AMENDMENT No. 1, dated as of April 9, 1995, to
the AGREEMENT dated December 28, 1994 (the "Trust
Agreement"), between CLARK EQUIPMENT COMPANY (the
"Company") and such subsidiaries of the Company as become
parties to the Trust Agreement (the Company and such
subsidiaries referred to hereinafter collectively as the
"Employers" and sometimes individually as an "Employer"),
and WACHOVIA BANK OF NORTH CAROLINA, N.A., and its
successor or successors and assigns (the "Trustee"),
establishing the Clark Equipment Company Deferred Benefit
Trust (the "Trust").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company, the Employers and the
Trustee have entered into the Trust Agreement establishing
the Trust for purposes of providing a method for the
orderly accumulation of assets to be used to make certain
payments payable under the Clark Equipment Company
Supplemental Retirement Income Plan for Certain Executives
(except as such assets are required to be used to satisfy
the claims of the Employers' creditors); and
WHEREAS, Section 7.1 of the Trust Agreement
provides that the Company may amend the Trust from time to
time (with certain exceptions not relevant herein); and
WHEREAS, the Trustee hereby gives its consent to
the amendments to the Trust Agreement set forth below.
NOW, THEREFORE, in consideration of the mutual
undertakings of the parties hereto, IT IS AGREED by the
Company and the Trustee as follows:
1. Section 2.2 of the Trust Agreement is amended
by adding after the last sentence of the flush language at
the end thereof the following:
"Notwithstanding anything herein to the contrary, upon
and after a Change in Control, as defined in Section
4.20, the assets of the trust fund shall only be
invested in cash, company owned life insurance
policies, high quality money market funds or high
quality fixed income securities. For purposes of the
foregoing, "high quality" shall mean a public debt
rating by Standard & Poor's of BBB or higher or an
equivalent rating by another major rating agency."
2. Section 4.5 of the Trust Agreement is amended
by adding the following two sentences after the first
sentence thereof:
"The committee shall retain a reputable, independent
actuarial or consulting firm (the "independent party")
to determine the amount of the benefits due and
payable to participants pursuant to the plan. At
least ten (10) days prior to the time an amount is due
and payable to a participant pursuant to the plan,
such "independent party" shall provide to the
committee, the employer and such participant, in
writing, a statement as to such amount due and payable
to the participant pursuant to the plan together with
a copy of the calculations supporting the
determination of such amount."
3. Section 4.5 of the Trust Agreement is further
amended by deleting the fifth sentence thereof (as
determined before such Section 4.5 is amended in accordance
with paragraph 2 above), and adding the following sentence
after the fourth sentence thereof:
"If the committee or the employer does not provide the
trustee with a statement from the "independent party"
as to the proper amount due and payable to the
participant within 30 days of the date the trustee
notified the committee and the employer of the payment
request, or the trustee determines that the party
providing the statement is not "independent," the
trustee shall make the payment or payments requested
by the participant from the trust fund and may
conclusively rely on such payment or payments being
the appropriate amount."
4. Section 4.20 is added to the Trust Agreement
to read in its entirety as follows:
"4.20 Change in Control. For purposes of
-----------------
the trust, "Change in Control" means (i) the
acquisition of beneficial ownership of 25% or more of
the shares of common stock of the company 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
-------- -------
"person" shall not include any of the following: the
company, any subsidiary of the company, any employee
benefit plan or employee stock plan of the company or
04/08/95 -2-
of any subsidiary of the company, any dividend
reinvestment plan of the company, any person or entity
organized, appointed or established by the company 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 company or any
employee benefit plan of the company of shares of the
common stock of the company, provided that such person
does not thereafter acquire any shares of the common
stock of the company, or (ii) during any period of 24
consecutive months, individuals who at the beginning
of such period constitute the Board of Directors of
the company cease for any reason to constitute a
majority thereof, unless the election, or nomination
for election by the company'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 company's stockholders approve (a) the merger or
consolidation of the company with or into another
corporation and the company shall not be the surviving
corporation or (b) an agreement to sell or otherwise
dispose of all or substantially all of the company's
assets (including a plan of liquidation)."
5. Section 7.1(b) of the Trust Agreement is
amended by adding the following after the word "creditors"
and before the word "including" in the last line thereof:
"in accordance with Article V,"
6. Except as amended hereby, the Trust Agreement
shall survive and continue in full force and effect.
7. This Amendment No. 1 may be executed in two
or more counterparts, any one of which will be an original
without reference to the others.
04/08/95 -3-
8. This Amendment No. 1 shall in all respects be
governed by and construed in accordance with the laws of
the State of Indiana.
IN WITNESS WHEREOF, the Company and the Trustee
have caused this Amendment No. 1 to the Trust Agreement to
be duly executed as of the date set forth above by their
respective officers thereunto duly authorized.
CLARK EQUIPMENT COMPANY
Date: By /s/ Bernard D Henely
--------------- ---------------------------
Name: Bernard D Henely
Title: Vice President and
General Counsel
WACHOVIA BANK OF
NORTH CAROLINA, N.A.
