Exhibit 10(k)
AMENDMENT TO THE
X.X. XXXXXX COMPANY
EXECUTIVE BENEFIT TRUST
THIS AGREEMENT is made this 1st day of October, 1997 by and between X.X.
XXXXXX COMPANY, a Minnesota corporation (the "Company"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking association (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore entered into a trust
agreement, dated October 25, 1993 (the "Agreement"), creating the X.X. Xxxxxx
Company Executive Benefit Trust, which Agreement is now in full force and
effect;
WHEREAS, the Company has reserved the power to amend the Agreement pursuant
to Section 9.1 thereof, subject to the Trustee's consent in certain cases; and
WHEREAS, the Company and the Trustee wish to amend the Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants hereinafter set forth, the parties agree that the Agreement is hereby
amended as follows:
1. Section 1.3 of the Agreement is amended in its entirety, to read as
follows:
"1.3 'Change in Control' shall mean:
(a) a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Exchange Act, whether or
not the Company is then subject to such reporting requirement;
(b) the public announcement (which, for purposes of this
definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the Exchange Act) by the Company or
any 'person' (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) that such person has become the 'beneficial
owner' (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company
representing 15% or more of the combined voting power of the
Company's then outstanding securities;
(c) the Continuing Directors cease to constitute a majority of
the Company's Board of Directors;
(d) the shareholders of the Company approve (i) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares
of Company stock would be converted into cash, securities or
other property, other than a merger of the Company in which
shareholders immediately prior to the merger have the same
proportionate ownership of stock of the surviving corporation
immediately after the merger; (ii) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the
Company; or (iii) any plan of liquidation or dissolution of the
Company; or
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(e) the majority of the Continuing Directors determine in their
sole and absolute discretion that there has been a change in
control of the Company; provided, however, that within ten
business days following the date of such a determination, a
majority of the Continuing Directors, if any, may further
determine that any provision of this Trust Agreement which takes
effect upon the happening of a Change in Control shall not take
effect with respect to that Change in Control."
2. The second Section 1.4 of the Agreement is redesignated as
Section 1.5, and a new Section 1.6 is added to the Agreement, to
read as follows:
"1.6 'Continuing Director' means any person who is a member of the
Board of Directors of the Company, while such person is a member
of the Board of Directors, who is not an Acquiring Person (as
defined below) or an Affiliate or Associate (as defined below) of
an Acquiring Person, or a representative of an Acquiring Person
or any such Affiliate or Associate, and who (i) was a member of
the Board of Directors on August 1, 1997 or (ii) subsequently
becomes a member of the Board of Directors, if such person's
initial nomination for election or initial election to the Board
of Directors is recommended or approved by a majority of the
Continuing Directors. For purposes of this Section 1.6,
'Acquiring Person' shall mean any 'person' (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act) who or which,
together with all Affiliates and Associates of such person, is
the 'beneficial owner' (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of
the Company representing 15 % or more of the combined voting
power of the Company's then outstanding securities, but shall not
include the Company, any subsidiary of the Company, any employee
benefit plan of the Company or of any subsidiary of the Company
or any entity holding shares of the Company's common stock
organized, appointed or established for, or pursuant to the terms
of, any such plan; and 'Affiliate' and 'Associate' shall have the
respective meanings ascribed to such terms in Rule 12b-2
promulgated under the Exchange Act."
3. A new Section 4.3 is added at the end of Article IV of the
Agreement, to read as follows:
"4.3 Investments. Upon and after the occurrence of a Change in
Control, the Trustee shall not be subject to the direction of the
Company in the acquisition, investment and disposition of the Trust's
assets, and the Trustee shall thereafter acquire, invest and dispose
of Trust assets in such manner as it deems prudent and in the best
interests of the Plans' participants and their beneficiaries."
4. Section 9.1 of the Agreement is amended in its entirety, to read
as follows:
"9.1 Trust Amendment. Except as limited below, the Chief Executive
Officer of the Company shall have the right to amend this Trust
Agreement at any time. Such amendment shall be stated in an instrument
in writing, executed by such Chief Executive Officer and attested by
the Secretary or an Assistant Secretary of the Company. Upon delivery
of an executed counterpart of such instrument to the Trustee, the
Trust shall be deemed to have been amended in the manner set forth in
such instrument, and all participants and the Company shall be bound
by the amendment; provided, however, that:
(a) no amendment shall increase the duties or liabilities of the
Trustee without its written consent;
(b) no amendment shall reduce, impair or otherwise adversely
affect any Plan participant's rights or protections under a
Plan or this Agreement unless the participant
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consents in writing to such amendment;
(c) no amendment shall cause the Trust to be terminated prior to
the time set forth in Section 10.3; and
(d) no amendment shall cause or permit any assets of the Trust
to revert to the Company, except as permitted in Sections
2.3, 5.2, and 10.3.
