EXHIBIT 10h1
FORTUNE BRANDS, INC.
TRUST AGREEMENT
THIS AGREEMENT, made as of the day of , , among FORTUNE
BRANDS, INC., a Delaware corporation (the "Company"), THE NORTHERN TRUST
COMPANY, an Illinois corporation (the "Trustee") and XXXXXX ASSOCIATES LLC, a
limited liability company formed under the laws of Illinois (the
"Recordkeeper").
W I T N E S S E T H :
WHEREAS, the Company has incurred and expects to continue to incur certain
unfunded retirement income liability to or with respect to a select group of
management employees pursuant to the terms of the FORTUNE BRANDS, INC.
Supplemental Plan, including the supplemental profit-sharing provision therein,
and may incur liability under other agreements or arrangements for the payment
of additional pension or other deferred compensation benefits (herein referred
to as the "Plan");
WHEREAS, the Company desires to provide additional assurance to some or all
such management employees covered under the "Plan" and who may in the future be
designated by written notice from the Company to the Trustee and the
Recordkeeper (the "Participants") and their surviving spouses, if any,
beneficiaries or estates under the Plan (collectively, the "Beneficiaries") that
their unfunded benefits under the Plan will in the future be met or
substantially met by application of the procedures set forth herein;
WHEREAS, the Company wishes to establish separate accounts (the "Accounts")
with respect to the Participants in the Plan in order to provide a source of
payments as such payments are required under the terms of the Plan;
WHEREAS, amounts transferred to each separate Account and the earnings
thereon shall be used solely in satisfaction of the liabilities of the Company
with respect to the Participant in the Plan for whom such separate Account has
been established and expenses as provided herein and such utilization shall be
in accordance with the procedures set forth herein;
WHEREAS, upon satisfaction of all liabilities of the Company with respect
to a Participant under the Plan in respect of whom a separate Account has been
established, the balance, if any, remaining in such Account shall be allocated
to the Accounts of other Participants in the Plan for whom such accounts have
been established in accordance with the procedures set forth herein;
WHEREAS, upon satisfaction of all liabilities of the Company with respect
to all Participants under the Plan in respect of whom separate Accounts have
been established, the balance, if any, remaining in such Accounts shall revert
to the Company, except that all amounts in all such Accounts shall at all times
be subject under this Agreement to the claims of the Company's creditors as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and mutual and independent
promises herein, the parties hereto covenant and agree as follows:
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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. Upon a Change of
Control of the Company (as defined below), and from time to time thereafter, the
Company shall contribute to the Trust an amount in cash that is not less than
the present value of the aggregate maximum benefits that would be due to the
Participants and Beneficiaries as of such date under the Plan, excluding any
Participant (i) with respect to whom the Company has established and maintains
an individual employer grantor trust as a source for benefits under the Plan, or
(ii) who has established an employee grantor trust with contributions provided
by the Company which are intended to be currently taxable to the employee (such
employees being referred to herein as "Excluded Participants"). Thereafter, the
Company will make additional contributions to the Trust upon the furnishing to
the Recordkeeper 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 amounts set forth in the preceding
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sentence. The Company may also make contributions prior to a Change of Control
provided that 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
contributions prior to a Change of Control in any specific amount or at any
specific time.
A Change of Control of the Company shall be deemed to have occurred if (i)
any person (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in effect on September
23, 2002), is or becomes the beneficial owner (as that term is used in Section
13(d) of the Exchange Act, and the rules and regulations promulgated thereunder,
as in effect on September 23, 2002) of 20% or more of the combined voting power
of the outstanding voting securities entitled to vote generally in the election
of directors ("Voting Securities") of the Company, excluding, however, (A) any
acquisition directly from the Company, other than an acquisition by virtue of
the exercise of a conversion privilege unless the security being so converted
was itself acquired directly from the Company; (B) any acquisition by an
employee benefit plan (or related trust) sponsored or maintained by the Company
or an entity controlled by the Company , or (C) any acquisition by the Company,
or (D) any acquisition pursuant to a transaction that complies with clauses (A),
(B) and (C) of clause (iii) below; (ii) more than 50% of the members of the
Board of Directors of the Company shall not be Continuing Directors (which term,
as used herein, means the directors of the Company (A) who were members of the
Board of Directors of the Company on September 23, 2002 or (B) who subsequently
become directors of the Company and who were elected or designated to be
candidates for election as nominees of the Board of Directors, or whose election
or nomination for election by the Company's stockholders was otherwise approved,
by a vote of
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a majority of the Continuing Directors then on the Board of
Directors but shall not include, in any event, any individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14(a)-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a person other than the Board of
Directors); (iii) the Company shall be merged or consolidated with, or, in any
transaction or series of transactions, substantially all of the business or
assets of the Company shall be sold or otherwise acquired by, another
corporation or entity unless, as a result thereof, (A) the stockholders of the
Company immediately prior thereto shall beneficially own, directly or
indirectly, at least 60% of the combined Voting Securities of the surviving,
resulting or transferee corporation or entity (including, without limitation, a
corporation that as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries)("Newco") immediately thereafter in substantially the same
proportions as their ownership immediately prior to such corporate transaction,
(B) no person beneficially owns (as such terms are used in Section 13(d) of the
Exchange Act, and the rules and regulations promulgated thereunder (as in effect
on September 23, 2002)), directly or indirectly, 20% or more of the combined
Voting Securities of Newco immediately after such corporate transaction except
to the extent that such ownership of the Company existed prior to such corporate
transaction and (C) more than 50% of the members of the Board of Directors of
Newco shall be Continuing Directors: or (iv) the stockholders of the Company
approve a complete liquidation or dissolution of the Company. The Company shall
immediately notify the Trustee and the Recordkeeper of any Change of Control.
