Exhibit 10.62.1
AMENDMENT NO. 1
TO THE
▇▇▇▇▇▇▇▇▇'▇, INC.
CHANGE IN CONTROL SEVERANCE BENEFIT TRUST
This Amendment is made by ▇▇▇▇▇▇▇▇▇'▇, Inc., a Delaware corporation (the
"Company" or the "Employer").
RECITALS:
A. The Company has established the Change in Control Severance Benefit
Trust, pursuant to a Trust Agreement, dated August 1, 2004 (the "Trust
Agreement");
B. The Company, pursuant to Section 6.01 of the Trust Agreement, retains
the right to amend the Trust Agreement;
C. The Company hereby certifies to the Trustee under the Trust Agreement
that the Trust has not become irrevocable; and
D. The Company has determined that it is advisable to amend the Trust
Agreement in the manner hereinafter set forth.
AMENDMENT
The Trust Agreement is hereby amended as follows:
1. The phrase "Management Compensation Group, Northwest, LLC, a Delaware
limited liability company" is hereby replaced with "a committee comprised
of the individuals set forth on Exhibit "E" to this Agreement" in the
opening paragraph to the Trust Agreement.
2. The phrase "the Employer" wherever it appears in the definition of "Change
in Control" is hereby replaced with "▇▇▇▇▇▇▇▇▇'▇, Inc."
3. The definition of "Employer" is hereby replaced with the following:
""Employer" shall mean ▇▇▇▇▇▇▇▇▇'▇, Inc., a corporation organized and
existing under the laws of the State of Delaware, or after the Effective
Time (as such term is defined in the Agreement and Plan of Merger, dated
January 22, 2006, by and among ▇▇▇▇▇▇▇▇▇'▇, Inc., New Aloha Corporation,
New Diamond Sub, Inc., SUPERVALU INC., and Emerald Acquisition Sub, Inc.),
SUPERVALU INC., or its successor or successors."
4. The definition of "Incumbent Directors" is hereby replaced with the
following:
""Incumbent Directors" shall mean the individuals who, as of the date
hereof, are directors of ▇▇▇▇▇▇▇▇▇'▇, Inc. and any individual becoming a
director subsequent to the date hereof whose
election, nomination for election by ▇▇▇▇▇▇▇▇▇'▇, Inc.'s shareholders, or
appointment, was approved by a vote of at least two-thirds of the then
Incumbent Directors (either by a specific vote or by approval of the proxy
statement of ▇▇▇▇▇▇▇▇▇'▇, Inc. in which such person is named as a nominee
for director, without objection to such nomination); provided, however,
that an individual shall not be an Incumbent Director if such individual's
election or appointment to the board of directors of ▇▇▇▇▇▇▇▇▇'▇, Inc.
occurs as a result of an actual or threatened election contest (as
described in Rule 14a-12(c) of the Exchange Act) with respect to the
election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the board of
directors of ▇▇▇▇▇▇▇▇▇'▇, Inc."
5. The last sentence of the definition of Interest Crediting Rate is hereby
deleted and replaced by the following:
"The prime rate in effect on the first day of a calendar month shall be
used as the prime rate for the entire month."
6. The term "Potential Change in Control" and its corresponding definition is
hereby deleted in its entirety.
7. The definition of "Retention Amount" is hereby amended to read "Retention
Amount shall mean $75,000."
8. The phrase "the Employer" where it appears in the definition of
"Subsidiary" is hereby replaced with "▇▇▇▇▇▇▇▇▇'▇, Inc."
9. Section 2.02 is hereby amended by changing the reference to "Section
4.17(d)" in the third sentence thereof to "Section 4.18(d)".
10. Section 2.03 of the Trust Agreement is hereby amended by (a) replacing
"Management Compensation Group, Northwest, LLC, a Delaware limited
liability company" with "a committee comprised of the individuals set forth
on Exhibit "E" to this Agreement, which committee has certified that it is
capable of performing the duties of Recordkeeper hereunder" and (b)
replacing the last sentence of such Section with the following: "Action by
such committee shall be by written certificate signed by a majority of its
members. Any member of such committee may resign after providing not less
than 30 days' notice in writing to the other members of the Recordkeeper
and to the Trustee. In the event of the resignation, death or incapacity of
a member of the Recordkeeper, the remaining members may (but need not)
designate a replacement member, who shall become a member upon accepting
such designation in writing, with a copy to the Employer and the Trustee."
