Exhibit 10.4
FIRST AMENDMENT TO TRUST AGREEMENT
This First Amendment to Trust Agreement (the "First
Amendment") is made this 17th day of February, 1998, by and
between The Interlake Corporation, a Delaware corporation
("Interlake"), and U.S. Trust Company of California, N.A. (the
"Trustee").
WITNESSETH:
WHEREAS, Interlake and Continental Illinois National Bank and Trust
Company of Chicago, a national banking association ("Continental Illinois")
established a trust (the "Trust") pursuant to an agreement entitled "TRUST
AGREEMENT" and dated September 30, 1988 (the "Agreement");
WHEREAS, Trustee is the successor to Continental Illinois as
trustee of the Trust;
WHEREAS, Interlake has transferred assets to the Trust that are being
held in trust by the Trustee, all pursuant to the terms of the Agreement;
WHEREAS, in accordance with Section 12(a) of the Agreement, Interlake
and the Trustee desire to amend the Agreement in certain respects, as set forth
in this First Amendment,
NOW, THEREFORE, the parties do hereby agree that the Agreement shall be
amended as follows:
1. The introductory paragraph of the preamble of the Agreement is
amended by deleting "(the "Trustee")" at the end thereof and by substituting
therefor the following:
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("Continental Illinois"), and amended as of the 17th
day of February, 1998, pursuant to the First Amendment
to Trust Agreement between Interlake and U.S. Trust
Company of California, N.A. (the "Trustee"), as
successor to Continental Illinois.
2. The first paragraph of the preamble of the Agreement is
amended in its entirety to read as follows:
WHEREAS, certain benefits are or may become
payable under the provisions of The Interlake Corporation Restated
Directors' Post-Retirement Income Plan, established as of May 29, 1986,
as the same has been or may hereafter be supplemented, amended or
restated, or any successor thereto (the "Plan"), to certain individuals
listed on Exhibit A hereto ("Directors"); 3. Section 1(a) of the
Agreement is amended by adding the
following after the first sentence thereof:
Neither the Trustee nor any Director or beneficiary
shall have any right or duty to compel such additional
deposits or determine the sufficiency thereof.
4. Section 1(c) of the Agreement is amended by adding the
following at the end thereof:
The purpose of the Trust is to assure that Interlake's obligations to
the Directors pursuant to the Plan are fulfilled. The Trust is neither
intended nor designed to qualify under section 401(a) of the Code or to
be subject to the provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"). The Trust established under this
Agreement does not fund and is not intended to fund the Plan or any
other employee benefit plan or program of Interlake. Such Trust is and
is intended to be a depository arrangement with the Trustee for the
setting aside of cash and other assets of Interlake for the meeting of
part or all of its future obligations with respect to Benefits to some
or all of the Directors under the Plan. 5. Section 1 of the Agreement
is amended by adding the
following provisions at the end thereof:
(d) Interlake shall transfer sufficient assets to the Trust on
or prior to the date on which occurs a Change in Control (as that term
is defined in Section 1(e)) so that, in combination with the assets
theretofore held in the Trust, the aggregate assets
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held in the Trust equals or exceeds (i) an amount sufficient to satisfy
all expenses with respect to the Trust, including, without limitation,
the fees of the Trustee, for a period of at least five years, and (ii)
the amount estimated by Interlake to be necessary to satisfy all
obligations under the Plan.
