CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Page No.
ARTICLE I.
ESTABLISHMENT AND PURPOSE 1
1.1. Establishment 1
1.2. Purpose 1
ARTICLE II.
DEFINITIONS 2
2.1. Accrued Benefit 2
2.2. Actuarial Equivalent 3
2.3. Administrative Committee 3
2.4. Affiliated Group 3
2.5. Annuity Starting Date 3
2.6. Benefit Service 3
2.7. Board of Directors 3
2.8. Change in Control 3
2.9. Code 5
2.10 Company 5
2.11. Early Retirement Date 5
2.12. Effective Date 5
2.13. Hour of Service 5
2.14. Independent Actuary 5
2.15. Joint and 50% Survivor Annuity 5
2.16. Late Retirement Date 6
2.17. Life Annuity 6
2.18. Normal Retirement Date 6
2.19. Participant 6
2.20. Pension Plan 6
2.21. Plan 6
2.22. Retirement 6
2.23. Required Funding Amount 6
2.24. Retirement Date 7
2.25. Spouse 7
2.26. Surviving Spouse 7
2.27 Termination for Cause 7
2.28. Trust 7
2.29. Trustee 7
ARTICLE III.
PLAN PARTICIPATION 7
3.1. Eligibility to Participate in the Plan 7
3.2. Participation 8
ARTICLE IV.
BENEFITS 8
4.1. Retirement Benefits 8
4.2. Deferred Vested Benefit 9
4.3. Form of Retirement or Deferred Vested Benefit 9
4.4. Death Benefit 10
4.5. Time of Payment 11
4.6. Suspension of Benefits 12
4.7. Claims of Creditors 13
ARTICLE V.
VESTING 13
5.1. Vesting 13
ARTICLE VI.
CHANGE IN CONTROL 14
6.1. Change in Control 14
ARTICLE VII.
PLAN ADMINISTRATION 15
7.1. Administration of the Plan 15
ARTICLE VIII.
AMENDMENT AND TERMINATION 16
8.1. Amendment and Termination of the Plan 16
ARTICLE IX.
GENERAL PROVISIONS 16
9.1. Funding 16
9.2. Nonalienation of Benefits under this Plan 16
9.3. Plan not a Contract of Employment 17
9.4. Required Notification to Administrative Committee 17
9.5. Successors 18
9.6. Facility of Payment 18
9.7. Required Information to Administrative Committee 19
9.8. Claims Procedure 20
9.9. Indemnification 20
9.10. Controlling State Law 20
9.11. Severability 20
9.12. Adoption of the Plan 21
APPENDIX I 22
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Article I
ESTABLISHMENT AND PURPOSE
I.1 Establishment. Effective as of January 1, 1998, the Company
adopted a supplemental retirement plan known as the Plan for the
benefit of a select group of highly compensated employees and their
Surviving Spouses.
I.2 Purpose. The purpose of the Plan is to provide retirement
income and supplemental death benefits based on compensation in
excess of the limitations imposed by Code Section 401(a)(17) for
eligible Participants to supplement the benefits accrued under the
Pension Plan, and to enable the Company to attract and retain certain
key executives. The Plan is intended to qualify as a plan maintained
primarily for the purpose of providing certain deferred compensation
benefits to a select group of management or highly compensated
employees, as described in Sections 201(2), 301(a)(3), 401(a)(1) and
4021(b)(6) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
Article II
DEFINITIONS
Definitions. As used herein, the following words and phrases have
the meanings ascribed to them in Article II unless a different
meaning is plainly required by the context. Some of the words and
phrases used in the Plan are not defined in this Article II, but, for
convenience, are defined as they are introduced into the text. Words
in the masculine gender shall be deemed to include the feminine
gender and words in the feminine gender shall be deemed to include
the masculine gender. Any headings used herein are included for ease
of reference only, and are not to be construed so as to alter any of
the terms of the Plan.
II.1 "Accrued Benefit" shall mean with respect to a Participant a
monthly benefit expressed as a Life Annuity as of a specified date
equal to (a) minus (b) below (both calculated as of the Participant's
Retirement) and, if applicable, as adjusted pursuant to (c) below
(but not less than zero) where:
(a) is the vested benefit that would be payable to the
Participant under the Pension Plan computed without regard to the
limitation imposed by Section 401(a)(17) of the Code, such vested
benefit not to exceed one hundred and thirty thousand dollars
($130,000) per annum;
(b) is the vested benefit payable to the Participant under
the Pension Plan; and
(c) is the reduction for early retirement benefit
commencement under the terms of the Pension Plan, to the extent that
the Participant's Annuity Starting Date precedes his Normal
Retirement Date.
II.2 "Actuarial Equivalent" shall mean a benefit or benefits which
are of equal value at the date of determination to the benefits for
which they are to be submitted. Actuarial Equivalence shall be based
on the interest and mortality tables used to determine actuarial
equivalence under Appendix 1 of the Pension Plan.
II.3 "Administrative Committee" shall mean the Compensation
Committee of the Board of Directors which shall administer the Plan
in accordance with Article VII.
II.4 "Affiliated Group" shall mean the Company and all other
entities required to be aggregated under Code Sections 414(b), (c) or
(m).
II.5 "Annuity Starting Date" shall mean the first day of the first
period for which an amount is payable as an annuity, or in the case
of a benefit not payable in the form of an annuity, the first day on
which all events have occurred which entitle the Participant to such
a benefit.
II.6 "Benefit Service" shall mean the sum of all credited service
earned under the Pension Plan determined as set forth under such
plan.
II.7 "Board of Directors" shall mean the Board of Directors of the
Company.
II.8 "Change in Control" shall occur if:
(a) the individuals who, as of December 31, 1997,
constitute the Board of Directors of the Company (the "Incumbent
Board"), cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to December 31, 1997 whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board
shall be considered as though such an individual were a member of the
Incumbent Board;
(b) any individual, entity, or group (within the
meaning of section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended), acquires (directly or indirectly) the
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under such Act) of more than twenty (20) percent of the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors ("Voting
Power");
(c) any share of common stock or any other voting
securities of the Company shall be purchased pursuant to a tender or
exchange offer (other than a tender or exchange offer made by the
Company); or
(d) the Company's stockholders shall approve a
merger or consolidation, sale or disposition of all or substantially
all of the Company's assets or a plan of liquidation or dissolution
of the Company, other than (A) a merger of consolidation in which the
voting securities of the Company outstanding immediately prior
thereto will become (by operation of law), or are to be converted
into, voting securities of the surviving corporation or its parent
corporation immediately after such merger or consolidation that are
owned by the same person or entity or persons or entities as
immediately prior thereto and possess at least seventy-five (75)
percent of the Voting Power held by the voting securities of the
surviving corporation or its parent corporation, (B) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no person acquires more than fifty
(50) percent of the Voting Power, or (C) a merger of consolidation in
which the Company is the surviving corporation and such transaction
was determined not to be a Change in Control, which transaction and
determination was approved by a majority of the Board in actions
taken prior to, and with respect to, such transaction.
II.9 "Code" shall mean the Internal Revenue Code of 1986, as
amended. Reference to a section of the Code shall include that
section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
II.10 "Company" shall mean Chock full o'Nuts Corporation and any
successor thereof.
II.11 "Early Retirement Date" shall have the same meaning as set
forth in Article I of the Pension Plan.
II.12 "Effective Date" shall mean January 1, 1998.
II.13 "Hour of Service" shall have the same meaning as set forth in
Article I of the Pension Plan.
II.14 "Independent Actuary" shall mean the actuarial consultant
appointed by the Trustee in accordance with the Trust to determine
the Required Funding Amount.
II.15 "Joint and 50% Survivor Annuity" shall mean a series of monthly
installments which will be made for the lifetime of the Participant.
If the Participant predeceases his Spouse, payment in an amount
equal to fifty percent (50%) of the Participant's monthly payment
will continue for the Spouse's life. The benefit under a Joint and
50% Survivor Annuity will be the Actuarial Equivalent of the benefit
under the Life Annuity form of payment.
II.16 "Late Retirement Date" shall have the same meaning as set forth
in the Pension Plan.
II.17 "Life Annuity" shall mean a series of monthly installments
which continue for the lifetime of the Participant and cease upon his
death.
II.18 "Normal Retirement Date" shall have the same meaning as set
forth in the Pension Plan.
II.19 "Participant" shall mean any employee of the Company who
becomes eligible to participate in the Plan and who continues to be
entitled to any benefits under the Plan.
II.20 "Pension Plan" shall mean the Chock full o'Nuts Corporation
Pension Plan, as such plan may be amended, from time to time.
II.21 "Plan" shall mean the Chock full o'Nuts Corporation
Supplemental Executive Retirement Plan, as such plan may be amended,
from time to time.
II.22 "Retirement" shall mean separation from service with all
members of the Affiliated Group at a time when the Participant is
eligible for payment of an Accrued Benefit pursuant to Article IV.
II.23 "Required Funding Amount" shall mean the sum of the aggregate
present value of all vested Accrued Benefits, and (ii) the present
value of all estimated fees and expenses of the Trust, each as
determined by the Independent Actuary at the times and in the manner
described in the Trust, using actuarial assumptions set forth under
Section 1.2 of the Pension Plan.
II.24 "Retirement Date" shall have the same meaning as set forth in
Article I of the Pension Plan.