The Trustee may conclusively rely upon such notice and shall have no duty to
determine whether a Change of Control has occurred.
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1.3 The Recordkeeper shall establish and maintain a separate Account for
each Participant under the Plan (other than Excluded Participants) in which it
shall keep a separate record of the share of the Participant in the Fund. Net
investment gains and losses (I.E., appreciation or depreciation in the value of
assets, income and losses) shall be allocated by the Recordkeeper
proportionately among Participants' Accounts. The Company shall certify to the
Recordkeeper and the Participant at the time of each contribution to the Fund
the amount of such contribution being made in respect of the Participant. The
Fund shall be revalued by the Trustee semiannually as of the last business day
of each June and December at current market values, as determined by the
Trustee, which shall promptly deliver a copy of such semiannual valuation to the
Recordkeeper. The Recordkeeper shall deliver to the Company and the Participant
or Beneficiary of the Participant for whom the Account has been established the
semiannual statement of the Account 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 receipt of 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
Recordkeeper'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
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Act of the United States or the bankruptcy laws of any state alleging that the
Company is insolvent or bankrupt. 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, the Recordkeeper shall direct the
Trustee to pay any benefits payable with respect to the Participant that have
not been paid during the period of suspension which shall then immediately be
paid, together with interest thereon calculated by the Recordkeeper on the basis
of the return earned during such period of suspension by the Diversified Assets
Portfolio of The Northern Institutional Funds.
2.2 The Company represents and agrees that the Trust established under this
Agreement does not fund and is not intended to fund the Plan, 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
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part or all of its future obligations to the Participants and their
Beneficiaries under the Plan. The purpose of this Trust is to provide a fund
from which retirement benefits may be payable under the Plan and as to which
Plan Participants with Accounts hereunder and their 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. The Company further represents that the
Plan is a deferred compensation plan for a select group of management and highly
compensated employees and as such is exempt from the application of the Employee
Retirement Income Security Act of 1974 ("ERISA") except for the disclosure
requirements applicable to such plan for which the Company bears full
responsibility as to compliance. The Company further represents that the Plan is
not qualified under Section 401 of the United States Internal Revenue Code and
therefore is not subject to any of the Code requirements applicable to
tax-qualified plans.
ARTICLE III
3.1 Xxxxxx Associates LLC is hereby appointed as Recordkeeper under this
Agreement. It is herein recognized that said Recordkeeper is also acting as the
independent consulting actuary of the Company with respect to the Plan and that
the Trustee shall have no responsibility hereunder for the continued retention
of Xxxxxx Associates LLC, or any responsibility assigned to the Recordkeeper or
its performance. In the event the Company replaces or no longer uses said firm
as its independent consulting actuary, the Company in its sole discretion may,
but need not, designate a new Recordkeeper or may continue to use the same
Recordkeeper; or in the event said firm does not accept its designation as
Recordkeeper or
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accepts said designation and subsequently resigns, the Company shall designate a
new Recordkeeper; provided, however, any Recordkeeper shall be independent of
the Company. A Recordkeeper 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 Recordkeeper, the Company shall appoint as the
Recordkeeper a law firm of at least 100 lawyers. The Company shall pay to the
Recordkeeper all fees and expenses of the Recordkeeper and shall indemnify and
hold the Trustee harmless for any actions or omissions of said Recordkeeper and
shall indemnify and hold the Recordkeeper 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 Recordkeeper until paid by the Company. The
Recordkeeper shall be paid for its services at rates comparable to the rates the
Recordkeeper 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 Recordkeeper shall maintain all
the Plan Participant's records contemplated by this Agreement, including the
maintenance of the separate Accounts of each Participant as contemplated by this
Agreement, records of the Participant's compensation, the amount of his benefits
accrued under the Plan, the Participant's Beneficiary designation, the Company's
contributions to the Fund and such other records as may be necessary for
determining the amount payable to each Participant or his Beneficiary under the
Plan. All such records shall be made available promptly upon the request of the
Trustee, the Participant or his Beneficiary or the Company. The Recordkeeper
shall also prepare and distribute the Participant's annual estimated benefit
statements specified in Section 3.3 and shall be responsible for information
with respect to payments to the Participants and their Beneficiaries and shall
perform such other
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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 Recordkeeper all the information
necessary in order for the Recordkeeper to determine the benefits payable to or
with respect to each Participant in the Plan (other than Excluded Participants),
including any benefits payable after the Participant'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 31 of each year, furnish revised updated information to the Recordkeeper.
