TRUST UNDER BOATMEN'S SUPPLEMENTAL RETIREMENT PLAN
This Agreement made this 31st day of December, 1993, by and between
Boatmen's Bancshares, Inc. ("Company") and United States Trust Company of New
York (Trustee");
WHEREAS, Company has adopted nonqualified deferred compensation Plans as
listed in Appendix A (hereinafter collectively called "Plan");
WHEREAS, Company wishes to establish a trust (hereinafter called "Trust")
and to contribute to the Trust assets that shall be held therein, subject to the
claims of Company's creditors in the event of Company's Insolvency, as herein
defined, until paid to Plan participants and their beneficiaries in such manner
and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
and
WHEREAS, it is the intention of Company to make contributions to the Trust
to provide itself with a source of funds to assist it in the meeting of its
liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust
(a) Company hereby deposits with Trustee in trust One Hundred Dollars
($100.00), which shall become the principal of the Trust to be held,
administered and disposed of by trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any rights
created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against Company.
Any assets held by the Trust will be subject to the claims of Company's general
creditors under federal and state law in the event of Insolvency, as defined in
Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with Trustee to
augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust
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Agreement. Neither Trustee nor any Plan participant or beneficiary shall have
any right to compel such additional deposits.
(f) Upon a Change of Control, Company shall, as soon as possible, but in no
event longer than ten (10) days following the Change of Control, as defined
herein, make an irrevocable contribution to the Trust in an amount that is
sufficient to pay each Plan participant or beneficiary the benefits to which
Plan participants or their beneficiaries would be entitled pursuant to the terms
of the Plan as of the date on which the Change of Control occurred.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions acceptable
to Trustee for determining the amounts so payable, the form in which such amount
is to be paid (as provided for or available under the Plan), and the time of
commencement for payment of such amounts. Except as otherwise provided herein,
Trustee shall make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. The Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits pursuant to the
terms of the Plan and shall pay amounts
3
withheld to the appropriate taxing authorities or determine that such amounts
have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan shall be determined by Company or such party as it shall
designate under the Plan, and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan. Company
shall notify Trustee of its decision to make payment of benefits directly prior
to the time amounts are payable to participants or their beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the terms of the
Plan, Company shall make the balance of each such payment as it falls due.
Trustee shall notify Company where principal and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary
when Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
4
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of Company
shall have the duty to inform Trustee in writing of Company's Insolvency.
If a person claiming to be a creditor of Company alleges in writing to
Trustee that Company has become Insolvent, Trustee shall determine whether
Company is Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency, or
has received notice from Company or a person claiming to be a creditor
alleging that Company is Insolvent, Trustee shall have no duty to inquire
whether Company is Insolvent. Trustee may in all events rely on such
evidence concerning Company's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning Company's solvency.
(3) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall
5
in any way diminish any rights of Plan participants or their beneficiaries
to pursue their rights as general creditors of Company with respect to
benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust Agreement
only after Trustee has determined that Company is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Company in lieu of the payments provided
for hereunder during any such period of discontinuance.
Section 4. Investment Authority.
(a) In no event may Trustee invest in securities (including stock or rights
to acquire stock) or obligations issued by Company, other than a de minimis
amount held in common investment vehicles in which Trustee invests. All rights
associated with assets of the Trust shall be exercised by Trustee or the person
designated by
6
Trustee, and shall in no event be exercisable by or rest with Plan participants.
Section 5. Disposition of Income.
(a) During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 6. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within ninety (90) days following the close of each
calendar year and within ninety (90) days after the removal or resignation of
Trustee, Trustee shall deliver to Company a written account of its
administration of the Trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all investments, receipts, disbursements and other transactions effected
by it, including a description of all securities and investments purchased and
sold with the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be.
7
Section 7. Responsibility of Trustee.
(a) If Trustee undertakes or defends any litigation arising in connection
with this Trust, Company agrees to indemnify Trustee against Trustee's costs,
expenses, and liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such payments. If
Company does not pay such costs, expenses and liabilities in a reasonably timely
manner, Trustee may obtain payment from the Trust.
(b) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(c) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in performing any of
its duties or obligations hereunder.
(d) Trustee shall have, without exclusion, all powers conferred on Trustees
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor Trustee, or to loan to any person the proceeds
of any borrowing against such policy.
(e) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on
8
a business and dividing the gains, therefrom, within the meaning of Section
301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant
to the Internal Revenue Code.
