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EXHIBIT 19
CBI INDUSTRIES, INC.
SUPPLEMENTAL SURVIVORS' BENEFIT, EXECUTIVE LIFE INSURANCE
AND BENEFIT RESTORATION TRUST
This amended and restated Trust Agreement (herein "Trust
Agreement") entered into as of this 30th day of November, 1992 at Wheaton,
Illinois between CBI INDUSTRIES, INC., a Delaware corporation (herein "CBI"),
and the GARY-WHEATON BANK, N.A., a national banking association, as trustee
(herein "Trustee") WITNESSETH:
WHEREAS, CBI has adopted the CBI Benefit Restoration Plan
(herein the "Restoration Plan") as an excess benefit plan within the meaning of
Section 3(36) of the Employee Retirement Income Security Act of 1974 ("ERISA"),
which is "unfunded" (within the meaning of Section 4(b)(5) of ERISA), to
provide certain employees of CBI and its subsidiaries and affiliates (herein
the "Participants") with the benefits they would otherwise accrue under the CBI
Pension Plan, the CBI 401(k) Pay Deferral Plan, the CBI Salaried Employee Stock
Ownership Plan (1987) or any other tax-qualified employee benefit plan
sponsored by CBI or an affiliate (together referred to herein as the
"Underlying Plans") but for Section 415 of the Internal Revenue Code of 1986
(herein the Code); and
WHEREAS, CBI and its wholly-owned subsidiary, Liquid Carbonic
Industries Corporation, a Delaware corporation (herein "Liquid"), have entered
into certain supplemental survivors' benefit agreements (herein the "Survivors'
Agreements") with certain employees of CBI and its subsidiaries and affiliates
(herein also "Participants") providing certain benefits to the survivors of such
employees as designated in or pursuant to their Survivors' Agreements (herein
their "Beneficiaries"); and
WHEREAS, CBI has adopted the CBI Executive Life Insurance Plan
(herein the "Insurance Plan") effective December 1, 1992, as an employee
welfare benefit plan within the meaning of Section 3(1) of ERISA, pursuant to
which CBI has entered into certain Plan Participation Forms, (herein "Insurance
Agreements") with selected key executives of CBI and its subsidiaries and
affiliates (herein also "Participants") in which CBI has agreed to contribute
to the cost of providing certain life insurance benefits as described in the
Insurance Plan to such Participants, or their designees (herein "Designees")
and beneficiaries (herein "Beneficiaries"), with the payment of
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premiums for life insurance policies to be issued pursuant to the Insurance Plan
and the death benefit guarantees set forth in said Plan to be an obligation of
the trust maintained under this Trust Agreement as provided in the Insurance
Plan; and
WHEREAS, Pursuant to the Insurance Plan the Trustee shall hold
certain rights and interests in the insurance policies to be issued to
Participants or their Designees, said interests to be documented in an
assignment form executed between the Trustee and each Participant or Designee
(herein the "Assignment"); and
WHEREAS, the Insurance Agreements entered into between CBI and
the Participants further provide that, except as otherwise provided in the
Insurance Plan, in the event a life insurance policy is issued on the life of a
Participant under the Insurance Plan, the Participant relinquishes any and all
rights that he or she may have pursuant to any prior Survivor's Agreement
between the Participant and CBI; and
WHEREAS, CBI has entered into certain agreements (herein
"Service Agreements") with certain officers of CBI regarding the granting of
past service with another employer for the payment of pension benefits directly
by CBI and not the CBI Pension Plan, which benefits shall also be considered
"excess benefits" for the purposes herein, including agreements with J.E.
Jones, G.L. Schueppert and any other officer whose name may be certified in
writing to the Trustee; and
WHEREAS, Liquid has entered into certain agreements (herein
"Retirement Agreements") with certain of its employees (herein also
"Participants") for the direct payment by Liquid of certain supplements and/or
post-retirement increases to the pension benefits payable to such employees
from the CBI Pension Plan or any other tax-qualified pension plan sponsored by
CBI or Liquid; and
WHEREAS, the Survivors' Agreements, Insurance Agreements,
Service Agreements and Retirement Agreements are hereinafter referred to
collectively as "the Agreements"; and
WHEREAS, CBI and the Trustee previously established on October
3, 1986, the "CBI Industries, Inc. Supplemental Survivors' Benefit Trust"
(herein the "Survivors' Trust") and the "CBI
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Industries, Inc. Benefit Restoration Trust" (herein the "Restoration Trust"),
and entered into a First Amendment to the latter on November 3, 1986; and
WHEREAS, CBI and the Trustee then previously established on
February 8, 1988 the "CBI Industries, Inc. Supplemental Survivors' Benefit and
Benefit Restoration Trust", which continued, merged and consolidated the
Survivors' Trust and the Restoration Trust into one trust for simplicity,
efficiency and cost of administration, as well as the commonality of purpose of
the two trusts, to the benefit of CBI, the Trustees and the trust beneficiaries
herein; and
WHEREAS, CBI desires to amend, restate and continue the trust
established under this Trust Agreement for the purpose of segregating on its
books certain insurance policies, Assignments and other assets that shall be
held therein, subject to the rights and claims of CBI's general creditors in the
event of Insolvency (as defined in Section 2.3, below), until paid as benefits
or insurance premiums to or for the benefit of Participants and their Designees
and Beneficiaries in such manner and at such times as specified under the
Restoration Plan, the Insurance Plan and the Agreements; of appointing the
Trustee to hold custody of such policies, Assignments and other assets; and of
facilitating payment of such benefits and insurance premiums and the exercise of
rights under the Assignments by the Trustee as agent of CBI; and
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Restoration Plan, the Insurance Plan and the Agreements as unfunded plans
maintained for the purpose of providing deferred compensation or welfare
benefits for a select group of management or highly compensated employees for
purposes of Title I of the ERISA; and
WHEREAS, CBI desires to rename this Trust the "CBI Industries,
Inc. Supplemental Survivors' Benefit, Executive Life Insurance and Benefit
Restoration Trust";
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained it is hereby agreed as follows:
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ARTICLE 1: TRUST, AGREEMENTS AND TRUST FUND
1.1 TRUST. CBI and the Trustee have established the
Trust evidenced hereby ("Trust") to facilitate the operation of the Restoration
Plan, Insurance Plan, the Survivors' Agreements, Insurance Agreements, Service
Agreements and Retirement Agreements (collectively herein, the "Plans") which
are maintained by CBI or its affiliates primarily for the purpose of providing
benefits to a select group of management or highly compensated employees.