Based on the foregoing information the Recordkeeper shall prepare an annual
estimated benefits statement in respect of each Participant and shall furnish a
copy of same to the Participant 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 Participant information, as contemplated herein, the
Recordkeeper shall be entitled to rely upon information furnished to it by the
Participant.
3.4 Upon the direction of the Company or upon the application of a
Participant or Beneficiary of a deceased Participant by submission of a Payment
Demand Notice in the form attached hereto as Exhibit A, a copy of which shall be
delivered by the Recordkeeper to the Company, the Recordkeeper shall prepare and
deliver to the Trustee within thirty days of receipt of such direction or
application a certification to the Trustee that the Participant's benefits under
the Plan have become payable, and shall deliver a copy of such certification to
the Company and to the Participant or Beneficiary. In preparing such
certification, the Recordkeeper shall obtain updated information from the
Company for calculating benefits under the Plan. In the event the
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Company refuses or neglects to provide updated information, the Recordkeeper
shall be entitled to rely upon information furnished to it by the Participant.
Such certification shall include the amount of such benefits, including benefits
referred to in Section 11.8, 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 Recordkeeper 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 amounts of any taxes directed
to be withheld, and the Recordkeeper shall charge the Participant's Account
established hereunder. The Company shall have sole responsibility for any tax
withholdings, filings and reports, and the Trustee shall withhold such amounts
from distributions as the Company shall direct. The Company shall have full
responsibility for the proper remittance of all withholding taxes to the
appropriate taxing authority and shall furnish each Participant or Beneficiary,
the Recordkeeper and the Trustee with the appropriate tax information form
reporting the amounts of such distributions and any withholding taxes. The
certification by the Recordkeeper shall also be updated annually upon receipt by
the Recordkeeper of updated benefit information from the Company (or the
Participant 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 Participant or his Beneficiary.
3.5 The Recordkeeper shall charge all benefits payable from the Fund to a
Participant or Beneficiary solely to the Account of such Participant. Upon the
payment of all Company liabilities under the Plan to a Participant or
Beneficiary for whom an Account has been
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established hereunder, the Recordkeeper shall prepare a certification to the
Trustee and to the Company showing the balance, if any, remaining in such
Participant's Account. Such balance shall thereupon be reallocated ratably by
the Recordkeeper to the Accounts of Participants and Beneficiaries being
continued under the Plan (including Accounts which may have previously been
reduced to a zero balance) in the ratio that liabilities in respect of each such
Participant and Beneficiary under the Plan bear to the total liabilities to all
such Participants and Beneficiaries under the Plan (other than Excluded
Participants). Upon the payment of all liabilities of the Company under the Plan
to Participants and Beneficiaries for whom Accounts have been established
hereunder, the Recordkeeper shall prepare a certification to the Trustee 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 the Company under the Plan in respect of the Participants and
Beneficiaries shall any part of the Fund revert to the Company nor shall any
portion of a Participant's Account be used for a purpose other than providing
the Participant's benefits under the Plan. The Trustee and the Recordkeeper
shall have no responsibility for determining whether any Participant or
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 Plan except to the extent
such liabilities are met by application of Fund assets. It is the intent of the
Company to have each Account established hereunder treated as a separate account
designed to satisfy in whole or in part the Company's
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legal liability under the Plan in respect of the Participant for whom such
Account has been established. The Company, therefore, agrees that all income,
deductions and credits of each such Account 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 Recordkeeper with a complete copy of the
Plan and all amendments thereto and of the resolutions of the Board of Directors
of the Company approving the Plan and all amendments thereto, promptly upon
their adoption. After the execution of this Agreement, the Company shall
promptly file with the Trustee and the Recordkeeper a certified list of the
names of the officers of the Company and any delegate authorized to act for it.
