EXHIBIT 10k5
Jim Beam Brands Co.
BARRY M. BERISH
TRUST AGREEMENT
THIS AGREEMENT, made as of the 15th day of December, 1993,
among BARRY M. BERISH, JIM BEAM BRANDS CO., a Delaware corporation
(the "Company"), and THE CHASE MANHATTAN BANK (National Association),
incorporated under the laws of the United States of America (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Company has incurred and expects to continue to
incur certain retirement income liability to or with respect to BARRY
M. BERISH (the "Executive") pursuant to the terms of the Company's
Excess Benefit Plan (including the supplemental profit-sharing
provisions therein) (herein referred to as the "Plan"); and
WHEREAS, the Company desires to provide additional assurance
to the Executive that his rights under the Plan will in the future be
met or substantially met by application of the procedures set forth
herein; and
WHEREAS, the Executive and the Company wish to establish
with the Trustee a trust for the benefit of the Executive in order to
provide a source of payments of the benefits payable to the Executive
under the terms of the Plan;
NOW, THEREFORE, in consideration of the premises and mutual
and independent promises herein, the parties hereto covenant and agree
as follows:
ARTICLE I
1.1 The Executive and the Company hereby establish with the
Trustee a Trust consisting of such sums of money and such property
acceptable to the Trustee as shall from time to time be paid or
delivered to the Trustee by the Company and the earnings and profits
thereon. All such money and property, all investments made therewith
and proceeds thereof, less the payments or other distributions which,
at the time of reference, shall have been made by the Trustee, as
authorized herein, are referred to herein as the "Fund" and shall be
held by the Trustee, IN TRUST, in accordance with the provisions of
this Agreement. The Trust shall be solely for the purpose of
providing benefits under the Plan with respect to the Executive, and
neither the Company nor any creditors of the Company shall have any
interest in the Fund.
1.2 The Trustee shall hold, manage, invest and otherwise
administer the Fund pursuant to the terms of this Agreement. The
Trustee shall be responsible only for contributions actually received
by it hereunder and shall have no responsibility for the correctness
of the amount thereof. Upon the establishment of this Trust, and from
time to time thereafter, the Company may contribute to the Trust,
unless otherwise directed by the Executive to make such contributions
to a segregated account established with the Trustee or other bank,
trust company or other financial institution by or for the benefit of
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the Executive pursuant to the Plan ("Segregated Account"), such amount
in cash as the Company shall determine to be appropriate to provide a
source of the payments required under the terms of the Plan. Prior to
the making of any contribution to the Trust, the Company shall have
approved the establishment of a Segregated Account of the Executive,
the terms and provisions thereof, and the bank, trust company or other
financial institution with which such Segregated Account may be
established. The initial contribution by the Company shall be in an
amount approximately equal to the present value of the after tax
equivalent of the aggregate maximum benefits that would be due to the
Executive as of such date under the retirement and profit-sharing
provisions of the Plan, or such lesser amount as the Company shall
determine. Unless there has been a withdrawal by the Executive from
the Trust as provided in Section 2.4, or from the Executive's
Segregated Account, as to which the Compensation and Stock Option
Committee of American Brands, Inc. has not determined otherwise, the
Company will make additional annual contributions to the Trust or
Segregated Account in amounts such that the amount of the Fund,
together with the amount in the Executive's Segregated Account, at
such time will be approximately equal to the present value of the
after tax equivalent of the Executive's accrued benefits under the
Plan at that time, or in such lesser amounts as the Company shall
determine. Unless the Trust has previously been terminated as a
result of the Executive's actual or deemed withdrawal of all amounts
in the Fund, as provided in Section 8.1, and in his Segregated
Account, the Company also may make a final contribution to the Trust
as promptly as practicable after the Executive's termination of
employment in an amount such that the amount of the Fund, together
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with the amount, if any, in the Executive's Segregated Account, except
for any amounts which are attributable to amounts deemed withdrawn
previously and the income earned thereon, will be equal to (i) the sum
of the present value of the after tax equivalent of (x) the
Executive's benefit under the supplemental retirement provisions of
the Plan or, if the termination of employment is by reason of the
death of the Executive, the Executive's benefit under the supplemental
retirement provisions of the Plan immediately prior to his death and
(y) the Executive's supplemental profit-sharing benefit under the
Plan, reduced by (ii) the amounts of any actual withdrawals from the
Fund or from the Executive's Segregated Account by the Executive as
provided in Section 2.4 plus the income which would have been earned
on such withdrawn amounts from the time of withdrawal to the time of
the Executive's termination of employment, at a rate equal to the
after tax equivalent of 120% of the applicable monthly immediate
annuity interest purchase rate which would be used by the Pension
Benefit Guaranty Corporation from time to time during such period for
the purpose of determining the present value of a single sum
distribution on plan termination.