1.2 TRUST FUND. CBI has deposited with the Trustee to
comprise the fund (the "Trust Fund") under this Trust certain life insurance
policies on the lives of Participants, of which CBI or Liquid is the owner and
beneficiary, and certain other assets. CBI has also deposited with the Trustee
for execution and holding by the Trustee as part of the Trust Fund, certain
Assignments setting forth the specific rights and interests of the Trustee in
the insurance policies to be issued to Participants under the Insurance Plan.
CBI shall from time to time deposit with the Trustee such additional life
insurance policies, Assignments or other assets to form part of the Trust Fund
as the Trustee in its sole discretion reasonably exercised determines is
necessary or appropriate to enable the Trustee to carry out all of its present
and future obligations under this Trust Agreement on behalf of CBI with respect
to the Plans, and may from time to time deposit with the Trustee as it desires
such further life insurance policies, Assignments or other assets to form part
of the Trust Fund. The Trustee shall, by itself or in consultation with CBI,
re-evaluate annually the Trust's total obligations under this Trust Agreement
with respect to the Plans for these purposes. In this regard, the obligations
of the Trust shall include the net present value (utilizing a discount rate
equal to the then current dividend rate of the insurance company issuing
policies under the Insurance Plan minus 100 basis points) of future insurance
premiums payable for (but not beyond) the next ten years following the
evaluation date for insurance policies then currently issued under the
Insurance Plan and for which the Trustee is then holding Assignments. The
Trustee, and its successor or successors, shall receive, hold, invest,
administer, distribute, assert, exercise and enforce rights and interests in
the assets of the Trust Fund in accordance with the provisions of this Trust
as a fiduciary for the Participants and their Designees or Beneficiaries under
the Plans. Except as herein otherwise provided, title to the assets of the
Trust Fund shall at all times be vested in the Trustee, subject to the right
of the Trustee to hold title in bearer form or in the name of a nominee, and
the interest of others in the Trust Fund shall be only the right to have the
Trust Fund receive,
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hold, invest, administer, distribute, assert, exercise and enforce rights and
interests in the assets of the Trust Fund in accordance with the provisions of
the Trust.
1.3 TRUSTEE TO INVEST. The Trustee shall invest the Trust
Fund to the extent necessary in life insurance policies on the lives of
Participants for the purpose of paying survivors' benefits under the Survivors'
Agreements, and may fund the premiums for such policies and the payment of
benefits in accordance with any of the Plans by borrowing from life insurance
policies held in the Trust Fund. The Trustee shall invest the Trust Fund as
provided in Section 3.2 to the extent necessary to pay premiums on insurance
policies issued pursuant to the Insurance Plan, and may fund the premiums for
such policies by borrowing from life insurance policies, or pursuant to rights
under Assignments, held in the Trust Fund; provided, however, that any borrowing
against insurance policies in which the Trustee maintains an interest pursuant
to the Insurance Plan and any Assignment shall be limited to the extent of the
Trustee's interest in said policies. All borrowings under this Section shall
conform to such requirements of Section 264(c) or other applicable provision of
the Code as may be necessary to make the interest paid or accrued on any such
borrowing fully deductible by CBI. Subject to the foregoing limitations, the
Trustee shall be granted discretion in and responsibility for investment,
management and control of the assets in the Trust Fund. The Trustee may in its
sole discretion reasonably exercised borrow from any such life insurance policy
to pay premiums under any other life insurance policy or to pay benefits in
accordance with any Plan whether or not the borrowing is applied to the benefit
of the Participant who is the named insured under the life insurance policy from
which the borrowing is made; provided, however, that the Trustee shall not
borrow from any policy in an amount so that the death benefit payable upon the
death of the insured shall be less than the survivors' benefit payable to the
Beneficiaries of the insured under a Survivors' Agreement, if any, between CBI
or Liquid and the insured, or less than the death benefit payable to a
Beneficiary named under a life insurance policy issued pursuant to the Insurance
Plan.
1.4 PLANS AND AGREEMENTS. A true and correct copy of the
Restoration Plan, Insurance Plan, the Agreements, the CBI Pension Plan, the CBI
401(k) Pay Deferral Plan, and the CBI Salaried Employee Stock Ownership Plan
(1987), all as in effect on the date hereof, are attached hereto as,
respectively, Exhibits I, II, III, IV, V and VI. CBI shall file with the
Trustee promptly
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upon its adoption a true and correct copy of each amendment to the Restoration
Plan, Insurance Plan, an Underlying Plan, or an Agreement.
(a) NEW AGREEMENTS. CBI may from time to time
enter into new Agreements on similar or substantially identical terms with
other employees of CBI and its subsidiaries and affiliates. In such event CBI
may, but shall not be required to, deliver copies of such new Agreements to the
Trustee together with such life insurance policies, Assignments or other assets
to the Trust Fund in a value or amount as the Trustee in its sole discretion
reasonably exercised determines is necessary or appropriate to enable the
Trustee to carry out its obligations under the Trust Agreement with respect to
such new Agreements. The Trustee shall then determine, in its sole discretion
reasonably exercised, whether all life insurance policies, Assignments and
other assets contained in the Trust Fund are adequate to make payment to the
Beneficiaries of all Participants or Designees under all the Plans; and if so
the Trustee shall accept the new Agreements by written notice to CBI and any
new Agreement so delivered to and accepted by the Trustee shall be deemed
incorporated in Exhibit II with the same effect as if originally included
therein. Except as provided in Section 2.3, the Trustee shall have no
liability, responsibility, or obligation respecting Agreements not so accepted
by the Trustee.
(b) VOID AGREEMENTS. In the event an Agreement,
other than one entered into pursuant to the Insurance Plan, becomes void prior
to a Change in Control (as defined in Section 5.3 below) by reason of the
Participant having ceased to be an officer or ceased to be an employee of CBI or
one of its subsidiaries or affiliates for any reason other than retirement or
death, CBI shall so notify the Trustee, and the Trustee shall have no liability,
responsibility or obligation under this Trust respecting such void Agreement.