II.25 "Spouse" shall mean the person legally married to the
Participant as of his or her Annuity Starting Date.
II.26 "Surviving Spouse" shall mean the person legally married to the
Participant at his date of death.
II.27 Termination for Cause shall mean termination on account of
dishonesty or any act or conduct on the part of the Participant which
is materially injurious to the business or reputation of any member
of the Affiliated Group.
II.28 "Trust" shall mean the Chock full o'Nuts Corporation Executive
Supplemental Retirement Plan Trust.
II.29 "Trustee" shall mean the trustee appointed under the Chock full
o'Nuts Corporation Executive Supplemental Retirement Plan (Springing)
Trust.
Article III
PLAN PARTICIPATION
III.1 Eligibility to Participate in the Plan. Those employees of the
Company that are designated by the Board of Directors or the
Compensation Committee of the Board of Directors shall be eligible to
participate in the Plan. A list of such Participants may, from time
to time, be attached hereto as Appendix 1.
III.2 Participation. A Participant shall remain a Participant so
long as he is vested in any Accrued Benefits under the Plan.
Article IV
BENEFITS
IV.1 Retirement Benefits.
(a) Except as otherwise provided herein, a Participant's
vested Accrued Benefit shall be determined as of his Normal
Retirement Date and paid commencing as of such date, provided that he
has separated from service from the Affiliated Group ("Normal
Retirement Benefit").
(b) A Participant who separates from service from the
Affiliated Group prior to his Normal Retirement Date may, in
accordance with Section 4.5, elect to commence payment of his vested
Accrued Benefit as of an Early Retirement Date. In such event his
benefit shall be equal to his vested Accrued Benefit (after any
applicable reduction under Section 2.1(c) of the Plan) determined as
of the Participant's Early Retirement Date and commencing as of such
date ("Early Retirement Benefit").
(c) A Participant who separates from service from the
Affiliated Group after his Normal Retirement Date may, in accordance
with Section 4.5, elect to commence payment of his vested Accrued
Benefit as of a Late Retirement Date. In such event his benefit
shall be equal to his vested Accrued Benefit determined as of his
Late Retirement Date (taking into account his service performed and
Compensation earned after his Normal Retirement Date) and commencing
as of such date ("Late Retirement Benefit").
IV.2 Deferred Vested Benefit. A Participant who separates from
service from the Affiliated Group before he is eligible to receive
payment of an Accrued Benefit but after he meets the vesting
requirements of Article V shall be entitled to a deferred monthly
retirement benefit. The Participant's benefit shall be equal to his
vested Accrued Benefit calculated as of his date of separation from
service, and subject to Section 4.5, commence on the first date on
which he would be eligible to receive a Normal Retirement Benefit.
IV.3 Form of Retirement or Deferred Vested Benefit. (a) At the
election of the Participant, the vested Accrued Benefit under
Sections 4.1 and 4.2 of this Plan may be paid in the form of a Life
Annuity or a Joint and 50% Survivor Annuity. Such election shall be
made on a form provided by the Company within thirty (30) days after
the date on which the Participant commences participation in the
Plan. A Participant may change such election by filing an
appropriate form issued by the Company, provided that any such change
in election shall not be effective unless made before the year in
which the Participant separates from service from the Affiliated
Group. Benefits under each form shall be paid in monthly
installments. Benefits under this section other than in the form of
a Life Annuity shall be the Actuarial Equivalent of a Life Annuity.
(b) Notwithstanding subsection (a) above, a Participant who
separates from service or retires with a vested Accrued Benefit shall
be paid the Actuarial Equivalent of such benefit in a single sum if
such Actuarial Equivalent does not exceed five thousand dollars
($5,000). If the Participant subsequently resumes participation in
the Plan, such Participant's benefit at his later date of separation
from service shall be reduced by the amount of the Accrued Benefit
that was previously paid to him.
IV.4 Death Benefit. If the Participant's death occurs before the
Annuity Starting Date and the Participant elected a form of benefit
other than a Life Annuity, a monthly benefit shall be payable to the
Surviving Spouse for the remainder of his or her life as follows.
(a) Subject to paragraph (c) below, if a vested Participant
dies prior to an Early Retirement Date or Normal Retirement Date, his
Surviving Spouse shall receive a survivor annuity for life equal to
the annuity which would have been payable to such Surviving Spouse if
such Participant had:
(1) separated from service from the Affiliated Group on
the date prior to the date of his date of death (or actual date of
separation from service, if earlier);
(2) survived to the date he would have first become
eligible to commence receipt of a vested Accrued Benefit under the
Plan;
(3) retired on such date with a Joint and 50% Survivor
Annuity; and
(4) died on the next day.
(b) Subject to paragraph (c) below, if a vested Participant
dies after his Early Retirement Date or Normal Retirement Date, the
Surviving Spouse shall receive a survivor annuity for life equal to
the annuity that would have been payable to such Surviving Spouse if
the Participant had retired on the date preceding his death with his
vested Accrued Benefit payable in the form of a Joint and 50%
Survivor Annuity.
(c) A Surviving Spouse may, with the consent of the
Administrative Committee, defer the commencement of a death benefit
but not later than the first day of the month following the
Participant's Normal Retirement Date (had he lived).
IV.5 Time of Payment.
(a) Unless a Participant elects otherwise, and subject to
Section 4.6, payment of the vested Accrued Benefit of a Participant
under Sections 4.1 and 4.2 of the Plan shall commence as of the
Participant's Normal Retirement Date, provided that he has separated
from service from the Affiliated Group. A Participant may, within
thirty (30) days after the date on which he commences participation
in the Plan, elect on a form provided by the Company to commence
payment of his vested Accrued Benefit as of an Early Retirement Date
or Late Retirement Date. A Participant may change such election by
filing an appropriate form issued by the Company, provided that any
such change shall not be effective unless made before the year in
which the Participant separates from service from the Affiliated
Group.
(b) Payment of a Participant's vested Accrued Benefit under
Section 4.4(a) of this Plan shall commence on the first day of the
month following the first date on which the Participant would have
been eligible to commence receipt of benefit payments under the Plan
had he lived. Payment of a Participant's vested Accrued Benefit
under Section 4.4(b) of this Plan shall commence on the first day of
the month following the Participant's death.
IV.6 Suspension of Benefits.
(a) The payment of a vested Accrued Benefit will be suspended
for each calendar month or four-or-five week payroll ending in a
calendar month following the Annuity Starting Date during which a
Participant receives payment for the performance of an Hour of
Service with the Company or any member of the Affiliated Group on
each of eight (8) or more days (or separate work shifts). A
Participant's vested Accrued Benefit which commences later than his
Normal Retirement Date will be computed without regard to amounts
which are suspended under the preceding sentence.
(b) Benefits suspended in accordance with this Section shall
resume no later than the first day of the third calendar month
following the calendar month when the Participant again fails to
receive payment for the performance of an Hour of Service with the
Company or any member of the Affiliated Group on each of eight (8) or
more days (or separate work shifts). The initial payment upon
resumption shall include the payment scheduled to occur in the
calendar month when payments resume and any amounts withheld during
the period between the cessation of employment and the resumption of
payments, less any amounts which are subject to offset.
(c) The Administrative Committee may, in its discretion,
establish procedures for the resumption of benefits and the
offsetting of benefit overpayments, if any.
IV.7 Claims of Creditors. It is the intent that benefits under the
Plan are and shall remain at all times subject to the claims of the
general creditors of the Company.
Article V
VESTING
V.1 Vesting. A Participant shall be 100% vested in his Accrued
Benefit after completion of five years of Vesting Service, upon
attainment of Normal Retirement Age or death; provided, however, that
if a Participant's employment with a member of the Affiliated Group
is Terminated for Cause prior to Retirement the Participant's Accrued
Benefit whether vested or not shall be forfeited.
Article VI
CHANGE IN CONTROL
VI.1 Change in Control.
(a) Not later than ten (10) days after the occurrence of a
Change in Control, the Company shall make a contribution to the Trust
equal to the amount by which the Required Funding Amount exceeds the
fair market value of the assets of the Trust, if any, on the date of
such Change in Control. Such contribution shall be in cash, in
marketable securities, or in a combination thereof acceptable to the
Trustee. Upon receipt of such amount from the Company, the Trust
shall make any and all payments required hereunder, which payments
shall discharge the Company's obligations hereunder.
(b) In the event and at the time(s) following a Change in
Control that the Company receives notification from the Trustee
indicating that the then Required Funding Amount exceeds the fair
market value of the assets of the Trust, the Company shall, not later
than thirty (30) days following receipt of such notice, make an
additional contribution(s) to the Trust equal to such excess amount.
Such additional contribution(s) shall be in cash, in marketable
securities, or in a combination thereof acceptable to the Trustee.
(c) The Company may at any time (whether prior to or after a
Change in Control) make other transfers of cash or marketable
securities acceptable to the Trustee to the Trust to augment the
principal to be held, administered and disposed of by the Trustee.
Article VII
PLAN ADMINISTRATION
VII.1 Administration of the Plan. The Plan shall be administered by
an Administrative Committee, which shall be appointed by the Board of
Directors, subject, however, to any action taken by the Board of
Directors in respect to the Plan. The Administrative Committee shall
be responsible for the administration of the Plan and shall have all
of the powers and duties set forth in the Pension Plan including,
without limitation, the discretionary power to determine eligibility
for participation in the Plan and to construe the terms of the Plan.