1.3 The Company shall certify to the Trustee and the
Executive at the time of each contribution to the Fund the amount of
such contribution being made in respect of the Executive's
supplemental retirement benefit under the Plan and the amount being
made in respect of the Executive's supplemental profit-sharing
benefit. The Fund shall be revalued by the Trustee quarterly as of
the last business day of each March, June, September and December, or
at such other times as agreed to by the Company and the Trustee, at
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current market values, as determined by the Trustee, which shall
deliver as soon as practicable a copy of such quarterly valuation to
the Company and the Executive.
ARTICLE II
2.1 The Company shall act as Administrator of the Trust.
Except for the records dealing solely with the Fund and its
investment, which shall be maintained by the Trustee, the Company as
Administrator shall maintain all the Executive's records contemplated
by this Agreement, including records of the Executive's compensation
and benefits from the Company, the amount of his benefits accrued
under the Plan, the Company's contributions to the Fund, withdrawals
from the Fund as provided in Section 2.4 or from the Executive's
Segregated Account, the Executive's beneficiary designation and such
other records as may be necessary for determining the amount payable
to the Executive or his Surviving Spouse or other beneficiary under
the Plan. All such records shall be made available promptly upon the
request of the Executive. In the event that the Executive's
Segregated Account is not maintained with the Trustee, the Company
shall give written notice to the Trustee as to the identity of the
bank, trust company or other financial institution with which the
Segregated Account is maintained. In such case, the Company also
shall give notice to the Trustee in the event of a withdrawal by the
Executive of any or all of the funds in his Segregated Account.
Unless the Trust has previously been terminated as provided in Section
8.1, the Company shall give written notice to the Trustee of the
Executive's termination of employment, and as to whether such
termination is by reason of the death of the Executive. The Company
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as Administrator shall also prepare and distribute the Executive's
annual estimated benefit statements specified in Section 2.2 and shall
perform such other duties and responsibilities in connection with the
administration of the Trust as the Company or the Trustee determines
is necessary or advisable to achieve the objectives of this Agreement.
2.2 The Company as Administrator shall prepare an annual
estimated benefits statement in respect of the Executive and shall
furnish a copy of same to the Executive by no later than May 15 of
each year.
2.3 The Company shall have full responsibility for the
proper remittance of all withholding taxes on contributions by the
Company to the Trust to the appropriate taxing authority and shall
furnish the Executive with the appropriate tax information form
reporting the amounts of such contributions and any withholding taxes.
The Trustee shall have the responsibility for the preparation and
filing with the appropriate taxing authorities of all tax returns
required to be filed for the Trust.