Section 8. Compensation and Expenses of Trustee. Company shall pay all
administrative and Trustee's fees and expenses. If not so paid, the fees and
expenses shall be paid from the Trust.
Section 9. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company, which
shall be effective sixty (60) days after receipt of such notice unless Company
and Trustee agree otherwise.
(b) Except as provided in Section 9(c), Trustee may be removed by Company
on sixty (60) days notice or upon shorter notice accepted by Trustee.
(c) Upon a Change of Control, as defined herein, Trustee may not be removed
by Company for twenty (20) years.
(d) If Trustee resigns within twenty (20) year(s) of a Change of Control,
as defined herein, Trustee shall select a successor Trustee in accordance with
the provisions of Section 10(b) hereof prior to the effective date of Trustee's
resignation.
(e) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within sixty (60) days after receipt of notice
of resignation, removal or transfer, unless Company extends the time limit,
9
(f) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 10 hereof, by the effective date of resignation or
removal under paragraphs (a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
Section 10. Appointment of Successor.
(a) Except as provided in Section 9(d), if Trustee resigns or is removed in
accordance with Section 9(a) or (b) hereof, Company may appoint any third party,
such as a bank trust department or other party that may be granted corporate
trustee powers under state law, as a successor to replace Trustee upon
resignation or removal. The appointment shall be effective when accepted in
writing by the new Trustee, who shall have all of the rights and powers of the
former Trustee, including ownership rights in the Trust assets. The former
Trustee shall execute any instrument necessary or reasonably requested by
Company or the successor Trustee to evidence the transfer.
(b) If Trustee resigns pursuant to the provisions of Section 9(d) hereof
and selects a successor Trustee, Trustee may appoint any third party such as a
bank trust department or other party that may be granted corporate trustee
powers under state law. The appointment of a successor Trustee shall be
effective when accepted in writing by the new Trustee. The new Trustee shall
have all the
10
rights and powers of the former Trustee, including ownership rights in Trust
assets. The former Trustee shall execute any instrument necessary or reasonably
requested by the successor Trustee to evidence the transfer.
Section 11. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed by
Trustee and Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plan or shall make the Trust revocable.
(b) Subject to Section 11(c), the Trust shall not terminate until the date
on which Plan participants and their beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan. Upon termination of the Trust any
assets remaining in the Trust shall be returned to Company.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan, Company may terminate
this Trust prior to the time all benefit payments under the Plan have been made.
All assets in the Trust at termination shall be returned to Company.
(d) Sections l.(b), l.(d), l.(f), 2.(a), 2.(b), 4.(a), 5.(a), 9.(c),
9.(d), 10.(b), 11.(a), 11.(b), 11.(d), 12.(a), 12.(b), 12.(c) and 12(d) of this
Trust Agreement may not be amended by Company for twenty (20) year(s)
following a Change of Control, as defined herein.
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Section 12. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of Missouri.
(d) For purposes of this Trust, Change of Control shall mean any of the
following events: (a) any individual, corporation (other than the Company),
partnership, trust, association, pool, syndicate, or any other entity or any
group of persons acting in concert becomes the beneficial owner, as that concept
is defined in Rule 13d-3 promulgated by the SEC under the Securities Exchange
Act of 1934, of securities of the Company possessing twenty percent (20%) or
more of the voting power for the election of directors of the Company; (b) there
shall be consummated any consolidation, merger or other business combination
involving the Company or the securities of the Company in which holders of
voting securities of the Company immediately prior to such consummation own, as
a group, immediately after such consummation, voting securities of the Company
(or, if the Company does not survive such transaction, voting securities of the
corporation surviving such transaction)
12
having less than fifty percent (50%) of the total voting power in an election of
directors of the Company (or such other surviving corporation); (c) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the Directors of the Company cease for any reason to constitute at
least a majority thereof unless the election, or the nomination for election by
the Company's shareholders, of each new Director of the Company was approved by
a vote of at least two-thirds of the Directors of the Company then still in
office who were Directors of the Company at the beginning of any such period;
(d) removal by the stockholders of all or any of the incumbent Directors of the
Company other than a removal for Cause; and (e) there shall be consummated any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
(on a consolidated basis) to a party which is not controlled by or under common
control with the Company. For purposes of this Section 12(d), "Cause" means
conduct which is knowingly fraudulent, deliberately dishonest or willful
misconduct.
Section 13. Effective Date.