The Administrative Committee shall file with the Department of Labor
and distribute to the Participants any reports and other information
required by applicable law and shall be entitled to rely conclusively
upon all tables, valuations, certificates, opinions and reports
furnished by any actuary, accountant, controller, counsel or other
person employed or engaged by it with respect to the Plan. The
Administrative Committee shall cause the Independent Actuary to
perform an actuarial valuation of the Plan at least annually in
accordance with generally accepted actuarial principles.
Article VIII
AMENDMENT AND TERMINATION
VIII.1 Amendment and Termination of the Plan. The Board of
Directors may amend or terminate the Plan at any time. No such
amendment or termination shall deprive any Participant or Surviving
Spouse of any portion of any vested Accrued Benefit which would be
payable if the Participant separated from service from the Affiliated
Group for any reason (other than Termination for Cause), including
death.
Article IX
GENERAL PROVISIONS
IX.1 Funding. Benefits payable under this Plan to a Participant
shall, upon his separation from service from all members of the
Affiliated Group, be paid directly from the general assets of the
Company. Subject to Section 6.1, the Company shall not be obligated
to set aside, earmark or escrow any funds or other assets to satisfy
its obligations under this Plan, and the Participant and his
Surviving Spouse shall not have any property interest in any specific
assets of the Company other than the unsecured right to receive
payments from the Company as provided herein.
IX.2 Nonalienation of Benefits under this Plan. Except for claims
of indebtedness owing to the Company, the interests of Participants
and their Surviving Spouses are not subject to claims, indebtedness,
attachment, execution, garnishment, or other legal or equitable
process and such interests may not be voluntarily or involuntarily
sold, transferred or assigned. Any attempt by a Participant or his
Surviving Spouse or any other person to sell, transfer, alienate,
assign, pledge, anticipate, encumber, charge, or otherwise dispose of
any right to benefits payable hereunder shall be void.
IX.3 Plan not a Contract of Employment. This Plan shall not be
deemed to constitute a contract between the Company and any
Participant or to be a consideration or an inducement for the
employment of any Participant or employee of the Company. Nothing
contained in this Plan shall be deemed to give any Participant or
employee the right to be retained in the service of the Company or to
interfere with the right of the Company to discharge any Participant
or employee at any time regardless of the effect which such discharge
shall have upon such individual as a Participant in the Plan.
IX.4 Required Notification to Administrative Committee. Each
Participant entitled to benefits hereunder shall file with the
Administrative Committee from time to time in writing his post office
address and each change of post office address, and any check
representing payment hereunder and any communication addressed to a
Participant or a former active Participant hereunder at his last
address filed with the Administrative Committee, or if no such
address has been filed, then at his last address as indicated on the
records of the Company shall be binding on such person for all
purposes of the Plan, and neither the Administrative Committee nor
other payor shall be obliged to search for or ascertain the location
of any such person. If the Administrative Committee for any reason
is in doubt as to the address of any Participant or former active
Participant entitled to benefits hereunder or as to whether benefit
payments are being received by the person entitled thereto, it shall,
by registered mail addressed to the person concerned at his address
last known to the Administrative Committee, notify such person that
all unmailed and future retirement income payments shall be
henceforth withheld until he provides the Administrative Committee
with evidence of his continued life and his proper mailing address.
IX.5 Successors. The provisions of this Plan shall be binding upon
the Company, each Participating Employer, and their successors and
assigns and upon each Participant and his heirs, spouses, estates,
and legal representatives.
IX.6 Facility of Payment. Whenever and as often as any person
entitled to payments hereunder shall be under a legal disability, or
in the sole judgment of the Administrative Committee shall otherwise
be unable to apply such payments to his own best interest and
advantage, the Administrative Committee, in the exercise of its
discretion, may direct all or any portion of such payments to be made
in any one or more of the following ways:
(a) directly to such person;
(b) to his legal curator, guardian, or conservator, or other
court-appointed or court-recognized representatives; or
(c) to his Surviving Spouse, to another member of his family,
or to any other person, to be expended for his benefit.
IX.7 Required Information to Administrative Committee. Each
Participant will furnish the Administrative Committee such
information as the Administrative Committee considers necessary or
desirable for purposes of administering the Plan, and the provisions
of the Plan respecting any payments thereunder are conditional upon
the Participant's furnishing promptly such true, full and complete
information as the Administrative Committee may request. Each
Participant shall submit proof of his age to the Administrative
Committee at such time as required by the Administrative Committee.
The Administrative Committee will, if such proof of age is not
submitted as required, use as conclusive evidence thereof such
information as is deemed by it to be reliable, regardless of the lack
of proof, or the misstatement of the age of persons entitled to
benefits hereunder, by the Participant or otherwise, in such manner
as the Administrative Committee deems equitable. Any notice or
information which, according to the terms of the Plan or the rules of
the Administrative Committee, must be filed with the Administrative
Committee, shall be deemed so filed if addressed and either delivered
in person or mailed to and received by the Administrative Committee,
in care of the Company at:
Chock full o'Nuts Corporation
370 Lexington Avenue
New York, New York 10017
IX.8 Claims Procedure. In the event that any claim for benefits,
which must initially be submitted in writing to the Administrative
Committee, is denied (in whole or in part) hereunder, the claimant
shall receive from the Company notice in writing, written in a manner
calculated to be understood by the claimant, setting forth the
specific reasons for denial, with specific reference to pertinent
provisions of this Plan. Such notice shall be provided within ninety
(90) days of the Participant's claim for benefits. Any disagreements
about such interpretations and construction may be appealed to the
Administrative Committee within sixty (60) days after receipt of a
benefit determination. The Administrative Committee shall respond to
such appeal within sixty (60) days with a notice in writing fully
disclosing its decision and the reasons therefor.
IX.9 Indemnification. The Company shall indemnify each member of
the Administrative Committee and its delegates under the Plan against
any and all claims, losses, damages, expenses (including reasonable
attorney's fees) and liabilities for anything done or omitted to be
done in connection with the Plan except when the same is due to the
willful misconduct of such person.
IX.10 Controlling State Law. To the extent not superseded by the
laws of the United States, the Plan will be construed and enforced
according to the laws of the State of New York.
IX.11 Severability. In case any provision of this Plan shall be held
illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining provisions of the Plan, and the Plan
shall be construed and enforced as if such illegal and invalid
provisions had never been set forth.
IX.12 Adoption of Plan. Any member of the Affiliated Group may, by
action of its board of directors, adopt this Plan for its eligible
employees, provided that the Board of Directors approves such
adoption. The administrative powers and control
of the Company as provided in the Plan shall not be deemed
diminished under the Plan by reason of the participation of members
of the Affiliated Group in the Plan.
IN WITNESS WHEREOF, the Company has adopted this instrument on
this ____ day of February, 1998, as of the effective date set forth
above.
ATTEST (SEAL): CHOCK FULL O'NUTS CORPORATION
_______________________ By:_______________________
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Appendix I
List of Participants
BAER, PETER
CULLEN, MARTIN
DONNELL, TOM G.
FAZZARI, ANTHONY
GOLDBERG, MATTHEW
GOLDMAN, MICHAEL E.
HAAS, MARVIN
KASSAR, RICHARD A.
LAPIN, KENNETH A.
LEITNER, HOWARD M.
WEISE, STEPHEN
(..continued)
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R&O-363138.2
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CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
TABLE OF CONTENTS
Page No.
1. Definitions 1
2. Trust Fund 4
3. Payments to Covered Persons 5
4. Insolvency 8
5. Payments to the Company 9
6. Trustee 9
7. Investments 12
8. Amendment or Termination 18
9. General Provisions 19
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
AGREEMENT AND DECLARATION OF TRUST ("Trust Agreement") dated as
of September 14, 1998 by and between Chock full o'Nuts Corporation, a
Delaware corporation ("Company") and IBJ Schroder Bank & Trust Company
("Trustee").
W I T N E S S E T H :
WHEREAS, the Company heretofore established the Chock full o'Nuts
Corporation Supplemental Executive Retirement Plan (the "Plan"), for
the purpose of providing certain executives of the Company Supplemental
Pension Benefits; and
WHEREAS, the Company's obligations under the Plan are not funded
or otherwise secured and the Company desires to assure that payment
under the Plan will not be withheld in the event that a Change in
Control of the Company occurs; and
WHEREAS, in the event of a Change in Control, the Company desires
to deposit with the Trustee, subject only to the claims of the
Company's creditors, amounts to be used to pay Covered Benefits under
the Plan;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
Section 1. Definitions.
(a) "Board of Directors" means the board of directors of the
Company.