2.4 Subject to the next to the last sentence of Section
5.2, the Executive may withdraw all or any portion of the Fund, in
cash or, to the extent practicable, in kind at any time upon written
notice of not less than sixty (60) days to the Company and the
Trustee. Prior to any such withdrawal, the Trustee shall notify the
Company in writing of such withdrawal and the amount thereof, and as
to whether or not such withdrawal is a complete withdrawal of all
amounts in the Fund. In the event of any withdrawal by the Executive
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from his Segregated Account, the Company shall promptly notify the
Trustee in writing of such withdrawal and the amount thereof, and as
to whether or not such withdrawal is a complete withdrawal of all
amounts in the Segregated Account. In the event of any such
withdrawal from the Fund, or from the Executive's Segregated Account,
for purposes of Sections 1.2 and 8.1 the Executive shall be deemed to
have made a complete withdrawal of all amounts in the Fund and in his
Segregated Account, unless the Compensation and Stock Option Committee
of American Brands, Inc. shall determine that the Executive shall not
be deemed to have made such a complete withdrawal. The Company shall
promptly notify the Trustee in writing of any such determination.
Except as otherwise determined by the Compensation and Stock Option
Committee of American Brands, Inc., in the event of any such
withdrawal from the Fund, or from the Executive's Segregated Account,
no further contributions shall be made thereafter by the Company to
the Trust until the Executive's termination of employment, at which
time if the Trust has not previously been terminated as a result of
the Executive's actual or deemed withdrawal of all amounts in the Fund
and in his Segregated Account a final contribution by the Company may
be made as provided in Section 1.2.
2.5 The Executive may elect to transfer all or any portion
of the Fund to his Segregated Account, in cash or, to the extent
practicable, in kind, at any time upon written notice of not less than
sixty (60) days to the Company and the Trustee and the financial
institution with which the Segregated Account is established. The
Executive also may elect to transfer funds, in cash, from his
Segregated Account to the Trust upon written notice of not less than
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sixty (60) days to the Company and the Trustee, and funds so
transferred shall be held by the Trustee as part of the Fund. Such
transfers between the Fund and the Executive's Segregated Account
shall not constitute withdrawals for purposes of Section 2.4.
2.6 The Executive may designate a beneficiary to receive
all or any portion of the Fund in the event of his death. Such
designation shall be in writing filed with the Company as
Administrator on a form approved by it and signed by the Executive.
The Company shall promptly notify the Trustee of any such beneficiary
designation and any changes therein.
ARTICLE III
3.1 After the execution of this Agreement, the Company
shall promptly file with the Trustee a certified list of the names and
specimen signatures of the officers of the Company and any delegate
authorized to act for it. The Company shall promptly notify the
Trustee of the addition or deletion of any person's name to or from
such list, respectively. Until receipt by the Trustee of notice that
any person is no longer authorized so to act, the Trustee may continue
to rely on the authority of the person. All certifications, notices
and directions by any such person or persons to the Trustee shall be
in writing signed by such person or persons. The Trustee may rely on
any such certification, notice or direction purporting to have been
signed by or on behalf of such person or persons that the Trustee
believes to have been signed thereby. The Trustee may rely on any
certification, notice or direction of the Company that the Trustee
believes to have been signed by a duly authorized officer or agent of
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the Company. The Trustee shall have no responsibility for acting or
not acting in reliance upon any notification believed by the Trustee
to have been so signed by a duly authorized officer or agent of the
Company. The Company shall be responsible for keeping accurate books
and records with respect to the Executive, his compensation and his
rights and interests in the Fund under the Plan.
3.2 The Company shall indemnify and hold harmless the
Trustee for any liability or expenses, including without limitation
advances for or prompt reimbursement of reasonable fees and expenses
of counsel and other agents retained by it, incurred by the Trustee
with respect to holding, managing, investing or otherwise
administering the Fund, other than by reason of its negligence or
willful misconduct.
ARTICLE IV
4.1 The Trustee shall not be liable in discharging its
duties hereunder, including without limitation its duty to invest and
reinvest the Fund, if it acts in good faith and in accordance with the
terms of this Agreement including, without limitation, the making of
any investment directed by the Executive, the Company or an investment
manager other than the Trustee, and any applicable federal or state
laws, rules or regulations.