* * * * *
IN WITNESS WHEREOF, the Company and the Trustee have executed this
instrument as of the date first written above.
X.X. XXXXXX COMPANY
By /s/ Xxxxxx Xxxxxxxx
--------------------------------
Chief Executive Officer
Attest: /s/ Xxxxxxx X. Xxxxx
-----------------------------
As its: Corporate Secretary
-----------------------------
FIRST TRUST NATIONAL ASSOCIATION, TRUSTEE
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
As Its Assistant Vice President
--------------------------------
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------------
As Its Vice President
--------------------------------
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AMENDMENT TO THE
X.X. XXXXXX COMPANY
EXECUTIVE BENEFIT TRUST
THIS AGREEMENT is made this 2nd day of March, 1998 by and between X.X.
XXXXXX COMPANY, a Minnesota corporation (the "Company"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking association (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore entered into a trust
agreement, dated October 25, 1993 (the "Agreement"), creating the X.X. Xxxxxx
Company Executive Benefit Trust, which Agreement, as amended, is now in full
force and effect;
WHEREAS, the Company has reserved the power to amend the Agreement pursuant
to Section 9.1 thereof, subject to the Trustee's and beneficiaries' consent in
certain cases; and
WHEREAS, the Company and the Trustee wish to amend the Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants hereinafter set forth, the parties agree that the Agreement is hereby
amended as follows:
1. Section 1.3(b) of the Agreement is amended in its entirety, to
read as follows:
"(b) the public announcement (which, for purposes of this
definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the Exchange Act) by the Company or
any `person' (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) that such person has become the `beneficial
owner' (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the
Company's then outstanding securities;"
2. Paragraphs (d) and (e) of Section 1.3 of the Agreement are
amended in their entirety, to read as follows:
"(d) the shareholders of the Company approve (A) any
consolidation, merger, or statutory share exchange of the Company
with any person in which the surviving entity would not have as
its directors at least 60% of the Continuing Directors and would
not have at least 60% of the combined voting power of its
outstanding securities held by persons who were shareholders of
the Company immediately prior to such consolidation, merger, or
statutory share exchange; (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions)
of all or substantially all of the assets of the Company; or (C)
any plan of liquidation or dissolution of the Company; or
"(e) the majority of the Continuing Directors determine in their
sole and absolute discretion that there has been a change in
control of the Company."
3. The last sentence of Section 1.6 of the Agreement is amended
to read as follows:
"For purposes of this Section 1.6, `Acquiring Person' shall mean
any `person' (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) who or which, together with all Affiliates and
Associates of such person, is the `beneficial owner' (as defined
in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or more
of the combined voting power of the Company's then outstanding
securities, but shall not include the Company, any subsidiary of
the Company, any employee benefit plan of the Company or of any
subsidiary of the Company or any entity holding shares of the
Company's common stock organized, appointed or established for,
or pursuant to the terms of, any such plan; and `Affiliate' and
`Associate' shall have the respective meanings ascribed to such
terms in Rule 12b-2 promulgated under the Exchange Act."
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4. Section 2.2 of the Agreement is amended in its entirety, to
read as follows:
"2.2 Payment of Benefits. Subject to the provisions of Sections
2.3, 3.1, and 4.1, the trustee shall distribute trust funds to
the Plan participants and their beneficiaries as directed by the
Administrator. If the assets of the Trust are not sufficient to
make payments of benefits pursuant to the Plan to participants
and their beneficiaries, the Company shall make the balance of
each such payment as it becomes due."
5. Section 2.3 of the Agreement is amended in its entirety, to
read as follows:
"2.3 Reversion of Excess Assets. If, prior to a Change in
Control, the Company determines, on the basis of reasonable
actuarial assumptions selected by an independent actuary
appointed by the Company, that a portion of the Trust's assets or
future earnings allocated to an account for a Plan will not be
required to pay benefits to participants and their beneficiaries
under the terms of the Plan in effect at the time of the
determination, all or any part of such portion of assets or
future Trust earnings shall be returned to the Company upon the
direction of the Company; provided that no part of any assets or
future Trust earnings shall be paid to the Company after the
occurrence of a Change in Control except as provided in Section
5.2 or 10.3."
