RESOLUTIONS OF THE
BOARD OF DIRECTORS OF CLARK EQUIPMENT COMPANY
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WHEREAS, Clark Equipment Company (the
"Corporation") maintains the FlexPlan, as set forth in the
summary of the FlexPlan with pages dated October 1, 1990
and October 1, 1991 (hereinafter referred to as the
"Plan"), to provide for certain medical and insurance
benefits to employees and retirees of the Corporation and
participating subsidiaries and their dependents and
surviving spouses; and
WHEREAS, the Plan under the caption "FlexPlan
Additional Information - Future of the Program" allows the
Corporation to amend the Plan in any manner and at any
time; and
WHEREAS, the Board of Directors of the
Corporation deems it advisable and in the best interests of
the Corporation to amend the Plan in order to address the
concerns of Plan participants regarding the security of
their retiree medical and life insurance benefits under the
Plan and, therefore, further ensure the stability and
motivation of the Corporation's workforce.
NOW, THEREFORE, BE IT
RESOLVED, that the Plan shall be amended to
provide for the following provisions (the "Amendments"):
1. Retiree Benefits Continuation. Notwith-
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standing any provision of the Plan to the contrary, in
the event of a "Change in Control" (as defined below),
(i) any Retiree and his or her Dependent (each as
defined below) shall be entitled to continue to
receive, following such Change in Control and for the
life of such Retiree or Dependent, as the case may be,
retiree medical and life insurance benefits coverage
("Retiree Benefits Coverage") which will be no less
than that which such Retiree or Dependent is eligible
to receive under the terms of the Plan as the Plan was
in effect immediately prior to such Change in Control
and (ii) the Corporation's contribution and the Plan
participant's contribution, if any, to the costs of
the Retiree Benefits Coverage shall be made at the
same percentage or percentages as those in effect with
respect to such Retiree's or Dependent's retiree
medical and life insurance benefits coverage under the
Plan as the Plan was in effect immediately prior to
such Change in Control. Costs of the Retiree Benefits
Coverage shall be determined for each year as
described in the attached Exhibit 1 to these
resolutions.
2. Definitions. For purposes of the immediately
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preceding section 1 above, this section 2 and the
immediately succeeding sections 3, 4, 5, and 6, the
following definitions shall apply:
(a) "Change in Control" means (i) the
acquisition of beneficial ownership of 25% or more of
the shares of common stock of the Corporation by or
for any person (as such term is defined in Section
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Act")), including for purposes of
calculating such person's ownership, all shares
beneficially owned by the affiliates and associates
(as such terms are defined in Rule 12b-2 of the Act)
of such person, provided, however, that the term
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"person" shall not include any of the following: the
Corporation, any subsidiary of the Corporation, any
employee benefit plan or employee stock plan of the
Corporation or of any subsidiary of the Corporation,
any dividend reinvestment plan of the Corporation, any
person or entity organized, appointed or established
by the Corporation for or pursuant to the terms of any
such plan, or any person which becomes the beneficial
owner of 25% or more of such shares then outstanding
solely as a result of the acquisition by the
Corporation or any employee benefit plan of the
Corporation of shares of the common stock of the
Corporation, provided that such person does not
thereafter acquire any shares of the common stock of
the Corporation, or (ii) during any period of 24
consecutive months, individuals who at the beginning
of such period constitute the Board of Directors of
the Corporation cease for any reason to constitute a
majority thereof, unless the election, or nomination
for election by the Corporation's stockholders, of
each new director was approved by a vote of at least
two-thirds of the directors then still in office who
were directors at the beginning of such period, or
(iii) the Corporation's stockholders approve (a) the
merger or consolidation of the Corporation with or
into another corporation and the Corporation shall not
be the surviving corporation or (b) an agreement to
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sell or otherwise dispose of all or substantially all
of the Corporation's assets (including a plan of
liquidation).
(b) "Retiree" means an employee of the
Corporation or of any subsidiary or affiliate of the
Corporation participating in the Plan who (i) retired
on or after August 1, 1986 and prior to a Change in
Control and (ii) was eligible to receive retiree
medical and life insurance benefits coverage under the
Plan as the Plan was in effect immediately prior to
such Change in Control.
(c) "Dependent" means a Retiree's dependent
(meeting the criteria for dependent eligibility set
forth in the Plan) or surviving spouse who is eligible
to receive retiree medical benefits coverage under the
Plan as the Plan was in effect immediately prior to a
Change in Control.
3. Effective on Change in Control. The
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immediately preceding sections 1 and 2 shall have no
force or effect unless and until there is a Change in
Control.
4. Future Amendments and Termination. The
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Corporation reserves the right to amend in any manner
the Plan and these Amendments or to terminate the Plan
at any time prior to a Change in Control; provided,
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however, that upon a Change in Control and at any time
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following such Change in Control, the Plan may not be
terminated and the Plan and these Amendments may not
be amended in any manner if such termination or
amendment could have an adverse effect on the rights
of a Retiree or Dependent under the Plan and these
Amendments (as they may have been amended prior to
such Change in Control) without the express written
consent of each such Retiree or Dependent, as the case
may be.