4.2 The Trustee is hereby appointed as the investment
manager of the Fund. In the event that the Trustee cannot serve as
investment manager of the Fund, the Trustee shall then select Pacific
Investment Management Company as investment manager; provided that if
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Pacific Investment Management Company is unwilling or unable to act as
investment manager, the Trustee shall select J.P. Morgan Investment
Management Inc. as investment manager. The investment manager shall
invest the assets of the Fund separately as to amounts representing
the Executive's supplemental retirement benefit under the Plan and
amounts representing the Executive's supplemental profit-sharing
benefit. Supplemental retirement benefit amounts shall be invested
solely in the Chase Manhattan Fixed Income Fund to the extent
practicable and otherwise in the Chase Manhattan Personal Trust Market
Rate Account. Supplemental profit-sharing benefit amounts shall be
invested in one or more of (i) the Vista U.S. Government Income Fund,
(ii) the Vista Balanced Fund, (iii) the Chase Manhattan Personal Trust
Market Rate Account or (iv) the Chase Manhattan Equity Income Fund, in
such portions as are elected by the Executive by written election
filed with the Company and notified to the Trustee by the Company, all
to the extent practicable and otherwise in the Chase Manhattan
Personal Trust Market Rate Account, and all without liability of the
Trustee for such election. The Executive may change such election at
any time by filing a new written election with the Company, which
shall promptly notify the Trustee thereof, and all without liability
of the Trustee for such new election. Subject to such investment
restrictions, the Trustee shall have the power and right:
(a) To receive and hold all contributions made to it by the
Company;
(b) To invest and reinvest all or any portion of the Fund
collectively through the medium of any common,
collective, commingled trust or mutual fund that may be
established and maintained by the Trustee or any affiliate
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thereof, subject to the instrument or instruments establishing
such trust fund or funds and with the terms of such instrument or
instruments, as from time to time amended, being incorporated
into this Agreement to the extent of the equitable share of the
Fund in any such common, collective, commingled trust or mutual
fund;
(c) To participate in and use a book-entry system for the
deposit and transfer of securities;
(d) To sell or exchange any property held by it at public
or private sale, for cash or on credit, to grant and exercise
options for the purchase or exchange thereof, to exercise all
conversion or subscription rights pertaining to any such property
and to enter into any covenant or agreement to purchase any
property in the future;
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar
plan relating to property held by it and to consent to or oppose
any such plan or any action thereunder or any contract, lease,
mortgage, purchase, sale or other action by any person;
(f) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary
power thereto, and to pay part of the expenses and compensation
thereof and any assessments levied with respect to any such
property so deposited;
(g) To extend the time of payment of any obligation held by
it;
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(h) To hold uninvested any moneys received by it, without
liability for interest thereon, until such moneys shall be
invested, reinvested or disbursed;
(i) To exercise all voting or other rights with respect to
any property held by it and to grant proxies, discretionary or
otherwise;
(j) For the purposes of the Trust, to borrow money from
others, including The Chase Manhattan Bank (National
Association), to issue its promissory note or notes therefor, and
to secure the repayment thereof by pledging any property held by
it;
(k) To furnish the Company and the Executive with such
information as may be needed for tax or other purposes;
(l) To employ suitable agents and counsel, who may be
counsel to the Company or the Trustee, and to pay their
reasonable expenses and compensation from the Fund to the extent
not paid by the Company;
(m) To cause any property held by it to be registered and
held in the name of one or more nominees, with or without the
addition of words indicating that such securities are held in a
fiduciary capacity, and to hold securities in bearer form;
(n) To settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust,
respectively, to commence or defend suits or legal proceedings to
protect any interest of the Trust, and to represent the Trust in
all suits or legal proceedings in any court or before any other
body or tribunal; provided, however, that the Trustee shall not
be required to take any such action unless it shall have been
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indemnified by the Company to its reasonable satisfaction against
liability or expenses it might incur therefrom;
(o) To organize under the laws of any state a corporation
or trust for the purpose of acquiring and holding title to any
property which it is authorized to acquire hereunder and to
exercise with respect thereto any or all of the powers set forth
herein; and
(p) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable for
the protection of the Fund.
