally, to do all acts, whether or not expressly authorized,
that the Trustee may deem necessary or desirable for the protection of the
Fund.
5.3 No person dealing with the Trustee shall be under any
obligation to see to the proper application of any money paid or property
delivered to the Trustee or to inquire into the Trustee's authority as to any
transaction. The Trustee's Contractor's obligations are limited solely to those
explicitly set forth herein and the Trustee's Contractor shall have no
responsibility, authority or control, direct or indirect, over the maintenance
or investment of the Fund and
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shall have no obligation in respect of the Trustee or the Trustee's compliance
with the Trustee's Contractor's certifications to the Trustee.
5.4 The Trustee shall distribute cash from the Fund in accordance
with Article III hereof.
The Trustee may make any distribution required hereunder by mailing its
check for the specified amount to the person to whom such distribution or
payment is to be made, at such address as may be specified pursuant to Section
ll.7, or if no such address shall have been so furnished, to such person in
care of the Company, or (if so directed by the recipient) by crediting the
account of such person or by transferring funds to such person's account by
bank or wire transfer.
5.5 If at any time there is no person authorized to act under this
Agreement on behalf of the Company, the Board of Directors or the Compensation
and Stock Option Committee of the Company shall have the authority to act
hereunder.
ARTICLE VI
6.1 The Company shall pay any federal, state or local taxes on the
Fund, or any part thereof, and on the income therefrom.
6.2 The Company shall pay to the Trustee its reasonable expenses
for the management and administration of
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the Fund, including without limitation advances for or prompt reimbursement of
reasonable expenses of counsel and other agents employed by the Trustee, and
reasonable compensation for its services as Trustee hereunder, the amount of
which shall be agreed upon from time to time by the Company and the Trustee in
writing; provided, however, that if the Trustee forwards an amended fee
schedule to the Company requesting its agreement thereto and the Company fails
to object thereto within thirty (30) days of its receipt, the amended fee
schedule shall be deemed to be agreed upon by the Company and the Trustee. Such
expenses and compensation shall be a charge on the Fund and shall constitute a
lien in favor of the Trustee until paid by the Company. In the event that such
expenses and compensation of the Trustee, and any fees and expenses of the
Trustee's Contractor as provided in Section 3.1, under this Trust and under
similar Trusts established by the Company in respect of other Executives of the
Company are to be satisfied out of assets of any or all of the several Funds
under all such Trusts, such satisfaction shall be in proportion to the assets
of each Fund.
ARTICLE VII
7.1 The Trustee shall maintain records with respect to the Fund
that show all its receipts and disbursements
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hereunder. The records of the Trustee with respect to the Fund shall be open to
inspection by the Company or its representatives, and the Trustee's Contractor,
at all reasonable times during normal business hours of the Trustee and may be
audited not more frequently than once each fiscal year by an independent
certified public accountant engaged by the Company; provided, however, the
Trustee shall be entitled to additional compensation from the Company in
respect of audits or auditors' requests which the Trustee determines to exceed
the ordinary course of the usual scope of such examinations of its records.
7.2 Within a reasonable time after the close of each fiscal year of
the Company (or, in the Trustee's discretion, at more frequent intervals), or
of any termination of the duties of the Trustee hereunder, the Trustee shall
prepare and deliver to the Company and the Trustee's Contractor a statement of
transactions reflecting its acts and transactions as Trustee during such fiscal
year, portion thereof or during such period from the close of the last fiscal
year or last statement period to the termination of the Trustee's duties,
respectively, including a statement of the then current value of the Fund. Any
such statement shall be deemed an account stated and accepted and approved by
the Company, and the Trustee shall be relieved and discharged, as if such
account had been settled
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and allowed by a judgment or decree of a court of competent jurisdiction,
unless protested by written notice to the Trustee within sixty (60) days of
receipt thereof by the Company.
The Trustee shall have the right to apply at any time to a court of competent
jurisdiction for judicial settlement of any account of the Trustee not
previously settled as herein provided or for the determination of any question
of construction or for instructions. In any such action or proceeding it shall
be necessary to join as parties only the Trustee and the Company (although the
Trustee may also join such other parties as it may deem appropriate), and any
judgment or decree entered therein shall be conclusive.
ARTICLE VIII
8.1 The Trustee may resign at any time by delivering written notice
thereof to the Company; provided, however, that no such resignation shall take
effect until the earlier of (i) sixty (60) days from the date of delivery of
such notice to the Company or (ii) the appointment of a successor trustee.
8.2 The Trustee may be removed at any time by the Company, pursuant
to a resolution of the Board of Directors of the Company or its Compensation
and Stock Option Committee, upon delivery to the Trustee of a certified copy of
such resolution and sixty (60) days' written notice of (i) such
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removal and (ii) the appointment of a successor trustee, unless such notice
period is waived in whole or in part by the Trustee.
8.3 Upon the resignation or removal of the Trustee, a successor
trustee shall be appointed by the Company. Such successor trustee shall be a
bank or trust company established under the laws of the United States or a
state within the United States and having either total assets of at least $15
billion or trust assets of at least $25 billion. Such appointment shall take
effect upon the delivery to the Trustee of (a) a written appointment of such
successor trustee, duly executed, by the Company and (b) a written acceptance
by such successor trustee, duly executed thereby. Any successor trustee shall
have all the rights, powers and duties granted the Trustee hereunder.
8.4 If, within sixty (60) days of the delivery of the Trustee's
written notice of resignation, a successor trustee shall not have been
appointed, the Trustee shall apply to any court of competent jurisdiction for
the appointment of a successor trustee.