(e) As used in this Agreement, the term "Change in Control"
shall mean:
(i) Interlake is merged, consolidated or
reorganized into or with another corporation or other legal
person and as a result of such merger, consolidation or
reorganization less than 75% of the combined voting power of
the then-outstanding securities of such other corporation or
person immediately after such transaction are held in the
aggregate by the holders of the then-outstanding securities
entitled to vote generally in the election of directors (the
"Voting Stock") of Interlake immediately prior to such
transaction;
(ii) Interlake sells or otherwise transfers all or
substantially all of its business or assets to any other
corporation or other legal person, and as a result of such
sale or transfer, less than 75% of the combined voting power
of the then-outstanding voting securities of such other
corporation or entity immediately after such sale or transfer
are held in the aggregate by the holders of Voting Stock of
Interlake immediately prior to such sale or transfer;
(iii) A Share Acquisition Date occurs under the
Rights Agreement, dated as of January 26, 1989, by and between
Interlake and The First National Bank of Chicago, as amended,
or under any successor rights agreement to which Interlake is
a party (the "Rights Agreement"); or, if the Rights Agreement
has expired prior to the occurrence of a Share Acquisition
Date, any event that would have caused a Share Acquisition
Date to occur under the Rights Agreement;
(iv) Any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act")) has become the
beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of securities representing
35% or more of the combined voting power of the Voting Stock
of Interlake;
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(v) Interlake files a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in, or in response to, Form 8-K or
Schedule 14A (or any successor schedule, form or report or
item therein) that a change in control of Interlake has or may
have occurred or will occur in the future pursuant to any
then-existing contract or transaction; or
(vi) If during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the directors of Interlake cease for any reason to constitute
at least a majority thereof; provided, however, that for
purposes of this Section 1(e)(vi), each director who is first
elected, or first nominated for election by Interlake's
stockholders, by a vote of at least two-thirds of the
directors of Interlake (or a committee thereof) then still in
office who were directors of Interlake at the beginning of any
such period will be deemed to have been a director of
Interlake at the beginning of such period.
(vii) Notwithstanding the foregoing provisions of
Section 1(e)(iv) or 1(e)(v) hereof, unless otherwise
determined in a specific case by majority vote of the Board of
Directors of Interlake (the "Board"), a Change in Control
shall not be deemed to have occurred for purposes of Section
1(e)(iv) or 1(e)(v) solely because (a) Interlake, (b) an
entity in which Interlake, directly or indirectly,
beneficially owns 50% or more of the voting securities of such
entity (an "Affiliate"), or (c) any Interlake-sponsored
employee stock ownership plan or any other employee benefit
plan of Interlake or any Affiliate either files or becomes
obligated to file a report or a proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule
14A (or any successor schedule, form or report or item
therein) under the Exchange Act, disclosing beneficial
ownership by it of shares of Voting Stock, whether in excess
of 35% or otherwise, or because Interlake reports that a
change in control of Interlake has or may have occurred or
will or may occur in the future by reason of such beneficial
ownership.
(f) In the event that a Change in Control has occurred, the
Chief Executive Officer, Chief Financial Officer or General Counsel of
Interlake shall so notify the Trustee promptly. The Trustee shall be
entitled to rely upon such notice as to whether and when a Change
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in Control has occurred and shall not be required to
make any independent verification of a Change in
Control.
6. Section 2(a) of the Agreement is amended by adding the
following at the end thereof:
The Trustee shall continue to pay Benefits to the Directors
until the assets of the Trust are depleted, subject to Section
12(b) hereof.
7. The second sentence of Section 3(a) of the Agreement is amended by
deleting the phrase "of Directors ("Board") of Interlake" therefrom.
8. The first sentence of Section 5 of the Agreement is amended by
adding immediately prior to the phrase "Compensation Committee of the Interlake
Board" the following phrase: "Management Development and".
9. The third sentence of Section 5 of the Agreement is amended by
adding immediately after the word "unavailable" the following phrase: "or if a
Change in Control has occurred,".
10. The third sentence of Section 5 of the Agreement is amended by
deleting the phrase "six months" and substituting therefor the phrase "10
years".
11. Section 5 of the Agreement is amended by adding the following at
the end thereof:
Nothing in this section shall be construed to mean the Trustee assumes
any responsibility for the performance of any investment made by the
Trustee in its capacity as trustee under this Agreement.
12. The fourth sentence of Section 8(d) of the Agreement is amended by
deleting the word "Executive" and substituting therefor the word "Director".
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13. Section 8 of the Agreement is amended by adding at the end thereof
the following:
(j) Interlake shall indemnify and hold the Trustee harmless
from and against all loss or liability (including expenses and
reasonable attorneys' fees), to which it may be subject by reason of
its execution of its duties under this Agreement, or by reason of any
acts taken in good faith in accordance with any directions, or acts
omitted in good faith due to absence of directions, from Interlake or a
Director unless, and only to the extent, such loss or liability is due
to the Trustee's gross negligence or willful misconduct.