4.3 No person dealing with the Trustee shall be under any
obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the Trustee's
authority as to any transaction.
4.4 The Trustee shall distribute cash or other assets from
the Fund in accordance with Articles II and VIII hereof.
The Trustee may make any distribution required hereunder by
mailing its check for the specified amount or, if distribution is to
be made in kind, by making other appropriate distribution, to the
person to whom such distribution or payment is to be made, at such
address as may be specified pursuant to Section 10.5, or if no such
address shall have been so furnished, to such person in care of the
Company, or (if so directed by the recipient) by crediting the account
of such person or by transferring funds to such person's account by
bank or wire transfer.
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4.5 If at any time there is no person authorized to act
under this Agreement on behalf of the Company, the Board of Directors
of the Company or the Compensation and Stock Option Committee of
American Brands, Inc. shall have the authority to act hereunder.
ARTICLE V
5.1 The Executive, or in the event of the Executive's death
the Executive's personal representative, shall be responsible for the
payment of any federal, state or local taxes on the Fund, or any part
thereof, and on the income therefrom, subject to the Company's
obligation under the Plan to reimburse the Executive in respect of
such taxes.
5.2 For all periods prior to the Executive's termination of
employment, and for a period of sixty (60) days thereafter and for any
further period as may be authorized by the Company, the Company shall
pay to the Trustee its reasonable expenses for the management and
administration of the Fund, including without limitation advances for
or prompt reimbursement of reasonable expenses of counsel and other
agents employed by the Trustee, and reasonable compensation for its
services as Trustee hereunder, the amount of which shall be agreed
upon from time to time by the Company and the Trustee in writing;
provided, however, that if the Trustee forwards an amended fee
schedule to the Company requesting its agreement thereto and the
Company fails to object thereto within thirty (30) days of its
receipt, the amended fee schedule shall be deemed to be agreed upon by
the Company and the Trustee. Such expenses and compensation shall be
a charge on the Fund and shall constitute a lien in favor of the
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Trustee until paid by the Company. The Company and the Executive
acknowledge that the Trustee, or an affiliate thereof, will, in
addition to the compensation provided by this Article 5.2, receive
compensation with regard to the administration and investment of
certain funds referred to in Article 4.2 hereof, and the Company and
the Executive agree that the Trustee, or any affiliate thereof, shall
receive such compensation in addition to the compensation provided by
this Article 5.2.
ARTICLE VI
6.1 The Trustee shall maintain records with respect to the
Fund that show all its receipts and disbursements hereunder. The
records of the Trustee with respect to the Fund shall be open to
inspection by the Company or its representatives and by the Executive
at all reasonable times during normal business hours of the Trustee
and may be audited not more frequently than once each fiscal year by
an independent certified public accountant engaged by the Company;
provided, however, the Trustee shall be entitled to additional
compensation from the Company in respect of audits or auditors'
requests which the Trustee determines to exceed the ordinary course of
the usual scope of such examinations of its records.
6.2 Within a reasonable time after the close of each fiscal
year of the Company (or, in the Trustee's discretion, at more frequent
intervals), or of any termination of the duties of the Trustee
hereunder, the Trustee shall prepare and deliver to the Company and
the Executive a statement of transactions reflecting its acts and
transactions as Trustee during such fiscal year, portion thereof or
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during such period from the close of the last fiscal year or last
statement period to the termination of the Trustee's duties,
respectively, including a statement of the then current value of the
Fund. Any such statement shall be deemed an account stated and
accepted and approved by the Company and the Executive, and the
Trustee shall be relieved and discharged, as if such account had been
settled and allowed by a judgment or decree of a court of competent
jurisdiction, unless protested by written notice to the Trustee within
sixty (60) days of receipt thereof by the Company or the Executive.