11. Section 3.01(b) of the Trust Agreement is hereby amended to read as
follows:
"(b) Within 30 days following the occurrence of a Change in Control, if the
then Value of the Trust Fund is less than $50 million, the Employer shall
contribute cash to the Trust in an amount such that, taking into account
such contribution and the then Value of the Trust Fund, the total Value of
the Trust Fund equals $50 million; provided, however, that if,
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following a Change in Control but prior to such contribution, the Employer
makes any payment required under a Participant's Agreement from assets
outside the Trust, "$50 million" in this sentence shall be reduced by the
lesser of (i) the amount of such payment or (ii) $35 million. In
determining whether the Employer has made any payment from assets outside
the Trust, the Trustee shall rely on a certification from the Administrator
that the Employer has made such payments."
12. Section 3.03(a) of the Trust Agreement is hereby amended by deleting the
phrase "or Potential Change in Control" where it appears therein.
13. Section 3.04 of the Trust Agreement is hereby amended by (a) changing the
reference to "Section 4.06" in the first sentence thereof to "Section
4.07"; (b) deleting the remainder of the Section following the first
sentence and (c) by changing the title of such Section to "Contributions
Irrevocable".
14. Section 3.05 of the Trust Agreement is hereby amended by deleting the
phrase "or a Potential Change in Control" where it appears therein.
15. The fourth sentence of Section 4.05(a) of the Trust Agreement is hereby
deleted and replaced with the following:
"Upon the receipt of such certified statement and subject to Section 4.07,
the Trustee shall liquidate such Trust assets as may be available and
necessary to pay or provide the benefits set forth in such certification
and shall make or commence cash distributions from the Trust Fund in
accordance therewith to the person or persons so indicated and to the
appropriate taxing authorities with respect to taxes required to be
withheld; provided however that the Trustee shall not be required to make
any distribution which would reduce the value of the assets of the Trust
Fund to less than the Retention Amount.. On a quarterly basis, based on the
most recent certification by the Recordkeeper of the Value of Total Accrued
Benefits received by the Trustee, the Trustee shall determine whether the
Value of the Trust Fund is less than the Minimum Funding Obligation plus
the Retention Amount. If the Value of the Trust Fund is less than the
Minimum Funding Obligation plus the Retention Amount, the Trustee shall
promptly inform the Employer of that fact and the Employer shall promptly
contribute additional cash to the Trust such that the Value of the Trust
Fund is no longer less than the Minimum Funding Obligation plus the
Retention Amount. The Employer shall furnish the Trustee with the
applicable rates for tax withholding and the Trustee shall be entitled to
rely on such information."
16. Section 4.04 of the Trust Agreement is amended to read as follows:
"Trustee's preferred money market fund for its automatic cash sweep
is currently the AIM Short-Term Investment Company Liquid Assets Portfolio.
AIM, the manager of this portfolio, is an affiliate of Trustee. Employer
acknowledges and agrees that the Trust is responsible for the fund's fees
and expenses on any cash invested in any such affiliated fund (in the same
manner and to the same extent as any other holder of shares in such fund)
in addition to Trustee's compensation set forth in Section 4.08."
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17. Section 4.05(a) of the Trust Agreement is amended by adding the phrase
"as may be reasonably acceptable to the Trustee" after the phrase
"Exhibit C" in the first sentence.
18. Section 4.05(a) of the Trust Agreement is hereby amended by adding the
following immediately after the last sentence of such Section:
"For purposes of this Trust, "Minimum Funding Obligation" shall mean the
lesser of (1) $15 million or (2) 1.3 times the then Value of Total Accrued
Benefits. In addition to the other requirements of the Recordkeeper set
forth in this Section, the Recordkeeper shall provide the Trustee with the
Value of the Total Accrued Benefits as promptly as reasonably practicable
following the end of each calendar quarter."
19. Section 4.05(b) of the Trust Agreement is hereby amended by replacing the
phrase "Section 4.05(b)" with the phrase "Section 4.05" in the last
sentence thereof.