5. Contract Rights. The Board of Directors of
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the Corporation intends these Amendments and the Plan
to constitute an enforceable contract between the
Corporation and each Plan participant and intends
these Amendments and the Plan to vest rights in such
Plan participants as third party beneficiaries. In no
event shall a Plan participant be obligated to seek
other employment or take any other action by way of
mitigation of the amounts payable or benefits provided
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to such participant under any of the provisions of
these Amendments and the Plan and such amounts or
benefits shall not be reduced whether or not such
participant obtains other employment. The
Corporation's obligation to make payments or provide
benefits specified by these Amendments and the Plan to
a Plan participant and otherwise to perform its
obligations under these Amendments and the Plan shall
not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action
which the Corporation may have against such
participant or others.
6. Successors and Assigns. These Amendments and
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the Plan shall be binding upon the Corporation and
upon any assignee or successor in interest to the
Corporation. These Amendments and the Plan shall not
be terminated by any merger or consolidation of the
Corporation whereby the Corporation is or is not the
surviving or resulting corporation or as a result of
any transfer of all or substantially all of the assets
of the Corporation. In the event of any such merger,
consolidation or transfer of assets, the provisions of
these Amendments and the Plan shall be binding upon
the surviving or resulting corporation or the person
or entity to which such assets are transferred. These
Amendments shall inure to the benefit of and be
enforceable by each Retiree and Dependent and his or
her personal or legal representatives, executors,
administrators, successors, heirs, distributees,
devisees and legatees.
And be it further
RESOLVED, that the foregoing resolution shall be
effective as of April 9, 1995; and be it further
RESOLVED, that the Chief Executive Officer or any
Vice President of the Corporation be, and hereby are,
authorized and directed to execute, certify, deliver and
file (or cause to be executed, certified, delivered and
filed) all such further agreements, certificates,
instruments and documents, in the name of and on behalf of
the Corporation, and to do all such further acts and things
as in their discretion they shall deem necessary, advisa-
ble, proper and convenient to carry out the purposes and
intent of the foregoing resolutions; and be it further.
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RESOLVED, that the Corporation reserves the right
to amend in any manner the Plan and these Amendments or
terminate the Plan at any time prior to a Change in
Control; provided, however, that upon a Change in Control
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and at any time following such Change in Control, the Plan
may not be terminated and the Plan and these Amendments may
not be amended in any manner if such termination or
amendment would have an adverse effect on a Plan
participant or his or her eligible dependent or surviving
spouse under the Plan and these Amendments (as they may
have been amended prior to such Change in Control) without
the express written consent of such participant, dependent
or surviving spouse, as the case may be.
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EXHIBIT 1
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DETERMINATION OF COST FOR POSTRETIREMENT MEDICAL BENEFITS
FOR CLARK EQUIPMENT COMPANY RETIREES AFTER 8/1/1986
Cost will mean gross incurred claims from the previous
calendar year on a per capita basis according to retiree or
dependent status after proper separation of gross incurred
claims by Medicare eligibility date. Specifically, four
per capita claims costs will be identified from the
following calculations and used as costs:
Retiree, Pre-Medicare Eligibility Cost = A + B
A = Gross incurred claims before Medicare eligibility date
from previous calendar year for all pre-Medicare
eligible retirees only retired after 8/1/86.
B = Number of retirees (after 8/1/86), eligible to file
claims under the plan in the previous year but not
eligible for Medicare, with partial counting of
retirees who become Medicare eligible during the year
or become newly eligible during the year pro rata for
the portion of the year before Medicare eligibility.
Dependent, Pre-Medicare Cost = C + D
C = Gross incurred claims before Medicare eligibility date
from previous calendar year for all pre-Medicare
eligible dependents of retirees after 8/1/86.
D = Number of dependents (of retirees after 8/1/86),
eligible to file claims under the plan in the previous
year but not eligible for Medicare, with partial
counting of dependents who become Medicare eligible
during the year or become newly eligible during the
year pro rata for the portion of the year before
Medicare eligibility.
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EXHIBIT 1 (continued)
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Retiree, Post-Medicare Eligibility Cost = E + F
E = Gross incurred claims after Medicare eligibility date
from previous calendar year for all post-Medicare
eligible retirees only retired after 8/1/86.
F = Number of retirees (after 8/1/86), eligible to file
claims under the plan and under Medicare in the
previous year with partial counting of retirees who
become Medicare eligible during the year or become
newly eligible during the year pro rata for the
portion of the year after Medicare eligibility.
Dependent, Post-Medicare Cost = G + H
G = Gross incurred claims after Medicare eligibility date
from previous calendar year for all post-Medicare
eligible dependents of retirees after 8/1/86.
H = Number of dependents (of retirees after 8/1/86),
eligible to file claims under the plan and under
Medicare in the previous year with partial counting of
dependents who become Medicare eligible during the
year or become newly eligible during the year pro rata
for the portion of the year after Medicare
eligibility.
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