The Trustee shall have the right to apply at any time to a
court of competent jurisdiction for judicial settlement of any account
of the Trustee not previously settled as herein provided or for the
determination of any question of construction or for instructions. In
any such action or proceeding it shall be necessary to join as parties
only the Trustee, the Company and the Executive (although the Trustee
may also join such other parties as it may deem appropriate), and any
judgment or decree entered therein shall be conclusive.
ARTICLE VII
7.1 The Trustee may resign at any time by delivering
written notice thereof to the Company and the Executive; provided,
however, that no such resignation shall take effect until the earlier
of (i) sixty (60) days from the date of delivery of such notice to the
Company and the Executive or (ii) the appointment of a successor
trustee.
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7.2 The Trustee may be removed at any time by the Company,
pursuant to a resolution of the Board of Directors of the Company,
upon delivery to the Trustee of a certified copy of such resolution
and sixty (60) days' written notice to the Trustee and the Executive
of (i) such removal and (ii) the appointment of a successor trustee,
unless such notice period is waived in whole or in part by the Trustee
and the Executive.
7.3 Upon the resignation or removal of the Trustee, a
successor trustee shall be appointed by the Company. Such successor
trustee shall be a bank or trust company established under the laws of
the United States or a state within the United States and having
either total assets of at least $15 billion or trust assets of at
least $25 billion. Such appointment shall take effect upon the
delivery to the Trustee and the Executive of (a) a written appointment
of such successor trustee, duly executed, by the Company and (b) a
written acceptance by such successor trustee, duly executed thereby.
Any successor trustee shall have all the rights, powers and duties
granted the Trustee hereunder.
7.4 If, within sixty (60) days of the delivery of the
Trustee's written notice of resignation, a successor trustee shall not
have been appointed, the Trustee shall apply to any court of competent
jurisdiction for the appointment of a successor trustee.
7.5 Upon the resignation or removal of the Trustee and the
appointment of a successor trustee, and after the acceptance and
approval of its account, the Trustee shall transfer and deliver the
17
Fund to such successor trustee. Under no circumstances shall the
Trustee transfer or deliver the Fund to any successor trustee which is
not a bank or trust company having either total assets of at least $15
billion or trust assets of at least $25 billion.
ARTICLE VIII
8.1 The Trust established pursuant to this Agreement shall
terminate upon the actual or deemed withdrawal by the Executive of all
amounts in the Fund, as provided in Section 2.4, and in the
Executive's Segregated Account. The Trust also shall terminate upon
the expiration of sixty (60) days following the Executive's
termination of employment (by retirement or otherwise), unless the
Trustee and the Executive agree to continue the Trust thereafter upon
such terms as they may agree, but in the event of such continuation
the Company shall have no further obligations under this Agreement
with respect to matters relating to such continuation, including
expenses and compensation of the Trustee, as provided in Section 5.2,
and indemnification of the Trustee as provided in Section 3.2.
8.2 Upon the termination of the Trust by reason of the
death of the Executive, or by reason of the Executive's termination of
employment other than by death if the Trust has not been continued by
agreement between the Trustee and the Executive, the Trustee shall
distribute the Fund as directed by the Executive or, in the absence of
such direction, shall distribute all of the Fund to the Executive's
Segregated Account, if any, or if there is no such Segregated Account
to the Executive, or in the event of the Executive's death his
personal representative, after deducting therefrom any amounts owing
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to the Trustee under this Agreement which have not been paid by the
Company. Upon any termination of the Trust in accordance with Article
VIII, the Trustee shall, after the acceptance and approval of its
account, be relieved and discharged. The powers of the Trustee,
including the right to receive compensation for services and payment
of expenses, as provided in Section 5.2, shall continue as long as any
part of the Fund remains in its possession.