The effective date of this Trust Agreement shall be December 31, 1993.
BOATMEN'S BANCSHARES, INC.
By /s/ [ILLEGIBLE]
---------------------------
Title: SVP
13
Trustee:
UNITED STATES TRUST COMPANY
OF NEW YORK
By /s/ [ILLEGIBLE]
---------------------------
Title: Senior Vice President
14
Appendix A
Boatmen's Supplemental Retirement Compensation Plan
Centerre Executive Retirement Program; provided, however, for purposes of
the Trust to which this Appendix A is attached, only the benefits of the
participants in the Centerre Plan who are active employees of Boatmen's
Bancshares, Inc. or its subsidiaries as of the date the Trust is entered into
shall be deemed part of the Plan and covered by the Trust.
FIRST INSTRUMENT OF AMENDMENT
WHEREAS, Boatmen's Bancshares, Inc. (the "Company")
established the Trust Under Boatmen's Supplemental Retirement Plan (the
"Trust",) by entering into a trust agreement, dated December 31, ▇▇▇▇ (▇▇▇
"▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York (the
"Trustee"), in order to provide a vehicle to fund certain of the Company's
deferred compensation plans, subject to the claims of the Company's creditors;
WHEREAS, the Company wishes and the Trustee agrees to amend
the Trust Agreement to include the Company's Tier Two Supplemental Retirement
Plan under the Trust Agreement and to provide that sufficient assets are set
aside upon a Change of Control (as defined in the Trust) to ensure that the
Company shall satisfy its obligations under certain employment agreements and
the Company's Change of Control Severance Plan;
NOW THEREFORE, the Trust Agreement is hereby amended as
follows:
1. The first paragraph is hereby amended and restated in its
entirety to read as follows:
This Agreement made this 31st day of December, 1993, by and
between Boatmen's Bancshares, Inc. ("Company") and United
States Trust Company of New York ("Trustee") and as amended as
of August 13, 1996;
2. The first WHEREAS clause is hereby amended and restated in
its entirety to read as follows:
WHEREAS, Company has adopted nonqualified compensation plans
and other compensation arrangements and entered into certain
employment agreements as listed in Appendix A (hereinafter
collectively called "Plan");
3. The third WHEREAS clause is hereby amended and restated in
its entirety to read as follows:
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect
the status of the Retirement Plans (as defined in Appendix A)
as unfunded plans maintained for the purpose of providing
deferred compensation for a select group of management or
highly compensated employees for purposes of Title I of the
Employee Retirement Income Security Act of 1974 and for the
purpose of ensuring that the Company set aside assets
sufficient to satisfy its obligations or potential obligations
under certain compensation arrangements and employment
agreements in the event of a Change of Control (as defined
herein); and
4. Section 1, paragraph (b) is hereby amended and restated in
its entirety to read as follows:
(b) The Trust hereby established shall be irrevocable, except
to the extent funds may revert to the Company as specifically
provided herein.
5. Section 1, paragraph (e) is hereby amended and restated in
its entirety to read as follows:
(e) Company, in its sole discretion (except as provided in
Section 1(f) herein), may at any time, or from time to time,
make additional deposits of cash or other property in trust
with the Trustee to augment the principal to be held,
administered and disposed of by Trustee as provided in this
Trust Agreement. Neither the Trustee nor any Plan participant
or beneficiary shall have any right to compel such additional
deposits, except as provided in Section 1(f) herein.
6. Section 1, paragraph (f) is hereby amended and restated in
its entirety to read as follows:
Upon a Change of Control (as defined herein), with respect to
the Retirement Plans (as defined in Appendix A herein),
Company shall, as soon as possible, but in no event longer
than ten (10) days following such Change of Control, make an
irrevocable cash contribution to the Trust in an amount that
is sufficient to pay each Plan participant or beneficiary the
benefits to which Plan participants or their beneficiaries
would be entitled pursuant to the terms of such Retirement
Plans as of the date on which the Change of Control occurs.