(b) "Change in Control" means any one of the following events:
(1) the individuals who, as of December 31, 1997,
constitute the Board of Directors of the Company (the "Incumbent
Board"), cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director
subsequent to December 31, 1997 whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board
shall be considered as though such an individual were a member of the
Incumbent Board;
(2) any individual, entity, or group (within the meaning
of section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended), acquires (directly or indirectly) the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under such Act) of more
than twenty (20) percent of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally
in the election of directors ("Voting Power");
(3) any share of common stock or any other voting
securities of the Company shall be purchased pursuant to a tender or
exchange offer (other than a tender or exchange offer made by the
Company); or
(4) the Company's stockholders shall approve a merger or
consolidation, sale or disposition of all or substantially all of the
Company's assets or a plan of liquidation or dissolution of the
Company, other than (A) a merger of consolidation in which the voting
securities of the Company outstanding immediately prior thereto will
become (by operation of law), or are to be converted into, voting
securities of the surviving corporation or its parent corporation
immediately after such merger or consolidation that are owned by the
same person or entity or persons or entities as immediately prior
thereto and possess at least seventy-five (75) percent of the Voting
Power held by the voting securities of the surviving corporation or its
parent corporation, (B) a merger or consolidation effected to implement
a recapitalization of the Company (or similar transaction) in which no
person acquires more than fifty (50) percent of the Voting Power, or
(C) a merger of consolidation in which the Company is the surviving
corporation and such transaction was determined not to be the Change in
Control, which transaction and determination was approved by a majority
of the Board in actions taken prior to, and with respect to, such
transaction.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Covered Benefit(s)" means all or part of the benefit
provided under the terms of the Plan payable to or in respect of a
Covered Person who had accrued a benefit under the Plan before the
date of the Change in Control.
(e) "Covered Person" means:
(1) any person initially designated as a Covered Person as
listed in Exhibit A who is either in the employ of the Company as of
the date of the Change in Control or who has retired from the Company
prior to, but is in receipt of or entitled to benefit payments under
the Plan as of, the date of the Change in Control; and
(2) any executive employed by the Company as of the date
of the Change in Control who prior thereto was designated by the Board
of Directors or the Compensation Committee of the Board of Directors
for participation in the Plan and Trust; and
(3) in the case of a deceased Covered Person, that
Person's Surviving Spouse, when the context so requires.
(f) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
(g) "Independent Actuary" means the actuarial consultant
appointed by the Trustee in accordance with Section 6(d) hereof to
recalculate the Required Funding Amount.
(h) "Insolvent" or "Insolvency" means any of the following
events:
(1) The Company is unable to pay its debts as they become
due; or
(2) The Company shall make an assignment for the benefit
of creditors, file as debtor a petition in bankruptcy, petition or
apply to any tribunal for the appointment of a custodian, receiver,
liquidator, sequestrator, or any trustee for it or a substantial part
of its assets, or shall commence as debtor any case under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution, or liquidation law or statute of any jurisdiction
(federal or state), whether now or hereafter in effect; or any other
person or entity shall file such a petition or application, or shall
commence such a case against the Company, unless and until such
petition, application or case is withdrawn or dismissed; or the
Company, by any act or omission, shall indicate its consent to,
approval of or acquiescence in any such petition, application or case
or order for relief or to the appointment of a custodian, receiver or
any trustee for it or any substantial part of any of its property, or
shall suffer any such custodianship, receivership, or trusteeship to
continue undischarged.
(i) "Investment Guidelines" means the Investment Guidelines in
effect pursuant to Section 7.
(j) "Payment Schedule" means, collectively, for the Covered
Persons a schedule of benefits (substantially in the form annexed
hereto as Exhibit B) payable from the Trust Fund to such Covered
Person as may be provided to the Trustee by the Company in accordance
with Section 3(f) of this Trust Agreement.
(k) "Reliable Source" means a report filed with the Securities
and Exchange Commission or a public statement issued by the Company,
or a periodical of general circulation, including, but not limited to
The New York Times or The Wall Street Journal.
(l) "Required Funding Amount" means, prior to the occurrence
of the Change in Control, the aggregate present value of all Covered
Benefits which are included in Exhibit A as may be updated or modified
from time to time by the Company and furnished to the Trustee in
writing. After the occurrence of the Change in Control, the term
"Required Funding Amount" means the sum of (i) the aggregate present
value of all Covered Benefits, and (ii) the present value of all
estimated fees and expenses of the Trust, each as determined by the
Independent Actuary at the times and in the manner described in
Section 6(d).
(m) "Surviving Spouse" shall mean the person to whom a Covered
Person is legally married at his date of death.
(n) "Termination Affidavit" means an affidavit of a Covered
Person in the form annexed hereto as Exhibit C.
(o) "Trust" or "Trust Fund" means the trust fund held from
time to time by the Trustee hereunder consisting of all contributions
received by the Trustee together with the investments and
reinvestments made therewith and all net profits and earnings thereon
less all payments and charges therefrom.
Section 2. Trust Fund.
(a) Subject to the claims of creditors as hereinafter set
forth, the Company hereby deposits with the Trustee in trust One
Hundred Dollars ($100) which shall become the principal of the Trust
to be held, administered and disposed of by the Trustee as provided in
this Trust Agreement.
(b) The Company, through its Chief Financial Officer, shall
notify the Trustee promptly in writing of the occurrence of the Change
in Control.
(c) Not later than ten (10) days after the occurrence of the
Change in Control, the Company shall make a contribution to the Trust
equal to the amount by which the initial Required Funding Amount, as
set forth in Exhibit A, exceeds the fair market value of the assets of
the Trust, if any, on the date of such Change in Control, as contained
in the notification provided to the Company by the Trustee in
accordance with Section 6(d). Not later than thirty (30) days after
the occurrence of the Change in Control, the Company shall make an
additional contribution to the Trust equal to the difference between
the Required Funding Amount that has been recalculated by the
Independent Actuary in accordance with Section 6(d) and the initial
Required Funding Amount upon which the Company's first required
contribution under this Section 2(c) was based. All contributions
required to be made by the Company shall be in cash, marketable
securities, or a combination thereof acceptable to the Trustee.
(d) In the event and at the time(s) following the Change in
Control that the Company receives a notification from the Trustee in
accordance with Section 6(d) and Section 7(k) indicating that the then
Required Funding Amount exceeds the fair market value of the assets of
the Trust, the Company shall, not later than thirty (30) days
following receipt of such notice, make an additional contribution(s)
to the Trust equal to such excess amount. Such additional
contribution(s) shall be in cash, marketable securities, or a
combination thereof acceptable to the Trustee.
(e) The Company may at any time (whether prior to or after the
Change in Control) make other transfers of cash or marketable
securities acceptable to the Trustee to the Trust to augment the
principal to be held, administered and disposed of by the Trustee as
provided in this Trust Agreement.
(f) The Trust shall be an irrevocable trust.
(g) The Trust is intended to be a grantor trust under section
671 of the Code, and shall be construed accordingly.
(h) The principal of the Trust, and any earnings thereon,
shall be held separate and apart from other funds of the Company and
shall be used exclusively for the uses and purposes herein set forth.
Neither the Plan nor any Covered Person shall have any preferred
claim on, or any beneficial ownership interest in, any assets of the
Trust prior to the time such assets are paid to the Covered Person.
Section 3. Payments to Covered Persons.
(a) Upon receiving notification from the Company that the
Change in Control has occurred, the Trustee shall make payments of
Covered Benefits if and to the extent that assets are available in the
Trust for distribution, provided that at all times the Company is not
Insolvent. The Trustee shall pay Covered Benefits to the Covered
Persons in the following order:
(1) First, the Trustee shall make payments of Covered
Benefits to Covered Persons who are in pay status under the Plan as of
the date of the Change in Control in the chronological order in which
such Covered Persons are entitled to a payment of Covered Benefits
thereunder (i.e., based on the date on which payments commenced under
the Plan, with the earliest commencement date having the first
priority); and
(2) Second, the Trustee shall reserve sufficient assets
to pay all Covered Benefits not then in pay status under the Plan.
(b) Prior to receiving notification from the Company that the
Change in Control has occurred, solely out of the Trust Fund and with
no obligation otherwise to make any payment, the Trustee shall make
such payments as shall be directed by the Chief Financial Officer of
the Company in writing. The Trustee may rely and shall be fully
protected in relying on such directions.
(c) In the event of a Covered Person's termination of
employment with the Company and the Affiliated Group (as such term is
defined under the Plan) for any reason including death on or after the
occurrence of the Change in Control, such Covered Person or his
Surviving Spouse, as the case may be, shall provide the Trustee with a
Termination Affidavit. If a Covered Person dies on or after the
occurrence of the Change in Control, the Termination Affidavit shall
be provided by the Surviving Spouse who shall also supply the Trustee
with a certified copy of the death certificate of the Covered Person,
an inheritance tax waiver and such other documents as the Trustee may
require (including, without limitation, certified copies of letters
testamentary). Promptly upon receipt thereof the Trustee shall mail a
copy of the Termination Affidavit to the Company. After the Covered
Benefits are sufficiently funded in accordance with the priorities set
forth in Section 3(a), the Trustee, solely out of the Trust Fund and
with no obligation otherwise to make any payment, shall, as soon as
administratively practicable and in conformity with the instructions
set forth in the Payment Schedule, make payments to a Covered Person
at the times and in the manner set forth in the Payment Schedule last
received by the Trustee with respect to such Covered Person and
consistent with the information set forth in the Termination
Affidavit. The Trustee may rely on and shall be fully protected in
relying on the contents of a Termination Affidavit and all
documentation and other information provided to it by the Company for
all purposes under this Trust Agreement as if the Plan were deemed
funded and the Company was a "named fiduciary" as such term is defined
in ERISA.
(d) After the Covered Benefits are sufficiently funded in
accordance with the priorities set forth in Section 3(a), the Trustee
shall make payments to Covered Persons in the order in which the
Termination Affidavits for these Covered Persons are received by the
Trustee. In the event that the Trustee receives more than one
Termination Affidavit on the same day and the Trust Fund does not
contain assets sufficient to make all of the payments otherwise
required as a result of the receipt of such Termination Affidavits,
the Trustee, after the payment of all of its unpaid compensation and
expenses, shall distribute the balance of the Trust Fund to Covered
Persons who have submitted such Termination Affidavits on a pro-rata
basis.