The Company shall promptly notify the Trustee and the Recordkeeper of the
addition or deletion of any person's name to or from such list, respectively.
Until receipt by the Trustee or the Recordkeeper of notice that any person is no
longer authorized so to act, the Trustee or the Recordkeeper 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 Recordkeeper shall be in
writing signed by such person or persons. The Trustee and the Recordkeeper 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
Recordkeeper believes to have been signed thereby. The Trustee and the
Recordkeeper may rely on any certification, notice or direction of the Company
that the Trustee or the Recordkeeper believes to have been signed by a duly
authorized officer or agent of the Company. The Trustee and the Recordkeeper
shall have no responsibility for acting or not acting in reliance upon any
notification believed by
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the Trustee or the Recordkeeper to have been so 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 each Participant, his compensation
and his rights and interests in the Fund under the Plan.
4.2 The Company (which has the authority to do so under the laws of its
state of incorporation) shall indemnify The Northern Trust Company, and defend
it and hold it harmless from and against any and all liabilities, losses,
claims, suits or expenses (including reasonable attorneys' fees) of whatsoever
kind and nature which may be imposed upon, asserted against or incurred by The
Northern Trust Company at any time (i) by reason of its carrying out its
responsibilities or providing services under this Trust Agreement, or its status
as Trustee, or by reason of any act or failure to act under the Trust Agreement,
except to the extent that any such liability, loss, claim, suit or expense
arises directly from Trustee's negligence or willful misconduct in the
performance of responsibilities specifically allocated to it under this Trust
Agreement or (ii) by reason of the Plan's or Trust's failure to be exempt from
Parts 2, 3 and 4 of the Employee Retirement Income Security Act. This paragraph
shall survive the termination of this Trust Agreement.
4.3 The Company shall indemnify and hold harmless the Recordkeeper 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 Recordkeeper with respect to keeping the records
for the Participant's Accounts, reporting thereon to Participants, certifying
benefit information to the Trustee, determining the status of Accounts and
benefits hereunder and otherwise carrying out its obligations under this
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Agreement, other than those resulting from the Recordkeeper's negligence or
willful misconduct.
This paragraph shall survive the termination of this Trust Agreement.
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.
5.2 The Trustee shall invest the assets of the Fund solely in the Northern
Trust Institutional Funds Intermediate Bond Portfolio to the extent such fund is
available and otherwise in the Northern Trust Institutional Funds Diversified
Asset Portfolio to the extent such fund is available; provided that if neither
fund is available, the Trustee shall notify the Company in writing, in which
case the Company shall direct the Trustee in writing to invest the assets of the
fund in another money market fund managed by the Trustee or an affiliated
entity. 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;
(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;
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(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;
(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 Northern Trust Company, 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 Recordkeeper and the Participants
or their 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
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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 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 full 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
Recordkeeper's obligations are limited solely to those explicitly set forth
herein and the Recordkeeper shall have no responsibility, authority or
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control, direct or indirect, over the maintenance or investment of the Fund and
shall have no obligation in respect of the Trustee or the Trustee's compliance
with the Recordkeeper'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 have been last furnished to the
Trustee, or if no such address shall have been so furnished, to such person in
care of the Company, or (if so directed by the Company) 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 the Fund, including without limitation advances
for or prompt reimbursement of reasonable expenses of counsel and other agents
employed by the Trustee, and
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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 paid from the Fund unless paid by the Company. Any such
expenses and compensation of the Trustee, and any fees and expenses of the
Recordkeeper, as provided in Section 3.1, under this Trust shall be satisfied
from the assets of each Account in proportion to the assets of each Account.
ARTICLE VII
7.1 The Trustee shall maintain records with respect to the Fund that show
all its receipts and disbursements hereunder. The records of the Trustee with
respect to the Fund shall be open to inspection by the Company or its
representatives, and the Recordkeeper, 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
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Trustee hereunder, the Trustee shall prepare and deliver to the Company and the
Recordkeeper 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 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
Recordkeeper shall also prepare and furnish to the Company a statement of the
then current value of each Account.
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.
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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 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 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. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
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. The
Trustee shall not transfer or deliver the Fund
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to any successor trustee unless and until such successor trustee provides the
Trustee with a written certification that it is a bank or trust company having
either total assets of at least $15 billion or trust assets of at least $25
billion. The Trustee may conclusively rely on such written certification from
the successor trustee that it meets the criteria specified in the immediately
preceding sentence.