(k) In the event that the Trustee is named as a defendant in a
lawsuit or proceeding involving the Plan or the Trust fund, the Trustee
shall be entitled to receive payments on a current basis pursuant to
the indemnity provisions provided for in this section; provided
however, that if the final judgment entered in the lawsuit or
proceeding holds that the Trustee is guilty of gross negligence or
willful misconduct with respect to the Trust fund, the Trustee shall be
required to refund the indemnity payments that it has received.
(l) All releases and indemnities provided herein shall survive
the termination of this Agreement.
14. Section 9(c) of the Agreement is amended in its entirety to read as
follows:
(c) At such times as may in the judgment of Interlake be
appropriate, Interlake shall furnish to the Trustee any amendment to
Exhibit A for the purpose of the deletion of deceased Directors who
have no benefits currently due.
15. The first sentence of Section 10 of the Agreement is amended by
adding at the end thereof the following:
and as set forth from time to time and incorporated
herein by this reference
16. Section 10 of the Agreement is amended by deleting the second
sentence thereof and substituting therefor the following:
The Trustee shall also be entitled to reimbursement of its reasonable
expenses incurred by it in the performance of its duties hereunder,
including, but not
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limited to fees and expenses incurred pursuant to
Sections 8(d), 8(e) and 8(g).
17. The first sentence of Section 11(a) of the Agreement is amended by
adding immediately after the phrase "The Trustee may be removed at any time" the
following phrase: "upon not less than 90 days' notice in writing".
18. The last sentence of Section 11(a) of the Agreement is amended by
deleting ", wherever located, having a capital and surplus of at least
$500,000,000 in the aggregate".
19. Section 11(a) of the Agreement is amended by adding at the end
thereof the following:
If after making reasonable efforts to appoint a successor trustee as
provided above, the Trustee has been unable to do so, the Trustee shall
petition a court of competent jurisdiction to appoint a successor
trustee.
20. Section 11 of the Agreement is amended by adding at the end thereof
the following:
(c) The successor trustee need not examine the records and
acts of any prior trustee and may retain or dispose of existing Trust
assets. The successor trustee shall not be responsible for, and
Interlake shall indemnify and defend the successor trustee from any
claim or liability resulting from any action or inaction of any prior
trustee or from any other past event, or any condition existing at the
time it becomes successor trustee.
21. The first sentence of Section 12(a) of the Agreement is amended by
inserting immediately prior to the period at the end of the sentence the
following clause:
; and provided, further, that on or after the occurrence of a Change in
Control, any such amendment shall require the consent of a majority of
the Directors
22. Section 12(b) of the Agreement is amended by adding at the end
thereof the following:
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On or after the occurrence of a Change in Control, the determinations
under the preceding sentence shall be made in the sole judgment of the
Trustee. In addition, the Trust shall terminate at such time as the
Trustee shall have received consents to the termination of the
Agreement from all of the Directors to whom benefits are then due.
23. Sections 12(c) and 13(d) of the Agreement are each amended by
deleting the period at the end thereof and adding the following:
in such amounts and in the manner instructed by Interlake, whereupon
the Trustee shall be released and discharged from all obligations
hereunder. From and after the date of termination, and until final
distribution of the Trust assets, the Trustee shall continue to have
all of the powers provided herein as are necessary or expedient for the
orderly liquidation and distribution of the Trust.
24. Section 13(a)(i) of the Agreement is amended by deleting "the
Employee Retirement Income Security Act of 1974, as amended, or any successor
provision thereto ("ERISA")", and substituting therefor "ERISA".
25. Sections 14(a) and 14(b) of the Agreement are amended in their
entirety to read as follows:
(a) In the event that any provision of this Agreement or the
application thereof to any person or circumstances shall be determined
by a court of competent jurisdiction to be invalid or unenforceable to
any extent, the remainder of this 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 Agreement shall be valid and enforced to the
maximum extent permitted by law.