8.5 Upon the resignation or removal of the Trustee and the
appointment of a successor trustee, and after the acceptance and approval of
its account, the Trustee shall transfer and deliver the Fund to such successor
trustee. Under
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no circumstances shall the Trustee transfer or deliver the Fund to any
successor trustee which is not a bank or trust company having either total
assets of at least $15 billion or trust assets of at least $25 billion.
ARTICLE IX
9.1 The Trust established pursuant to this Agreement may not be
terminated by the Company prior to the payment of all liabilities with respect
to the Executive and his Beneficiaries. Upon receipt by the Company and the
Executive or his Beneficiaries of a written certification from the Trustee's
Contractor that all liabilities have been paid with respect to the Executive or
his Beneficiaries under the Compensation Agreement, the Company pursuant to a
resolution of its Board of Directors or Compensation and Stock Option Committee
may terminate the Trust upon delivery to the Trustee and the Executive or his
Beneficiaries of (a) a certified copy of such resolution, (b) an original
certification of the Trustee's Contractor that all such liabilities have been
paid and (c) a written instrument of termination duly executed and acknowledged
in the same form as this Agreement.
9.2 Upon the termination of the Trust in accordance with Section
9.1, the Trustee shall, after the acceptance and approval of its account,
distribute any remaining portion of
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the Fund to the Company. Upon completing such distribution, the Trustee shall
be relieved and discharged. The powers of the Trustee shall continue as long as
any part of the Fund remains in its possession.
ARTICLE X
10.1 This Agreement may be amended, in whole or in part, at any
time and from time to time, by the Company with the written consent of the
Executive (or the Executive's Beneficiary in the event of the death or
incapacity of the Executive) and the Trustee. Any such amendment by the Company
shall be pursuant to a resolution of the Board of Directors or its Compensation
and Stock Option Committee by delivery to the Trustee of a certified copy of
such resolution and a written instrument duly executed and acknowledged by the
Company and the Executive (or the Executive's Beneficiary in the event of the
death or incapacity of the Executive) in the same form as this Agreement.
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ARTICLE XI
11.1 This Agreement shall be construed and interpreted under, and
the Trust hereby created shall be governed by, the laws of the State of New
York insofar as such laws do not contravene any applicable federal laws, rules
or regulations.
11.2 Neither the gender nor the number (singular or plural) of any
word shall be construed to exclude another gender or number when a different
gender or number would be appropriate.
11.3 No right or interest of the Executive or his Beneficiary under
the Compensation Agreement or in the Fund shall be transferable or assignable
or shall be subject to alienation, anticipation or encumbrance, and no right or
interest of the Executive or Beneficiary in the Compensation Agreement or in
the Fund shall be subject to any garnishment, attachment or execution.
Notwithstanding the foregoing, the Fund shall at all times remain subject to
claims of creditors of the Company in the event the Company becomes insolvent
as provided in Section 2.1.
11.4 The Company agrees that by the establishment of this Trust it
hereby foregoes any judicial review of certifications by the Trustee's
Contractor as to the benefits
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payable to any persons hereunder. If a dispute arises as to the amounts or
timing of any such benefits or the persons entitled thereto under this
Agreement, the Company agrees that such dispute shall be resolved by binding
arbitration proceedings initiated in accordance with the rules of the American
Arbitration Association and that the results of such proceedings shall be
conclusive and shall not be subject to judicial review. It is expressly
understood that pending the resolution of any such dispute, payment of benefits
shall be made and continued by the Trustee in accordance with the certification
of the Trustee's Contractor and that the Trustee and the Trustee's Contractor
shall have no liability with respect to such payments. The Company also agrees
to pay the entire cost of any arbitration or legal proceeding with respect to
the Fund initiated by the Company, the Trustee or the Executive or his
Beneficiary in the event the Executive is deceased, including the legal fees of
the Trustee or the Executive or his Beneficiary, regardless of the outcome of
such proceeding and until so paid the expenses thereof shall be a charge on and
lien against the Fund.
11.5 This Agreement shall be binding upon and inure to the benefit
of any successor to the Company or its business as the result of merger,
consolidation, reorganization, transfer of assets or otherwise and any
subsequent successor
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thereto. In the event of any such merger, consolidation, reorganization,
transfer of assets or other similar transaction, the successor to the Company
or its business or any subsequent successor thereto shall promptly notify the
Trustee in writing of its successorship and furnish the Trustee and the
Trustee's Contractor with the information specified in Section 4.1 of this
Agreement. In no event shall any such transaction described herein suspend or
delay the rights of the Executive or his Beneficiary in the event the Executive
is deceased to receive benefits hereunder.
11.6 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which shall
together constitute only one Agreement.
11.7 All notices and other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
actually delivered to the respective addresses set forth below:
Company: Fortune Brands, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
EIN: 00-0000000
Trustee: The Chase Manhattan Bank
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attn: Trusts and Estates
Management Division, 00xx Xxxxx
00
Xxxxxxx'x Xxxxxx Associates LLC
Contractor: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn:
Executive:
SSN:
or at such other address as such person may specify in writing by notice as set
forth above to the other persons listed above.
29
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the________ day of_________,________.
Attest: FORTUNE BRANDS, INC.
By_____________________________________
Attest: THE CHASE MANHATTAN BANK
By_____________________________________
Attest: XXXXXX ASSOCIATES LLC
By_____________________________________
Schedule A
Xxxxxx Associates LLC
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn:
PAYMENT DEMAND NOTICE
NAME OF EXECUTIVE:
ADDRESS:
PHONE:
The undersigned hereby demands payment of the amount to which he is entitled
under the Compensation Agreement pursuant to the Trust Agreement dated as of
______,______among FORTUNE BRANDS, INC., THE CHASE MANHATTAN BANK and XXXXXX
ASSOCIATES LLC.
_____________________________________