Date: By /s/ John N. Smith III
--------------- ---------------------------
Name: John N. Smith III
Title: Vice President
04/08/95 -4-
AMENDMENT No. 1, dated as of April 9, 1995, to
the AGREEMENT dated December 28, 1994 (the "Retirement
Trust Agreement"), between CLARK EQUIPMENT COMPANY (the
"Company") and such subsidiaries of the Company as become
parties to the Trust Agreement (the Company and such
subsidiaries referred to hereinafter collectively as the
"Employers" and sometimes individually as an "Employer"),
and WACHOVIA BANK OF NORTH CAROLINA, N.A., and its
successor or successors and assigns (the "Trustee"),
establishing the Clark Equipment Company Supplemental
Executive Retirement Trust (the "Retirement Trust").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company, the Employers and the
Trustee have entered into the Retirement Trust Agreement
establishing the Retirement Trust for purposes of providing
a method for the orderly accumulation of assets to be used
to make certain payments payable under the Clark Equipment
Company Supplemental Executive Retirement Plan (except as
such assets are required to be used to satisfy the claims
of the Employers' creditors); and
WHEREAS, Section 7.1 of the Retirement Trust
Agreement provides that the Company may amend the
Retirement Trust from time to time (with certain exceptions
not relevant herein); and
WHEREAS, the Trustee hereby gives its consent to
the amendments to the Retirement Trust Agreement set forth
below.
NOW, THEREFORE, in consideration of the mutual
undertakings of the parties hereto, IT IS AGREED by the
Company and the Trustee as follows:
1. Section 2.2 of the Retirement Trust Agreement
is amended by adding after the last sentence of the flush
language at the end thereof the following:
"Notwithstanding anything herein to the contrary, upon
and after a Change in Control, as defined in Section
4.20, the assets of the trust fund shall only be
invested in cash, company owned life insurance
policies, high quality money market funds or high
quality fixed income securities. For purposes of the
foregoing, "high quality" shall mean a public debt
rating by Standard & Poor's of BBB or higher or an
equivalent rating by another major rating agency."
2. Section 4.5 of the Retirement Trust Agreement
is amended by adding the following two sentences after the
first sentence thereof:
"The committee shall retain a reputable, independent
actuarial or consulting firm (the "independent party")
to determine the amount of the benefits due and
payable to participants pursuant to the plan. At
least ten (10) days prior to the time an amount is due
and payable to a participant pursuant to the plan,
such "independent party" shall provide to the
committee, the employer and such participant, in
writing, a statement as to such amount due and payable
to the participant pursuant to the plan together with
a copy of the calculations supporting the
determination of such amount."
3. Section 4.5 of the Retirement Trust Agreement
is further amended by deleting the fifth sentence thereof
(as determined before such Section 4.5 is amended in
accordance with paragraph 2 above), and adding the
following sentence after the fourth sentence thereof:
"If the committee or the employer does not provide the
trustee with a statement from the "independent party"
as to the proper amount due and payable to the
participant within 30 days of the date the trustee
notified the committee and the employer of the payment
request, or the trustee determines that the party
providing the statement is not "independent," the
trustee shall make the payment or payments requested
by the participant from the trust fund and may
conclusively rely on such payment or payments being
the appropriate amount."
4. Section 4.20 is added to the Retirement Trust
Agreement to read in its entirety as follows:
"4.20 Change in Control. For purposes of
-----------------
the trust, "Change in Control" means (i) the
acquisition of beneficial ownership of 25% or more of
the shares of common stock of the company 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
-------- -------
04/08/95 -2-
"person" shall not include any of the following: the
company, any subsidiary of the company, any employee
benefit plan or employee stock plan of the company or
of any subsidiary of the company, any dividend
reinvestment plan of the company, any person or entity
organized, appointed or established by the company 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 company or any
employee benefit plan of the company of shares of the
common stock of the company, provided that such person
does not thereafter acquire any shares of the common
stock of the company, or (ii) during any period of 24
consecutive months, individuals who at the beginning
of such period constitute the Board of Directors of
the company cease for any reason to constitute a
majority thereof, unless the election, or nomination
for election by the company'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 company's stockholders approve (a) the merger or
consolidation of the company with or into another
corporation and the company shall not be the surviving
corporation or (b) an agreement to sell or otherwise
dispose of all or substantially all of the company's
assets (including a plan of liquidation)."
5. Section 7.1(b) of the Retirement Trust
Agreement is amended by adding the following after the word
"creditors" and before the word "including" in the last
line thereof:
"in accordance with Article V,"
6. Except as amended hereby, the Retirement
Trust Agreement shall survive and continue in full force
and effect.
7. This Amendment No. 1 may be executed in two
or more counterparts, any one of which will be an original
without reference to the others.
04/08/95 -3-
8. This Amendment No. 1 shall in all respects be
governed by and construed in accordance with the laws of
the State of Indiana.
IN WITNESS WHEREOF, the Company and the Trustee
have caused this Amendment No. 1 to the Retirement Trust
Agreement to be duly executed as of the date set forth
above by their respective officers thereunto duly
authorized.
CLARK EQUIPMENT COMPANY
Date: By /s/ Bernard D Henely
--------------- ---------------------------
Name: Bernard D Henely
Title: Vice President and
General Counsel
WACHOVIA BANK OF
NORTH CAROLINA, N.A.
Date: By /s/ John N. Smith III
--------------- ---------------------------
Name: John N. Smith III
Title: Vice President
04/08/95 -4-