(e) The Trustee shall not make any payments to Covered Persons
from the Trust Fund except as provided in Section 3 even though it may
be informed by another source that payments are due under the Plan.
The Trustee shall have no duty to determine the propriety or amount of
such payments or the rights of any person in the Trust Fund.
(f) Upon the execution of this Trust Agreement, the Company
shall deliver to the Trustee a list of current Covered Persons and the
corresponding present value of their accrued benefits under the Plan,
substantially in the form of Exhibit A and any initial Payment
Schedules substantially in the form of Exhibit B. The Company may,
from time to time, add additional Covered Persons to the list included
in Exhibit A and/or additional Payment Schedules to the Trust
Agreement and may, from time to time, amend the present value amounts
set forth in Exhibit A and/or the Payment Schedules then in effect or
substitute new Payment Schedules without the written consent of the
Covered Person or Covered Persons to whom such Payment Schedules
relate; provided, however, that following the Change in Control, only
the Independent Actuary may amend or otherwise revise any present
value amount set forth in Exhibit A and the Company shall not have the
power to add or substitute Payment Schedules nor may the Company amend
a Payment Schedule without the written consent of the Covered Person
to whom such Payment Schedule relates. The Trustee may rely on and
shall be fully protected in relying on the contents of Exhibit A or of
a Payment Schedule for all purposes under this Trust Agreement without
inquiry until it receives an amendment thereto or a new Payment
Schedule in substitution thereof to the extent permitted hereunder.
(g) At the time that the Company first submits a Payment
Schedule with respect to a Covered Person, it shall provide the
identity of the spouse to whom such Covered Person is then legally
married. The Trustee is entitled to treat the spouse named in a
Payment Schedule in its possession as of the date of a Covered
Person's death as the Covered Person's Surviving Spouse, unless prior
thereto it is actually in receipt of a revised Payment Schedule from
the Company identifying a different person as the Covered Person's
spouse.
(h) The Trustee shall notify the Company as to the identity of
Covered Persons who have received payment from the Trust and the
amount of such payments.
(i) If the Trust assets are not sufficient to make payment of
Covered Benefits due under the Plan (after application of the ordering
rules set forth above), the Company shall make each such payment (or
the balance of each such payment) as it falls due.
(j) The Company shall determine or cause to be determined the
amount required to be withheld under federal, state and local wage
withholding requirements or otherwise, and shall direct the Trustee to
withhold such amount and to pay or cause to be paid to the appropriate
governmental authority the amounts so withheld. The Trustee may rely
on instructions from the Company as to any required withholding and
shall be fully protected in relying upon such instructions.
(k) Except as otherwise provided herein, in the event of any
final determination by the Internal Revenue Service or a court of
competent jurisdiction, which determination is not appealable or the
time for appeal or protest of which has expired, or the receipt by the
Trustee of a substantially unqualified opinion of tax counsel selected
by the Trustee, which determination determines, or which opinion
opines, that the Covered Persons or any particular Covered Person, is
subject to federal income taxation on amounts held in Trust hereunder
prior to the distribution to the Covered Persons or Covered Person of
such amounts, the Trustee shall, on receipt by the Trustee of such
opinion, court order or assessment which forms the basis of such
determination, pay to each Covered Person the portion of the Trust
includible in such Covered Person's federal gross income.
Section 4. Insolvency.
(a) It is the intent of the parties hereto that the Trust is
and shall remain at all times subject to the claims of the general
creditors of the Company. Accordingly, the Company shall not create a
security interest in the Trust in favor of the Covered Persons or any
creditor. If the Trustee receives the notice provided for in Section
4(b), or the Trustee is served with any order, process or paper from
which it appears that an allegation to the effect that the Company is
Insolvent has been made in a judicial proceeding or the Trustee has
actual knowledge of a current report or statement from a nationally
recognized credit reporting agency or from a Reliable Source to the
effect that the Company is Insolvent, the Trustee shall hold the Trust
Fund for the benefit of the Company's creditors, and shall resume
payment of Covered Benefits under this Trust Agreement in accordance
with Section 3 hereof only upon receipt of an order of a court of
competent jurisdiction authorizing such payment or if the Trustee has
actual knowledge of a current report or statement from a nationally
recognized credit reporting agency or a Reliable Source to the effect
that the Company is not Insolvent; provided, however, that in the
event that payment of Covered Benefits was discontinued by reason of a
court order or injunction, the Trustee shall resume payment of Covered
Benefits only upon receipt of an order of a court of competent
jurisdiction authorizing such payment. The Trustee shall have an
affirmative duty to monitor the Company's solvency status after the
payment of Covered Benefits has been suspended due to the Company's
Insolvency. The Trustee shall resume distribution of Trust assets to
the Covered Persons under the terms hereof, upon no less than ten (10)
days' advance notice to the Company, if it determines that the Company
was not, or is no longer, Insolvent.
(b) The Company, through its Chief Financial officer, shall
advise the Trustee promptly in writing of the Company's Insolvency.
(c) If the Trustee discontinues payment of Covered Benefits
pursuant to Section 4(a) and subsequently resumes such payment, the
first payment to a Covered Person following such discontinuance shall
include an aggregate amount equal to the difference between the
payments which would have been made to such Covered Person under this
Trust Agreement but for Section 4(a) and the aggregate payments
actually made to such Covered Person by the Company (as certified to
the Trustee by the Covered Person in writing) during any such period
of discontinuance, plus interest on such amount at a rate equivalent
to the net rate of return earned by the Trust Fund during the period
of discontinuance.
(d) In the event that at any time any amount is paid from the
Trust Fund to creditors of the Company, the Company, shall upon demand
by the Trustee, and subject to an order of a court of competent
jurisdiction, deposit into the Trust Fund a sum equal to the amount
paid by the Trust Fund to such creditors.
(e) The Trustee shall not be liable to any person or entity in
the event Covered Benefits are discontinued pursuant to Section 4(a).
Section 5. Payments to the Company.
(a) In the event that the fair market value of the assets of
the Trust exceeds one hundred and ten percent (110%) of the Required
Funding Amount upon any recalculation of such amount required by this
Trust Agreement, the Trustee shall promptly return any such excess to
the Company, subject to the provisions of Section 4 in all events.
(b) Except as provided in Section 5(a), the Company shall have
no right or power, either before or after the Change in Control, to
direct the Trustee to return to the Company or to transfer to others
any of the assets of the Trust before the payment of all benefits
under the Plan to the Covered Persons.
Section 6. Trustee.
(a) The duties and responsibilities of the Trustee shall be
limited to those expressly set forth in this Trust Agreement, and no
implied covenants or obligations shall be read into this Trust
Agreement against the Trustee.
(b) After receiving notification from the Company that the
Change in Control has occurred, the Trustee shall have the duty to
enforce the provisions of this Trust Agreement, including, without
limitation, the duty to commence an action against the Company to
compel the performance of any of its funding obligations under the
terms of this Trust Agreement in the event that the Trustee
determines, in its discretion, that the Company's failure to perform
constitutes a material breach of any such obligations. Except as
otherwise provided herein, in any action or proceeding affecting the
Trust, the only necessary parties shall be the Company, the Trustee
and the Covered Persons with respect to whom Covered Benefits are then
held in the Trust and, except as otherwise required by applicable law,
no other person shall be entitled to any notice or service of process.
Any judgment entered in such an action or proceeding shall, to the
maximum extent permitted by applicable law, be binding and conclusive
as to all persons having or claiming to have an interest in the Trust.
(c) If all or any part of the Trust is at any time attached,
garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property
shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by a court affecting such
property or any part thereof, then and in any of such events the
Trustee is authorized, in its sole discretion, to rely upon and comply
with any such order, writ, judgment or decree, and it shall not be
liable to the Company or any Covered Person by reason of such
compliance even though such order, writ, judgment or decree
subsequently may be reversed, modified, annulled, set aside or
vacated.
(d) The Trustee shall, as soon as practicable following its
receipt of notification from the Company that the Change in Control
has occurred, appoint an Independent Actuary from the list of
actuarial consultants set forth in Exhibit F for purposes of
recalculating the Required Funding Amount as of the date of the Change
in Control. The Required Funding Amount shall be recalculated by the
Independent Actuary on the basis of the information furnished to it by
the Company in accordance with Section 9(f), within fifteen (15) days
of receipt thereof, and in consultation with the Trustee, using
reasonable actuarial assumptions set forth in the Plan. The Trustee
shall notify the Company of the recalculated Required Funding Amount
as of the date of the Change in Control as soon as practicable
following certification of such amount by the Independent Actuary.
The Trustee shall also, as soon as practicable following its receipt
of notification from the Company that the Change in Control has
occurred, but in no event later than five (5) days thereafter,
determine the current fair market value of the Trust assets in
accordance with the provisions of Section 7(k) as of the date of such
Change in Control and shall promptly notify the Company of such value.
The Trustee shall thereafter direct the Independent Actuary to
recalculate the Required Funding Amount as of the last day of the
calendar year in which the Change in Control occurred, provided such
date is more than six (6) months after the date of such Change in
Control, and the last day of each subsequent calendar year. The
Trustee shall promptly notify the Company of each recalculation of the
Required Funding Amount as soon as practicable following certification
of such amount by the Independent Actuary. The Trustee may, in its
sole discretion, remove the Independent Actuary at any time and
appoint a successor thereto.