20. Section 4.05(c) of the Trust Agreement is hereby amended to read as
follows:
"If, following a Change in Control, the payments to be made from the Trust
to a Participant exceed the Value of the Trust Fund plus the Retention
Amount, and if the Employer does not otherwise provide the accrued benefits
to the Participant outside of the Trust, the unpaid benefits shall
constitute a Deficiency Amount, and shall accrue interest from the date
payment would otherwise have been made, until paid, at the Interest
Crediting Rate. Employer shall pay any Deficiency Amounts as soon as
practicable from assets outside the Trust. In determining whether the
Employer has made any payment from assets outside the Trust, the Trustee
shall rely on a certification from the Administrator that the Employer has
made such payments."
21. The second sentence of Section 4.09 of the Trust Agreement is hereby
deleted and replaced with the following:
"Without limiting the generality of the foregoing, the Trustee shall have
no responsibility, obligation or duty (a) with respect to any action
required by any Agreement or this Trust to be taken by the Employer, the
Recordkeeper, the Insurance Adviser, the Real Estate Adviser or any other
Expert, any employee, Participant, beneficiary or any other person and (b)
to enforce any of the Employer's obligations to make contributions to the
Trust. The Recordkeeper shall have no responsibility, obligation or duty
with respect to any action required by any Agreement or this Trust to be
taken by the Employer, the Trustee, any employee, participant, beneficiary
or any other person."
22. Section 4.10 of the Trust Agreement is hereby amended by replacing the
phrase "15 days" in the first sentence with the phrase "30 days."
23. Section 4.15(g) of the Trust Agreement is hereby amended by deleting the
following from such Section: "which person(s) must be independent from the
Employer and must be a certified consulting actuary or firm of actuaries or
certified public accountant or firm of certified public accountants" where
it appears (in two places) therein and substituting in each
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of such places "which person(s) must certify that it/they are capable of
performing the duties of Recordkeeper hereunder".
24. Section 4.17 of the Trust Agreement is hereby amended by (1) deleting the
phrase "Potential Change in Control or a" wherever it appears therein, (2)
changing the word "terms" in the first sentence thereof to "term", and (3)
adding the following at the end thereof:
"; provided, however, that no notice from the Trustee is required if the
Employer has notified Participants of the occurrence of a Change in Control
or has otherwise publicly disclosed in a press release or filing with the
Securities and Exchange Commission that a Change in Control has occurred."
25. The first sentence of Section 6.02 of the Trust Agreement is hereby amended
to read as follows:
"Upon the occurrence of a Change in Control, the Trust shall automatically
be and become irrevocable without any further act or deed by any person or
entity; provided that the Trust shall nonetheless terminate upon the
earliest of (a) the payment of all amounts due Participants under the
Agreements, as determined by the Recordkeeper, (b) the Administrator
provides its express written consent to the termination of the Trust, and
(c) the later of (i)the first date on which the Minimum Funding Obligation
does not exceed $1 million and (ii) the sixth anniversary of the first date
on which a Change in Control occurs."
26. Section 6.02 of the Trust Agreement is hereby amended by changing the
phrase "Section 4.16" in the third sentence thereof to "Section 4.17".
27. Section 7.07 of the Trust Agreement is hereby amended to read with regard
to the addresses set forth therein as follows:
If to Employer prior to the Effective
Time, to: ▇▇▇▇▇▇▇▇▇'▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If to Employer after the Effective SUPERVALU Inc.
Time, to: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If to Trustee, to: Atlantic Trust Company, N.A.
1330 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Fiduciary
Officer - NY Office
and
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to Recordkeeper, to: RECORDKEEPER FOR ▇▇▇▇▇▇▇▇▇'▇,
INC. CHANGE IN CONTROL
SEVERANCE BENEFIT TRUST
C/O SUPERVALU INC.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
28. Exhibit "D" to the Trust Agreement is hereby replaced with the names of the
following individuals: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇
29. A new Exhibit "E" is hereby added to the end of the Trust Agreement, as
attached to this Amendment.
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IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned and has been delivered to the Trustee of the Trust on this 31st day
of May, 2006.
▇▇▇▇▇▇▇▇▇'▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Executive Vice President &
General Counsel
---------------------------------
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EXHIBIT "E"
LIST OF MEMBERS OF THE RECORDKEEPER
1. ▇▇▇▇ ▇▇▇▇▇▇
2. ▇▇▇▇ ▇▇▇▇▇▇▇
3. ▇▇▇▇▇ ▇▇▇▇▇