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 all
Participants and their Beneficiaries. Upon receipt by the Company of a written
certification from the Recordkeeper that all liabilities have been paid with
respect to all Participants and their Beneficiaries under the Plan, 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 of (a) a
certified copy of such resolution, (b) an original certification of the
Recordkeeper 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. Notwithstanding the above, the Trust shall terminate on the date
on which there are no longer any assets held in the Trust.
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 the Fund to the Company. Upon completing such distribution
or when there are no assets remaining in the Trust, 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.
22
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 pursuant to a resolution of the Board of
Directors or Compensation and Stock Option Committee thereof, a certified copy
of which shall be delivered to the Trustee, and by a written instrument duly
executed by the Company, the Trustee and the Recordkeeper in the same form as
this Agreement; provided, however, that no amendment shall be effective that
provides for using the assets of the Trust or any Account for a purpose other
than set forth in this Agreement unless and until all Plan liabilities to
Participants and Beneficiaries have been satisfied, as certified to in writing
by the Company (upon which certification the Trustee may conclusively rely
without further inquiry); and provided further that the investments that the
Trustee is required to make pursuant to the second sentence of Section 5.2 may
not be changed subsequent to a Change of Control.
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 Illinois. All
contributions to the Trustee shall be deemed to take place under the laws of the
State of Illinois.
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 any Participant or Beneficiary under the Plan
or in the Fund shall be transferable or assignable or shall be subject to
alienation, anticipation or
23
encumbrance, and no right or interest of any Participant or Beneficiary in the
Plan 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 Recordkeeper as to the
benefits 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 Recordkeeper and that the Trustee and the Recordkeeper 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 any dispute
regarding the amounts or timing of benefits or the persons entitled thereto
initiated by the Company, the Trustee or any Participant or Beneficiary in the
event the Participant is deceased, including the legal fees of the Trustee or
the Participant or 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. The foregoing in no way limits the Trustee's right to proceed in a court
of law with respect to any dispute affecting its rights, duties and
responsibilities.
24
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
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
Recordkeeper 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 Plan Participants or the Beneficiaries of deceased Participants 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, XX 00000
Attn: Corporate Secretary
Trustee: The Northern Trust Company
Attn: Xxxxxx Xxxxxxxx (or current RM for
Fortune Brands)
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
25
Recordkeeper: Xxxxxx Associates LLC
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx Xxxxxxx
or at such other address as such person may specify in writing by notice as set
forth above to the other persons listed above. Notices to a Participant or
Beneficiary shall be sent to the most current address of the Participant or
Beneficiary set forth on the records of the Company.
11.8 As and to the extent provided under the Plan, in the event any
Participant or his Beneficiary is determined to be taxable on any amount in
his Account prior to the time of actual receipt thereof, a distribution shall
be made by the Trustee, as directed by the Recordkeeper, to the Participant
or his Beneficiary in an amount sufficient to pay such tax. An amount in the
Account shall be determined to be taxable upon the receipt of: (a) a final
determination by the United States Internal Revenue Service or state or local
taxing authority which is not appealed to the courts; (b) a final
determination by a court of competent jurisdiction; or (c) an opinion of
Xxxxxxxxxx & Xxxxx LLP, addressed to the Company, the Trustee, the
Recordkeeper and the Participant or his Beneficiary, that amounts in the
Account are taxable to the Participant or Beneficiary prior to actual receipt
thereof. The amount to be distributed shall be the amounts of tax as
determined by such taxing authority or court, or as calculated by Xxxxxxxxxx
& Xxxxx LLP in connection with its opinion, as the case may be. Any
distributions from the Fund to any Participant or Beneficiary under this
Section 11.8 shall be applied in accordance with the Plan as an offset to the
benefits, if any, thereafter payable under the Plan.
26
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: ______________________________________________
Print Name:_______________________________________
Title:____________________________________________
Attest: THE NORTHERN TRUST COMPANY
By: ______________________________________________
Print Name:_______________________________________
Title:____________________________________________
Witness: XXXXXX ASSOCIATES LLC
By: ______________________________________________
Print Name:_______________________________________
Title:____________________________________________
27
EXHIBIT A
XXXXXX ASSOCIATES LLC
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn:
FORM OF PAYMENT DEMAND NOTICE
NAME OF PARTICIPANT:
ADDRESS:
PHONE:
SSN OF PARTICIPANT:
The undersigned hereby demands payment of the amount to which he is entitled
under the Fortune Brands, Inc. Supplemental Plan pursuant to the Trust Agreement
dated as of , among FORTUNE BRANDS, INC., THE NORTHERN TRUST COMPANY
and XXXXXX ASSOCIATES LLC.
-----------------------------------
[NAME OF PARTICIPANT]