(e) The Trustee shall maintain such books, records and
accounts as may be necessary for the proper administration of the
Trust. The Trustee shall render to the Company, within forty-five
(45) days after each December 31 following the creation of this Trust
until the termination of this Trust, an accounting with respect to the
Trust as of each such December 31 (and as of the date of such
termination). Unless the Company shall have filed with the Trustee
written exceptions or objections to any such account within one
hundred eighty (180) days after receipt thereof, the Company shall be
deemed to have approved such account, and in such case the Trustee
shall be forever released and discharged with respect to all matters
and things reported in such account as though it had been settled by a
decree of a court of competent jurisdiction in an action or proceeding
to which the Company was a party.
(f) The Trustee shall not be liable for any act taken or
omitted to be taken hereunder if taken or omitted to be taken by it in
good faith. The Trustee shall also be fully protected in relying upon
any notice given hereunder which it in good faith believes to be
genuine, executed and delivered in accordance with this Trust.
(g) The Trustee may consult with legal counsel to be selected
by it, and the Trustee shall not be liable for any action taken or
suffered by it in accordance with the advice of such counsel. The
Trustee may hire agents, accountants, other actuaries and financial
consultants. The reasonable fees of the Independent Actuary, such
counsel, agents, accountants, other actuaries, and financial
consultants shall be deemed "expenses" under Section 6(h).
(h) The Trustee shall be reimbursed by the Company for its
reasonable expenses incurred in connection with the performance of its
duties hereunder and shall be paid reasonable fees for the performance
of such duties as set forth on Exhibit D, as from time to time amended
by the Company and the Trustee.
(i) Except where Trustee has been grossly negligent,
imprudent, or has acted in a manner which is willfully or
intentionally wrongful, the Company agrees to indemnify and hold
harmless the Trustee from and against any and all damages, losses,
claims or expenses (including expenses of investigation and fees and
disbursements of counsel to the Trustee and any taxes imposed on the
Trust or income of the Trust) arising out of or in connection with the
performance by the Trustee of its duties under this Trust Agreement.
Any amount payable to the Trustee under Section 6(h) or (i) and not
previously paid by the Company shall be paid by the Company promptly
upon demand therefor by the Trustee or, if the Trustee so chooses in
its sole discretion, from the Trust. In the event that payment is
made hereunder to the Trustee from the Trust, the Trustee shall
promptly notify the Company in writing of the amount of such payment.
The Company agrees that, within thirty (30) days of receipt of such
notice, it will deliver to the Trustee to be held in the Trust an
amount in cash, marketable securities or a combination thereof, equal
to any payments made from the Trust to the Trustee pursuant to Section
6(h) or (i). The failure of the Company to transfer any such amount
shall not in any way impair the Trustee's right to indemnification,
reimbursement and payment pursuant to Section 6(h) or (i).
(j) The Trustee may resign and be discharged from its duties
hereunder at any time by giving notice in writing of such resignation
to the Company specifying a date (not less than ninety (90) days after
the giving of such notice) when such resignation shall take effect.
Promptly after such notice, the Company (or, if the Change in Control
shall previously have occurred, the Company with the approval of at
least seventy-five percent (75%) of the then Covered Persons (other
than those individuals having the status of a Covered Person as a
result of being a Surviving Spouse of a Covered Person who are not
then receiving payments from the Trust) (hereinafter referred to as
"Interested Parties")) shall appoint a successor trustee, such trustee
to become Trustee hereunder upon the resignation date specified in
such notice. If the Company and such Interested Parties are unable to
so agree upon a successor trustee within ninety (90) days after such
notice, the Trustee shall be entitled, at the expense of the Company,
to petition a United States District Court or any of the courts of the
State of New York having jurisdiction to appoint its successor. The
Company (or, if a Change in Control shall previously have occurred,
the Company with the approval of at least seventy-five percent (75%)
of all persons who are Interested Parties or at least seventy-five
percent (75%) of all persons who are Interested Parties acting
independently of the Company and on their own behalf) may at any time
remove the Trustee and substitute a new trustee by giving ninety (90)
days notice thereof to the Trustee then acting. The Trustee shall
continue to serve until its successor accepts the trust and receives
delivery of the Trust Fund. In the event of such a resignation or
removal, the Trustee shall duly file an accounting as described in
Section 6(e) with the Company and, if applicable, the duly authorized
representative(s) of the Interested Parties who have removed the
Trustee without the participation of the Company, as the case may be,
for the period since the last previous accounting of the Trust. If
written objections to such accounting are not filed by the Company as
provided in Section 6(e), the Trustee shall, to the maximum extent
permitted by applicable law, be forever released and discharged from
all liability and accountability with respect to the propriety of its
acts and transactions shown in such accounting. For purposes of the
preceding sentence, in the event that a requisite number of Interested
Parties shall act to remove the Trustee without the participation of
the Company, then the duly authorized representative(s) of such
Interested Parties shall have the right to file written objections to
the Trustee's accounting under Section 6(e), in lieu of the Company.
Section 7. Investments.
(a) In exercising its powers under this Section 7, the Trustee
shall invest and reinvest the Trust Fund in accordance with the
Investment Guidelines issued by the Company which are appended hereto
as Exhibit E. The Company may, from time to time, prior to a Change
in Control amend the Investment Guidelines then in effect or
substitute new written Investment Guidelines. Such guidelines may
both (i) direct the Trustee to segregate any portion of the Trust Fund
held by it in one or more separate accounts to be known as Investment
Manager accounts, and (ii) provide for the specific allocation of
investment responsibilities among the Trustee and any Investment
Manager as may be appointed by the Company to manage an Investment
Manager account prior to the Change in Control. Until the Trustee
receives new Investment Guidelines, the Trustee may rely on and shall
be fully protected in relying on the last Investment Guidelines it has
received.
(b) As used herein, "Investment Manager" shall have the
meaning set forth under Section 3(38) of ERISA.
(c) To the extent that the Trust Fund has not been segregated
into one or more Investment Manager accounts or if the Trustee is
informed in writing that the Investment Manager(s) has resigned, was
removed or is no longer a qualified Investment Manager, the assets of
the Trust Fund or of the affected Investment Manager Account shall be
managed by the Trustee. The Board of Directors of the Company, shall
appoint in writing an Investment Manager(s) for each such Investment
Manager account and shall contemporaneously give written notice of
said appointment to the Trustee in accordance with the terms of this
Trust Agreement. Such Investment Manager(s) shall have full
discretion and authority to invest, reinvest or dispose of the assets
of the Trust Fund in the Investment Manager account. The Trustee
shall follow the directions of the Investment Manager(s) with respect
to the account of such Investment Manager(s) in exercising the powers
granted in this Section. All directions given by the Investment
Manager(s) to the Trustee may be in writing, signed by an officer (or
a partner) of the Investment Manager(s), or by such other person or
persons as may be designated by an officer (or a partner) of the
Investment Manager(s), may be given orally by such person or may be
transmitted to the Trustee by such other means of communication as the
Investment Manager(s), with the consent of the Trustee, may deem
appropriate or necessary. The Investment Manager(s) may directly
place orders for the purchase or sale of securities, subject to such
conditions as may be approved by the Company authorizing the
Investment Manager(s) to effect transactions directly for its
Investment Manager account, provided that the Trustee shall
nevertheless retain custody of the assets comprising said account.
The Trustee shall be under no duty to question, or make inquiries as
to, any action or direction of any Investment Manager(s) taken as
provided herein, or any failure to give directions, or to review the
securities held in any Investment Manager account, or to make
suggestions to the Investment Manager(s) or the Company with respect
to investment, reinvestment of, or disposition of investments in any
Investment Manager account. The Company, by written notice to the
Trustee, may at any time terminate the authority of an Investment
Manager(s) to direct the investments of the account of such Investment
Manager(s).
(d) Unless the Trustee participates knowingly in, or knowingly
undertakes to conceal, an act or omission of the Investment
Manager(s), knowing such act or omission to be a breach of the
fiduciary responsibility of the Investment Manager(s) with respect to
the Trust, the Trustee shall not be liable for any act or omission of
the Investment Manager(s) and shall not be under any obligation to
invest or otherwise manage the assets of the Trust that are subject to
the management of the Investment Manager(s) and, to the maximum extent
permitted by law, the Trustee shall have no liability or
responsibility for acting or not acting in accordance with any written
direction of the Investment Manager(s), or failing to act in the
absence of any such direction. The Company agrees, to the extent
permitted by law, to indemnify the Trustee and hold it harmless from
and against any claim or liability that may be asserted against it,
otherwise than on account of the Trustee's own gross negligence or
willful misconduct, by reason of the Trustee's taking or refraining
from taking any action in accordance with this Section, including,
without limiting the generality of the foregoing, any claim or
liability that may be asserted against the Trustee on account of
failure to receive securities purchased, or failure to deliver
securities sold, pursuant to orders issued by the Investment
Manager(s) directly to a broker or dealer.
(e) Except to the extent that an Investment Manager(s) has
been appointed by the Company, as more particularly described in
Section 7(c), the Trustee shall have and exercise all powers and
authority under this Trust Agreement necessary to enable it to manage,
acquire, or dispose of any assets of the Trust in accordance with the
Investment Guidelines and the following provisions of this Section 7.
