Exhibit 10.19.1
FIRST AMENDMENT TO THE IBC RABBI TRUST AGREEMENT
THIS FIRST AMENDMENT TO THE IBC RABBI TRUST AGREEMENT ("the Amendment")
is entered into by and between INTERSTATE BAKERIES CORPORATION (the "Company")
and UMB BANK, N.A. (the "Trustee") effective as of the 8th day of August, 2003.
WHEREAS, the Company and the Trustee entered into a Rabbi Trust
Agreement effective as of the second day of June, 2002 (the "Trust") to assist
the Company in meeting its obligations under various nonqualified deferred
compensation plans;
WHEREAS, the Company and the Trustee reserved the right to amend the
Trust pursuant to Section 14 of the Trust subject to certain conditions;
WHEREAS, to further the intention of the Company to provide itself with
a source of funds to assist in meeting its liabilities under certain
nonqualified deferred compensation plans, the Company wishes to amend the Trust
(i) to make the Trust irrevocable and (ii) to provide for certain annual funding
obligations to the Trust; and
WHEREAS, the Company wishes to further amend the Trust to assure
favorable income tax treatment under applicable federal and state tax laws, and
to adopt certain additional provisions as set forth in the "Model Grantor Trust"
created under Revenue Procedure 92-64, as amended.
NOW, THEREFORE, the parties do hereby amend the Trust as follows:
1. Section 1(c) shall be deleted in its entirety and the following
substituted in lieu thereof:
"(c) The Trust was revocable by the Company upon its establishment on
June 2, 2002. Effective August 8, 2003, the Trust shall be
irrevocable."
2. Section 1(f) shall be deleted in its entirety and the following
substituted in lieu thereof:
"(f) Prior to August 8, 2003, the Company and its Subsidiaries, in
their sole discretion, may at any time, or from time to time,
make additional deposits to the Trust of cash or other property
acceptable to the Trustee to augment the principal to be held,
administered and disposed of by the Trustee as provided in this
Trust Agreement. Subject to Section 1(g), for the 2004 Plan years
and each Plan year thereafter, the Compensation Committee of the
Board of Directors (or its successor) shall cause the Company and
any participating Subsidiary to deposit, during the Plan year or
as soon as practicable following the end of the Plan year, cash
or other property acceptable to the Trustee in an amount not less
than the amount determined by the Company's actuary to constitute
the FAS 87 expense related to the Plans for such Plan year. In
addition to the amount described in the previous sentence, at any
time, or from time to time, the Company and its Subsidiaries may
make additional deposits of cash or other property acceptable to
the Trustee to the Trust. Prior to a Change in Control, the
Trustee shall not have any right to compel additional deposits."
3. Section 1(h) shall be amended by deleting the first clause thereof and
replacing it with the following:
"Within 30 days following the end of each Plan year ending after a
Change in Control,"
4. Section 6(e) shall be amended by adding the following to the end of the
subsection:
"This right is exercisable by the Company in a non-fiduciary capacity
without the approval or consent of any person in a fiduciary capacity."
5. Section 14(a) shall be amended by adding the following to the end of
the first paragraph thereof:
"; no such amendment shall be made which will cause the assets of the
Trust to be taxable to participants of the Plans prior to a
distribution of such assets to the participants. Notwithstanding
anything in this Section 14 to the contrary, the Trust Agreement, as
appropriate, shall be amended from time to time (without the consent of
any Plan participant or beneficiary) to maintain such Plans as unfunded
Plans primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees for
purposes of ERISA and the Code, and to maintain the Trust as a "grantor
trust" under the Code; and to assure that deposits to the Trust by the
Company will not constitute a taxable event; that income and gains of
the Trust will not be taxable as income and gains to Plan participants
and beneficiaries under the Plans, and that benefits paid to Plan
participants and beneficiaries from the Trust will be deductible to the
Company in the year of payment."
IN WITNESS WHEREOF, this Amendment has been executed on behalf of the parties
effective as of the day and year first written above.
INTERSTATE BAKERIES CORPORATION
By: /s/ Paul E. Yarick
--------------------------------------------
Name: Paul E. Yarick
Title: Senior Vice President-Finance and Treasurer
UMB BANK, N.A.
By: /s/ Larry A. Rudawsky
--------------------------------------------
Name: Larry A. Rudawsky
Title: Vice President
2