6. A new paragraph (c) is added at the end of Section 4.1 of the
Agreement, to read as follows:
"(c) The provisions of Section 2.2 (`Payment of Benefits') shall
cease to apply, and the Trustee shall distribute the trust fund
to Plan participants and their beneficiaries in accordance with
the provisions of the Plan. If the Administrator fails to provide
the Trustee with information sufficient for it to determine the
amount or timing of any distribution within thirty days after the
Trustee's receipt of notice of the occurrence of the event
entitling the participant or beneficiary to receive such
distribution, the Trustee shall be entitled to conclusively rely
upon information provided by the participant or beneficiary. If
the assets of the Trust are not sufficient to make payments of
benefits pursuant to the Plan to participants and their
beneficiaries, the Company shall make the balance of each such
payment as it becomes due."
7. A new Section 4.4 is added at the end of Article IV of the
Agreement, to read as follows:
"4.4 Contributions. Within ten business days following the
occurrence of a Change in Control, the Company shall make an
irrevocable cash contribution to the Trust in an amount which,
when added to the then fair market value of the Trust's assets
(excluding any assets credited to an Expense Account established
pursuant to Section 6.3), is not less than the present value of
the payments which are then due or which may thereafter become
due to participants or beneficiaries pursuant to the terms of
each Plan. The amount of such contribution shall be determined by
assuming that each Plan participant who is employed by the
Company at the time of the Change in Control will become entitled
to receive benefit payments on the earliest date as of which the
participant could receive his benefits without reductions based
on the participant's age or length of employment. Present value
shall be determined using the following actuarial assumptions:
Interest: The interest rate on 30-year U.S. Treasury
obligations as of the December 31 coinciding with
or immediately preceding the date of the Change
in Control.
Salary Scale: 6%
Mortality: Postretirement: 1993 Group Annuity Mortality Table.
Preretirement: None.
As of each yearly anniversary of the occurrence of a Change in
Control (`Valuation Date'), the Company shall determine the
amount of the contribution which would have been required
pursuant to this Section 4.4 if the Change in Control had
occurred on such Valuation Date. If the amount so determined
exceeds the fair market value of the Trust assets on such
Valuation Date, the Company shall, within ten business days
following such Valuation Date, make an irrevocable cash
contribution to the Trust in an amount which is
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not less than such excess."
8. Article V of the Agreement is retitled "Early Termination,"
and Section 5.1 of the Agreement is amended in its entirety, to read
as follows:
"5.1 Early Termination. Notwithstanding anything herein to the
contrary, if there is a final determination that the existence of
this Trust would cause the Plan participants to be taxed on their
benefits before they actually receive them, the Trust shall
terminate and the Trustee shall distribute to each participant
the present value of his benefits under each Plan. For the
purposes of this Section 5.1:
(a) a `final determination' means a determination by the
Internal Revenue Service or a court of competent
jurisdiction from which no further appeal may be taken,
either because there is no further appeal available or
because the time to take such appeal has expired; and
(b) `present value' shall be determined in the same manner,
and with the same interest and mortality factors, as would
be used for such purpose under the provisions of the X.X.
Xxxxxx Company Retirement Plan in effect at the time such
determination is made."
9. A new Section 6.3 is added at the end of Article VI of the
Agreement, to read as follows:
"6.3 Expense Account. The Company, in its discretion, may direct
the Trustee to establish a separate account (the `Expense
Account') for the payment of expenses incurred by the Trustee in
administering the Trust, and it may contribute to the Expense
Account such amounts as it shall determine from time to time, in
its sole and absolute discretion. Notwithstanding anything herein
to the contrary:
(a) Prior to the occurrence of a Change in Control, amounts
credited to the Expense Account shall be used solely for the
payment of expenses incurred by the Trustee in administering
the Trust, to the extent the same have not been paid by the
Company, including, without limitation, the Trustee's
compensation and expenses incurred by the Trustee in
connection with litigation undertaken pursuant to Section
7.3(f).
(b) After the occurrence of a Change in Control, amounts
credited to the Expense Account shall be used primarily for
the payment of expenses described in paragraph (a);
provided, that if the Trustee determines that the amounts
from time to time credited to the Expense Account exceed the
amount of its reasonably anticipated expenses, it may use
the excess amounts to pay any benefits due under the Plans.
(c) Prior to the occurrence of a Change in Control, all or
any part of the amounts credited to the Expense Account
shall be paid to the Company upon the direction of the
Company.