(f) Subject to the Investment Guidelines, the Trustee may
cause the Trust to be invested and reinvested in every kind of
investment including, without limitation, publicly-traded or
privately-placed equity and debt interests of all kinds issued by
domestic or foreign governments, business organizations, limited
partnerships, investment companies and trusts, or other entities,
convertible securities or all kinds, exchange-traded put and call
option contracts, forward placement and optional delivery contracts,
financial futures contracts, interest-bearing deposits in any
depository institution (including the Trustee or any affiliate of the
Trustee), money market securities of all kinds, fee interests in, and
mortgages, trust deeds, and leaseholds with respect to real property
and collective investments as described in Section 7(g).
Notwithstanding anything in this Trust Agreement to the contrary, the
Trustee may hold uninvested and without liability for interest such
part of the Trust as may be reasonably necessary for orderly
administration of the Trust.
(g) Subject to the Investment Guidelines and the following
provisions of this Section 7(g), the assets of the Trust may be
invested and reinvested, in whole or in part, in any common or
collective investment fund (referred to as "fund") maintained by the
Trustee for which the Trust is an eligible participant.
Notwithstanding any other provision of this Trust Agreement, to the
extent Trust assets are invested in any such fund, the terms of the
fund's governing instrument solely shall govern the investment
responsibilities and powers of the entity responsible for management
of the fund (referred to as "fund manager"), and the terms of such
governing instrument shall be incorporated into this Trust Agreement.
The value of any interest in a fund held by the Trust shall be the
fair market value of the interest as determined by the fund manager in
accordance with the fund's governing instrument. For purposes of
valuation of the Trust assets, the Trustee shall be entitled to rely
conclusively on the value reported by the fund manager.
(h) The Trustee shall have and exercise, with respect to Trust
investments, all the powers of an absolute owner including, without
limitation, the following powers:
(1) To sell, at public or private sale, for cash or on
credit, for such consideration and upon such other terms and
conditions as may be deemed appropriate;
(2) To exercise options, conversion privileges,
subscription rights, or other rights given the owner of securities; to
vote stock in person or by proxy, with or without power of
substitution; to consent to, oppose, or participate in any
reorganization, consolidation, merger, readjustment of financial
structure, or other changes in property rights of the owner of
securities; and to deposit securities with any protective or
reorganization committee, delegate to such committee all power and
authority as may be deemed appropriate, and pay from the Trust an
appropriate portion of the reasonable compensation and expenses of
such committee;
(3) To renew, extend, or foreclose by judicial
proceeding or otherwise, any obligation held in the Trust;
(4) To subdivide, develop, improve, lease (for a term
within or beyond the existence of the Trust), grant options to
purchase, or purchase options to acquire, any real property held in
the Trust; to make ordinary and extraordinary repairs and alterations
to buildings; to raze buildings and to erect new buildings; and to
purchase such insurance on behalf of the Trust and at its expense
including, without limitation, public liability, fire and extended
coverage, rent insurance and such other insurance covering such other
insurable risks as may be deemed appropriate;
(5) To appoint ancillary or subordinate trustees or
custodians to hold title to or other indicia of ownership of property
of the Trust in those jurisdictions, domestic or foreign, in which the
Trustee is not authorized to do business and to define the scope of
the responsibilities of each such ancillary or subordinate trustee or
custodian; and
(6) To acquire or hold any securities or other property
even though the Trustee or any affiliate of the Trustee may have
invested or may thereafter invest its own or other funds in the same
or related securities or property, the principal or interest of which
may be payable at different times or rates, or may have a different
rank or priority.
(i) In its administration of the Trust, the Trustee shall have
and exercise whatever powers are necessary to discharge its
obligations and exercise its rights under this Trust Agreement
including, without limitation, the following powers:
(1) To collect income generated by the Trust investments
and proceeds realized on the sale or disposition of assets, and to
hold the same pending reinvestment or distribution in accordance with
this Trust Agreement;
(2) To register Trust property in the Trustee's own
name, in the name of a nominee, or in bearer form, provided the
Trustee's records and accounts show that such property belongs to the
Trust;
(3) To combine certificates representing securities with
certificates of the same issue held by the Trustee for other fiduciary
accounts;
(4) To deposit securities with a securities depository
and to permit the securities so deposited to be held in the name of
the depository's nominee, and to deposit securities issued or
guaranteed by the U.S. government or any agency or instrumentality
thereof, including securities evidenced by book entry rather than by
certificate, with the U.S. Department of the Treasury, a Federal
Reserve Bank, or other appropriate custodial entity, in the same
account as the Trustee's own property, provided the Trustee's records
and accounts show that such securities belong to the Trust;
(5) To hold securities issued by a foreign government or
business entity at a foreign office of the Trustee or any of its
affiliates, or to deposit such securities with a foreign securities
depository or bank regulated by a government agency or regulatory
authority in the foreign jurisdiction, and to permit the securities so
deposited to be held in the nominee name of the depository or bank,
provided the Trustee's records and accounts show that such securities
belong to the Trust;
(6) To settle securities trades through a securities
depository using an institutional delivery system, in which event the
Trustee may deliver or receive securities in accordance with
appropriate trade reports or statements given the Trustee by such
depository;
(7) To settle payment or delivery transactions pursuant
to spot or forward currency contracts entered into on the Trust's
behalf with a foreign currency dealer;
(8) To execute promissory notes and to encumber the
Trust or any of its assets by mortgage, deed of trust, pledge, or
otherwise as security; and
(9) In accordance with the Company's direction, to
commence or defend lawsuits or administrative proceedings, to
compromise, arbitrate, or settle claims or debts in favor of or
against the Trust, to select counsel acceptable to the Trustee to
conduct, subject to the Company's direction and control, the
prosecution, defense, or negotiation of any litigation or settlement,
and to pay from the Trust all costs and reasonable attorneys' fees in
connection therewith.
(j) With respect to that portion of the Trust Fund it manages
the Trustee shall account for any distinction between principal and
income of the Trust. The Trustee's records and accounts relating to
the Trust shall be available at reasonable times for inspection by the
Company or its authorized representatives.
(k) As of each accounting date specified in Section 6(e) and
the date of the Change in Control, as provided in Section 6(d), the
Trustee shall determine the current fair market value of the Trust
assets, and shall include such information in accounting to the
Company. Valuations of Trust assets shall be subject to the following
provisions:
(1) The Trustee shall determine fair market value based
on sources considered reliable by the Trustee including, without
limitation, (i) newspapers of general circulation, (ii) standard
financial periodicals and publications, (iii) statistical and
valuation services, (iv) records and reports of securities exchanges
and brokerage firms deemed reliable by the Trustee, or (v) any
combination of such sources. If the Trust consists of real property,
the Trustee shall obtain a written appraisal of the property by a
qualified appraiser and may rely on such appraisal, provided that such
reliance is reasonable and in good faith.
(2) If the Trustee is unable to determine fair market
value from the above-mentioned sources, the Trustee may rely on
information furnished by the Company, appraisers, or other sources.
The Trustee will not be liable for an inaccurate valuation based in
good faith on such information. The Trustee shall pay from the Trust
to third parties all reasonable costs incurred in obtaining asset
valuation services in connection with the discharge of its obligations
under this Section 7(k).
(l) All directions, notices, and other communications required
or permitted by this Trust Agreement shall be in writing, shall be
addressed to the party to be notified at the address set forth below
and shall be delivered by mail, personal delivery, telecopy, mailgram,
telegram or telex:
If to the Company:
Chock full o'Nuts Corporation
370 Lexington Avenue
New York, New York 10017
Attn: Howard M. Leitner
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Attn: Retirement Plan Services Group
The Trustee may rely on the authenticity, truth and accuracy of,
and will be fully protected in acting upon:
(1) Any notice, direction, certification, approval or
other writing of the Company, if evidenced by an instrument signed by
an authorized officer.
(2) Any notice, direction, certification, approval or
other writing, oral or other transmitted form of instruction received
by the Trustee and believed by it to be genuine and to be sent by or
on behalf of the Administrative Committee of the Plan;
(3) Any copy of a resolution of the Board of Directors
of the Company, if certified by the Secretary or an Assistant
Secretary of the Company under its corporate seal;
(4) Any notice, direction, certification or other
writing, oral or other transmitted form of instructions of an
Investment Manager appointed by the Administrative Committee of the
Plan, received by the Trustee, and believed by it to be genuine and to
be sent by such Investment Manager.
The Trustee may, in its discretion, accept directions or notices given
by telephone or any form of electronic communication, other than those
specified above, unless and until the Trustee is notified in writing
by the Company that such alternative forms of communication are not
authorized. If the Trustee chooses to accept one or more of such
alternative methods of communication, the Company shall be required to
follow reasonable procedures adopted by the Trustee for written
confirmation thereof.
(m) Any corporation or association (i) into which the Trustee
may be merged or with which it may be consolidated, (ii) resulting
from any merger, consolidation, sale or reorganization to which the
Trustee may be a party, or (iii) to which all or substantially all of
the fiduciary business of the Trustee may be transferred shall become
a successor Trustee under this Trust Agreement without the necessity
of executing any instrument or performing any further act, subject to
resignation or removal of the Trustee.