Upon a Change of Control, with respect to the Change of
Control Agreements (as defined in Appendix A herein), Company
shall, as soon as possible, but in no event longer than ten
(10) days following such Change of Control, make a cash
contribution, which shall be allocated proportionately to each
Change of Control Account (as defined below) for each such
participant, in an amount that is sufficient to pay each
Change of Control Agreement participant or beneficiary the
benefits to which such participants and beneficiaries would be
entitled if such participants' employment with the Company was
involuntarily terminated without Cause (as defined in the
Change of Control Agreements) on the date that the Change of
Control occurs, excluding amounts payable in connection with
the Retirement Plans with respect to which such amounts are
set aside under the preceding sentence and excluding any
amounts
2
payable under any plans that are qualified under Section
401(a) of the Code (the "Funding Amount"). Company shall
indicate the amount of such contribution with respect to the
Change of Control Agreements on a Payment Schedule prepared by
the Company and submitted to the Trustee immediately prior to
the date of the Change of Control. In addition, upon such
Change of Control, the Trustee shall establish a separate
account for each participant of the Change of Control
Agreements (the "Change of Control Accounts") and shall
allocate deposits made with respect to the Company's
obligations under the Change of Control Agreements
proportionately among such accounts.
7. Section 2 is hereby amended by adding a new paragraph (g)
to read in its entirety as follows:
(g) Following a Change of Control, if the Company has
satisfied its obligation with respect to any participant under
a Change of Control Agreement, including any lump-sum payment
due under any of the Retirement Plans, or, if the Company's
obligations with respect to such participant have expired, the
Company may request the Trustee to return any funds which were
allocated to such participant's Change of Control Account with
a copy of such request provided to such participant. Upon
receiving such a request, the Trustee will determine whether
the Company's obligations have been satisfied or have expired
and if the Trustee determines that such obligations either
have been satisfied or have expired, the Trustee will close
that participant's Change of Control Account and will allocate
or pay out any excess funds in the following order: (i)
proportionally to the Change of Control Accounts of any other
participants until each such Account contains an amount equal
to the Funding Amount, (ii) to the account established for the
Retirement Plans in an amount that is sufficient to pay each
Retirement Plan participant or beneficiary the benefits to
which such participants or their beneficiaries would be
entitled pursuant to the terms of such Retirement Plans as of
the date of the Company's request, and (iii) the remainder of
the funds, if any, back to the Company. Company shall not
institute any action or proceeding to compel the Trustee to
refund such amounts and the Trustee shall be fully protected
from any liability with respect thereto in the event that the
Trustee fails to refund such amount to the Company based on an
assertion by such participant or his or her beneficiary that
Company's obligations have not been satisfied or have not
expired.
3
8. Section 2, paragraph (a) is hereby amended by deleting the
first sentence and replacing it with the following:
Company shall deliver to Trustee a copy of each Plan listed on
Appendix A and a schedule (the "Payment Schedule") that
indicates the amounts payable or potentially payable in
respect of each Plan participant (and his or her
beneficiaries), provides a formula or other instructions
acceptable to Trustee for determining the amounts so payable,
the form in which such amount is to be paid (as provided for
or payable under the Plan), and the time of commencement for
payment of such amounts. In addition, the Trustee shall obtain
from the Company, participants, beneficiaries and independent
third parties, and the Company shall provide to the Trustee,
such data about each such participant, including data about
beneficiaries, to the extent determinable, as are necessary
to enable the Trustee to determine the amount and time of the
benefits payable under the terms of each Plan on account of
such participant (the "Participant Data").
9. Section 2, paragraph (b) is hereby amended and restated in
its entirety to read as follows:
(b) Prior to a Change of Control, the entitlement of a Plan
participant or his or her beneficiaries to benefits under the
Plan shall be determined by Company or such party as it shall
designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out
in the Plan. Following a Change of Control, the entitlement of
a Plan participant or his beneficiaries to benefits under the
Plan shall be determined by the Trustee. The Trustee shall
determine such benefits based on the Payment Schedule
submitted by the Company immediately prior to the Change of
Control, as updated by the Trustee in accordance with the
following procedures: (i) the Trustee shall update the
Participant Data as necessary to compute benefits under any
Plan; and (ii) the Trustee shall add persons to the list of
participants only upon the receipt of deposits from the
Company earmarked for that person and only after all other
funding obligations of the Company for other participants have
been satisfied. In carrying out its duties to update the
Payment Schedule, the Trustee shall be entitled to obtain
assistance from the Company and from independent third
parties, including but not limited to actuaries or accountants
retained by the Trustee, and shall be afforded access to all
Company records reasonably necessary to update the Participant
Data. If the Company refuses to cooperate with the Trustee or
4
fails to provide the Trustee with necessary access to Company
records, the Trustee shall request such information from the
participants or beneficiaries and shall be entitled to rely on
such information.
