Page 19
Exhibit 10(iii)A(3)
AMENDMENT NO. 2 TO
NATIONAL SERVICE INDUSTRIES, INC.
BENEFITS PROTECTION TRUST
This Amendment made and entered into as of this 23rd day of September,
1997, by and between National Service Industries, Inc., a Delaware Corporation
(the "Company"), and Wachovia Bank, N.A. (formerly Wachovia Bank and Trust
Company), as Trustee (the "Trustee");
W I T N E S S E T H:
WHEREAS, the Company previously established a trust arrangement known as
the National Service Industries, Inc. Benefits Protection Trust (the "Trust") in
order to ensure that, in the event of Change in Control of the Company,
participants and their beneficiaries receive the benefits which the Company and
its Affiliates are obligated to provide pursuant to various executive
compensation arrangements (collectively, the "Plans"); and
WHEREAS, the Company now desires to amend the Trust in a number of
respects;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1.
Section 2.2 is hereby amended by adding the following new sentence
after the first sentence of the present section:
"The Trust shall become irrevocable upon the occurrence of a Change in
Control, subject to the provisions of Section 17.5."
2.
Section 4.2 is hereby amended by deleting the second paragraph of such
section in its entirety and substituting the following in lieu thereof:
"Immediately upon the occurrence of a Threatened Change in Control and a
Change in Control, the Company shall contribute sufficient cash to the
Benefit Account to pay all benefits earned or accrued as of the date of the
Threatened Change in Control and the Change in Control (whether payable
currently or on a deferred basis) under all the Plans as determined by the
Trustee in its discretion."
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Exhibit 10(iii)A(3)
3.
Section 4.3 is hereby amended by deleting the present section in its
entirety and substituting the following in lieu thereof:
"During a Threatened Change in Control Period or after the occurrence of a
Change in Control, if the Trustee determines that the funds in the Benefit
Account are insufficient to fully pay all benefits earned or accrued as of
any date under the Plans, the Trustee shall make a written demand on the
Company to provide funds in an amount determined by the Trustee in its
discretion. The Company shall transfer such funds within fifteen (15) days
from the time the written demand is mailed."
4.
Article 6 is hereby amended by deleting Sections 6.1 and 6.2 in their
entirety and substituting the following in lieu thereof:
"6.1 Prior to a Change in Control, this Trust's assets shall be held,
invested and reinvested by the Trustee in accordance with written
investment guidelines provided by the Company from time to time. Except as
mandated by law, the Trustee shall not be liable for following the
investment guidelines from the Company prior to a Change in Control if
there is a loss due to investments made in accordance with the investment
guidelines provided by the Company. The Trustee may invest in and hold
securities (including stock or rights to acquire stock) or obligations of
the Company, if directed to do so in writing by the Company. In exercising
the powers of the Company under this Section 6.1 of Article 6, the Company
shall act by its Corporate Treasurer or his written designees, each of whom
is fully authorized to exercise such powers. The Trustee may, and shall,
follow the written guidelines signed by said Corporate Treasurer or such
designees.
6.2 In the absence of written investment guidelines provided by the
Company, the Trustee shall invest the assets as if a Change in Control had
occurred as provided in Section 6.3 of this Article 6 and Article 9."
5.
Section 10.1 is hereby amended by adding the following to the beginning of
the second sentence of the present section:
"To the extent not deducted and paid by the Company,"
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Exhibit 10(iii)A(3)
6.
Section 11.2 is hereby amended by deleting the present section in its
entirety and substituting the following in lieu thereof:
"11.2 (a) Except as restricted by securities or other laws, the Company
shall notify the Trustee as soon as practical of any facts of which its
officers have knowledge which have caused the commencement or termination
of a Threatened Change in Control Period or the occurrence of a Change in
Control.
(b) The Trustee is responsible for ascertaining whether a Threatened Change
in Control Period has commenced and whether a Change in Control has
occurred."
7.
Section 18.2 is hereby amended by deleting the third sentence of the
present section in its entirety and substituting the following in lieu thereof:
"Upon receipt of such notice or any other written allegation, or if the
Trustee has actual knowledge of the insolvency of, or of the commencement
of a case under the Bankruptcy Code in respect of, the Company or any
Affiliate, the Trustee shall suspend all payments of benefits from the
Trust with respect to Participants and beneficiaries and shall hold the
assets of the Trust for the benefit of the general creditors of the Company
or its Affiliates."
and by adding the following at the end of the present section:
"Provided that there are sufficient assets, if the Trustee discontinues the
payment of benefits from the Trust and subsequently resumes such payments,
the first payment following such discontinuance shall include the aggregate
amount of all payments due Participants or their beneficiaries under the
terms of the Plan(s) for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their
beneficiaries by the Company (or an Affiliate) in lieu of payments provided
for hereunder during any such period of discontinuance." 8.
Schedule 1 is hereby amended by substituting a revised Schedule 1, dated
September 23, 1997, which is attached hereto and made a part hereof.
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Exhibit 10(iii)A(3)
9.
The within and foregoing amendments to the Trust shall be effective as of
September 23, 1997. Except as hereby modified, the Trust shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
as of the day and year first written above.
NATIONAL SERVICE INDUSTRIES, INC.
By: /s/ David Levy
WACHOVIA BANK, N.A., AS TRUSTEE
By: /s/
The undersigned Affiliates of the Corporation hereby consent to, and agree
to be bound by, this Amendment No. 2 to the Trust.
This _23_ day of __September_______, 1997.
NATIONAL SERVICE INDUSTRIES, INC.
(Georgia)
By: /s/ James S. Balloun
NSI ENTERPRISES, INC.
By: /s/ James S. Balloun
ZEP MANUFACTURING, COMPANY
By: /s/ Glen Reed
NSI SERVICES, L.P.
By: /s/ James S. Balloun