(d) No part of the amounts credited to the Expense Account
shall be paid to the Company after the occurrence of a
Change in Control, except as provided in Section 5.2 or
10.3."
10. The first sentence of Section 7.3(d) of the Agreement is
amended in its entirety, to read as follows:
"(d) The Trustee shall receive for its services compensation in
accordance with its separate agreement with the Company;
provided, that upon and after the occurrence of a Change in
Control, the Trustee shall be compensated in accordance with the
fee schedule attached hereto as Schedule B."
11. Section 7.3(f) of the Agreement is amended in its entirety,
to read as follows:
"(f) Following prior written notice to the Company, the Trustee
may accept, compromise, settle, enforce or contest any obligation
or liability due to or from it as Trustee, including any claim
that may be asserted for taxes under any present or future law
and any claim the Trust may have for contributions due from the
Company under Section 4.4; but it shall not be required to
institute or continue litigation unless it
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is in possession of funds suitable for that purpose or unless it
has been indemnified to its satisfaction against its counsel fees
and all other expenses and liabilities to which it may in its
judgment be subjected in such action. The Trustee shall be
entitled, out of the recoveries of any litigation, to
reimbursement for its expenses in connection with such
litigation."
12. A new paragraph (j) is added at the end of Section 7.3 of the
Agreement, to read as follows:
"(j) The Trustee may segregate any part or portion of the assets
of the Trust for the purpose of administration or distribution
thereof and may hold such part or portion uninvested whenever and
for so long as is required for the payment in cash of Plan
benefits normally expected to become payable in the near future.
The Trustee may hold uninvested reasonable amounts of cash
whenever the Trustee deems it desirable to do so to facilitate
disbursements, pending investments, or for other operational
reasons and may deposit the same, without any liability for
interest earned thereon, for reasonable periods in the banking
department of the Trustee or of any other bank, trust company or
other financial institution, including those affiliated in
ownership with the Trustee, notwithstanding the banking
department's or other entity's receipt of `float' from such
uninvested cash."
13. New Sections 7.4 and 7.5 are added at the end of Article VII
of the Agreement, to read as follows:
"7.4 Employment of Agents. The Trustee may employ agents,
experts, and counsel to the extent necessary to the performance
of its duties and responsibilities hereunder, and it may
reasonably compensate such agents, experts, and counsel out of
the assets of the Trust.
"7.5 Indemnification. Prior to a Change in Control, the Company
shall indemnify the Trustee and hold it harmless against any
liabilities, losses, or expenses (including reasonable attorneys'
fees) incurred by it as a result of any action taken by it
pursuant to the instructions of the Company or the Administrator,
or by reason of its failure to act upon any matter as to which it
has no power to act when no such instructions have been received,
except to the extent any such action or failure to act was
negligent or in bad faith. Upon or after the occurrence of a
Change in Control, the Company shall indemnify the Trustee and
hold it harmless against any liabilities, losses, or expenses
(including reasonable attorneys' fees) incurred by it as a result
of any action taken or omitted by it pursuant to this Agreement,
except to the extent any such action or omission was grossly
negligent or in bad faith."
14. The provisions of this Amendment shall be effective as of the
date first set forth above, except that the provisions of paragraphs
1, 2, 3, and 7 hereof shall not take effect with respect to a Plan
participant until this Amendment has been approved in writing by such
participant.
* * * * *
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IN WITNESS WHEREOF, the Company and the Trustee have executed this
instrument as of the date first written above.
X.X. XXXXXX COMPANY
By /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Chief Executive Officer
Attest: /s/ Xxxxxxx X. Xxxxx
---------------------------
As its: Vice President
---------------------------
FIRST TRUST NATIONAL ASSOCIATION, TRUSTEE
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
As its Vice President
By /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
As its Vice President
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SCHEDULE B
Upon and after the occurrence of a Change in Control, the Trustee shall be
compensated in accordance with the following fee schedule:
TRUSTEE FEES
Domestic Market Value
---------------------
First $1,000,000 .30%
Next $4,000,000 .20%
Next $5,000,000 .15%
Next $15,000,000 .10%
Excess over $15,000,000 .05%
PARTICIPANT SERVICES
Recurring Distributions $2.50 per transaction
Lump Sum Distributions $10.00 per transaction
(Automated)
Lump Sum Distributions $15.00 per transaction
(Non-automated)
ACH Distributions $1.50 per transaction
ACH Distributions w/advice $2.00 per transaction
OUT OF POCKET EXPENSES
Pass Through of Cost
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