(n) In addition to the Trustee's rights to consult counsel
under Section 6(g), the Trustee may consult with legal counsel of its
choosing, including counsel for the Company, with respect to the
interpretation of any or all of the Plan or this Trust Agreement, the
Trustee's rights or responsibilities hereunder, any legal proceeding
or question of law, or any act the Trustee proposes to take or omit,
and, upon prior notice to the Company, may pay such counsel reasonable
compensation from the Trust. The Trustee shall not be liable for any
action taken or omitted in good faith pursuant to the advice of such
counsel.
Section 8. Amendment or Termination.
(a) The Company and the Trustee may amend this Trust Agreement
by an instrument in writing signed by the parties hereto together with
the written consent to such amendment of at least sixty-seven percent
(67%) of all persons who are Interested Parties, except that the
Company may amend the Trust Agreement without the written consent of
any Interested Parties, but only to the extent such amendment is
required by law or is necessary or desirable to prevent adverse tax
consequences to Covered Persons. In the event that the Company
proposes to adopt an amendment to the Trust Agreement after the Change
in Control which is required by law or is necessary or desirable to
prevent adverse tax consequences to Covered Persons, the Company shall
provide the Trustee with an opinion of counsel reasonably acceptable
to the Trustee and in form and substance satisfactory to the Trustee
to that effect. The Trustee may rely and shall be fully protected in
relying on such an opinion without inquiry.
(b) The Trust shall terminate upon the final payment of all
Covered Benefits due and payable to all of the Covered Persons under
the Plan. After the Trustee's final accounts have been settled in
accordance with Section 6 hereof and after receipt of any unpaid fees
and expenses, the Trustee shall distribute the balance of the Trust
Fund as directed by the Company.
Section 9. General Provisions.
(a) The Company shall, at any time and from time to time, upon
the reasonable request of the Trustee, execute and deliver such
further instruments and do such further acts as may be necessary or
proper to effectuate the purposes of this Trust Agreement.
(b) This Trust Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, arrangements and
understandings relating thereto. This Trust Agreement shall be
binding upon and inure to the benefit of the parties and their
respective successors and legal representatives.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of New York, other than and
without reference to any provisions of such laws regarding choice of
laws or conflict of laws.
(d) In the event that any provision of this Trust Agreement or
the application thereof to any person or circumstances shall be
determined by a court of proper jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Trust Agreement, or
the application of such provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not
be affected thereby, and each provision of this Trust Agreement shall
be valid and enforced to the fullest extent permitted by law.
(e) Benefits payable to a Covered Person under this Trust
Agreement may not be anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable
process.
(f) The Company shall maintain or cause to be maintained
individual records reflecting the amount of the Covered Benefits
payable or accrued under the Plan for each Covered Person and the
present value thereof. The Company shall, as soon as practicable
following the Change in Control, and from time to time thereafter,
provide or cause to be provided to the Independent Actuary all
information necessary to recalculate the Required Funding Amount in
accordance with Section 6(d), including, without limitation, the
following information:
(1) The amount of each Covered Person's Covered Benefit
under the Plan,
(2) Any other information requested by the Independent
Actuary that is reasonably required to enable the Independent Actuary
to fulfill its duties to the Trustee, as described in this Trust
Agreement.
(g) The Company shall, as soon as practicable following the
date of this Trust Agreement and from time to time thereafter, provide
or cause to be provided to the Trustee all information necessary to
effect payment of Covered Benefits from the Trust including, without
limitation, the following information:
(1) The names, social security numbers and addresses of
all Covered Persons.
(2) Any other information requested by the Trustee that
is reasonably required by the Trustee in administering this Trust
Agreement.
(h) The Company shall prepare and file or cause to be prepared
and filed all applicable federal and state income tax returns of the
Trust, any withholding reports required by applicable federal, state,
and local wage withholding laws and any form required by applicable
law to report compensation of Covered Persons and beneficiaries. The
Trustee shall be entitled to rely on the accuracy of any such form
prepared and filed by the Company or caused to be prepared and filed
by the Company and the Trustee shall not be liable for acting in
accordance with instructions given to the Trustee in handling or
processing any such form if necessary.
(i) The Company represents that it has consulted with and has
been advised by its professional advisers and/or counsel concerning
the legality and propriety of this Trust Agreement.
(j) The Trustee may disclose the existence, nature, terms, and
conditions of the Trust and/or this Trust Agreement whenever, in the
Trustee's judgment, it is necessary or proper in the administration of
the Trust.
CHOCK FULL O'NUTS
CORPORATION
Attest:
By:
Attest:
IBJ SCHRODER BANK & TRUST
COMPANY, AS TRUSTEE
By:
EXHIBIT A
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
LIST OF COVERED PERSONS
Pursuant to Section 3(f) of the Trust Agreement, dated as
of
September 14, 1998 , between Chock full o'Nuts Corporation (the
"Company") and IBJ Schroder Bank & Trust Company, as Trustee, the
Company provides the following list of Covered Persons and the
respective present values of their accrued benefits under the Plan:
COVERED PERSON
PRESENT VALUE OF
ACCRUED PLAN BENEFIT *
BAER, PETER
$ 0
CULLEN, MARTIN
0
DONNELL, TOM G.
18,631
FAZZARI, ANTHONY
56,116
GOLDBERG, MATTHEW
0
GOLDMAN, MICHAEL E.
4,771
HAAS, MARVIN
100,584
KASSAR, RICHARD A.
24,868
LAPIN, KENNETH A.
1,957
LEITNER, HOWARD M.
100,332
WEISE, STEPHEN
0
TOTAL - INITIAL REQUIRED
FUNDING AMOUNT
$307,259
EXHIBIT B
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
PAYMENT SCHEDULE
______________, 199__
Pursuant to Section 3(f) of the Trust Agreement, dated as
of
September 14, 1998, between Chock full o'Nuts Corporation (the
"Company") and IBJ Schroder Bank & Trust Company, as Trustee, the
Company provides a Payment Schedule with respect to the following
Covered Person:
NAME AND ADDRESS OF COVERED PERSON:
SOCIAL SECURITY NUMBER:
NAME OF SPOUSE:
ADDRESS:
SOCIAL SECURITY NUMBER:
(1) The above captioned Covered Person under the Chock full
o'Nuts Corporation Supplemental Executive Retirement Plan has
submitted a Termination Affidavit indicating that he/she is a Covered
Person and entitled to a Covered Benefit under the Plan. The Covered
Person shall receive ______________ per month commencing on
____________, ______, and ending on _____________,________.
(2) There is no federal income tax withholding obligation on
these amounts.
CHOCK FULL O'NUTS CORPORATION
Dated:________________________ By:
EXHIBIT B
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
AMENDMENT TO PAYMENT SCHEDULE
THE COVERED PERSON MUST SIGN THE FOLLOWING CONSENT IF THIS IS AN
AMENDMENT OR SUBSTITUTION OF A PAYMENT SCHEDULE AFTER A CHANGE IN
CONTROL OF CHOCK FULL O'NUTS CORPORATION
The undersigned Covered Person to whom this Payment Schedule
relates consents to the amendment of or substitution for the Payment
Schedule heretofore on file with the Trustee with respect to him, by
the form set forth above.
Dated: _________________, 19___
Covered Person's Signature
EXHIBIT C
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
TERMINATION AFFIDAVIT
I, __________________, under penalties of perjury, do hereby
solemnly affirm (i) that, pursuant to Section 3(c) of the Trust
Agreement between IBJ Schroder Bank & Trust Company (the "Trustee") and
Chock full o'Nuts Corporation (the "Company"), dated as of September
14, 1998 (the "Trust Agreement"), I am providing this Termination
Affidavit to the Trustee and the Company in order to secure the
benefits to which I am entitled under such Trust Agreement and the
Chock full o'Nuts Corporation Supplemental Executive Retirement Plan
(the "Plan"); (ii) that my employment with the Company terminated on
______________ ___, 19__; (iii) that I am entitled to a Covered Benefit
with respect to the Plan and that I am fully vested under the Plan in
my benefits.**
Covered Person's Signature
* * * *
STATE OF )
) ss.:
COUNTY OF )
On this ____ day of ________, 199_, before me personally came
______________, to me known, who, being by me duly sworn, said that the
statements herein are all true and correct.
Notary Public
Commission Expires:
EXHIBIT D
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
TRUSTEE'S FEE SCHEDULE
See attached letter from IBJ Schroeder to Chock full O'Nuts Corporation
dated September 4 detailing the fee schedule.
EXHIBIT E
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
TRUSTEE'S INVESTMENT GUIDELINES
Money market funds or U.S. three month Treasury securities.
EXHIBIT F
CHOCK FULL O'NUTS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(SPRINGING) TRUST
ACTUARIAL CONSULTANTS WHICH MAY BE
APPOINTED AS "INDEPENDENT ACTUARY"
Lloyd A. Katz, F.S.A., M.A.A.A., of The Segal Company, whose address is
1 Park Avenue, New York, New York 10016-5895 (Tel. No. (212) 251-5000)
David C. Nearpass, F.S.A., Principal and Consulting Actuary, Buck
Consultants, whose address is 1801 K Street, N.W., Suite 205L,
Washington, D.C. 20006 (Tel. No. (202) 296-7264).
* Present Value calculations are as of
August 1, 1998 and reflect a discount rate of 7.5%.
** If the Affidavit is being made by the Covered Person's
beneficiary, a statement of the date of death of the Covered Person must
be added.
(..continued)
R&O-363426.3
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R&O-363426.3