ARTICLE IX
9.1 This Agreement may be amended, in whole or in part, at
any time and from time to time, by the Company with the written
consent of the Executive and the Trustee. Any such amendment by the
Company shall be pursuant to a resolution of the Board of Directors of
the Company by delivery to the Trustee of a certified copy of such
resolution and a written instrument duly executed and acknowledged by
the Company and the Executive in the same form as this Agreement.
ARTICLE X
10.1 This Agreement shall be construed and interpreted
under, and the Trust hereby created shall be governed by, the laws of
the State of New York insofar as such laws do not contravene any
applicable federal laws, rules or regulations.
10.2 Neither the gender nor the number (singular or plural)
of any word shall be construed to exclude another gender or number
when a different gender or number would be appropriate.
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10.3 This Agreement shall be binding upon and inure to the
benefit of the Executive, his estate, personal representative,
beneficiary, heirs and assigns. This Agreement also shall be binding
upon and inure to the benefit of any successor to the Company or its
business as the result of merger, consolidation, reorganization,
transfer of assets or otherwise and any subsequent successor thereto.
In the event of any such merger, consolidation, reorganization,
transfer of assets or other similar transaction, the successor to the
Company or its business or any subsequent successor thereto shall
promptly notify the Trustee in writing of its successorship and
furnish the Trustee with the information specified in Section 3.1 of
this Agreement. In no event shall any such transaction described
herein suspend or delay the rights of the Executive to receive
benefits hereunder.
10.4 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which shall together constitute only one Agreement.
10.5 All notices and other communications provided for in
this Agreement shall be in writing and shall be deemed to have been
duly given when actually delivered to the respective addresses set
forth below:
Company: Jim Beam Brands Co.
510 Lake Cook Road
Deerfield, Illinois 60015-4916
Attn: Vice President,
Human Resources
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Trustee: The Chase Manhattan Bank, N.A.
1211 Avenue of the Americas
New York, New York 10036
Attn: Trusts and Estates
Services Division, 34th Floor
Executive: Barry M. Berish
1274 Trapp Lane
Winnetka, Illinois 60093
or at such other address as such person may specify in writing by
notice as set forth above to the other persons listed above.
ARTICLE XI
11.1 In consideration of the establishment of the Fund,
the Executive consents to the distribution from time to time of assets
of the trust established pursuant to the Trust Agreement made as of
the 24th day of December, 1991, among Jim Beam Brands Co., The Chase
Manhattan Bank (National Association) and Hewitt Associates
established to provide a source of the Executive's benefits under the
Plan, in amounts to be used for the making of contributions to the
Trust or Segregated Account of the Executive as provided in Section
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1.2, or the making of payments to the Executive (or beneficiary)
pursuant to the Plan.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the 15th day of December,
1993.
Attest: JIM BEAM BRANDS CO.
Louis F. Fernous, Jr. David C. Wagner
- ------------------------- By-------------------------------
Assistant Secretary David C. Wagner
Vice President, Administration
Attest: THE CHASE MANHATTAN BANK
Mark J. Altschuler William P. Barbeosch
- ------------------------- By--------------------------------
Vice President William P. Barbeosch
Vice President
Witness: BARRY M. BERISH
Gail Burns Barry M. Berish
- ------------------------- --------------------------------
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STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
Personally appeared David C. Wagner, Vice President of JIM
BEAM BRANDS CO., signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed as such Vice
President and the free act and deed of said Corporation, before me.
Ann Nell G. Koktzoglou
-----------------------------------
Notary Public
STATE OF NEW YORK )
: ss.: New York, NY-December 29, 1993
COUNTY OF NEW YORK )
Personally appeared William P. Barbeosch, Vice President of
THE CHASE MANHATTAN BANK, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed as
such Vice President and the free act and deed of said Company, before
me.
Kamla Jaipal
-----------------------------------
Notary Public
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
Personally appeared BARRY M. BERISH, signer of the foregoing
instrument, and acknowledged the same to be his free act and deed,
before me.
Ann Nell G. Koktzoglou
-----------------------------------
Notary Public