EXHIBIT 10.4
FIRST AMENDMENT TO
BMC INDUSTRIES, INC. SAVINGS TRUST
BMC Industries, Inc. (the "Company") and Norwest Bank Minnesota, N.A. (the
"Trustee") hereby amend the BMC Industries, Inc. Savings Trust Agreement between
the Company and the Trustee as follows:
1. Section 1.1 of the Trust Agreement is amended to read as follows:
1.1 NAME OF TRUST. The name of the Trust evidenced by this Trust Agreement
is the "BMC Industries, Inc. Savings and Profit Sharing Trust" (the
"Trust").
2. Section 3.1(f) of the Trust Agreement is amended to read as follows:
(f) The Trustee will vote or, in connection with a public or private
tender or exchange offer, tender and sell or exchange shares of the
Company's common stock held in the Trust in accordance with the
direction of the Committee or another named fiduciary pursuant to
Section 4.4.
3. Section 4.1(a) of the Trust Agreement is amended to read as follows:
(a) The Committee, acting as the named fiduciary, will direct the Trustee
to establish at least three separate investment accounts within the
Fund, each separate account being hereinafter referred to as an
"Investment Fund." One such Investment Fund will be invested in shares
of the Company's common stock except for such amounts of cash as the
Committee determines to be necessary to satisfy short-term liquidity
requirements and cash held pending acquisition of shares of the
Company's common stock. The remaining Investment Funds may be invested
in (i) shares of investment companies registered under the Investment
Company Act of 1940, (ii) collective funds maintained by a bank or
trust company, (iii) an insurance contract or contracts or pool or
pools of insurance contracts and (iv) funds managed by a registered
investment manager, bank or insurance company. The Trustee has no
authority with respect to the selection of the Investment Funds, or
for the investment management of these accounts, except as provided in
Section 4.2 respecting a Trustee managed investment account, if any.
The Trustee will transfer to each such Investment Fund such portion of
the assets of the Fund as directed by the Administrator or directly by
a participant or beneficiary, in such form as the Trustee may
reasonably require.
4. Section 4.4 of the Trust Agreement is amended to read as follows:
4.4 VOTING AND TENDER OF COMPANY STOCK; VOTING OF OTHER SECURITIES.
(a) Shares of the Company's common stock held in the Trust will be
voted by the Committee in its discretion. In connection with any
private or public tender or exchange offer for shares of the
Company's common stock, the Committee will determine in its
discretion whether to tender and sell or exchange shares of the
Company's common stock held in the Trust. The Trustee has no
discretion over the voting or tendering the Company's common
stock held in the Trust, and its responsibility over such matters
is limited to voting or tendering such stock as directed by the
Committee. The Company may appoint another entity as a named
fiduciary for the purpose of voting and/or tendering shares of
the Company's common stock for any matter, and if so, the Company
shall furnish the Trustee with written notice of such appointment
and the appointee's acceptance.
(b) Except as provided in Section 4.4(a), the voting of proxies for
any securities held by the Trust is the responsibility of the
Committee, acting as named fiduciary, unless the Trustee or an
investment manager has investment management authority over the
securities, in which case voting is the responsibility of the
Trustee or investment manager. With respect to securities over
which the Trustee does not have investment management authority,
the Trustee will make its best effort to timely delivery proxies
to the party which it reasonably believes to have investment
management authority over such securities. The Trustee may use
agents to effect such delivery. The Trustee is not responsible
for ascertaining whether, or how, the proxies were subsequently
voted or disposed of. In the event investment management
authority over any securities is
transferred from the Trustee to a named fiduciary or investment
manager, such transfer of authority will include the transfer of
the power and responsibility to vote proxies under the party's
investment management authority unless the Trustee agrees in
writing to retain investment management power and responsibility
to vote proxies.
This Amendment is effective March 15, 1999.
The Company and the Trustee have caused this instrument to be executed this 8th
day of April, 1999.
BMC INDUSTRIES, INC.
By /s/ JEFFREY J. HATTARA
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NORWEST BANK MINNESOTA, N.A.
By /s/ PORTIA RAMOS
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