In the event an Agreement becomes void upon or after a Change in Control (as
defined in Section 5.3 below) by reason of the Participant having ceased to be
an officer or ceased to be an employee of CBI or one of its subsidiaries or
affiliates for any reason other than death, or in the event a Participant ceases
to be eligible to participate in the Insurance Plan for any reason, CBI shall so
notify the Participant in writing a copy of which shall be delivered to the
Trustee; and shall upon request of the Trustee substantiate that assertion with
objective evidence directly relevant to the provisions of the Insurance Plan or
Agreement. If within sixty (60) days after the later of the date such notice is
delivered to the Participant or such copy is delivered to the Trustee, or with
respect to the Insurance Plan at any time thereafter, the
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Participant (or his personal representative) objects in writing to the Trustee
to the assertion that such Agreement is void, the Trustee shall promptly make
its best effort to verify the correctness of the assertion by consulting with
CBI, the Participant, or such other persons as it chooses. If the Participant
(or his personal representative) files no objection within the time provided
herein, or if the Trustee finds that the Participant (or his personal
representative) has not substantiated his objection, such Agreement shall become
void for purposes of this Trust and the Trustee shall have no liability,
responsibility or obligation under this Trust respecting such void agreement,
except that in the case of an Insurance Agreement, the Trustee shall be
obligated to make premium payments and pay death benefit guarantee amounts as
provided under the Insurance Plan and Sections 1.2, 2.1 and 2.2.
1.5 GRANTOR TRUST. The Trust shall be deemed to be a
grantor trust under Sections 671 eg seq. of the Code with the Trust Fund being
deemed assets of CBI and subject at all times to the rights of its general
creditors (which may include Participants, Designees and Beneficiaries) in the
event of Insolvency (as defined in Section 2.3, below) but thereafter to the
rights and claims of the Participants, Designees and Beneficiaries and the
fiduciary obligations of the Trustee which are subordinated only to the rights
of general creditors of CBI in the event of Insolvency (as defined in Section
2.3, below).
1.6 PARTICIPANTS' UNSECURED CONTRACTUAL RIGHTS. The
Trust Fund shall be held separate and apart from other funds of CBI and shall be
used exclusively for the uses and purposes of Participants and general creditors
as herein set forth. Participants and their Designees and Beneficiaries shall
have no preferred claim on, or any beneficial ownership interest in, any assets
of the Trust Fund. Any rights created under the Plan(s) and this Trust
Agreement shall be mere unsecured contractual rights of Participants and their
Designees and Beneficiaries against CBI. Any assets held by the Trust will be
subject to the claims of CBI's general creditors under federal and state law in
the event of insolvency (as defined in Section 2.3 below). To the extent that
any Participant, Designee or Beneficiary actually receives, or has distributed
on their behalf a distribution from the Trust Fund, such distribution shall to
the extent of the distribution be deemed in full satisfaction of the
Participant's, Designee's or Beneficiary's contractual claim against CBI or
Liquid under the Plan to which such distribution relates. To the extent the
Trustee has made distributions or otherwise acted in accordance with a Plan or
this Trust, the Trustee shall have no
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further obligation with respect to that Participant, Designee or Beneficiary
and except as provided in Section 2.3 shall not be a proper party to any court
or other proceeding brought by or on behalf of a Participant, Designee or
Beneficiary against CBI, Liquid, or any subsidiary or affiliate for enforcement
of any rights under any Plan.
ARTICLE II: DISTRIBUTIONS FROM THE TRUST FUND
2.1 DISTRIBUTIONS TO PARTICIPANTS AND BENEFICIARIES.
Except as provided in Section 2.2, distributions to or for the benefit of
Participants or Beneficiaries in accordance with a Plan shall be initiated
either by (i) written direction to the Trustee from CBI certifying that such
distribution is in accordance with the particular Plan to which such
distribution relates, or (ii) by a written request to the Trustee from the
Participant or Beneficiary or personal representative of either, with a copy to
CBI, certifying to the date on which payments to the Participant (or
Beneficiary) under a Plan or Underlying Plan are scheduled to begin (or be
made), and the form, payee and amount of such benefits, and either (A) the
amount of benefits under an Underlying Plan to which the Participant or
Beneficiary would be entitled but for the provisions of such Underlying Plan, if
applicable, implementing Section 415 of the Code; or (B) such information about
the Participant as the Trustee may reasonably require to determine the amount of
benefits under the Plan or Underlying Plan to which the Participant or
Beneficiary would be entitled. The Trustee shall promptly confirm to CBI the
date of its receipt of such direction or request (herein the "Distribution
Date"). Unless within fifteen days from the Distribution Date (i) the Trustee
notifies CBI in writing that it has reason to believe a distribution directed by
CBI is not in accordance with the applicable Plan or (ii) CBI notifies the
Trustee in writing that the Participant or Beneficiary is not entitled to a
distribution and substantiates that assertion with objective evidence directly
relevant to the provisions of the applicable Plan, the direction and
certification of CBI or the request and certification of the Participant or
Beneficiary or personal representative shall be deemed correct and the Trustee
shall make or commence the requested distribution on behalf of CBI in accordance
with the applicable Plan. If the Trustee or CBI objects to a distribution, the
Trustee shall promptly make its best effort to verify the correctness of the
certifications by consulting with CBI, the Participant, Beneficiary or personal
representative, or such other persons as it chooses. If the Trustee finds that
a distribution directed by CBI is in accordance with the applicable Plan, or
finds that CBI has not substantiated its objections to a distribution requested
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by a Participant, Beneficiary or personal representative, it shall within 30
days after the Distribution Date, make or commence distributions in accordance
with the applicable Plan. If by 30 days after the Distribution Date, the
Trustee still has reason to believe that a distribution directed by CBI is not
in accordance with the applicable Plan, or has been unable to ascertain the
correctness of CBI's objections to a distribution requested by a Participant,
Beneficiary or personal representative, there shall be no distribution, the
Trustee shall so notify the Participant, Beneficiary or personal representative
and CBI, and CBI shall pay benefits, if any, in accordance with the applicable
Plan, to the Participant or Beneficiary entitled thereto. If the Trustee finds
the objections of CBI to be valid and supported by pertinent facts, there shall
be no distribution.
2.2 DISTRIBUTION TO PAY PREMIUMS UNDER THE INSURANCE
PLAN. Distributions to pay premiums on insurance policies issued pursuant to
the Insurance Plan shall be made either (i) by written direction to the Trustee
by CBI certifying that such distribution is in accordance with the Insurance
Plan, or (ii) at the sole discretion of the Trustee, reasonably exercised,
provided such distribution is in accordance with the terms of the Insurance
Plan and this Trust.