10. Section 4, paragraph (a) is hereby amended by deleting the
first sentence and replacing it with the following:
(a) The Trustee shall have the powers and authorities granted
to a trustee under New York law. Nevertheless, in no event may
Trustee invest in securities (including stock or rights to
acquire stock) or obligations issued by Company, other than a
de minimis amount held in common investment vehicles in which
Trustee invests.
11. Section 5, paragraph (a) is hereby amended and restated in
its entirety to read as follows:
(a) During the term of this Trust, all income earned by the
Trust, net of expenses and taxes, with respect to funds
earmarked for the Retirement Plans, shall be allocated to the
account established for the Retirement Plans, and, with
respect to funds earmarked for the Change of Control
Agreements, shall be allocated proportionately among the
Change of Control Accounts.
12. Section 6 is hereby amended by inserting at the end of
such Section the following:
Any such statement shall be deemed an account stated and
accepted and approved by the Company, and the Trustee shall be
relieved and discharged, as if such account had been settled
and allowed by a judgment or decree of a court of competent
jurisdiction, unless protected by written notice by the
company or any Plan participant or beneficiary to the Trustee
within sixty (60) days of receipt of such statement by the
Company. Upon reasonable request, the Trustee shall provide a
copy of such statement to the requesting Plan participant or
beneficiary. The Trustee shall have the right to apply at any
time to a court of competent jurisdiction for judicial
settlement of any account of the Trustee not previously
settled as herein provided or for the determination of any
question of construction or for instructions. In any such
action or proceeding it shall be necessary to join as parties
only the Trustee and the Company (although the Trustee may
also join such other parties as it may deem appropriate), and
any judgment or decree entered therein shall be conclusive.
5
13. Section 7 is hereby amended by adding a new paragraph (f)
to read in its entirety as follows:
(f) the Trustee shall incur no liability to any person in
discharging its duties hereunder for any action taken or
omitted in good faith and without negligence in conformity
with the terms of this Trust Agreement. Except as otherwise
required by law, under no circumstances shall the Trustee
incur liability to any person for any indirect or
consequential damages (including without limitation lost
profits) of any form, whether or not foreseeable and
regardless of the form of the action in which such a claim may
be brought, with respect to the Trust or its role as Trustee,
except that this sentence shall not apply in the case of the
Trustee's willful misconduct.
14. Section 8 is hereby amended by deleting the last sentence
and replacing it with the following:
If not so paid, the fees and expenses shall be paid from the
Trust in a manner deemed by the Trustee, in its sole
discretion, to be appropriate.
15 Section 12, paragraph (c) is hereby amended by deleting
the reference to "Missouri" and inserting "New York" in its place.
16. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ (▇) is hereby amended by deleting
the reference to "fifty percent (50%)" in subclause (b) and inserting "sixty
percent (60%)" in its place.
17. Appendix A is hereby amended and restated in its entirety
to read as follows:
(a) Boatmen's Supplemental Retirement Plan
(b) Boatmen's Tier Two Supplemental Retirement Plan
(c) Centerre Executive Retirement Plan; provided, however, for
purposes of the Trust to which this Appendix A is attached,
only the benefits of the participants in the Centerre Plan who
are active employees of Boatmen's Bancshares, Inc. or its
subsidiaries as of the date the Trust is entered into shall be
deemed part of the Centerre Plan and covered by the Trust
(d) Boatmen's Change of Control Severance Plan
(e) Employment Agreement of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, dated January
30, 1996
6
(f) Employment Agreement of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, dated January 30,
1996
(g) Employment Agreement of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, dated January
30, 1996, as amended August 13, 1996
(h) Employment Agreement of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated August 13,
1996
(i) Employment Agreement of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated August 13,
1996
The plans listed in paragraphs (a), (b) and (c) are
collectively referred to as the "Retirement Plans" and the
other compensation arrangements and employment agreements
listed in paragraphs (d) through (i) are collectively referred
to as the "Change of Control Agreements."
IN WITNESS WHEREOF, the Company and the Trustee have executed
this Instrument of Amendment, pursuant to approval of the Compensation
Committee and the approval and ratification by the Board of Directors, as of
August 13, 1996.
Boatmen's Bancshares, Inc.
/s/ illegible signature
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Chase Manhattan Bank, successor in
interest to United States Trust Company of
New York, as Trustee
/s/ illegible signature
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Vice President
7