(b) The right of any Director to any benefit or to any payment
hereunder may not be anticipated, assigned (either at law or in
equity), alienated or subject to attachment, garnishment, levy,
execution or other legal or equitable process except as required by
law. Any attempt by any Director to anticipate, alienate, assign, sell,
transfer, pledge, encumber or charge the same shall be void. The Trust
assets shall
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not in any manner be subject to the debts, contracts, liabilities,
engagement or torts of any Director and payments hereunder shall not be
considered an asset of the Director in the event of the insolvency or
bankruptcy of such Director.
26. Section 14(c) is amended by deleting the word "Illinois" and by
substituting therefor the word "California".
27. Section 14 is amended to add the following provisions at the end
thereof:
(e) Interlake shall, at any time and from time to time, upon
the reasonable request of the Trustee, provide information, execute and
deliver such further instruments and do such further acts as may be
necessary or proper to effectuate the purposes of this Trust.
(f) Each Exhibit referred to in this Agreement shall become a
part hereof and is expressly incorporated herein by reference.
(g) This 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 Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and legal
representatives.
(h) (i) The preamble to this Agreement, including the
definitions provided therein, shall be considered a part of
the agreement of the parties as if set forth in a section of
this Agreement.
(ii) The headings contained in this Agreement are
solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the
meaning or interpretation of this Agreement.
(i) Each Director (and, where applicable, each successor) is
an intended beneficiary under this Trust, and as an intended
beneficiary shall be entitled to enforce all terms and provisions
hereof with the same force and effect as if such person had been a
party hereto.
(j) Notwithstanding any other provision hereof, the parties'
respective rights and obligations under
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Section 14(i) shall survive any termination or expiration of this
Agreement.
28. Section 15 is amended in its entirety to read as follows: For
all purposes of this Agreement, any communication,
including without limitation, any notice, consent, report, demand or
waiver required or permitted to be given hereunder shall be in writing
and, unless otherwise provided in this Agreement, shall be deemed to
have been duly given when hand delivered or dispatched by telegram or
electronic facsimile transfer (confirmed in writing by mail
simultaneously dispatched), or two business days after having been
mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or one business day after having been
dispatched by a nationally recognized overnight courier service to the
appropriate party at the address specified below:
If to the Trustee, to:
U.S. Trust Company of California, N.A.
515 South Flower Street, Suite 2700
Los Angeles, CA 90071-2291
Attention: Charles E. Wert
Executive Vice President
If to Interlake, to:
The Interlake Corporation
550 Warrenville Road
Lisle, IL 60532
Attention: Secretary
If to the Directors, to the addresses listed on
Exhibit A hereto.
provided, however, that if any party or any Director, or his or her
successors shall have designated a different address by notice to the
other parties, then to the last address so designated.
29. The Agreement is amended to delete all that follows Section 15.
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30. This First Amendment shall be governed by and construed in
accordance with the laws of the State of California, other than and without
reference to any provisions of such laws regarding choice of laws or conflict of
laws.
31. This First Amendment may be executed in two or more counterparts,
each of which shall be considered an original agreement, but all of which
together shall constitute one agreement.
32. This First Amendment shall be effective as of the date first above
written.
33. Without further action by the parties to this First Amendment, the
Agreement will be amended and restated to incorporate the changes made pursuant
to this First Amendment, and the Agreement, as so amended and restated as set
forth in the Annex to this First Amendment, will thereafter constitute the
Agreement.
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IN WITNESS WHEREOF, each of Interlake and the Trustee caused
this First Amendment to be executed on its behalf as of the date
first above written.
THE INTERLAKE CORPORATION
By: /s/Stephen R. Smith
Title: Vice President
U.S. TRUST COMPANY OF CALIFORNIA, N.A.
By: /s/Dennis M. Kunisaki
Title:Vice President
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EXHIBIT A
TO THE
FIRST AMENDMENT TO TRUST AGREEMENT TO
THE INTERLAKE CORPORATION
RESTATED DIRECTORS' POST-RETIREMENT INCOME PLAN
Eugene P. Berg
James C. Cotting
Arthur G. Hansen
John E. Jones
Frederick C. Langenberg
Edward A. Loeser
Reynold C. MacDonald
Quentin C. McKenna
William G. Mitchell
Erwin E. Schulze
Lee C. Shaw
Edward J. Williams
Morris H. Wright
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