2.3 DISTRIBUTIONS TO OR FOR THE BENEFIT OF OTHER CREDITORS.
At all times during the continuance of this Trust, as provided in Section 1.6
hereof, the Trust Fund shall be subject to claims of general creditors of CBI,
but only as set forth in this Section 2.3. The Trustee shall cease payment of
benefits to or in respect of Participants and their Designees and Beneficiaries
if CBI is insolvent. CBI shall be considered "insolvent" for purposes of this
Trust Agreement if (i) CBI is unable to pay its debts as they become due, or
(ii) CBI is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
The Board of Directors and the Chief Executive Officer of CBI
shall have the duty to inform the Trustee in writing of CBI's insolvency. If a
person claiming to be a creditor of CBI alleges in writing to the Trustee that
CBI has become insolvent, the Trustee shall determine whether CBI is insolvent
and, pending such determination, the Trustee shall discontinue payment of
benefits to or on behalf of Participants or their Designees or Beneficiaries.
Unless the Trustee has actual knowledge of CBI's insolvency,
or has received notice from CBI or a person claiming to be a creditor alleging
that CBI is insolvent, the Trustee shall have no
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duty to inquire whether CBI is insolvent. The Trustee may in all events rely on
such evidence concerning CBI's solvency as may be furnished to the Trustee and
that provides the Trustee with a reasonable basis for making a determination
concerning CBI's solvency.
If at any time the Trustee has determined that CBI is insolvent,
the Trustee shall discontinue payments to or for the benefit of Participants or
their Designees or Beneficiaries and shall hold the assets of the Trust for the
benefit of CBI's general creditors. Nothing in this Trust Agreement shall in
any way diminish any rights of Participants or their Designees and Beneficiaries
to pursue their rights as general creditors of CBI with respect to benefits due
under the Plan(s) or otherwise.
The Trustee shall resume the payment of benefits to or for the
benefit of Participants and their Designees and Beneficiaries in accordance
with Sections 2.1 and 2.2 of this Trust Agreement only after Trustee has
determined that CBI is not insolvent (or is no longer insolvent).
Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to this Section
2.3 and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to or for
the benefit of Participants and their Designees and Beneficiaries under the
terms of the Plan(s) for the period of such discontinuance, less the aggregate
amount of any payments made to or for the benefit of Participants and their
Designees and Beneficiaries by CBI in lieu of the payments provided for
hereunder during any such period of discontinuance.
2.4 DISTRIBUTIONS IN REVERSION TO CBI. In the event an
Agreement becomes void as provided in Section 1.4(b), or in the event CBI
requests in writing the Trustee to determine and revert to CBI excess assets
from the Trust Fund, the Trustee shall determine in its sole discretion
reasonably exercised whether the life insurance policies, Assignments and other
assets remaining in the Trust Fund, after such reserve for future premium
payments as the Trustee in its sole discretion reasonably exercised shall deem
necessary or appropriate, are more than adequate to insure payment to all
Participants and Beneficiaries as determined under Section 1.2 above and to
satisfy the obligations of the Trust under the Insurance Plan as provided in
Section 1.2; and if so the Trustee (after converting to cash so much of any
insurance policies as the Trustee in its sole discretion reasonably exercised
deems appropriate) shall distribute such excess assets in reversion
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to CBI. In the event assets remain in the Trust Fund after all payments to
Participants and Beneficiaries have been completed in accordance with the
Restoration Plan and all Agreements, and all obligations of the Trust under the
Insurance Plan are satisfied, the Trustee shall distribute such remaining
assets in reversion to CBI.
2.5 DISTRIBUTION TO PAY TAXES. All taxes, including but
not limited to income taxes, upon or in respect of the income or assets of the
Trust Fund, or upon or in respect of distributions from the Trust Fund required
by any federal or state revenue law to be withheld at the source, shall be
reported and paid by CBI from assets other than the Trust Fund. To the extent
not so paid by CBI, or to the extent the Trustee in its sole discretion
reasonably exercised determines that it is necessary to protect the Trustee from
any liability under any federal or state revenue law for failure to report and
withhold taxes at the source, the Trustee may report and pay such taxes from the
Trust Fund, provided, however, that CBI shall indemnify the Trustee and the
Trust Fund and hold them harmless from and against any such taxes.
ARTICLE III: ADMINISTRATION OF AND ACCOUNTING FOR TRUST FUND
3.1 MANAGEMENT AND CONTROL OF TRUST FUND. Subject to the
provisions of this Trust Agreement, the Trustee shall have exclusive authority,
discretion and responsibility to manage, control, assert, exercise and enforce
rights or interests in the assets of the Trust Fund, in accordance with such
instructions and directions consistent with this Trust Agreement as are
communicated to the Trustee by CBI. All rights associated with assets of the
Trust shall, to the extent of the ownership interest of the Trustee, be
exercised by the Trustee or the person designated by the Trustee, and shall in
no event be exercisable by or rest with Participants or their Designees and
Beneficiaries; provided, however, that a Participant or his Designee or
Beneficiary may exercise all rights of ownership respecting his or its interest
in an insurance policy under the Insurance Plan, the ownership of which may be
divided between the Trustee and the Participant or their Designee and
Beneficiary during such time as the Trustee holds an Assignment on said
insurance policy.
3.2 INVESTMENT OF FUNDS. During the term of this Trust,
an income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested. The Trustee may invest any portion of the Trust
Fund not invested in life insurance policies in United States Government
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obligations, corporate or governmental bonds or other debt obligations of
investment quality, annuity contracts, savings accounts, other bank accounts or
deposits (including such an account or deposit in its own banking or trust
department, any common trust fund, group trust, pooled fund or other commingled
investment fund maintained by the Trustee for trust investment purposes or with
a fiduciary or party in interest, other than such a Trust or fund maintained
for tax-qualified plans or trusts) which bear a reasonable rate of interest,
and in cash or accounts or deposits which do not bear interest for only such
limited time as is necessary pending investment, reinvestment or payment of
distributions. In no event may the Trustee invest in securities (including
stock or rights to acquire stock) or obligations issued by CBI, other than a de
minimis amount held in common investment vehicles in which the Trustee invests.
3.3 TRUSTEE'S ADMINISTRATIVE POWERS. Except as otherwise
provided in the Trust Agreement, the Trustee shall exercise the following
powers, rights and duties in addition to those provided elsewhere in the Trust
Agreement or by law:
(a) to retain any asset of the Trust Fund,
including any dividends or other property received with respect to insurance
policies or other property held in the Trust;
(b) to borrow from any lender (including, to the
extent permitted under federal or state law, CBI, any shareholder of CBI or the
lending department of the Trustee), to acquire or maintain life insurance
policies on the lives of Participants or to distribute benefits in accordance
with the Plans; provided that the Trustee shall not make any borrowing (other
than under a life insurance policy) from a lender other than CBI, if CBI is
willing to make such loan; and further provided, however, that before a Change
in Control (as defined in Section 5.3), CBI and the Trustee must jointly agree
to the terms and conditions of any borrowing (other than under a life insurance
policy) or any agreement with any lender (other than a life insurance company
making loans pursuant to such life insurance policy).
(c) to employ such accountants, actuaries,
attorneys and agents, whether independent or not, as may be reasonably
necessary in collecting, managing, administering, investing, distributing and
protecting the Trust Fund or the assets thereof or any borrowings of the
Trustee
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made in accordance with paragraph (b) above or computing the obligations herein
or excess assets, if any, of the Trust Fund;
(d) to settle, submit to arbitration, compromise,
contest, prosecute or abandon claims and demands in favor of or against the
Trust Fund;
(e) to vote any securities either in person or by
proxy for any purpose, to consent to, to dissent from and to oppose or take any
action in connection with, and receive and retain any securities resulting from
any reorganization, consolidation, merger, readjustment of the financial
structure, sale, lease or other disposition of the assets of any corporation or
other organization, the securities of which may be an asset of the Trust Fund;
(f) to cause any asset of the Trust Fund to be
issued, held or registered in its individual name or in the name of its
nominee, or in such form that title will pass by delivery, provided that the
records of the Trustee shall indicate the true ownership of such assets;
(g) Pursuant to the Insurance Plan, to execute
and hold the Assignments, and to exercise, assert and enforce the rights and
interests of the Assignee thereunder, and to pay premiums for insurance
policies issued under the Insurance Plan as set forth in the Insurance Plan,
an Agreement or this Trust;
(h) to exercise any of the powers and rights of
an individual owner with respect to any asset of the Trust Fund and to perform
any and all other acts in its judgment necessary or appropriate for the proper
administration of the Trust Fund, even though such powers, rights and acts are
not specifically enumerated in the Trust.
Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or by applicable law, the Trustee shall not have any power
that could give this Trust the objective of carrying on a business and dividing
the gains therefrom, within the meaning of section 301.7701-2 of the Procedural
and Administrative Regulations promulgated pursuant to the Code.
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3.4 TRUSTEE'S RELIANCE UPON COUNSEL, ACCOUNTANTS,
INSURANCE CONSULTANTS OR ACTUARIES. The Trustee may consult with counsel,
accountants, insurance consultants or actuaries (who may be counsel,
accountants, insurance consultants or actuaries for CBI) with respect to any of
its duties or obligations hereunder and the opinion of such counsel with
respect to legal matters, of such accountants with respect to accounting
matters, and of such actuaries or insurance consultants with respect to
computing Trust obligations, shall be full and complete authorization with
respect to any action taken by the Trustee in good faith and in accordance
therewith.
3.5 INDEMNIFICATION OF TRUSTEE. (a) CBI agrees, to the
extent permitted by applicable law to indemnify the Trustee and hold the
Trustee harmless from and against any loss or expense incurred (including legal
expenses) or any claim or liability that may be asserted against the Trustee by
reason of its taking or refraining from taking, in either case based upon the
Trustee's reasonable and good faith interpretation of the Trust Agreement, any
action under this Trust Agreement (including, without limiting the generality
of the foregoing, any claim brought against the Trustee by CBI), provided that
in no event shall CBI's obligation to indemnify the Trustee and hold the
Trustee harmless as provided herein apply in the event of the Trustee's
negligence, bad faith or willful misconduct.
(b) The Trustee shall be entitled to rely upon a
certification of an authorized representative of CBI with respect to any
instruction, direction or approval of CBI until a subsequent certification is
filed with the Trustee. Notwithstanding any other provision to the contrary
under this Trust Agreement, CBI agrees to fully indemnify the Trustee and hold
the Trustee harmless from and against any loss or expense incurred (including
legal expenses) or any claim or liability that may be asserted against the
Trustee by reason of the Trustee taking or refraining from taking any action
in compliance with or pursuant to CBI's instruction, direction or approval
under this Trust Agreement.
(c) The Trustee shall be entitled to rely upon any
instrument, certificate or paper which the Trustee reasonably and in good faith
believes to be genuine and to be signed or presented by the proper person or
persons, and the Trustee shall not be under any duty to make any investigation
or inquiry as to any statement contained in any such writing but may accept the
same as conclusive evidence of the accuracy of the statements therein
contained.
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(c) The Trustee shall not be liable for the proper
application of any part of the Trust Fund if distributions are made in
accordance with the terms of this Trust Agreement and information furnished to
the Trustee by CBI.
3.6 RECORDS AND ACCOUNTS OF TRUSTEE. The Trustee shall
maintain accurate and detailed records and accounts of all transactions of the
Trust, which shall be available at all reasonable times for inspection or audit
by any person designated by CBI and which shall be retained as required by
applicable law.
3.7 FISCAL YEAR. The fiscal year of the Trust shall be
the twelve-month period beginning on January 1 and ending on December 31.
3.8 REPORT OF TRUSTEE. The Trustee shall prepare and
present to CBI, a report for the period ending on the last day of each fiscal
year, and for such shorter periods as CBI may request, listing all policies,
securities and other property acquired and disposed of and all receipts,
disbursements, distributions and other transactions effected by it since the
date of its last account, and further listing all cash, securities, and other
property held by it, together with the fair market value thereof, as of the end
of such period. In addition to the foregoing, the report shall contain such
additional information regarding the Trust Fund's assets and transactions as
CBI may request and as may be necessary to enable CBI to comply with the
provisions of any Plan and applicable law. The Trustee shall forward promptly
to CBI copies of premium notices, statements, and other reports received by the
Trustee from any insurance company or agent thereof respecting any life
insurance policies held in the Trust Fund, or under which the Trustee holds an
Assignment.
3.9 FINAL REPORT. In the event of the resignation or
removal of the Trustee hereunder, CBI may request and the Trustee shall then
submit, for the period ending on the effective date of such resignation or
removal, a report similar in form and purpose to that described in Section 3.8
above.
3.10 APPROVAL OR REPORTS. CBI may approve a report
submitted by the Trustee pursuant to Section 3.8 or Section 3.9 by written
notice of approval delivered to the Trustee or by failure to express objection
to such report in writing delivered to the Trustee within six months from the
date
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upon which the report was delivered to CBI. Upon the receipt of a written
approval of a report, or upon the passage of the period of time within which
objection may be filed without written objections having been delivered to the
Trustee, such report shall be deemed to be approved, and the Trustee shall be
released and discharged as to all items, matters and things set forth in such
report, as fully as if such report had been settled and allowed by decree of a
court of competent jurisdiction in an action or proceeding in which the Trustee,
CBI and all persons having or claiming to have any interest in the Trust Fund or
under any Plan or any Agreement were parties. If the Trustee and CBI cannot
agree with respect to any act or transaction contained in any report, the
Trustee shall have the right to have its accounts settled by judicial
proceedings, in which event only the Trustee and CBI shall be necessary parties.
3.11 COMPENSATION AND EXPENSES. The Trustee shall be
entitled to reasonable compensation for its services as may be agreed upon from
time to time by the Trustee and CBI. Unless otherwise paid by CBI, the Trustee
is authorized to reimburse itself from the Trust Fund for its reasonable
compensation, expenses, taxes and charges (including fees and expenses of its
accountants, attorneys, insurance consultants, actuaries and agents) incurred
in connection with the administration, management, investment, protection,
distribution and exercise of rights with respect to assets in the Trust Fund.
In determining whether any excess assets currently exist in the Trust Fund,
under Section 2.4, above, the Trustee may take into account recurring and
reasonably anticipated expenses for such administration.
3.12 COOPERATION IN ADMINISTRATION. CBI shall provide to the
Trustee upon request from the Trustee from time to time such information on a
Participant's date of hire, age, years of service, compensation, death,
elections, Designee, Beneficiary, and the form, payee, amount and commencement
date of benefits under any Plan or Underlying Plan, as the Trustee may
reasonably request to fulfill its obligations under this Trust Agreement.
ARTICLE IV: SUCCESSION OF TRUSTEE
4.1 RESIGNATION OF TRUSTEE. The Trustee or any successor
thereto may resign as Trustee hereunder at any time upon delivering a written
notice of such resignation, to take effect thirty (30) days after the delivery
thereof to CBI (unless CBI shall accept shorter notice).
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4.2 REMOVAL OF TRUSTEE. The Trustee or any successor
thereto may be removed for good and sufficient cause by delivering to the
Trustee so removed an instrument executed in the name of CBI by both (i) the
Chairman of CBI, and (ii) any Executive Vice President or Senior Vice President
of CBI. Such removal shall take effect at the date specified in such
instrument, which shall not be less than thirty (30) days after delivery of the
instrument (unless a successor Trustee shall have been earlier appointed by
CBI).
4.3 APPOINTMENT OF SUCCESSOR TRUSTEE. Whenever the
Trustee or successor Trustee shall resign or be removed or a vacancy in the
position shall otherwise occur, CBI shall appoint a successor Trustee which
shall be a bank or trust company authorized to exercise trust powers in
Illinois and which is unaffiliated with CBI or any successor thereto, which may
qualify by delivering its acceptance in writing to CBI. If no such appointment
has been made, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
4.4 SUCCESSION TO TRUST FUND ASSETS. The title to all
property held hereunder shall vest in any successor Trustee acting pursuant to
the provisions hereof without the execution or filing of further instrument,
but a resigning or removed Trustee shall execute all instruments and do all
acts necessary to vest title in the successor Trustee. Each successor Trustee
shall have, exercise and enjoy all of the powers, both discretionary and
ministerial, herein conferred upon its predecessors. A successor Trustee shall
not be obligated to examine or review the accounts, records, and acts of or
property delivered by any previous Trustee and shall not be responsible for any
action or any failure to act on the part of any previous Trustee.
4.5 CONTINUATION OF TRUST. In no event shall the legal
disability, resignation or removal of a Trustee terminate the Trust, but CBI
shall have the duty of forthwith appointing a successor Trustee to carry out
the terms of the Trust.
4.6 CHANGES IN ORGANIZATION OF TRUSTEE. In the event
that any corporate Trustee hereunder shall be converted into, shall merge or
consolidate with, or shall sell or transfer substantially all of its assets and
business to another corporation, the corporation resulting from
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such conversion, merger or consolidation or the corporation to which such sale
or transfer shall be made shall thereupon become and be the Trustee under the
Trust with the same effect as though originally so named.
4.7 CONTINUANCE OF TRUSTEE'S POWERS IN EVENT OF
TERMINATION OF THE TRUST. In the event of the termination of the Trust, as
provided herein, the Trustee shall dispose of the Trust Fund as directed by CBI
in accordance with the provisions hereof and of the Plans. Until the final
distribution of the Trust Fund, the Trustee shall continue to have all powers
provided hereunder as necessary or expedient for the orderly liquidation and
distribution of the Trust Fund. Except as provided in Sections 2.3, 2.4 and
2.5, no part of the Trust Fund shall be used for or diverted to purposes other
than the payment of expenses properly chargeable to the Trust Fund and payments
of benefits or premiums to or on behalf of Participants, Designees and
Beneficiaries.
ARTICLE V: AMENDMENT, TERMINATION AND MISCELLANEOUS
5.1 AMENDMENT OF TRUST. CBI may amend this Trust by
delivery to the Trustee of a written notice executed by CBI of the text and
effective date of such amendment if but only if either (i) such notice is
accompanied by the specific written consent to the proposed amendment by
Participants and Beneficiaries whose actuarial interests under all of the Plans
except the Insurance Plan represent at least 51% of the total of all actuarial
interests under Plans computed as of the effective date of such amendment and,
in the case of the Insurance Plan, specific written consent of the Executives
then participating in the Insurance Plan and against whose insurance policies
the Trustee holds Assignments whose scheduled death benefit amounts (as defined
in the Insurance Plan) in the aggregate represent at least 51% of the total
amount of scheduled death benefit amounts as of the effective date of such
amendment; or (ii) such notice is accompanied by the opinion of counsel
satisfactory to the Trustee that the amendment is necessary for the purpose of
conforming the Trust to any present or future federal or state law (including
revenue laws) relating to trusts of this or similar nature, as such laws may be
amended from time to time, and a copy of such notice and opinion of counsel is
delivered to each Participant or Designee; provided, however, that no amendment
shall enlarge the duties or responsibilities of the Trustee without its written
consent.
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5.2 REVOCATION OF TRUST. Subject to the rights of
creditors of CBI in the event of Insolvency, this Trust shall be irrevocable.
5.3 AMENDMENT OF TRUST PRIOR TO CHANGE IN CONTROL.
Notwithstanding Section 5.1, CBI may amend (but not revoke) this Trust
Agreement prior to a Change in Control (as defined below) with respect to
Participants, Designees, Beneficiaries and the Trustee without limitation and
in any manner and effective as of any date, including a retroactive effective
date, by delivery to the Trustee of a written notice executed by CBI of the
substance and effective date of such amendment, accompanied by the written
certification of the Secretary of CBI that no Change in Control has occurred;
provided that no amendment may have the effect of revoking the Trust by
returning to CBI or diverting to others any of the Trust Fund before all
payment of benefits and premiums have been made to or for the benefit of
Participants and their Designees and Beneficiaries pursuant to the terms of the
Plan(s), except as provided in Section 13; and, provided further, that no
amendment shall enlarge the duties or responsibilities of the Trustee without
its written consent. For purposes of this Section 5.3, the term "Change in
Control" shall mean the occurrence at any time of any of the following events:
(a) An Acquiring Person (as defined below) has become
such; or
(b) Continuing Directors (as defined below) cease to
comprise a majority of the board of directors of CBI.
For purposes of this Section 5.3, the terms "Acquiring Person" and "Continuing
Directors" shall have the respective meanings ascribed to such terms in that
certain Amendment and Restatement of Rights Agreement dated as of March 4,
1986, between CBI and First Chicago Trust Company of New York, as Rights Agent,
the relevant portions of which for convenience of reference are reproduced as
Exhibit VII to this Trust Agreement. If a Change in Control occurs, CBI shall
within five (5) days notify the Trustee in writing of that fact and the date
thereof, and CBI shall upon the written request of the Trustee and may at any
other time in its discretion notify the Trustee in writing whether a Change in
Control is expected to occur; provided, however, that the Trustee shall have
sole discretion to determine for purposes of this Trust Agreement whether a
Change in
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Control has actually occurred, and such determination shall be
conclusive and binding on all parties hereto.
5.4 AMENDMENT BY TRUSTEE IN EVENT CBI CEASES TO EXIST.
In the event CBI shall cease to exist and its obligation to cooperate in the
administration of the Trust is not assumed by any other person or corporation,
the Trustee shall have the power to make by amendment such changes in,
additions to, and substitutions for the provisions of the Trust, to take effect
retroactively or otherwise, as may be necessary or advisable for the purpose of
conforming the Trust to any present or future Federal or State law relating to
trusts of this or similar nature, as amended from time to time.
5.5 TERMINATION OF TRUST. The Trust shall terminate at
such time as all of the assets held for the benefit of Participants, Designees
and their Beneficiaries have been disbursed to Participants or their
Beneficiaries pursuant to Section 2.1, distributed to pay premiums under the
Insurance Plan pursuant to Section 2.2, distributed to or for the payment of
taxes pursuant to Section 2.5 or for the benefit of general creditors of
CBI pursuant to Section 2.3, or distributed in reversion to CBI pursuant to
Section 2.4.
5.6 NONALIENABILITY. No Participant, Designee or
Beneficiary shall have any right to sell, assign, pledge, hypothecate,
anticipate or in any way create a lien on any part of the Trust Fund. To the
maximum extent permitted by law, no interest in the Trust shall be assignable
in or by operation of law, or be liable in any way for the debts for defaults
of a Participant, Designee, Beneficiary, spouse or heirs at law whether to CBI
or to others.
5.7 COLLECTION. In the event CBI fails to pay over to
the Trustee within 10 days of notice and demand from the Trustee any amount
determined by the Trustee under Section 1.2 or Section 1.4(a) (relating to
deposit of additional insurance policies or other assets to the Trust Fund),
Section 2.1 (relating to distributions to Participants and Beneficiaries),
Section 2.2 (relating to premiums under the Insurance Plan), or Section 2.5
(relating to taxes), the Trustee may bring an action against CBI in any court
of competent jurisdiction and shall be entitled to recover from CBI such amount
plus interest at five percentage points in excess of the Trustee's prime
lending rate as publicly announced from time to time plus all costs of
collection including reasonable attorneys fees
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and costs of litigation. During any period in which the Trustee
determines it does not or will not have sufficient assets to carry out its
obligations herein, pending any action against CBI as provided in this Section
5.7, the Trustee shall first pay any survivors' benefits due to Beneficiaries
pursuant to the Survivors' Agreements and to any guarantee of death benefits
under the Insurance Plan, next any other benefits due under the Restoration
Plan or any Agreement on a pro rata basis to Beneficiaries also receiving
benefits under Survivors' Agreements, next any other benefits due under the
Restoration Plan, Service Agreements or Retirement Agreements on a pro rata
basis, and last to pay premiums for insurance policies issued pursuant to the
Insurance Plan. Upon any recovery from CBI pursuant to such action, proceeds
shall first be used by the Trustee to pay previously due and unpaid benefits
and premiums, in the order described above.
5.8 ARBITRATION OF DISPUTES. Except as otherwise
provided in Section 5.7, in the event of any dispute between or among a
Participant, a Designee, a Beneficiary, personal representative, CBI or the
Trustee, such dispute shall be resolved by arbitration in the City of Chicago
in accordance with the rules governing commercial arbitration established by
the American Arbitration Association and a judgment upon the award may be
entered in any court having jurisdiction thereof; provided, however, that a
claim by any Participant, Designee, Beneficiary or personal representative
against CBI shall be subject to arbitration only with the consent of such
Participant, Designee, Beneficiary, or personal representative.
5.9 CONSTRUCTION OF UNDERLYING PLANS. The entitlement of
a Participant or their Designee or Beneficiary to benefits under a Plan (or
Underlying Plan) shall be determined in accordance with such Plan (or
Underlying Plan). Notwithstanding anything in this Trust Agreement to the
contrary, the determination by the plan administrator of a Plan or Underlying
Plan as to the benefits provided by such Plan shall except as otherwise
redetermined pursuant to the claims procedure of such Plan or as otherwise
provided in Section 2.1, be conclusive and binding on the Trustees, CBI,
Participants, Designees and their Beneficiaries and all other persons for all
purposes of this Agreement.
5.10 CERTIFICATION OF PARTICIPANT DATA TO TRUSTEE. CBI
shall, as promptly as practicable after the date hereof, certify to the Trustee
such age, salary and other data concerning each Participant as the Trustee may
reasonably request. The Trustee may rely and act upon such data.
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5.11 CONTROLLING LAW. The laws of the State of Illinois
shall be controlling state laws in all matters relating to the Trust.
5.12 NOTICE. Any notice to the Trustee or to CBI required or
permitted under this Trust shall be duly and properly given and delivered if
sent by certified United States mail, return receipt requested, to the Trustee
at:
Gary-Wheaton Bank, N.A.
120 East Wesley
Wheaton, Illinois 60187
Attention: Janice Lorenz, Trust Department
and to CBI at
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60522-7001
Attention: Vice-President of Administration
or to such other address as the Trustee or CBI may specify by written notice to
the other.
5.13 CORPORATE ACTION. Except as otherwise expressly
provided in this Trust Agreement, any action or direction CBI is required or
permitted to take or give under this Trust Agreement shall be duly and properly
taken or given if done in writing over the signature of any of the following
CBI officers: President and Chairman of the Board, Executive Vice
President-Finance, Senior Vice President and General Counsel or Vice President
and Treasurer (as their incumbency is certified to the Trustee from time to
time by the Secretary of CBI) or such other officer of CBI as may be authorized
by specific resolution of the board of directors of CBI to take actions with
respect to this Trust Agreement. CBI shall be bound thereby and the Trustee
and all other persons shall be protected in relying thereon.
5.14 GRANTORS AND AGENCY. In the event Liquid or other
affiliates of CBI have contributed assets to the Trust Fund relating to Plans
covering Participants employed by them, references in this Agreement to CBI
shall be read as references to Liquid or such other affiliate as appropriate,
but Liquid and each such other affiliate shall be deemed to have appointed CBI
as its agent for purposes of this Trust Agreement to the end that the Trustee
may deal with CBI as if CBI were the only settlor and grantor under the Trust.
The Trustee shall nevertheless maintain accounts showing
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the respective assets attributable to CBI and each affiliate for the purpose of
applying Section 2.3 separately to CBI and each such affiliate and enabling CBI
and each such affiliate to comply with requirements of Section 671 et seq. of
the Code as applicable to it.
5.15 COUNTERPARTS. The Trust may be executed in any number
of counterparts, each of which shall be considered an original.
IN WITNESS WHEREOF, the CBI and the Trustee have caused this
Trust Agreement to be signed and their corporate seal affixed hereto by
authorized officers, all as of the day and year first above written, the
Trustee hereby evidencing its acceptance of the Trust including its agreement
to perform the duties given to or required of it by the Trust.
ATTEST: CBI INDUSTRIES, INC.
/s/ Charlotte C. Toerber By: /s/ G.L. Scheuppert
----------------------------------- ---------------------------
ATTEST: GARY-WHEATON BANK, N.A. as
/s/ Thomas S. Palmer By: /s/ Gary-Wheaton Bank, N.A.
----------------------------------- ---------------------------
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SECRETARY'S CERTIFICATE
I, C.C. Toerber, do hereby certify that I am the Secretary of
CBI Industries, Inc., a Delaware corporation (hereinafter the "Corporation"),
and that as such officer I am duly authorized to make this Certificate on
behalf of the Corporation.
I further certify: (1) that the Board of Corporation
unanimously adopted the following resolutions at their meeting January 11, 1995
(hereinafter "January 11th Consent"), (2) that the January 11th Consent was
adopted in accordance with the By-Laws of the Corporation; and (3) that the
following is a true and complete extract of the January 11th Consent as adopted
by the Board of Directors of the Corporation:
FURTHER RESOLVED, that Section 5.3 of the CBI Industries, Inc.
Supplemental Survivors' Benefit, Executive Life Insurance and Benefit
Restoration Trust is hereby amended to read as follows:
5.3 AMENDMENT OF TRUST PRIOR TO CHANGE IN CONTROL.
Notwithstanding Section 5.1, CBI may amend (but not revoke)
this Trust Agreement prior to a Change in Control (as defined
below) with respect to Participants, Designees, Beneficiaries
and the Trustee without limitation and in any manner and
effective as of any date, including a retroactive effective
date, by delivery to the Trustee of a written notice executed
by CBI of the substance and effective date of such amendment,
accompanied by the written certification of the Secretary of
CBI that no Change in Control has occurred; provided that no
amendment may have the effect of revoking the Trust by
returning to CBI or diverting to others any of the Trust Fund
before all payment of benefits and premiums have been made to
or for the benefit of Participants and their Designees and
Beneficiaries pursuant to the terms of the Plan(s), except as
provided in Section 1.3; and, provided further, that no
amendment shall enlarge the duties or responsibilities of the
Trustee without its written consent. For purposes of this
Section 5.3, the term "Change in Control" shall mean the
occurrence at any time of any of the following events:
(a) An "Acquiring Person" (as defined below) has become
such;
or
(b) "Continuing Directors" (as defined below) cease to
comprise a majority of the Board of Directors of CBI.
For purposes of this Section 5.3, the terms "Acquiring Person"
and "Continuing Directors" shall have the respective meaning
as ascribed to such terms in that certain Amendment and
Restatement dated as of
26
August 8, 1989, of Rights Agreement dated as of March 4, 1986,
between CBI and First Chicago Trust Company of New York, as
Rights Agent, as has been or may be amended from to time. If a
Change in Control occurs, CBI shall within five (5) days notify
the Trustee in writing of that fact and the date thereof, and
CBI shall upon the written request of the Trustee and may at
any other time in its discretion notify the Trustee in writing
whether a Change in Control is expected to occur; provided,
however, that the Trustee shall have sole discretion to
determine for purposes of this Trust Agreement whether a Change
in Control has actually occurred, and such determination shall
be conclusive and binding on all parties hereto.
I certify that, as of January 11, 1995, no "Change in Control"
of the Corporation has occurred, as that term is defined in Section 5.3 (either
before or after the amendment made by the January 11th Consent) of that certain
Trust Agreement entered into as of the 8th day of February, 1988, by and
between CBI Industries, Inc. and the Gary-Wheaton Bank, an Illinois banking
corporation, known as the "CBI Industries, Inc. Supplemental Survivors' Benefit
and Benefit Restoration Trust".
I further certify that the foregoing resolutions continue to
be in full force and effect and have not been modified or otherwise superseded
by further action of the Board of Directors or the shareholders of the
Corporation.
IN WITNESS WHEREOF, I have set my hand on behalf of
CBI Industries, Inc. this 23rd day of January, 1995.
/s/ CCT
------------------------------------
C.C. Toerber, Secretary